Majority
A marine policy insured a ship for a voyage from Melbourne to Valparaiso for orders, thence to a loading port on the western coast of South America, and thence to a port of discharge in the United Kingdom.
The ship went from Valparaiso to Lobos, an island from twenty-five to forty miles off the coast of South America and was afterwards lost. In an action on the policy. Bel, that whether or not Lobos was a loading port on the western coast of South America within the policy was a question for the jury, and it not having been submitted to them a new trial was ordered for misdirection.
After judgment application was made to vary or reverse the judg. ment on affidavits showing that the question was submitted and answered.
Mar. 17. Held, that the application was too late, as the court had to determine the appeal case transmitted, and the respondent had allowed the appeal to be argued and judgment rendered without taking any steps to have the case amended.
*PRESENT-Sir W. J. Ritchie C. J. and Strong, Fournier, Henry, Taschereau and Gwynne JJ,
New Brunswick refusing to set aside a verdict for the plaintiff and new trial.
This was an action on a marine policy by which the respondent's ship the " Minnie H. C-erow " was insured for a voyage from Melbourne to Valparaiso orders, thence to a loading port on the western coast of South America and thence to a port of discharge in the United Kingdom
The only material question raised in the case is whether Lobos. an island from twentyfive to forty miles distant from the mainland of South America, is a port of loading on the coast under the policy. At the trial the question as to this was withdrawn from the jury, the judge holding that it was well understood by shipowners in St. John that Lobos was a loading port and would be understood to be included in the provision in the policy, and he directed the jury, as a matter of law, that Lobos was such a port.
The Supreme Court of New Brunswick affirmed the verdict obtained by the plaintiff at the trial. The company then appealed to the Supreme Court Straton for the appellants, refers to McManus v. The Etna Ins. Co. (1) ; Grainger v. Martin ; Deybel's Case (3).
Weldon Q. C. and Palmer for the respondent, cite McManus v. Etna Ins. Co. (1); Stoneham v. The Ocean, Ins. Co. (4).
By the Court.-This was purely a question for the jury, and it not having been left to them there must be a new trial.
Appeal allowed and a new trial ordered. J. Q. B.
Q. B. D.
On a subsequent day Weldon Q. C. moved to vary or reverse the judgment, on affidavits showing that the question had been submitted to the jury and answered "" although by oversight the answer was not in the
E. printed case.
By the Court.-The court must determine an appeal on the case transmitted to it; as no application was made to amend the case before the appeal was argued it is too late now. To grant this motion would necessitate a re-argument of the appeal.
Motion dismissed with costs.
Solicitors for appellants : Gilbert A- Straton.
Solicitors for respondent: Weldon, McLean 4 Devlin.
-:o:- Unreported Cases Decided Since the Issue of Cassels's Digest in.1886, STUART v. MOTT.
May 17.
Partnership-Interest in Mine-Agreement as to-Evidence. Beld, affirming the judgment of the Supreme Court of Nova Scotia, that in a suit for a bhare of the profits of a gold mine where the plaintiff relied on an agreement by the defendant for a transfer of a portion of tie latter's interest in such mine for valuable consideration, the evidence was not sufficient to establish a partnership between the parties in the working of the mine and the suit was dismissed.
THE GREAT WESTERN INS. CO. v. JORDAN. June 22. Marine insurance-Loss from detention by ice-Perils insured against-Ordinary perils of the seas.
A vessel on her way to Miramichi, N. B. was chartered for a voyage from Norfolk, Vir., to Liverpool with cotton. She arrived at Miramichi on November 25th and sailed for Norfolk on the 29th. Owing to the lateness of the season, however, she could not get out of the river and she remained frozen in the ice all winter and had to abandon the cotton freight.
Held, reversing the judgment of the Supreme Court of New Brunswick (1), Henry J. dissenting, that the loss occasioned by the detention from the ice was not a loss by " perils of the seas" covered by an ordinary marine policy.
WOODWORTH v. DICKIE.
Action on bail bond-Alteration of after execution-Proof of- Form of bond.
Oct. 26. In an action on a bail bond the defence was that it had been altered after execution, and that it was not in the form required by the statute.
Held, affirming the judgment of the Supreme Court of Nova Scotia (2) that the defendant having refused to call the attesting witness to the bond, who was their counsel in the case, the defence as to the alteration, alleged to be in the attestation clause, could not succeed.
(1) 24 N. B. Rep.
(2) 19 N. S. Rep. 96.
Held also, that the objection as to be the form of the bond being merely technical and unmeritorious, could not be taken for the first time before this court.
MUIRHEAD v. SHIRREFF.
Appeal-Death of party-Suggestion-Judgment nunc pro tunc- Solicitor -Authority to bind client.
N Nov. Where the losing party in a suit died after verdict and before judgment on a rule for a new trial, and judgment nunc pro tunc was entered, by order of a judge, as of a day prior to his death and a suggestion of the death entered on the record, the court refused to quash an appeal by his executors.
Held, affirming the judgment of the Supreme Court of New Brunswick (1) that a promise of indemnity to the sheriff by an attorney is binding on his client where the attorney had the conduct of the suit in the course of which such promise was made and the subsequent acts of the client showed that he had adopted the attorney's proceedings.
SCOTT v. BENEDICT.
Vendor's lien-Sale of land-Notice.
Nov. 8. W. S. agreed to transfer his timber limits to W. A. S. in case the latter should, within two years, pay off a mortgage to R. and other liabilities, and in case W. S. was obliged to pay any of such liabilities he was at liberty to sell such portion of said limits as would recoup him. At the same time W. S. wrote to R. authorising him to transfer to W. A. S. said lands which he held as security on payment of h:s claim.
R. assigned his claim and the limits to B. who, by agreement with W. A. S. and the executors of W. S. continued to carry on the lumber business formerly owned by W. S. certain of the liabilities of W. S. not having been paid his estate claimed a vendor's lien on such limits, and relied on the letter to R., and on notice to an attorney who prepared the agreement with B. to establish notice of such lien in B. Held, affirming the judgment of the court below, that even if such lien existed B. could not be said to be affected with notice of it. McG-REEVY v. THE QUEEN.
Petition of right-46 Vic. ch. 27 (2)-Appeal to Supreme Court of Nov. 8. The provisions of the Supreme and Exchequer Courts acts relating to appeals from the Province of Quebec, apply to cases arising under the Petition of Right Act of that Province, 46 Vic. ch 27.
(1) 25 N. B. Rep. 196.
THE ATTORNEY GENERAL OF ONTARIO v. THE NoV. 2.
ATTORNEY GENERAL OF CANADA. Statement of claim in Excheqter Court-Insufficiency of- Appeal to Exchequer Court from order of judge in chambers.
A statement of claim was filed by the Attorney General for the Province of Ontario in the Exchequer Court of Canada, praying " that it may be declared that the personal property of persons domiciled within the Province of Ontario, dying intestate and leaving no next of kin or other person entitled thereto other than Her Majesty, belongs to the province or to Her Majesty in trust for the province."
The Attorney General for the Dominion of Canada in answer to the statement of claim made prayed that "it be declared the personal property of persons who have died intestate in Ontario since confederation, leaving no next of kin or other person entitled thereto except Her Majesty, belongs to the Dominion of Canada, or to Her Majesty in trust for the Dominion of Canada."
No reply was filed, and on an application to Mr. Justice Gwynne in chambers for a summons for an order to fix the time and place of trial or hearing, the summons was discharged on the ground that the case did not present a proper case for the decision of the court. A motion was then made before the Exchequer Court, Sir W. J. Ritchie, presiding, by way of appeal from the order of Mr. Justice Gwynne, for an order to fix the time and place of trial. The motion was dismissed without costs, on the ground that he was not prepared to interfere with the order of another judge of the same court.
On appeal to the full court,
Held, affirming the decisions appealed from, that the pleadings did not disclose any matter in controversy in reference to which the court could be properly asked to adjudge, or which a judgment of the court could affect.
ARPIN v. THE QUEEN.
Dc7
Appeal-Questions of fact.
Where a judgment appealed from is founded wholly upon questions of fact the Supreme Court of Canada will not reverse it unless convinced, beyond all reasonable doubt, that such judgment is clearly erroneous.
Judgment of the Court of Queen's Bench for Lower Canada, appeal side, affirmed.
McMILLAN v. HEDGE.
bee 7.
Servitude-Aggravation of-Art. 558 0. 0.
On the 26th March, 1853, one G. L. by deed of sale granted to P.
In 1882 Mc f., having acquired the dominant land, built a coal oil refinery and warehouses thereon. In the course of his trade he had several heavy carts making three or four trips a day through this passage leaving the gates open, and in addition to his own carts most of the coal oil dealers of the city of Montreal, wholesale and retail, were supplied there with their own carts. At the time of the grant the land was used as agricultural land. Beld, affirming the judgment of the Court of Queen's Bench for Lower Canada Henry J. dissenting, that the passage could not be used for the purposes of a coal oil refinery and trade, as McM. thereby aggravated the servitude and rendered it more onerous to the servient land than it was when the servitude was established. Art. 558 C. C.
MARSHALL v. MUNICIPALITY OF SHELBURNE. Cnus probandi-Action on bond-Execution of bond-Seal. Feb. 15. In an action on a bond against the sureties of the defaulting clerk of the Municipality of Shelburne, the defence raised was that the bond was not executed by them as it had no seals attached when the sureties signed it.
Beld, affirming the judgment of the Supreme Court of Nova Scotia (2), Henry J. dubitante, that the plaintiffs had proved a prima facie case of a bond properly executed on its face, and as the defendant had not negatived the due execution of the bond, it being quite consistent with his evidence that it was duly executed, the onus of proving want of execution was not thrown off the defendant, and as neither the subscribing witnesss nor the principal obligor was called at the trial to corroborate the evidence of the defendant, plaintiffs were entitled to recover. THE QUEEN v. HUBERT.
Awoard of oplcial arbitrators-Inclusive of past and future damages.- Appeal-42 Vic. ch. 8.
On a reference being made to the official arbitrators of certain claims made by one H. against the government for damages arising out of the enlargement of the Lachine Canal to land situated on said canal, the arbitrators awarded H. $9,216 in full and final settlement of all claims. On an appeal taken to the Exchequer Court by H. (Taschereau J. presiding) this amount was increased to .
$15,990, including $5,600 for damages caused to the land from 1877 to 1884 by leakage from the canal since its enlargement, (1) M. L. R. 1 Q.
(2) 19 N. S. Rep. 171.
and the judge reserved the right to H. to elaim for future damages from that date. On appeal to the Supreme Court of Canada it was:
Held, 7eversing the judgment of the Exchequer Court and confirming the award of the arbitrators, that it must be taken that the arbitrators dealt with every item of H.'s claim submitted to them and included in their award all past, present and future damagea, and that the evidence did not justify any increase of the amount awarded.
Gwynne J. was of opinion that under 42 Vic. ch. 8 sec. 38 the Supreme Court had power (although the crown did not appeal to the Exchequer Court) to review the award of the arbitrators, and that in this case $1,000 would be an ample compensation for any injury that the claimant's land can be said to have sustained, which upon the evidence can be attributed to thework of the enlargement of the canal.
WALSH v. HEFFERNAN.,
Appeal-Quo warranto-Jurisdiction.
An appeal from a decision of the Court of Queen's Bench for Lower Canada, appeal side was quashed on motion for want of jurisdiction, the proceedings being by quo warranto as to which there is no appeal by the statute.
L'ASSOCIATION PHARMACEUTIQUE DE LA PRO- Mar.14.
VINCE DE QUEBEC v. BRUNET.
Quebec Pharmacy Act (Q.) ch. 36 sec. 8-Construction of partnership contrary to law-Alandamue.
Held, affirming the judgment of the Court of Queen's Bench for Lower Canada (2), that section 8 of 48 Vic., ch. 36 which says that all persons who, during five years before the coming into force of the act, were practising as chemists and druggists in partnership with any other person so practising, are entitled to be registered as licentiates of pharmacy, applies to respondent who had, during more than five years before the coming into force of the said act, practised as chemist and druggist in partnership with his brother and in his brother's name, and therefore he (respondent) was entitled under section 8 to be registered as licentiate of a pharmacy.
PARISH OF ST. CESAIRE v. McFARLANE. Municipal debentures-Future conditions-Municipal code, Art. 9S2. Mar. 14. Held, affirming the judgment of the Court of Queen's Bench for Lower Canada (3) that a debenture being a negotiable instruifient, a railway company that has complied with all- the condi- (1) M. L R. 2 Q.
(2) M.L. R, 2 Q. B. 362. (3) M.-L R. 2 Q. B. 160.
APPENDIX.
tions precedent stated in the by-law to the issuing and delivery of debentures granted by a municipality is entitled to said debenture, free from any declaration on their face of conditions mentioned in the by law to be performed in future, such as the future keeping up of the road, etc. Art. 962 Municipal Code. Fournier J. dissenting.
DILLON v. THE TOWNSHIP OF RALEIG-H... .itoppel--Action by ratepayer-Improper construction of -nunici. Mar. 15. pal sork-Ratepayer a contractor-Acceptance of surplud money.
A ratepayer of a municipality cannot maintain an action, on behalf of himself and the other ratepayers, against the municipality for the improper construction of a drain authorized by by-law when such ratepayer has himself been a contractor for a portion of the work and has received his share of the money voted for the work in excess of the amount expended.
Judgment of the Court of Appeal for Ontario (1) affirmed.
DOULL v. McILREITH.
Alaster's report-Excess of authority.
May 2. A decision of the Supreme Court of Nova Scotia (2), confirming the report of a moster on a reference, reversed on the ground that the master had exceeded his authority and reported on matters not referred to him.
PLUMB v. STEINHOFF.
'itle to land -Old grant-Starting point to define metes and bounds- June 20. How ascertained.
in-an action of ejectment the question to be decided was whether the locus was situate within the plaintiffs lot No. 5, in concession 18, or within defendant's lot adjoining No: 24, in concession
The grant through which the plaintiffs title was originally derived gave the southern boundary of lot 5 as a starting point, the .course being thence eighty-four chains more or less to the river. The original surveys were lost, and this starting point could not be ascertained.
Held, affirming the judgment of the Court of Appeal for Ontario (3), Strong and Taschereau JJ. dissenting, that such southern boundary could not be ascertained by measuring back exactly 84 chains from the river.
(1) 13 Ont. App. R. 53. -
(2) 19 N. S. Rep. 341.
(3) Ont. App. R. 788.
June 20. Trespass-Disturbing enjoyment of right of way- User-Easement. E. and B. owned adjoining lots, each deriving his title from S. E. brought an action of trespass against B. for disturbing his enjoyment of a right of way between said lots and for damages. T he fee in this right of way was in S., but E. founded his claim to a user of the way by himself and his predecessors in title for upwards of 40 years. The evidence on the trial showed that it had been used in common by the successive owners of the two lots.
Held, affirming the judgment of the Supreme Court of Nova Scotia (1), Ritchie C. J. and Gwynne J. dissenting, that as E. had no grant or conveyance of the right of way, and had not proved an exclusive user, he could not maintain his action.
MOONEY v. McINTOSH.
Ju
20. Trespass-Title to land-Boundaries-Easement-Agreement at trial -Estoppel.
In an action for damages by trespass by Mcl. on M's. land and by closing ancient lights defendant claimed title in himself and pleaded that a conventional line between his lot and the plaintiffs had been agreed to by a predecessor of the plaintiff in title. On the trial the parties agreed to strike out the pleadings in refer. ence to lights and drains and to try the question of boundary only.
Held affirming the judgment of the Supreme Court of Nova Scotia, (2), Ritchie C.J. and Gwynne J. dissenting, that independently of the conventional boundary claimed by the defendant the weight of evidence was in favor of establishing a title to the land in question in the defendant and -the plaintiff could not recover, and that by the sgreement at the trial the plaintiff could not claim to recover by virtue of a user of the land for over 20 years. Semble, that if it was open to him such user was not proved.
DUFFUS v. CREIGHTON.
Sheriff-Action against-Execution of writ of attachment-Abasdonment of seizure-Estoppel.
A writ of attachment against the goods of M. in the possession of S. was placed in the sherift's hands and goods seized under it. After the seizure the goods, with the consent of the plaintiff's solicitor, were left by the sheriff in charge of S., who undertook that the same should be held intact. The sheriff made a return to the writ, that he had seized the goods. The sheriff subse- (1) 1 N.
S Rep 222.(2)
90.S e.49
(1) N. Rep.'222.
(2) Rep. 410.
A -quently seized the goods under execution of the creditors. an action against the sheriff.
Beld, reversing the judgment of the Supreme Court of Nova Scoti, that the act of leaving the goods in the possession of S. was not an abandonment by the plaintiff's solicitor of the seizure, and if it was the sheriff was estopped by his return to the writ from raising the question.
Held, also, that the act of plaintiff's solicitor acting as attorney for S. in a suit connected with the same goods was not evidence of an intention to discontinue proceedings under the attachment.
SNOWBALL v. RITCHIE.
Boundary-Disputes as to-Reference to Surveyors-Duties of sur- Feb. 28. veyors under.
R. who held a license from the Government of New Brunswick to cut timber on certain crown lands, claimed that S. , licensee of the. adjoining lot, was cutting timber on his grant, and he issued a writ of replevin for some 800 logs alleged to be so cut by S. The replevin suit was settled by an agreement between the parties to leave the matter to surveyors to establish the line between the two lots, the agreement providing that the lines of the land held under said license (of R.) should be surveyed and established by (naming the surveyors) and the stumps counted, etc., Beld, reversing the judgment of. the Supreme Court of New Brunswick (1) that under this agreement the surveyors were bound to make a formal survey, and could not take a line run by one of them at a former time as the said boundary line.
CITY OF MONTREAL v. LABELLE.
Damages-Art. 1056 C. C. - Solatium - Cross appeal-Notice. Mar. 2. In an action for damages brought against the corporation of the city of Montreal by Z. L. et al, the descendant relations of L. who was killed driving down St. Sulpice street, alleged to have been at the time of the accident in a bad state of repairs, by being thrown from the sleigh on which he was seated against the-wall of a building, the learned judge before whom the case was tried without a jury granted Z. L. et al. $,000 damages on the- ground that they were entitled to said sum by way of solatium for the bereavement suffered on account of the premature death of their father.
Held, reversing the judgment of the Court of Queen's Bench for Lower Canada, appeal side, that the judgment could not be aflrmed on the ground.of solatium, and as the'respondents had not filed a cross appeal to sustain the verdict on the ground that (1) 26 N.
e-ailcintevidee of. apeupi&ry- loss for Vhic-pompensation could be claimed, Z. L. et al's action must be dismis- .- sed with costs (1).
POITRAS v. LEBEAU.
Mar. 15. Aotion-Right of-Malicious prosecution-Favorable termination of. Where a party pays under protest a penalty imposed upon him by a justice of the peace in proceedings taken against -him under the provisions of ch. 22 of the Consolidated Statutes of Lower Canada, "An act respecting good order in and near places of pfiblic worship," and such party afterwards brings an action in damages against the person, whom he alleged. had maliciously instigated such proceedings, and at the trial before-ajury .there is no evidence of the favorable termination of the prosecution against him, the court were equally divided as to the right of such party to maintain his action.
Sir W. J. Ritchie C.J. and Strong and Taschereau JJ. were of opinion that the action could not be maintained under such circumstances, and Fournier, Henry and Gwynne JJ. contra. The appeal was in consequence dismissed without costs.
M0'
EARA v. THE CITY OF OTTAWA; Mar. 15.
Aunicipal ly-lawo-Sale of meat- Quan tity-Time and .place- License.
Sec.603,-sub-sec. 5 of the Municipal Act of 1883 empowersathe council of a municipality to regulate the place and.manner of selling meat, subject to the restrictions in the five next precoding,seotions. Sec. 497 authorizes the sale after certain houre at places other than the market of any commodity which has been offered for sale in the market.
d4, affirming the judgment of the Court of Appeal for Ontario Strong and Taschereau JJ. dissenting, that by-law No. 629 of the city of Ottawa requiring everybody offering fresh meat for. sale . in the city to take out a license, and providing that .no meat -should be sold in any place except the stalls of the different city markets, was a valid by-law and within the power of ti city council.to pass.
-Hld, per Strong and TaschereauJJ, that those portions of the bylaw fixing-the places at which fresh meat should be sold - and prohibiting its Fale elsewhere, are ultra vires of the city council .under the said sections of the Municipal Act,
The Ontario Act 50 Vic. ch. 29 sec. 29 passed since this decision has now settled the law on this subject.
(1) See Can. Pac. Ry. (o. v. Robinson ante p. 105. DICKSON v. KEARNEY.
itle td land-Dedication - Public highway-Expropriation-Pre- June 14. sumption-Us-r.
K. brought an action for trespass to his land in laying pipes to carry water toapublic institution. The land had been used as a pub. lic highway for many years and there was an old statute autho*ising its expropriation for public purposes, but the records of the municipality which would contain the proceedings on such expropriation, if any had been taken, were lost.
Beld, reversing the judgment of the Supreme Court of Nova Scotia (1) that in the absence of any evidence of dedication of the road it inust be persumed that the proceedings under the statute were rightly taken and K. could not recover
BICKFORD v. CANADA SOUTHERN RAILWAY CO.
Contract for hire-Agreement to purchase railway-Rolling stock- Appeal.
B., the contractor for building the E. & H. Railway, and, practically, the owner thereof, negotiated with the solicitor of the C. S. IL for the sale to the latter of the E. & H. Railway when built. While the negotiations were pending B. went to California, and the agents who looked after the affairs of the E. & H. Railway in his absence applied to the manager of the C. S. R. for some rolling stock to assist in its construction. The manager of the C. S. R. was willing to supply the rolling stock on execution of the agreement for sale of the road which was communicated to B., who wrote a letter to the manager in which the following passage occurred: " If from any cause our plan of handing over the road to your .company should necessarily fail, you may equally depend on being paid full rates for the use of engine and cars and any other assistance or advantage you may have given Mr. Farquier (the agent)."
The negotiations for the purchase of B.'s railway by the C. 8. R. having fallen through, an action was brotight by the latter company against B. and the E. & H. Railway for the hire of the rolling stock which was resisted by B. on two grounds, one that the rolling stock was supplied in pursuance of the negotiations for the sale of his road to the plaintiffs which had fallen through by no fault of B. and the other, that if the plaintiffs had any right of action it was only against the E. & H. Railway and not against him.
By consent of the parties the matter was referred to the arbitration of a County Court Judge, with a provision in the submission that (1) 20 N, S. Rep. 95.
the proceedings should be the same as on a reference by order of the court, and that there should be a right of appeal from the award as under R. S. 0. ch. 50 sec. 189.
The arbitrator gave an award in favor of the plaintifft; the Queen's Bench Divisional Court held that there was no appeal from the award on the merits, and as it was regular on its face refused to disturb it; the Court of Appeal held that there was an appeal on the merits but upheld the award.
The defendants then appealed to the Supreme Court of Canada.
Held, affirming the judgment of the Court of Appeal that the arbitrator was justified in awaraing the amount he did to the plaintiffs, and that B. as well as the company was liable therefor. ABANDONMENT-Of seizure under writ attachment-Return-Estoppel
ACCEPTANCE-Non-acceptance of goods-Re- ACCOUNT-Liability to account
- 2-Settlement mandator and mandatary of formality-Legality-Remedy for error - - - - - - ACTION-Against Sherif-Execution of writ of attachment-Abandonment of seizure-Estopped.] against
M. in the possession of was placed the sheriff's hands and goods seized under it.
After the seizure the goods, with the consent of the plaintiff's solicitor, were left the sheriff charge of who undertook that the same should held intact. The sheriff made a return to the writ that had seized the goods. The sheriff subsequently seized the goods under cution of the creditors. In an action against the sheriff. Held, reversing the judgment of the
Supreme Court of Nova Scotia, that the act leaving the goods in the possession of was an abandonment the plaintiff's solicitor the seizure, and if it was the sheriff was estopped his return to the writ raising the ques- Held, also, that the act of plaintiff's solicitor acting attorney for in a suit nected with the same goods was not evidence of an intention to discontinue proceedings under the attachment. Durrus
Right of-Malicious prosecution-Favoratermination a party pays under protest a penalty imposed upon a justice of the peace in proceedings taken against under the provisions of of the Consolidated Statutes of Lower Canada, " An act respecting good order in and near places of public worship," and such party afterwards brings action damages against the person whom alleged had maliciously instigated such proceedings, and at the trial a jury there evidence of the favorable termination of the secution against the -court equally divided as to the right of such party to maintain his action.
Sir W. J. Ritchie J. and Strong and Taschereau JJ., were of opinion that the action could not maintained under such circumstances, and Fournier, Henry and Gwynne
JJ. contra. The appeal was consequence missed without costs.
3-Survival of-Suit by commanding oicer of militia-31
. 27-36
- - - -- 4-For injury land-Access-Navigable river
---- En reformation compte-Mandator and mandatary
---- - Against municipalities-Ratepayers-Etoppel
- - - -- ADMINISTRATRIX-Right of to proceedings brought a commanding for expenses of of militia servitude
1,
AGREEMENT-For transfer of interest in mine For sale of railway-Bire of rolling stock - - - - APPEAL-Direct from 'Equity Court-R. c. s. 26-Special circumstances-Practice -Tudgment of Privy Council-Rule of court- Repayment costs.] An appeal came the Supreme Court, consent, from a decision of the Judge in Equity of Brunswick without an intermediate appeal to the Supreme Court of the Province and, after argument, was dismissed.
Can. S.C.R.
The judgment the Supreme Court was subsequently reversed the Privy Council and the case sent back the Judge Equity to make a decree. The plaintiffs being dissatisfied with the decree pronounced the Judge in Equity applied, under R.S.C. for leave to appeal direct therefrom. Held, Taschereau and Gwynne JJ. dissenting, that under the circumstances of the case such leave should granted.
Where judgment of the Supreme Court Canada has reversed the Privy Council, the proper manner of enforcing the judgment the Privy Council obtain order making [S. C. R. VoL. XIV. APPEAL-Continued.
it a rule of the Supreme Court of Canada.
Where such judgment of the Privy Council was made rule of court the court ordered the repayment of the parties of received pursuant to the judgment reversed.
-- -- - 2-Death party- Suggestion - Judgmtnt vunc pro tu"c-Solicitor- Authority to bind client.] Where the losing party in suit died after verdict and before judgment rule a new trial, and judgment nune pro tunc entered, order of judge, of a prior to his death and a suggestion of death entered the record, the court refused to quash appeal his executors.
Held, the Supreme Court of
Brunswick Rep. that.a promise indemmity the sheriff an attorney binding his client where the attorney had the conduct of the suit in the course of which promise was and the subsequent acts of the client that had adopted the attorney's proceedings.
3-Petition of right-46
27-Appeal Supreme Court Can" da.] The provisions the Supreme and Exchequer Courts
Acts relating to appeals the Province apply to cases arising under petition
Right Act that Province,
From order in chambers-Statement claim in Exchequer Court-Insufficiency of- Appeal Exchequer Court from order of judge in chambers.] statement of claim was the Attorney General the Province
Ontario in the Exchequer Court Canada, prayng. "that it may declared that the personal property of persons domiciled within the' Province of Ontario dying intestate and leaving no next of kin person entitled thereto, other than Her Majesty, belongs the province Hr trust the pro..
vince " Attorney General for the
Canada answer the statement of claim made prayed that " itbe declared that the personal property of persons have died intestate
Ontario since confederation, leaving or other persons entitled thereto except belongs to the Dominion of Canada, in trust for the reply was and an application Justice Gwynne in chambers order the time and place trial hearing, the was discharged the ground that the not present a proper the decision the court. motion was then made the Exchequer Court,
W.J. Ritchie presiding, way of appeal the order Justice Gwynne, for order the time and place trial. The motion was dismissed without the ground that was not prepared to interfere with the order another judge of the court.
appeal to full court, Bell, affirming the decisions pealed that the pleadings did not disclose
APPEAL-Continued.
any matter in controversy in reference to which the court could properly asked adjudge, which judgment court Appeal-Question offact.]
Where a judgment appealed from founded wholly upon questions of fact the Supreme Court of Canada will not reverse it unless convinced, beyond reasonable doubt, that judgment clearly erroneous. Judgment the Court of Queen's Bench Lower Canada, appeal side, 6-Quo warranto-Jurisdiction.] An appeal a decision of the Court of queen's Bench Lower Canada, appeal 2 was quashed motion want ofjurisdiction, the proceedings being quo warra'to which there appeal the statute. 7-Election petition-Order judge trial-Jurisdiction
8-Trial of election petition-After six months from filing-Extension-Ruling trial judge to-Jurisdiction
9---From judgment interpleaddr issue 10-Technical and unsubstantial objection 524 11-Defective on-Application for re-hearing
- -- --- APPLICATION-For insurance - Declaration Warranty
3-For life insurance-Intemperate habits- Warranty against-Increasr of risk
ASSEMBLY - Legislative -Election to-Dis- ASSESSMENTS and assessments--Municipality of County of Halifax-School rates in- Liabilety Town of Dartmouth to contribute to -Assessing present ratepayers for rates of previous year- -Jurisdiction to order writ
Held, Ritchie dissenting, that Town Dartmouth not liable to contribute to the assessment for the support the municipality the County of Halifax. Held, also, that if so liable writ of mandamus could not issue to the payment of such contribution as the amount of the same would Held,
2-Railway bridge and railway track-Assessments of-Illegalb--40 and
-Injunction - Proper remedy - Extension town limits middle of a navigable river-Intra vires of local legislature-43-44 P.Q.
-Held,
JJ.
illegal and void and that a writ injunction proper remedy enjoin the corporation desist all proceedings to enforce the same.
As to whether the clause the act of incorporation of town of St. Johns, P.Q., extending the limits town the middle
Richelieu, navigable river, intra viAs the legislature of the Province of Quebec, the
Supreme Court Canada the holding of the court below that it intra vires.
Sale of land for payment of debts of estate-- Validity of
- --- 2-Of Corporation property-Por of creditors-Powers
AUCTION-Sale of land by-Unknown quantity arbitrators-Appeal from
BANK-Winding
2-Misconduct of cashier-Sanction of directors-Dealings in stock-Liability sureties cashier
- -- --- BILL OF LADING-Terms of contract-Carriage several lines-Deliveoy of goodscarriers surety-Execution of-Alteration- Proof -- --- How
Starting point - - - - - - 2-Conventional-Evidence
3-Reference surveyors-Duties of surveyors under - - - - - - - Subsidy ----- - ACT-Sec. *
BY-LAW-Municipal by-law-Sale meat- Quantity-Time and place-License.] strictions in the next preceding sections. authorizes sale after certain hours any commodity which has sale the market at places other than the market. Held, affirming the judgment the Court Appeal Ontario, Strong and Taschereau JJ. dissenting, that by-law the city of Ottawa, requiring everybody offering meat sale in the city take out a and providing that meat should any place except the stalls of the different city markets, was valid by-law and within the power the city council to Held, per Strong Taschereau JJ., that those portions of the law fixing the places at which meat should and prohibiting its sale elsewhere, are ultra vires the city council under the said sections of the Municipal Act,
The Ontario Act passed since this decision has settled the law this subject.
CALLS-On stock-Actionfor-Subscription fore incorporation - - - - - CASES-Doe Kerr 2-Lewin Howe (9 Can. R. 722 3-McCall
Wolf Can. S. R. [S. C. R. VoL. XIV. CASES-Continued.
4-Ontario Bank Wilcox Q.
distinguished - - - - - CIVIL OF PROCEDURE-Arts.
- - - - - - - CIVIL -Art. - Art. - - - - - 3-Arts.
COMMANDING OFFICER- 0f Militia-Suit by-Death p nding suit-Survival ofaction
CARRIERS-Contract for several-Bills of lding-Terms of contract- Custody of goods-Delivery-Neglignce.J
D. through contracted with carry quantity butter from London,
Ontario, to England, and bills of lading were signed describing himself as agent severally but not jointly, for the Ry. the
M. D. and the named carriers therein.
The Ry. were to carry the goods London to Suspension
Bridge, the M. from the Suspension
Bridge York, and it was then livered to the for carriage to England.
It was provided one clause in the bill of lading that if damage was caused to the during transit the sole liability was company having the custody thereof at the time of damage occurring.
The butter was carried to York, where it was taken the car and placed in lighters owned the to conveyed to the steamer " Dorset "
belonging the arriving at the pier the steamer lay, the lighter could get near enough unload, and the stevedore in charge of the steamer bad it towed across the river with instructions for it to remain until sent The " Dorset" sailed without the butter, which sent another steamer of the days later. The butter was damaged the heat while the lighter. Beld, affirming judgment of the court below, that the M. having made through tract for the carriage of the goods, they were
CARRIERS-Continued.
liable to for the damage, and even under the bill lading not relieved from liability, as the butter was never delivered to, and received the but the custody the D. when the damage occurred. Contract to carry passenger
CONDITION-In policy-Increase of risk- Violation- ---- CONDITIONS-Precedent right ofentry - 254 IN DEED-Evidence price
---- -- CONTRACT-For hire-Agreement purchase railway-HRolling stock.]
the contractor for building the & Railway, and, practically, the owner thereof, negotiated with the solicitor of the the sale the latter the E. & Railway, when built. While the negotiations pending went to California, and the agents looked after the affairs of the & Railway absence, applied the manager the U. rolling stock assist in its construction. manager of the willing to supply the rolling stock execution of the agreement for sale of the road which was communicated to wrote a letter to.the manager, which the following passage occurred: "If from any cause our plan of handing the road your company should necessarily fail, you equally depend being full rates for the engine and cars any other assistance or advantage may have given Farquier (the agent)."
The negotiations the purchase B.'s railway the C.S.R. having fallen through, an action was brought the latter company against and the & Railway for the hire of the rolling stock, which was sisted two grounds, one that the rolling stock was supplied pursuance of the gotiations for the sale of his road to the plaintiffs which had fallen through fault of B. and the other, that if the plaintiffs had any right action it was only against the & Railway, and not against consent of the parties the matter referred the arbitration of a County Court Judge, with a provision the submission that the proceedings should the as a reference order of the court, and that there should a right of appeal the award under 0., arbitrator gave an award favor the plaintiffs; the Queen's Bench Divisional Court held that there was no appeal from the award the merits, and it regular its refused to disturb it; Court of Appeal held that there was an appeal the merits, but upheld TNDEX.
CONTRACT-Continued.
the award. The defendants then appealed to the Supreme Court of Canada. Held, affirming the judgment of the Court of Appeal, that the arbitrator was justified awarding the amount to the plaintiffs, and that as well the company, was liable therefor.
of insurance - Basis of- Declaration assured-Warranty
3-For carriage of goods-By of carriers-Through contract over different lines- Bill of lading-Custody of goods-Negligence- Delivery- - -- - 4-Resission of
WITH CROWN-Enjoying and holding an interest under a contract with the crown-What
CONTROVERTED ELECTIONS
COPYRIGHT-Infringement of-Sources of information-Statutory form of notice publisher a work containing biogcaphical sketches cannot copy them a copyrighted work, even where hls applied to subjects of sketches and been referred the copyrighted work therefor.
In works of this nature where much may taken different publishers from sources and the information given must in the words, the courts will careful not to restrict the right of another, if obtains the information from merely copy from the work of the other that which has been the result of the latter's skill and diligence.
The notice of copyright to inserted in the title page copyrighted work sufficient if it substantially follows the statutory form.
Therefore the omission the words " of Canada" such not fatal defect, and, even if a defect, such defect removed 7 sub-sec. the Interpretation Act.
Depositing the of the
Minister of Agriculture of a book containing notice of copyright the copyright has granted not invalidate the when granted.
CORPORATION-Corporation-Powers of directors-Assignment for b-nefit creditors-Description of property- Change of posession-R.
c. s. 5-1nterpeader issue-Appealfrom
Judgment on.] The decision of judge of the
Court of Justice (which the
Judicature Act is the decision of the court)
an interpleader issue to try the title to property taken under execution a final judgment the suit which it is issued, not an interlocutory order within the meaning of that expression of the Judicature Act, or if it it is such an order was appealable before the passing that act and in either it appealable now. assignment the directors of joint stock company of all the estate and property of the company to trustees the benefit of creditors not ultra vires of directors, and require special statutory authority or the formal assent of the whole body 9f shareholders. Is such an assignment within the provisions of the Chattle Mortgage Act of Ontario, R.S 0. ? Where such an assignment was made, and the property was formally handed over the directors to the trustees, who possession and subsequently advertised and the property under the deed assignment. Beld, that if the assignment did within the terms of the act its provisions were plied with, the deed being duly registered and there being actual and continued change possession as required section In such of assignment the property was described " all the real estate, lands, tenements and hereditaments the said debtors (company) whatsoever and wheresoever, of or to which they are now right the schedule hereto, and all and singular the personal estate and stock in trade, goods, personal estate, and whatsoever and wheresoever, whether upon the premises where the debtors' business carried elsewhere, and which the said debtors are possessed of entitled to any way whatever.
The schedule annexed specifically designated the real estate and included the foundry, erections and buildings thereon erected, and all articles such as that this was a sufficient description of the proof R.S.O. c. McCall Woff Can. S. approved and distinguished. But now passed this was decided.
Liability of for injury to passenger ferry under con!rol of---- -- 1 624,650 COSTS-Repayment of-Judgment of Privy Council
- - - - of-Judgment of Privy Council- Practice
- --- CROWN GRANT-47 B.C.- Etfect of-Provincial Crowngrant-Illegality section of the Order Council, admitting the Province of British Columbia into confederation, British Columbia agreed to convey to the
Dominion Government, trust, to appropriated such manner the Dominion Government might advisable furtherance of the construction the Canadian Pacific
Railway, an extent of public lands along the line of railway.
After certain negotiations the governments of Canada and British Columbia, and order to settle all disputes, agreement was entered into, and the
December, legislature of British
Columbia passed the statute which it was enacted inter alia follows:- '' From and after the passing of this act there
" shall and there hereby, granted to the
" Dominion Government for the purpose of structing and aid the construction of the portion the Canadian Pacific Railway
" the main land British Columbia, trust, to appropriated as the Dominion Government deem advisable, the public lands along line railway before mentioned, wherever
"it finally located, to a width twenty miles each side said line, provided the Order Council section admitting
"the Province British Columbia into federation.
the 20th November public notice the Government of British bia reserved belt of land of miles width along line way of River Pass.
November, the respondent in order to comply with the provisions of the provincial statutes, a survey a certain parcel land, situate within the said belt of miles, and the survey having finally accepted
January, letters. patent under the great seal of the Province were issued to F.
land question.
The Attorney General
Canada information of intrusion sought to recover said land, and the Exchequer Court having dismissed the information with costs, appeal to the Supreme Court
Canada, it was:-Hleld reversing the judgment of the Exchequer Court, Henry J. dissenting, that at the date of the grant the Province
British Columbia had ceased have any terest in the land covered said grant and that the title to the was the crown the and benefit of Canada..
DAMAGES-Misdirection as solatium-New
Trial-Art. C.
In an action of
Ages brought death of a person the
DAMAGES-Continued.
consort and relations under art. which a re-enactment and reproduction Stat. damages way solatium the bereavement suffered cannot recovered.
Judgment of the court below reversed and new trial ordered.
2-Atard of official arbitrators-Inclusive of past and future damages-42 a reference being made to the arbitrators of certain claims made one H. against the government damages arising of the enlargement the Lachine Canal land situated said canal, the arbitrators awarded in full and final settlement of all claims.
appeal taken to the Exchequer Court (Taschereau J. presiding) this amount was increased to including damages to the land to leakage the canal since its largement, and the judge reversed the right to claim for' future damages that date. an appeal taken to the Supreme Court Canada it was, Held, reversing the judgment of the Exchequeur Court and confirming the award of the arbitrators, that it must taken that the arbitrators dealt with every item of H.'s claim submitted to them and included their award all past, present and future damages, and that the evidence did not justify increase the amount awarded.
Gwynne J. was of opinion that under 8 the Supreme Court had power (although the crown did not appeal to the Exchequer Court) to review the award of the arbitrators, and that this would ample compensasaid to have sustained, which upon the evidence can attributed the work the enlargement of the canal.
3-Damages-Art.
0. C.-Solatiumagainst the corporation of the city of Montreal by the descendant relations of who was killed driving down St. Sulpice street, alleged have been at the time the accident bad state of repairs, being thrown the sleigh which was seated against the wall building, the learned judge before whom the case was tried without a jury granted damages the ground that they entitled to said way of solatium for the bereavement account the permature death of their father. versing the judgment of the Court of Queen's Lower Canada, appeal side, that the judgment could not the ground of solatium, and the respondents had not a cross appeal sustain the verdict the ground that there was sufficient evidence of a pecuniary loss which compensation could claimed, al's action must dismissed with costs. or DAMAGE-Continued..
byfire from
*6-Aggravation of-Right of access
7-Railway Company-Injury property riparian owner-Diminution in value
0. venant-Breach of-Arts.
t (P. Q..]
The Corporation of the County Ottawa under the authority of a by-law undertook to deliver to the Montreal, Ottawa and Western Railway
Company for stock subscribed them debentures of the corporation of each, payable twenty-five years date and bearing per cent. interest, and subsequently, without any valid cause or reason, refused and neglected issue said debentures.
an action brought the company against the corporation solely damages for their neglect and refusal to issue said debentures.
the court below, that the corporation, apart its liability for the amount of the debentures and interest thereon, was liable under arts.
and damages for breach of the covenant.
(Ritchie
J.
and Gwynne J. dissenting.)
RY.
2- Municipal benturea- Future conditions- Municipal Art. Beld, affirming judgment of the Court of Queen's Bench Lower
Canada (M. .2 Q. that debenture being a negotiable instrument, railway pany that has complied with all the conditions precedent stated in the by-law to the issuing delivery of debentures granted municipality entitled said debentures, any claration their face conditions mentioned the by-law to performed in future, such the future keeping up of the road, etc. Art.
Code.
DECLARATION-In applicationfor insurance- DEED-Execetion of-Action bail bond- Alteration after execution-Proof of-Form bond. In an action bail bond the defence was that it had been altered after execution, and that it was not in the form required the statute.
Held, affirming the judgment ot the.
Supreme Court Nova Scotia that the defendant having refused to call the attesting witness the bond, who was their counin the case, the to the alteration, alleged the attestation clause, could
DEED-Continued.
Held also, that the objection as to the form of the bond being merely technical and unmeritorious, could not taken the first time before this court.
2-Onus probandi-Action bond-Execution of-Seal. sureties of the defaulting clerk the pality Shelburne, the defence raised was that the bond not executed them as it had seals attached when the sureties signed it. Held affirming the judgment of the Supreme Court of Nova Scotia.
Rep Henry J dubitante, that the plaintiffs had proved a primd facie of bond properly executed its and the defendant not negatived the due execution the bond, being quite consistent with evidence that was duly executed, the onus of proving want execution was not thrown the defendant, as neither the subscribing witness nor the principal obligor was called at the trial to corrobor. ate the evidence of the defendant, plaintiffs were entitled recover.
3--Contideration in-Evidence of price - DEFECTIVE CASE-udgment on--Application goods-Through contract for carriage-Negligence
2-ofgoods-Non-acceptance vendee--Rescission property-Assignment for 2-Mar. Ins.-Port coast-Question for jury
- - - - - of ejectment by-Land sold for payment of debts-Validity of sale-Mort- ,gage testator-Statute confirming title DIRECTORS-Of corporation-Pewers of-Assignment for creditors
2-Of bank-Sanction acts of cashier- ,Dealing in stocks-Liability of sureties cashier
- - - -- - DISCRETION-Of
Judge at trial-Appeal from
- ---- Ele'!tion Provincial
ParlIsament-Contract
D'ACCS ET
EASEMENT-Navigation-Interference with- Public navigable waters-Water lots-Crown grantis-Trespass.] was the lessee, under the city Toronto, of certain water lots held the said city under patent the crown, granted in the lease to authority of the patent, and certain public statutes respecting the construction the Esplande which formed the boundary of water lots. Held, affirming the judgment of the court below, that such lease to right build the said lots, subject any regulations which the city had power to and in doing to interfere with the right of the public to navigate the water. Held that the said waters being navigable parts the Toronto, private easement prescription could acquired therein while they remained open for navigaof right of
See 1.
3- Title of land-Boundaries- User - EJECTMENT-Action of, devisee-Sale land to pay debts estate-Validity of sale- Mortgage testator-Assignment of-Statute
PETITION-Election Petition--Sei of Copy-Extenson time-biscretion
Judoe-R.S.C.
An order extending time service of election petition at Ialifax days to days, the ground that the respondent was at Ottawa, a proper order for the judge to make in the exerof discretion under section of
R.S.C.
per Ritchie J. and Henry J., that the court below had power to make rules the service of an election petition out of the jurisdiction.
Per Strong J.-An extremely strong should shown to induce the court, allow an appeal the judgment of the court below preliminary objections.
2-Legislaive Assembly - Disqualification- Enjoying and holding an interest under a tract with the crown- What constitutes-30 Tic.
3 and P.E.1.] commission instrument under the hand and seal of the
Lieutenant Governor of P. one was constituted and appointed ferryman at and a
PETITION-Continued.
certain ferry for the term of three years, pursuant to the acts relating to ferries, and it was by the commission provided that should be paid a subsidy of for each year of said term. E.C. had given to the government bond with two sureties for the performance of his contract articles of agreement between and P. respondent) for valuable consideration assigned P. one-fourth part interest in the ferry contract, and it was agreed that one-fourth part of the net proceeds profits of said contract should paid over the said to the said F. P. or assigns. At the time the agreement was entered into F. P. was a member of the of Assembly P.E.I. having been elected at general election held the 30th June,
Subsequently F. P. was returned member elect for the of Commons for the electoral district Prince County, P.E.I., and upon return being contested.
of the court below, Taschereau J. dissenting, that, the agreement with P. a person holding and enjoying, within the meaning section Vic. P.E.I., a contract agreement with Her which disqualified him and rendered ineligible election to the House Assembly or to sit vote in the and section of the said act, to read with section his seat in the assembly became vacated; and was therefore eligible for election as member of the House Commons.
(P.E.I.) CASE----- - 3-Dominion Controverted Elections Act-R. and 50-Petition-Time, extension of-Appeal--Jurisdiction.)
order in a controverted election case made the court below or a judge thereof not sitting at the time for the trial the petition, and granting rejecting application to dismiss the petition the ground that the trial had not menced within months the time of its presentation, not an order from which an peal will lie to the Supreme Court of Canada under of the Dominion Controverted Elections Act C. c.
Fournier and Henry JJ. (dissenting)
. L'AssounlToN 4-Election petition-Ruling judge at trial -Appeal-Dominion
Controverted Elections Act R. and - Construction of-Time-Extension of-Jurisdiction.] feld, Ist. That the decision of judge at trial of an election petition overruling an tion taken respondent to the jurisdiction the judge to go with the trial the ground that more than six months had elapsed the date of the presentation of the petition, is appealable to the Supreme Court of Canada under R.S.C., Gwynne J. senting.
2nd. In computing the time within which the trial of an election petition shall commenced the time of session of parliament IND.X.
of election - - - - - - PERRY-Under ofcorporation-Negligrunning-Liability ofcorporationjor FIRE-On premises ofrailway company-Caused Damages for
Liability OF-On
FORM-Of requisition calling Militia- Sulciency
2- Purchase of-Subsequent saleiability account
-- - 2-Statutory, fcopyright cpality drains-Ratepayer ofsurplus
2-Agreement trial-User
2-Execution
COURT-Appeal/rom-Order
Chambers. --- -- 2-Appeal by-Death of testator after verdictpro tunc--ractice pay debts-Selling required-Breac trust
2---Appeal by-Death
Jiudgment tunc-Practice
Evidence- Presumption
FRIENDS-Society
Delivery-Negligence
2-Sale of- Non-acceptance
Rescission of contract
-- Provincial Efect Ancient-Starting point-How ascertained ICE-Detention by-Breach f charter-Marine policy-Perils
Proper levy rates
- - - - - INSOLVENCY-Winding up insolvent pany
Nctice creditors, 4c.-Setting aside 2-Winding up insolvent bank-Proceedings - - - - - FIRE-Condition policy-Not condition-No risk.] FIRE-Continued.
the following conditions:-" That in case the
"above described premises shall at any time
"during the continuance this insurance,
"appropriated or applied to or used for purof carrying or exercising therein any
"trade, business or vocation denominated
"hazardous extra hazardous or for the purstoring, using or vending therein any of articles or merchandise
"nated hazardous extr4 hazardous unless
"otherwise specially provided for, or hereafter agreed the defendant company writing
"or added to or endorsed this policy, then
"this policy shall void. Any change
'material to the risk, and within the control
"knowledge the assured, shall void the policy that part thereby, unless the
"change promptly writing the
''company or its local agent."
Held, reversing the judgment of the court below, that the introduction, without notice to the company, the manufacture excelsior into the insured premises, addition the manufacture of spools, avoided the policy under these conditions, the evidence establishing clearly and there being evidence the contrary, that such manufacture in itself was a hazardous, if not an extra hazardbusiness, notwithstanding that the trial of the action the policy the jury found, answer to questions submitted them, that such additional manufacture was less hazardous than that spools and did not increase the risk the insured.
------ - LIFE-Application for policy- Declaration amsured-Basis contractranty-Misdirection.] application life insurance policy contained the following declaration after the applicant's answers to the tions submitted:-" I, the said George
(the to insured) do warrant and guarantee that the answers to questions (all which questions I hereby declare that have read or heard read)
are true, to the best of knowledge and belief ;
and hereby agree that this proposal shall the basis of the contract between and the said association, and further agree that any the answers to the questions aforesaid, or answers to given the medical examiner, shall render null and void the policy of insurance herein applied and forfeit all payments made thereon.
It also further agreed that should policy executed under this application, shall not delivered binding on the association until the first premium thereon shall paid a duly authorized agent the association, during lifetime and good health.
(the party favor the assurance is granted) do also agree that ibis proposal and declaration shall the basis of the contract between and the said association."
Held, affirming the judgment of the court below, that this not warranty of the absolute truth
LIFE-Continued.
the answers of the applicant, but that the whole declaration was qualificd the words " to the "best of my knowledge and belief." At the trial the jury charged that if there was wilful misrepresentation, such as to mislead the company, they should the defendants, but that if the answers reasonably fair and truthful the best of the knowledge and belief of the applicant, their verdict should for the plaintifs.
Held, proper direction.
2-Application-Declaration and statements in -Tntemperate habits-Increase of risk-Warranty-Locus standi.]-An application for life insurance signed the applicant contained, in addition to the question and answers, : Are your babits sober and temperate?
Yes; agreement that should the applicant to habits, far different the condition which was represented to to crease the risk insured, the policy should null and void.
policy stated that: " If any of the declarations statements made the application this policy, upon the faith of which this policy issued, shall found any respect untrue, the policy shall null and void."
In an action the policy an assignee, it was proved that the insured became intemperate (luring the year preceding his death, but medical opinion was divided to whether his intemperate habits materially increased the risk.
He'd, the merits, Ritchie C.J., and Strong Fournier and Henry JJ., contra, that there was evidence of a change of habits, which its nature increased the risk the insured, to avoid the contract.
The appellant's interest the policy was as assignee of Dame M. of Charles L., to whom the insured had transferred his interest the policy October,
Held, per Strong, Tasehereau and Gwynne JJ., that the appellant bad locus standi, there being evidence that M. had been authorized her husband to accept or transfer said policy.
MARINE-Description of voyage -Deviation-Question for jury- Aisdirection- Defective case-Application for re-hearing of the judgment under.]-A marine policy insured a ship a voyage to Valparaiso for orders, thence to loading port the western coast South America, and thence to a port of discharge the United Kingdom. ship went from Valparaiso to Lobos, an island twenty-five to forty the coast South America, and was afterwards lost. In an action the policy: Held, that whether or Lobos was loading port the western of South America within the policy was question the jury, and it not having submitted to them new trial was ordered for misdirection.
After judgment, application was made vary or reverse the judgment davits, showing that the question was submitted MARINE-Continued.
and answered.
Held, that the application was late, the court. had determine the peal transmitted, and the respondent allowed the appeal argued and judgment rendered without taking any steps have
2-Marine insurance-Loss from detention by ice-Perils insured against-Ordinary perils of the seas.] vessel her way Miramichi, was chartered voyage Norfolk,
Vir., Liverpool with cotton.
arrived
Miramichi and sailed
Owing the lateness season, however, not get out river and remainel frozen in the all winter and had abandon the cotton freight.
Held, reversing the judgment
Court of New Brunswick B. R.
Henry J. (dissenting)
, that the occasioned the detention the not
" of the covered ordinary marine policy.
CO. v.
- ---- INTERPLEADER - Appeal from judgment on-------- VIRES-Provincial
Municipal by-law-Sale of Meat-Quantity
JOINT STOCK
COMPANY-31
(P.Q.)-Action for calls-Subscriber inliability.]
shares the capital stock a company to incorporated letters patent under c.
but not appear the notice applying letters patent, nor one the original corporators the letters patent incorporating the directors allotted shares and never subsequently acknowledged any liability the company.
action brought the company against alleged shares in the capital stock of the company it waslHeld, the judgment the court below, that was not liable calls stock.
JUDGE-Discretion of-Extending time or serof petition-Appeal
2-Dismissing election petition before trial- Appeal - -- --- 3election trial-Lapse six monthssfrom filing petit ion-Extension-Ruling as to-Av- JUDGE-Continued.
4-Of
Exchequer Court-Order in Chambers -Appeal-- --- Privy 2-Appealed from-Questions of fact JURISDICTION-The Supreme Court judge before trial, granting or rejecting application to dismiss the petition the ground that the trial had not commenced within six months the its presentation. 2--Election trial-After six months from dling ofpetition-Extension-Ruling oftrialjudqe 453 Appealfrom Petition of Right 735 warranto
LAND-Held in trusl-Title to-Society Friends-Discipline of-Governing - 2fining land-Entry lessee-Permiss for------254
3-Sale of
90,172,632 Wilderness- Trespass on-IsolatedActs581 LANE-Sale of building lots-Lanes in rear- Plan
--- --- LEASE-Mining-Application for
LATURE -Provinocial-Powers rf-Extension of town limits to middle a navigable river by-Pr.vincial Act-Ultra vires - LEGISLATURE ASSEMBLY - Disqualifragrant land-Provincial-Illegality
LICENSE-for sale of meat-Municapal by-lauo LIEN-of Vendor
STANDI-Assignee of insurance policy
-Auth.rity transfer miration-Right
MANDAMUS-Against
Corporation-Toassessent-Juridiction
-Legality of-Subsequent discovery of error- Remey
----- - MASTER--Master's
Report-Ezcess authority.] the Supreme Court of
Scotia Rep. confirming the report master a reference, the ground that the master had exceeded authority reported matters not referred to him.
46-42 35-Disturbance anticipated or likely occur-Requisition calling out Militia- Supiciency of form of-Suit commanding suit officer-Death of commanding pending
-Right ofadministratrix continue proceeding.]
and Vic. requires that a requisition calling out the militia in aid the civil power assist suppressing riot, &c., shall signed three magistrates, of the warden, or other head of the municipality shall one; and that it shall express on its " the actual occurrence of a riot, disturbance or emergency, the anticipation thereof, requiring such service."
Beld, that a requisition the following sufficient:- Charles Captain 5
Breton Militia. Sir,-We, in compliance with Dominion Acts of it having represented to that disturbance having occurred and still anticipated
Lingan beyond the power of the civil power to suppress.
are therefore hereby ordered with your militia company immediately
Lingan, with their arms and ammunition, to aid the civil power in protecting and and restoring peace and order, and to until further instructed. J.
McDonald, J.P.; J. McNarish,
J.P.; Angus J.P.-The statutes also that the municipality shall pay all of of the militia when called of refusal that an action may
De brought the commanding the
MILITIA ACT-Continue.d his own name, recover the amount of expenses.
Beld, Strong J. (dissenting)
, that where the commanding died pending action the proceedings could continued MINES MINERALS-MYining lease-Application for-Right of entry-Conditions precedent-Conflicting titles to land.] Held, th judgment the court that where a mining lease obtained over private lands in Nova Scotia the must obtain from the owners of the land permission to enter either special agreement or in accordance with the visions the mining act.-Mining leases granted in all districts whether proclaimed because it includes a greater number areas .than provided the statute, such provision being oniy directory to the commissioner.-The issue of a lease cures any irregularities in the application a license in the license itself the absence fraud the part the licensee. Partnership-Interest in Mine-Agreement as to-Evidence.] held, affirming the judgment of the Supreme Court of Nova Scotia, that a suit a share the profits of gold mine where the plaintiff relied an agreement by the defendant for a transfer of a portion of the latter's interest in such mine for valuable sideration, the evidence not sufficient to establish partnership between the parties the working of the mine and the suit was MISDIRECTION-Action against railway pany-Solatium-New trial
2- Actionfor insurance-Applicationforpolicy -Declaration assured- Warranty - 3-Mar. Ins.-Description of voyage-Port on coast-deviation-Question for jury.
MORTGAGEE-Assignment mortgage-Purchase ofequity (fredemption sub-mortgagee-Sale same him- Liability account. The assignee of a mortgage obtained release of the equity of redemption which sold for a considerably of his against the assignor. In a suit to foreclose the latter's interest,-Beld, reversing the judgment the Court of Appeal restoing that the Pleai Division, that was bound to account for the proceeds Sale of land for debts of estate-Mortgage testator-Assignment confirming istle
- - - - - - MUNICIPAL CODE-Act
MUNICIPAL CORPORATION-Action ratepayer-Improper construction of municipal work
-llatepayer a contractor-Acceptance ofsurplus money- Estoppel.] ratepayer of a municipality cannot maintain an action, behalf himself and the other ratepayers, against the municipality for the improper construction a drain authorized by-law when such ratepayer has himself been a contractor for a portion the work and has received share the voted for the work of the amount pended.
Judgment of the Court of Appeal
Ontario
- ' - - - - 2-Assessment of-Town ofDartmouth-School taxfor Hakfax
3-Subscription by-to railway stock-Breach
4- By-law of-Sale ofmeat-Validity - NAVIGABLE RIVER-Extension of limits of town into-Canstitutionality act allowing 288
NAVIGATION-Interf'rence with-Public navi- PORT-For repairs to vessel - 256
NEGLIGENCE-Management offerry- fanner o/ mooring-Contract to carry-Ferry under control of corporation-Liabilityit of corporation for injury to passenger-Contributory negligence.]
The ticket issued traveller rail from
Boston, to St. John, entitled to cross the St. John barbor ferry, and a coupon attached to the ticket was accepted payment his ferry under the control and management of the corporation
St. John.
Held, that an action lie against the corporation for injuries to M. caused the negligence of the the boat during the passage.-The approaches of the ferry to wharf were guarded a chain extending side of the boat at a distance about feet the end.
On approaching the wharf the whose duty was to moor the boat unloosed the chain at side, and when near enough jumped the to bring the mooring chain aboard.
A number of the passengers rushed towards the and M. seeing the chain down and thinking it to land, followed them and through space between the boat and the wharf and was injured.
When this happened the boat was not moored. Held, affirming the judgment of the court below, that the corporation the city were liable M. the injuries sustained
NEGLIGENCE-Continued.
the negligent manner of mooring the boat, and that was not guilty of such contributory negligence as would avoid that liability. Tue 2-Damages-Fire communicated from premises of company-14 not applicable in cases negligence.] In an action brought P. against the appellants company negligence the part of the company causing the destruction of P.'s house and outbuildings one of their locomotives, it was proved that the freight shed of the pany was first ignited sparks one of the company's engines passing the Chippewa station, and the extended to P.'s premises. The following questions inter alia, were submitted to the jury, and the following answers given:- Was the occasioned sparks the locomotive?
Q. If was it caused any want of care the part of the company or its servants, which, under the circumstances, ought to have exercised ? Q. If state what respect you think greater care ought to have been exercised
As it was a special train and Sunday, when employees were not duty, there should have extra hand duty.
Q. Was the stack furnished with good apparatus for arresting sparks as was consistent with the working the engine If you think the apparatus was defective, was it reason of its not being the best kind, or because it was out order ? Out of order.
P. obtained verdict motion to set aside the verdict, the Queen's Division unanimously sustainit.
appeal to the Supreme Court, Held, affirming the judgment the court below, Henry J. dissenting-i. That the questions were proper questions put the jury, and that there was sufficient evidence of negligence the part of the appellants' servants to sustain the finding. 2. If a railway company guilty of default the discharge of the duty of running their locomotives in a proper and reasonable manner, they are responsible for all damage which the natural consequence such default, whether such damage occasioned escaping the engine coming directly in contact with and consuming the property of third persons, caused the property such third persons a communicating thereto theproperty of the railway company themselves, which had been ignited escaping the engine coming directly contact therewith. The statute which extension of Anne and 7 force in the Province of Ontario as part the law of England introduced the Constitutional Act but has application to protect party legal liability quence of negligence.
3-In carriage of goods-Carriage several lines-Cutody-Bill
NEW TRIAL-Negligence of railway pany-Solatium-Misdirection
2 - Marine policy-Descriptiin voyage in- Port on coast-Question for Jury
NOTICE-Contract build Acuse-Notice rf completion-Right of redemptin copyright-Statutory form creditors,._te., of insolvent company- Saleofland
PROBANDI-Action bond- Execution
P R T N E R H I P-Evidence-Interest in mine- --- - - - 2-With licensed druggist - Pharmacy Act
LITE-Suit Militia- Death pending suit-urvival of action - PERILS-of the seas- Clause in marine policy- PETITION OF RIGHT-Quebec Act of-Appeal in case under - - - - - .
PHARMACY ACT-Quebec Pharmacy Act
8-Construction of partnership trary to law-Mandamus.] Held, affirming the judgment the Court of Queen's Bench
Lower Canada that section which says that all persons who, during years before the coming into act, into the said act, practised as chemist and druggist partnership with brother and brother's and therefore (respondent)
entitled under section to registered as licentiate of pharmacy.
(1) M. L. 2 Q,
L'AssoclnooN
LA
PLAN-Exhibited sale of land-Alteration
-Description-Lanes in rear of lots
- PLEDGE-without delivery-Possession-Rights of creditors-Art. u.] who was the Company, was in the habit of mingling the moneys of the company with his bought locomotives which delivered to, and openly and publicly the railway company their property for several years.
In January and privi, to deliver demand, ten these locomotive them against an endorsement of his notes for but reserved the right on payment of said notes or any renewals thereof to have said locomotives re-delivered to him. having become insolvent, F. al., their action directed against the South Eastern Railway Company, and R. al., trustees of the company Q., at time in the possession of South Eastern Railway Company, unless the defendants paid the amount of their debt.
did not plead. South Eastern Railway Company and et al., as trustees, pleaded general denial, and during the proc, edings an intervention, alleging was judgment creditor of at ment of the court below, that the transaction with only amounted pledge not accompanied delivery, and, therefore, F. al. not entitled to the possession the motives as against creditors the company, and property as against O'H., a judgment creditor of an insolvent.
POLICY-of life insurance-Application for 2 offire insurance-Condition in-Increase ofrisk-Violation
- - --- 2- Marine policy.- Description of voyage - Port coast
2- Actual and cotinued change of. - PRACTICE-Election petition-Service of -Rule of Provincial Court - Extension of time
- - - - - - 2-Dfective case appeal-Application for afterjudgment
PRACTICE-Continued.
3-Judgment Privy Council-Rule suit-Judgment-Nunc pro tune-Appeal
PRESUMPTIO N-of
COUNCIL-Judgment of-Enforcing- PROPERTY-ofcorporation-Ass for creditors-Powers ition-Userin and under the lands Exchequer Court, upon consent and without argument, gave judgment favor the Dominion ernment.
appeal the Supreme Court: affirming the judgment Exchequer Court, Fournier and Henry JJ. dissenting, that under the order council admitting British Columbia into confederation and the statutes transferring the public lands described therein, the precious metals upon, and under public lands are vested the crown represented the Dominion
Government. QUAKERS-Title land-Society Quakers-Lands for-Authority governing supreme governing body of the Society Friends, Quakers, Canada, well respect matters discipline the general government the society, the Canada yearly meeting.-The Canada yearly meeting having adopted cipline which certain members of the society fused to accept these dissentient members, therefore, could not hold, nor exercise any right over, property granted to subordinate branch the society to which had formerly belonged. Judgment the court LANDS-Transfer of
Canada-Efect metals-Claim to-Provincial--B
RESCISSION-Of admitted into the it provided lows:-And the Government British Columr
RA prise visable furtherance construction the
2-Death negligence of-Damages-Miedirection-Solatium lands along line railway throughout its entire length British Columbia, not
3-Obstruction
Property riparian to-Navigable public lands the North-West Territories and the Province Manitoba.
RAILWAY SHARES
2 ) it enacted follows :-From and after the passing this act there shall and there hereby granted Dominion
RAILWAY BRIDGE TRACK-Assessof-f/legal
British Columbia, trust, appropriated the Dominion Government may advisable, the public lands along line railway
REQUISITION- Calling Militia-Form mentioned, wherever it may located to- - - -a width twenty of the said line, provided the Order Council, admitting the Province British Columbia
REDDITION
Settlement by respect ownership precious metals o-Action cmpte. Held affirming the judgment of the court below, that 4i a mandator and a mandatary, laboring under legal disability, to an amicable settlement about the rendering of an account due the mandatary without vouchers or any formality whatsoever, such a rendering of account perfectly legal; and that if subsequently the mandator discovers any errors omissions in the account his recourse against his mandatary an action en reformation compte, not an action asking for another plete account.
RES JUDICATA
-- RIGHT OF ENTRY-On mining lands
RIGHT OF WAY-Enjoyment of-User - RIOT-Suppression of militia-Form of requisition - - - - - - - - OWNERS-Navigable river-Access riparian owner-Right of-Railway Company responsible for o bstruction-Damages- Remedy action at Law- allowed-43-44
(P.Q.) c. 7 sub and Held, reversing the judgment of the court below,
Tascbereau J. (dissenting)
, that a riparian owner a navigable river entitled to damages against a railway company, although land taken the obstruction and interrupted access between property and the navigable waters the river, forthe injury and diminution value thereby occasioned to his property.
2. That the railway company the present not having complied with the provisions of Vic. c. sec. 7,'suband the appellant's remedy action at law was admissible.
-6---- - RISK-Of fire-Increase condition in policy
-Violation
- --- -612
2-On l4fe-Warranty against intemperate habits
- ---- RULE OF COURT-Judgment of Privy Council
-Enforcing-Practice railway shares bloc-Execution- Art. C.O.P.] anumter ofshares of railway stock were seized and advertised to sold lot, neither defendantnor any interested the sale requesting the sheriff sell the shares separately, and such shares sold for an amount far in excess of the judgment debt which the property was taken into execution, such sale the absence of proof fraud or collusion held good valid.
SALE-Continued.
Ry. MonIs
- - - - - Sale a rmerd- Term-Notice-Mise demeure-Rea judicata.1 Held, affirming the judgment of the court below, where the right redemption stipulated the seller entitled to take back the property sold within three months from the day the purchaser should have finished a completed in course of construction on the property sold, it was the duty of the purchaser notify the vendor of the completion of the house, and in default of such notice, the right of redemption might exercised after the expiration of the three months. There was juple between the parties the dismissal of prior action the ground that the time exercise the right of redemption had not arrived, and the conditions stipulated had not complied with.
3---- - SALE OF GOODS-Delivery-Non-acceptance vendee-Return ofgoods vendor- Rescission of contract-Re-sale.]
doing business Halifax, was accustomed to sell hides to J. of Pictou.
Their usual course business was for to ship a lot of goods consigned to J. and send a note for the price according to his own estimate of weight, which was subject to a future rebate there was found to any deficiency.
July a ment was made in the usual course and a note was given J. which caused to discounted. The goods Pictou Landing and remained there until August when sent his lighterman other goods finding the goods shipped brought.them up in lighter. The next day J. was formed of their arrival and caused them to stored the warehouse where had other goods, with instructions keep them the parties had sent them.
The same sent telegram to follows: " In trouble. Have stored hides.
Appoint one take care of them."
immediately came to Pictou and having learned what was done, expressed himself satisfied. asked if would take take them away, but was assured J. that they were all right and left them the warehouse. August 6th levy was made, under an execution the Picton Bank against J. all property that the sheriffcould the goods question not included in the levy.
August J. gave the bank a bill of sale of all his hides in the warehouse L., and the bank indemnified D. and possession under such bill of sale of the hides shipped and stored sail warehouse. a suit against the bank and for the wrongful detention of such goods : Held,affirming the judgment of the court below, that the contract of sale between J. and H. was rescinded the action of J. in refusing to take of the goods when they arrived at his place business and handing them to D. with direction hold them for the signor, and notifying consignor acquiesced.and adopted the act J. L., whereby the property and of goods came H.; and there title J. August when the bill sale made the bank.
sold.to C land mortgaged a loan society.
consideration and of B.
afterwards'paid and obtained charge mortgage. B. brought action recover the balance difference between amount paid the society and said and trial testified that intended to sell the land price; that bad informed father-ib-law that there would about coming him; that bad demurred the acceptance of but informed 0. and lawyer's clerk, drew the that they had it out and that that would after paying mortgage ; that was incapable figuring it. himself and accepted it this representation.
C. claimed that the transaction was only purchase the equity redemption, and thatB. had accepted for the
Held, reversing the judgment the Court Appeal, Taschereau and Gwynne,
JJ. (dissenting)
, that weight evidence was of that trapsaction absolute sale the land and independently that, the itself evidence support such the absence satisfactory
2-Building lots-Plan lanes-Alter- Toronto land sale, according a plan showing consisting of lots each, about length running east to west bounded north and lane the same length, and east lane- running along the depth the and connecting the other two lanes. South this block was a similar smaller ten number, running north and south lane at east the first block was continuation, after crossing long lane between the blocks, lot block.
advertisement of stated that laies run in rear several, lots."
M. the purchaser and C. loin registiy plan M. applied the City Council lane at the east the block and included his lease which was granted.
C. then objected taking a lease lot with the lane but afterwards accepted described the land as leased according plan (the plan hibited at sale) and plan (which showed the. lane closed i, and ght action against city and M. .lane opened.
affirming judgment of the court that C. having accepted lease after lane whicli reference made said. plan was bound its terms and had no claim right way land thereby shown included the lease the contract evidenced the advertisement and public acquired right the of 3-Unknown leas"-xeeutors-Breach trust.]
executors of estate authorthe sell portion of the real, estate they their discretion should think necessary mortgage and such debts personal estate would not discharge. They sale at auction lot described. sixty acres (more or less) section Loch Farm, Victoria District, and giving the and was for sale the acre, upset price bcing the conditions sale a survey was made after the the joint expense of vendors and purchaser. purchased the lot for per acre and surveyed it was found coiitain acres. The executors refused convey that quantity, alleging that only was required to pay tle debts the estate, and refused to cute the acres tendered a suit for performance the tract for sale of the whole lot:-Hetd, reversing the judgment of the court and restoring that the judge the hearing, Gwyne J. dissenting, that was entitled conveyance the and that the executors would not guilty breach of trust conveying 4--Conditional-Non tions------drain-Ag obtained the right ofdrainin their property passing good drain throug alley left between two houses another lot the town St. Johns.
(defendants) built covering the alley under which the drain was constructed and it store hay, flooring and the barn resting wooden posts. In the drain needing repairs the plaintiffs brought action confesoria against defendants proprietors servient land, praying that (plaiitiffs) may declared have a right to the servitude constituted the. that thedfendants ordered demolish SERVITUDE-Continued.
such portion of the barn diminished the of the drain, and rendered its exercise more convenient, and claiming damages; the ants pleaded inter alia that there was no change of condition of the servient land contrary to law, and prayed for the dismissal of plaintiffs' action. Held, Gwynne J. dissenting, that the building of the barn in question, the plainmeans of access to the drain had been materially interfered with and rendered more pensive, and therefore that the judgment court below ordering the defendants to demolish a portion of their barn covering the said drain, in order to allow the plaintiffs to repair the drain as easily they might have done said drain was not and to pay ages, should Per Gwynne J., That all plaintiffs entitled to was a declaration of the right to access to the land in question for the purpose of making all necessary repairs the drain occasion might require, without any impediment or obstruction to their doing being caused the barn which had been erectover the drain, and that the action for dama- 2-Aggravation of-Art.
lt53, L. deed of sale granted P. right of passage through the lot land the said vendor fronting the public road foot with carriage,"
to the charge the said purchaser "of keeping the gates of the passage shut."
having acquired the dominant land, built a coal and warehouses thereon.
the of trade had several beavy carts making three or lour trips day through this passage leaving the gates and dition his carts most ihe coal dealers the city of Montreal, wholesale and retail, were supplied there with their own carts.
the the grant the land was used agricultural land.
the Court Queen's Bench for Lower Canada
(M. L. 1 Q. Henry J. dissenting, that the passage could not for the purposes refinery and trade, as thereby aggravated the servitude and rendered it more onerous to the servient land than it was servitude was established.
Art
SHERIFF-Execufion of writ of attachment- Abandonment of seizure-Return to writ-Es- -- ---- SHIP SHIPPING-Charter party-Damsge vessel-Repairs-RVearest port-Deviation
-Breach charter.] In September, a a to load lumber under charter.
Having tustained damages the voyage she was taken
Lo St. John, repairs, and when such re- >airs were completed it was too late the to proceed to Bathurst. In an action
SHIPPING-Continued.
against the owner for breach charter party the jury found that the repairs could have made at Sidney, 0.B., time to enable the go Bathurst.
Held, that the jury having verdict having affirmed the Supreme Court Brunswick, this court would not interfere with the finding. Held, also, that under such finding taking the vessel to St. John was such an unnecessary deviation the voyage as to entitle the charterer to recover. 2- Marine policy-Description ofvoyage -Port coast-Question for jury
See 1.
SOLATIUM-Misdirection
SOLICITOR-Authority to hind client - STATUTE-Confirming
OF LIMITATIONS-Trespass wild lands-Isolated acts of- Title- iidireetion.] Isolated acts of trespass, committed wild lands year to year, will not give the trespasser a title under the statute of limitations, and there was misdirection the judge at the trial of an action for trespass such land refusing to leave to the jury their consideration such isolated acts trespass as.evidencing possession under the statute. acquire such a title there must open, visible and continuous possession known or which might have known to the owner, not possession equivo al, occasional,or for a special temporary purpose. Doe Des Barres v. White (1 Kerr approved.
The judgment the court GwynneJ. disenting the ground that the finding of the jury the question submitted to them was against evidence, and further that the acts done the defendant were not mere isolated acts of trespass, but acts done in assertion ownership during period exceeding 35 years, and the evidence of such acts should have submitted to the jury and the jury told that if theybelieved this evidence they should STATUTES-14 c. s. (Imp.)- 2-B.
N. Act, and 146------- (D.)
- - - - - --a 4-42
1, 2.
7-R.
S. c. 32,33 and
429, 453
10-31 Q.)
11---40 and c.
(P.
-- - -- 12-43-44 Y. 8. 7, subs. 3
(P.Q.)
- - - - and (P.E.I.)
1.---47
45,
FORM-Notice of copyright-821 lion
- - - - - - 2-To capital stock of a railway pany
- - - - - - SURETY-Cashier of bank-Misconduct ,f- Illegal transaction-Proper banking business- Sanction of directors.) sureties of an absconding bank cashier are not relieved from liability showing that the bank employed the claim against sureties being the
SURVEY-Manner of-Boundary-Disputes as Surveiyors-Dutjes surveyors under.] license the ernment of Brunswick to cut timber certain lands, claimed that licensee of the aujoining lot, was cutting timber grant, and issued a writ of replevin logs alleged to cut
The replevin suit was settled an agreement between the parties leave the matter to surveyors to establish the line between the two lots, the agreement providing that the lines of the land under the license shall surveyed established (naming the surveyors) and stumps connted, etc. Beld, reversing the judgment of the Supreme Court of Brunswick that under this agreement surveyors bound to make a formal survey, and could not take a line run of them at a former time the said boundary line.. 2- Ancient-Starting point, ascer- TIME-Eztension for trial of Election Peti- LAND-Ancient grant-Starting point to and bounds-How ascertaindecided was whether the locus was situate within plaintiff's lot, No.5 within defendant's lot adjoining, in concession The grant through which the plaintiff's title was originally derived gave the southern boundary of lot a starting point, the course being thence eighty-four chains more to the river. The original surveys were lost, and this starting point could not ascertained. Held, affirming the judgment of the Court Appeal Ontario Ont Ont. Strong and Taschereau J.J. dissenting, that southern boundary could not ascertained measuring back exactly chains the river. 3-Held in trustfor society of way-User
5-Easement-User
6-Dedication- Presumption- User TRESPASS-Disturbing enjoyment of right of User-Eaement.] joining lots, each deriving his title S. E. [S. C. R. VoL. XLV. TRESPASS-Continued.
said lots and for damages.
The in this right of way was but founded his claim to a user the way himself and his predecessors in title upwards years. * The evidence the trial showed that it had been the successive owners of the two lots. Beld, affirming the judgment of the Supreme Court Nova Scotia Rep.
Ritchie CJ.. and Gwynne J. dissenting, that as had grant or conveyance of the right way, and had not proven an exclusive user, could not maintain his action.
-Title land-Boundaries-Easement- Agreement at trial- Estoppel.] In an action damages trespass M.'s land and closing ancient lights defendant claimed title himself and pleaded that conventional line between lot and the plaintiffs had agreed to predecessor of the plaintiff title. the trial the parties agreed to strike out pleadings in reference to lights and drains and to try question of boundary only.
Beld, affirming-the judgment of the Supreme
Court of Scotia Rep. Ritchie
C.J. and Gwynne J. dissenting, that independently of eonventional boundary claimed the defendant the weight of evidence was favor of establishing a title to the land in question in the defendant and the plaintiff could not recover, and that the agreement at the trial the plaintiff could not elaim recover virtue user of land for over years.
Semble, that if it was to such user was not proved.
3-Title land-Dedication-Public highway-Expropriation-Presumption-User.] K.
land had used public highway many years and there was an old statute authorising its expropriation for public purposes, but the records the municipality which would contain the proceedings such expropriation, if any had taken, were lost. Beld, reversing judgment of the Supreme Court Nova
Scotia that in the absence any evidence of dedication of the road it must presumed that the proceedings under the statute were rightly taken and could not recover.
4-On witer lots-Navigable waters
2-On wild lands-Isolated acts-Statute timitatsons
- right way-Title land-Easement
TRESPASS-Continued.
ofpublic highways- Dedication-Presump. VENDEE-of goods-Non-acceptance Rescission
VENDOR PURCHASER-Open and torious sale-Actual and continued change possession-R. S. 0. cap. 5-Hiring of former owner as clerk.]
The purchaser the stock of trader, where the change ownership open and notorious, may employ the former owner as a clerk in carrying the business, and notwithstanding such hiring there may still "an actual and continued change of possession," as required 0., Ontario Bank v. Wilcox Q. VENDOR'S LIEN-Sale ofland-No'ice agreed to transfer his timber limits to in case the latter should, within two years, pay a mortgage to and other liabilities, and was obliged to pay any liabilities at leave sell such portion of said limits as would recoup At the same time wrote to authorising him transfer said lands which held as security, payment of claim.
assigned his claim and the limits who, agreement with the executors of W. continued carry the lumber business formerly owned Certain of the liabilities of not having been paid his estate claimed vendor's lien such limits, and relied the letter to notice to an attorney who prepared th agreement with to establish notice of lien in
Court of Appeal for Ontario, that if such lien existed could not said to VOYAGE - Marine Policy - Description of- Port
WARRANTY-Application for insurance-Declaration
1, 2.
WATER LOTS-Trespass on-Rights of Lessee -Public
WILD LANDS-Trespass on-Isolated Actsto-Statute of
WILL-Devisee under-Mortgage testator- Foreclosure of-Suit to sell real estate for payment of debts-Decree under-Conveyance by purchaser at sale under decree-Assignment mortgage-Statute confirming title. M. in and his will left certain real estate to M. for her and after her death WILr-Continued.
to their children. At the time of his death there two small mortgages the said real estate to P. which were subsequently foreclosed, but no sale was made under the decree such foreclosure suit. In the mortgages and the interest of the mortgagee the closure suit were assigned to one J. who, assigned and released the to
M. the administrator with the will annexed of the said M a bill Chancery under the Imperial Statute 5
2 7, for the purpose having this real estate sold to pay the debts of the estate, she having previously applied the Governor
Council, under a statute of the Province, leave to sell the which was refused.
A decree was made this suit and the lands sold, the said M. M. becoming the purchaser. She afterwards conveyed said lands to the Commissioners of the Lunatic Asylum, and the title therein passed, various acts the Legislatare Nova Scotia, the present defendants.
M. devisee under the will of brought action of ejectment the recovery of the said lands, and course of the trial tended that the sale under the decree the
Chancery suit void, inasmuch as the only way which land deceased person sold Nova Scotia petition to the Governor Council. The validity of the mortgages and the proceedings the foreclosure sale were also attacked. action was tried before a judge without jury and a verdict was for the defendants, verdict the Supreme
Court of Scotia refused to disturb.
appeal to the Supreme Court Canada: Held, affirming the judgment the court below, that even if the sale under the decree in the Chancery suit was invalid, the title to the land would be outstanding the mortgagee or those claiming under her, the assignment the mortgages being merely release of the debts and not passing the real estate, and the plaintiff, therefore,
WILL-Continued.
could not recover action of ejectment. Semble, that such sale was not invalid but passed a title, the Statute 2 7 being the Province.
Henry J. dubitante. Held, also, that the statute cap. 4th series vested the said land the defendants they had not title to the same WINDING-UP ACT-Compang-Winding up order-Notice to Creditors, fc.-45 c. a. It a substantial objection winding order appointing a liquidator to the estate of insolvent company under Vic. that such order has made without notice to the creditors, contributories, shareholders or bers of the company required said act, and an order made was set aside. and the petition therefor referred back to the judge dealt with anew. Per Gwynne J. dissenting, that such an objection purely technical and unsubstantial, and should not allowed the subject of an appeal to this court.
Co.-624 2-45 23-47 39-Winding up of Insolvent bank-Proceedings in case Seetions 2 and of the winding up act providing for the winding up of insolvent .companies not apply to ban but an insolvent bank whether process of liquidation or not at the time it sought bring it under the winding up act, must wound up with the preliminary proceedings provided for secs. to of amended Strong and Gwynne JJ. dissenting. In re The Bank Liverpool. ----- WRIT-Ofattachment-Eecution of-Abandon-
Statutes and regulations cited
-
Unresolved citations
- section 8
- s. 26