Shaw v. The Canadian Pacific Railway Company

Bench, Manitoba (1) affirming the judgment of Mr. Justice Killam, by which a demurrer to the plaintiff's replication to one of the pleas was allowed.

The action in this case was for an alleged breach of contract by the railway company to carry the plaintiff's goods safely over a portion of their line and deliver them to the plaintiff. The defendants pleaded a number of pleas, one being that they undertook to carry the goods under a special contract by the terms of which their liability was to be limited to wearing appared not exceeding in value $100; that they were nder no liability as to the goods which were not wearing apparel; and they paid into court $100 as all they were chargeable with under such special contract. The plaintiff made two replications to this plea, the second of which was that the special contract did not :-Sir relieve the company from liability as the alleged loss and damage arose from the negligence of the defendants within the meaning of the Consolidated Railway Act of 1879 sec. 25, sub-sec. 4.

The defendants demurred to this replication on the grounds, among others, that it was a departure from the declaration which was in contract while the replication was in tort, and that the statute did not prevent them showing the terms of the special contract. demurrer was argued before Mr. Justice Killam and allowed, and on appeal to the full court his judgment was affirmed. The plaintiff then appealed to the Supreme Court of Canada. The respondents, in their factum, took the objection that the judgment appealed from was not a final judgment from which an appeal would lie to the Supreme Court.

To the monition issued the defendant Flint appeared under protest and alleged that the court had no jurisdiction in the premises.

The Vice-Admiralty Court held that it had jurisdiction, whereupon :-Sir W.

defendant Flint applied to the Supreme Court at Halifax for an order for a writ of prohibition to stay further proceedings in the Vice- Admiralty Court, and the Supreme Court ordered " that a writ of prohibition do forthwith issue out of this court, directed to the Honorable James McDonald, Judge and Commissary of the Vice-Admiralty FLINT.

Court at Halifax," to prohibit the said court from further proceeding in the said plaint or action against the said Jos. Flint.

Ritchie C.J.

It appears from the judgment of the Vice-Admiralty Court that "in May, 1879, as appears by the affidavit on which the monition was issued on the 21st May last, the machinery and apparatus for the illegal distilling of spirits were seized on the premises in Halifax, owned and occupied by Flint, and on his information against McDonald, Hornsby and Flavin, as concerned therein, a large quantity of spirits, mash and apparatus for distilling were seized on the premises occupied by the two latter.

No claim having been made by either party, pursuant to the Dominion Inland Revenue Act of 1867, 31 V. c. 8, all the goods so seized were condemned under the 163rd section, and the present action was brought against the four defendants for the penalties imposed by this act.

The penalties sought to be recovered were : under sec. 127 for exercising a business subject to excise, without license ; under 128 the additional penalty ; under 130 the penalty for having in his possession apparatus for carrying on a business subject to excise without having made a return thereof ; and under sec. 137 for not making proper returns of premises, &c.

The 156th section of the act respecting the Inland Revenue provides :- " 156. All penalties and forfeitures incurred under this act or any other law relating to excise may be prosecuted, sued for and recovered in the Superior Courts of Law or Court of Vice-Admiralty having jurisdiction in that province in Canada where the cause of prosecution arises or wherein the defendant is served with process, etc."

The parliament of Canada has the sole exclusive power to legislate on the subject of the Inland Revenue of the Dominion, and in the exercise of that power the unquestioned right to impose the penalties prescribed by sections 127, 128, 130 and 137 before referred to, and declare how and in what courts in the Dominion such penalties may be prosecuted, sued for and recovered, and in selecting the Court of Vice- - Admiralty as having jurisdiction in the Province of Nova Scotia, where the cause of prosecution arises, and where the defendant is served with process, the parliament of Canada in no way exceeded its exclusive legis- o lative power.

The principles which are entirely applicable to and must govern the case have been so fully discussed in the case of Valin v. Langlois in this court and in the Privy Council (2), that it is un- Ritchie C.J. necessary to discuss them now. The fact of the Admiralty Court exercising jurisdiction in the Dominion being an Imperial Court in no way, in my opinion, interferes with the application of the principles enunciated in Valin v. Langlois (2) or with the conclusion arrived at in that case.

Whether, as has been suggested, the Dominion parliament could compel the Vice-Admiralty Court to assume, or the judge thereof to act on, the jurisdiction conferred is a point it will be quite time enough to determine when such question arises. It is clear in this case the Imperial Government has not intervened, and the judge of the Vice- Admiralty has assumed and acted on the jurisdiction, as I cannot doubt will always be the case when his judicial services are invoked. The appeal should be allowed with costs.

J.-By the 156th sec. of the Inland Revenue Act, 31 V. c. 8, parliament has conferred jurisdiction to entertain suits and prosecutions for the recovery of penalties and forfeitures imposed by the act on the Superior Courts of Law (meaning of course the Superior Courts of the Provinces) and the Court of Vice-Admiralty.

Since the decision of this court in Valin v. Langlois and the delivery of the judgment of the Privy Council in the same (2), it cannot be denied that this enactment was within the legislative powers given to parliament by the British North America Act of 1867. Lord Chancellor, in delivering the judgment of the Privy Council, expressly recognises the power of parliament to confer a new jurisdiction on provincial courts.

The Court of Vice-Admiralty is a court deriving its authority, originally, from the Lord High Admiral or the Commissioners appointed for exercising that office, and the office of judge of that court was formerly only created by warrant and letters patent under the great seal of the High Court of Admiralty of England. Now, by the imperial statute 26-27 V. c. 24, it is enacted that when the office of judge in a Vice-Admiralty Court shall become vacant in any British possession the Chief Justice, or the principal judicial officer of such possession, or the person for the time being lawfully (1) Can. R. 1.

App. Cas.

authorised to act as such, shall be ecx officio judge of the Vice-Admiralty - Court until a notification is received that a formal appointment to the office has been made to the Admiralty.

By section 7 of the same act it is provided that nothing in that act shall affect the powers of the Admiralty to appoint any judge of a Vice-Admiralty Court as heretofore by warrant from the Admiralty and by letters patent issued under the seal of the High Court of Admiralty of England.

Strong J.

The Courts of Vice-Admiralty were originally tribunals for administering the jurisdiction incident to the judicial department of the office of the Admiral, but to these, their original functions, the Imperial Parliament has superadded a statutory jurisdiction not confined to maritime causes, but extending in many instances to revenue suits. If a Court of Vice-Admiralty thought fit to decline a jurisdiction conferred upon it by the legislature of the Dominion, I should be of opinion that its right to do so could not be questioned, for as it is a court created for the purpose of executing the judicial powers vested in the office of the Admiral it is subject to no legislative power except that of the Imperial Parliament. If, however, the judge of a Vice- Admiralty Court thinks fit to exercise the jurisdiction conferred by a statute of the Dominion, I see no ground for making any distinction between the case of such a court and that of provincial courts, as to which Valin v Langlois (2), as I understand the judgment of the Privy Council, has decisively determined that jurisdiction so conferred may be lawfully assumed.

For this reason I am of opinion that the writ of prohibition should be quashed and the rule nisi in the court below discharged.

J.-La seule question qui s'i16ve en cette cause est de savoir si la cour de Vice-Amuiraut4 a juridiction en matibre de poursuite pour infractions aux dispositions de la loi concernant le revenu de l'intirieur.

Cette juridiction lui est confine en ces termes par la section 156 de 31 V. c. 8:- "All penalties and forfeitures incurred under this act or any other law relating to excise may be prosecuted, sued for and recovered in the ............ Court of Vice-Admiralty having jurisdiction in that province in Canada where the cause of prosecution arises or wherein the defendant is served with process."

Cette disposition a 6t d6clar6e ill4gale par la cour Suprdme de la Nouvelle-Ecosse, comme 6tant un excis de juridiction de la part du parlement fiddral, et un ordre a t6 en consdquence adressd h la cour de Vice-Amiraut6 pour l'empicher d'exercer la juridiction confire par a clause ci-dessus citde. Ce jugement est 6videmment errond, d'abord (1) Can. S.C. R. 1.

App. Cas.

comme contraire an principe, incontest6 jusqu'ici, que toutes les cours sont ouvertes & la Couronne par la poursuite de ses droits.

"Though his subjects are in many instances under the necessity of suing in particular courts, the king has the undoubted privilege of suing in any court he pleases."

Chitty on Prerogative (1) ; Bacon's Abridgment (2) ; Attorney-General v. Mayor of Galway

Cette doctrine, appuy6e par de nombreuses autoritis, a 6t6 main- tenue par le jugement de l'honorable V. C. Blake dans la cause de Fournier J. l'Attorney-general v. Walker (4).

Ces autoritis d6montrent clairement que ce jugement est contraire au principe bien reconnu que Sa Majest6 a le privilbge de choisir le tribunal qui lui convient pour la poursuite de ses droits.

Il est encore erron en ce qu'il d~clare que le parlement fiddral n'avait pas le pouvoir de confirer la cour de Vice-Amirant6 la juridiction qui lui a td attribue par la section 156, dbjh cit6e. C'est, avec la diffdrence que la cour de Vice-Amiraut6 est institude par les autoritis impiriales, la mime question que celle qui a d6jh soulev6e dans plusieurs causes an sujet du pouvoir du parlement f6dural d'imposer par ses lois de nouveaux devoirs aux tribunaux provinciaux.

Quant A ceux-ci la question a rigl6e par la d6cision du Conseil Priv6 dans la cause de Valin v. Langlois (5).

Mais dans cette cause la question s'6levant par rapport A la cour de

Vice-Amiraut6, qui dirive sa juridiction du parlement impbrial, peut-on se servir des mimes raisonnements pour arriver A la meme conclusion que dans la cause de Valin v. Langlois? (5) Sur les sujets qui sont de sa compitence, le pouvoir du parlement fidral est souverain et s'6tend sur tous les r6sidants de la Puissance.

Les lois concernant le revenu de l'Int6rieur 6tant, A n'en pas douter, un des sujets sur lesquels il a une juridiction exclusive, leurs dispositions ne devraient-elles pas 6tre obligatoires, mime pour la cour de Vice-AmirautA ? Cette cour est de cr6ation imp~riale, mais exergant sa juridiction dans toute la province de la Nouvelle-Ecosse, n'est-elle pas vis-A-vis de la Puissance dans une position tout A fait analogue A celle de la cour Suprame de cette m~me province ? Chacune de ces cours ne doit-elle pas son existence, A un pouvoir qui dans les matilres de sa comp6tence, comme 1'organisation des tribunaux provinciaux, est ind6pendant du parlement ftd6ral? On a cependant reconna A ce dernier le droit de confdrer de nouvelles attributions A la cour Suprame, bien qu'elle soit tout particulibrement sous le contr8le du gouvernement local.

Pour quelle raison le parlement f6ddral ne pourrait-il pas exercer I mime pouvoir A l'dgard de la

(1) P. 244.

V OL.

V I..1 cour de Vice-Amiraut6 ? Puisqu'il y a parfaite analogie dans la posi- tion des deux cours, le raisonnement qui a pr6valu dans la cause de Valin Langloi (1) no duvrait-il pas nous faire adopter los mimes conclusions?

A Pappui de cette opinion, on peut encore invoquer le raisonnement de Sir Aiiu6 Dorion C.J. dans la cause de Bruneau v. Massue (2) " Judges as citizens were bound to perform all the duties which are Fournier J. imposed upon them, by either the Dominion or Local Legislature." Le juge de la cour de Vice-Amirant6, qui est en mgme temps le juge en chef de la Nouvelle-Ecosse, ne doit-il pas se consid6rer comme oblig6 d'ex6cuter les devoirs qui lui sont impos6s par cette loi de la Puissance, surtout lorsque non-seulement aucune disposition des lois imp6riales au sujet des cours d'amiraut6 no s'y oppose, mais que, bien an contraire, on en trouve qui admettent lexistence d'une 1gislation coloniale sur sujet h la condition qu'elle no soit pas en conflit (repugnant) avec la premire.

En effet Pacte impirial 28 et 29 Vict., ch. 63 (1865), reconnait ce droit dans les termes suivants :- "Any colonial law which is, or shall be, in any respect repugnant to the provisions of any act of parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under authority of such act of parliament, or having in the colony the force and effect of such act, shall be read subject to such act, order or regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative." Cette disposition qui s'applique h la 14gislation future aussi bien qu'h cclle alors existante, ne reconnait-elle pas positivement aux autorit6s coloniale le pouvoir d'ajouter aux dispositions des lois imp6riales. Ne d6claie-t-elle pas aussi que telles dispositions devront recevoir leur effet h la seule condition do n'Ctre pas en contradiction avec les lois imp6riales.

A '6numbration des pouvoirs contenus dans Pacte imp6rial de 1868, le parlement fiddral a ajout6 un autre sujet de juridiction en adoptant la section 156. Mais cette disposition ne venant en conflit avec aucune do celles de Pacte imp6rial et n'en alt6rant ni modifiant aucune d'elles, droit etre, en vertu do la disposition ci-dessus citde de ia 28 et 29 Vict., chap. 63, consid6r6e comme de la comp6tence du parlenent f6d6ral.

Appel allou6.

J.-I concur in the view which has just been expressed and for the same reason.

It is clearly understood by the judgment in Valin v Langlois (1) that the parliament of Canada has the power of (1) 3 Can. S.C.R. 1; 5 App.Cas. 115.

(2) 23 L. C. Jur. 60. conferring jurisdiction upon the judges of the Supreme Courts and other higher courts of the several provinces.

The same principle 'p' would apply to any court that sits within the Dominion.

Although the Vice-Admiralty Court is established by the authority of England, still I see nothing to prevent the Parliament of Canada, inasmuch as that court sits within the jurisdiction of that Parliament, to give it power and authority to try Inland Revenue cases, or cases connected with the customs.

I would say, however, I do not Henry J. think that court could be obliged to perform such duty, and that it is a court that could very well wrap itself up in its authority and say,

" our other duties prevent us from assuming the functions assigned to us by the Parliament of Canada," but it is ready to adopt the duty, and I see no reason why the Parliament of Canada should not have the power to impose it. I think, therefore, the appeal should be allowed with costs.

J. was also of opinioii that the appeal should be allowed.

Appeal allowed with costs.

GRAND TRUNK RAILWAY v. BECKETT.

Railway Co.-Negligence-Death caused by-Running through town- No. Contributory negligence-Insurance on life of deceased-Reduction of damages for.

In an action against the G. T. R. Co. for causing the death of the June 20. plaintiff's husband by negligence of their servants, it was proved that the accident occurred while the train was passing through the town of Strathroy; that it was going at a rate of over thirty miles an hour; and that no bell was rung or whistle sounded until a few seconds before the accident.

Held, affirming the judgment of the Court of Appeal, (13 Ont. App.

R. 174) that the company was liable in damages.

For the defence it was shown that the deceased was driving slowly across the track with his head down and that he did not attempt to look out for the train until shouted to by some persons who sawit approaching, when he whipped up his horses and endeavored to drive across the track and was killed. As against this there was evidence that there was a curve in the road which would prevent the train being seen, and also that the buildings at the station would interrupt the view.

The jury found that there was no contributory negligence.

Held, per Ritchie C.J. and Fournier and Henry JJ., that the finding of the jury should not be disturbed. Strong, Taschereau and Gwynne JJ. contra.

The life of the deceased was insured, and on the trial the learned judge deducted the amount of the insurance from the damages assessed. The Divisional Court overruled this, and directed the verdict to stand for the full amount found by the jury. This was affirmed by the Court of Appeal.

Held, that the judgment in this respect should be affirmed.

PRESENT:-Sir W.

GREENE v. HARRIS.

May 3.

Practice-Set off-Not pleaded in action-Right to set off judgment-Equit- June 22.

able assignment.

G. and H. brought counter actions for breaches of agreement. March, 1884, G. obtained a verdict with leave to move for increased damages, which were granted, and in June, 1885, he signed judgment. In April, 1884, G. assigned to L. all his interest in the suit against H. and gave notice of such assignment in May, 1884.

In February, 1885, H. signed judgment against G. on confession. Held, reversing the judgment of the court below (25 N. B. Rep. 451) Strong J. dissenting, that H. could not set off his judgment against the judgment recovered against him by G. and assigned to L. PRESENT:-Sir W.

HARVEY v BANK OF HAMILTON. Promissory Note-Non-negotiable-Indorsement-Liability of maker. June 14. H., a director of a joint stock company, signed, with other directors, a joint and several promissory note in favor of the company, and took security on a steamer of the company.

The note was, in form, non-negotiable, but that fact was not observed by the officials of the Hamilton Bank who discounted it and paid over the proceeds to the company.

H. knew that the note was discounted, and before it fell due he had in writing acknowledged his liability on it. In an action on the note by the Hamilton Bank against H. Held, affirming the judgment of the Court of Appeal, and that of the Divisional Court (9 O.R. 655), Strong J. dissenting, that although, in fact, the note was not negotiable, the bank, in equity, was entitled to recover, it being shown that the note was intended by the makers to have been made negotiable, and was issued by them as such, but, by mistake or inadvertence, it was not expressed to be payable to the order of the payees.

W.

WYMAN v. IMPERIAL INSURANCE CO. Fire insurance-Insurable interest-Mortgagee-Assignment of policy. Oct. 8, 9. In 1877 T. held a policy of insurance on his property which he mortgaged to W. in 1881, and an endorsement on the policy, which had been annually renewed, made the loss payable to W. In 1882 T. conveyed to W. his equity of redemption in the property, and a few months after, at the request of W., an endorsement was made on the policy permitting the premises to remain vacant. The policy was renewed each year until 1885 when all the policies of the insurance company were called in and replaced by new policies, that held by W. being replaced by another in the name of T. to which W. objected and returned it to the agent who retained it. The premiums were paid by W. up to the end of 1886.

The insured premises were burned, and a special agent of the company, having power to settle or compromise the loss, gave to W. a new policy in the name of T. having the vacancy permit and an assignment from T. to W. endorsed thereon and containing a condition not in the old policy, namely, that all endorsements or transfers were to be authorized by the office at St. John, N.B., and signed by the general agent there. The company having refused payment an action was brought on the new policy against them, and the agent who first issued the policy to T. was joined as a defendant, relief being asked against him for breach of duty and false representations.

On appeal from such decision to the Supreme Court of Canada.

Held, reversing the judgment of the courtbelow (20 N.S. Rep. 487) that the company having accepted the premiums from W. with knowledge of the fact that T. had ceased to have any interest in the property, they must be taken to have intended to deal with W. as owner of the property and the contract of insurance was complete. W. J. Ritchie C.J. and Strong, Fournier, Taschereau ANGUS v. CALGARY SCHOOL TRUSTEES. Oct. 25.

ON APPEAL FROM THE SUPREME COURT OF THE NORTH- WEST TERRITORIES.

Appeal-Judgment of Supreme Court of North-West Territories-Court of first instance-Origin of proceedings-B.S.C. c. 135 s. 24-51 Vic. c. 37 s. 3 (D).

By an ordinance of the North-West Territories an appeal lies from the decision of the Court of Revision for adjudicating upon assessments for school rates to the district court of the school district; on such appeal being brought the clerk of the court issues a summons, making the ratepayer plaintiff and the school trustees defendants, which summons is returnable at the next sitting of the court when the appeal is heard.

The district is now merged in the Supreme Court of the Territories.

Held, that an appeal will not lie from the judgment of the Supreme Court affirming a decision of the Court of Revision in such case, as the proceedings do not originate in a Superior Court. R.S.C. c. 135 s. 24.

An appeal in such case wili e since the passing of 51 Vic. c. 37 s. 5, which allows an appeal from the decision of the Supreme Court of the Territories although the matter may not have originated in a superior court.

W. J. Ritchie C.J. and Strong, Fournier, Taschereau THE QUEEN v. PARADIS.

THE QUEEN v. BEAULIEU. *

Mar. 29. Expropriation-Award .of Oficial Arbitrators-Compensation for land taken-Duty of appellate court.

On an appeal to the Supreme Court from a judgment of the Exchequer Court increasing the amount awarded by the official arbitrators to the claimant for expropriation of land for the Intercolonial Railway.

Held, reversing the judgment of the Exchequer Court and restoring the award of the official arbitrators, that to warrant an interference with an award of value necessarily largely speculative an appellate court must be satisfied beyond all reasonable doubt that some wrong principle has been acted on or something overlooked which ought to have been considered by the official arbitrators, and upon the evidence in this case this court refused to interfere with the amount of compensation awarded by the official arbitrators. W. J. Ritchie C.J. and Strong, Fournier and Gwynne JJ. *The decision of the Exchequer Court and the judgments of the Supreme Court in these cases will be found in Vol. I. of the Exchequer Court Reports shortly to be publihed.

fVOL. XVL. WALLACE v SOUTHER.

Promissory note-Identity of payee-Double stamping. Nov. 10, A promissory note made payable to John Souther & Son was sued on 12, 13. by John Souther & Co.

Held, that it being clear by the evidence that the plaintiffs were the persons designated as payees, they could recover.

It is no objection to the validity of a promissory note that it is for payment of a certain sum in currency.

Currency must be held to mean " United States Currency," when the note is payable in the United States.

If a note is insufficiently stamped, the double duty may be affixed as soon as the defect comes to the actual knowledge of the holder. The statute does not intend that implied knowledge should govern it.

The appellant claimed that he was only a surety for his co-defendant, and that he was discharged by time being given to the principal to pay the note.

Held, that the fact of time being so given being negatived by the evidence, it was immaterial whether appellant was principal or surety. The judgment of the Supreme Court of Nova Scotia (20 N. S. Rep. 509) affirmed.

:-Sir W.

CONFEDERATION LIFE ASSOCIATION O'DONNELL.

Nov. 13. Life insurance-Policy-Memo. on margin-Want of countersignature- Effect of-Admissibility of evidence.

A policy of life insurance sued on had in the margin the following Mar. 18. printed memo ; " This policy is not valid unless countersigned by agent at

Countersigned this day of This memo. was not filled up, and the policy was not, in fact, countersigned by the agent. Evidence was given of the payment of the premium, and rebutting evidence by the company that it had never been paid.

The judgment on the former appeals in this case was, on this point, substantially adhered to. See 10 Can. S.C.R. 92, and 13 Can. S.C.R. Sir W.

TUPPER v ANNAND.

NT.14. Contract-Mining land--Speculation in-Agreement with third party- - Renewal--Efect of.

T., being in Newfoundland, discovered a mine of pyrites, and on returning to Nova Scotia he proposed to A. that they should buy it on speculation, A. agreed, and advanced money towards paying T's expenses in- going to Newfoundland to secure the title. T. made the second journey and obtained an agreement of purchase from the owner of the mine for a limited time, but failing to effect a sale within that time the agreement lapsed.

It was renewed, however, some two or three times, A. continuing to advance money for expenses.

Finally, T. effected a sale of the mine at a profit and bad the necessary transfers made for the purpose, keeping the matter of the sale secret from A. On an action by A. for his share of the profit under the original agreement.

Held, affirming the judgment of the court below, that the sale related back, as between T. and A., to the date of the first agreement, and A. could recover.

Sir W.

MUTUAL RELIEF SOCIETY OF N.S. v WEBSTER. Nov. 23, 24. Life insurance-Mutual company-Bond of membership-Warranty- - Concealment of facts-Mis-statement.

On an application for insurance in a mutual assessment insurance so- Mar. 18.

ciety the applicant declared and warranted that if in any of the answers there should be any untruth, evasion or concealment of facts, any bond granted on such application should be null and void. In an action against the company on a bond so issued, it was shown that the insured had mis-stated the date of his birth, giving the 19th instead of the 23rd of February, 1835, as such date; that be had given a slight attack of apoplexy as the only disease with which he had been afflicted, and the company contended that it was, in fact, a severe attack; that he had stated that he was in " perfect health " at the date of the application, which was claimed to be untrue; that he had suppressed the fact of his being subject to severe bleeding at the nose-and that the attack of apoplexy which he had admitted occurred five years before the application, when the fact was that it had occurred within four years. trial judge found that the mis-statement as to date of birth was immaterial, as it could not have increased the number of years on which the premiums were calculated ; that the attack of apoplexy was a slight, not a severe attack; that the applicant was in "good" if not "perfect" health when the application was made; that the bleeding at the nose to which the insured was subject, was not a disease, and not dangerous to his health; but that the mis-statement as to the time of the occurrence of the attack of apoplexy was material, and on this last issue he found for the society, and on all the others for the plaintiff. The court en bane reversed this decision and gave judgment for the plaintiff on all the issues, holding that as to the issue found by the trial judge for the society there was a variance between the plea and the application which prevented the society from taking advantage of the mis-statement.

On appeal to the Supreme Court of Canada: Held, Gwynne and Patterson JJ. dissenting, that the decision of the Court en bane (20 N.S. Rep. 347) was right, and should be affirmed.

:-Sir W.

SNOWBALL v. NEILSON.

Action to set aside judgment-Collusion.

Feb0. a judgment creditor of J. N., sr., applied to the Supreme Court of Mar. 18. New Brunswick on affidavits, to have a judgment of J. N., jr., against said J. N., sr., his father, set aside as being obtained by collusion and fraud, and in order to cover up assets of the said J. N., sr.

The facts alleged in the affidavits supporting the application were : that a cognovit was given and said judgment of J. N., sr., was signed on the same day; that no account was ever rendered of the debt ; that no entries were ever made by said J. N., jr., against his father; that the account for which the cognovit was given was made up from calculation and not from books; that the father had offered to have the judgment discharged on payment of a much smaller sum; and that on an examination of the father for disclosure he would not swear that he owed his son the amount and that he had no settlement of accounts. The affidavits in answer stated how the debts had accrued, giving the details; that there was no collusion between the father and son; that the son frequently asked his father for a settlement but could not get it; and that he had never been a party to, or authorized any settlement.

The court below held that the applicant had failed to show fraud and refused to set aside the judgment.

Held, that the decision of the court below should be affirmed. :-Strong, Fournier, Taschereau, Gwynne and Patterson JJ. ROBERTSON v. WIGLE.-THE ST. MAGNUS. Oct. 29. Maritime Court-Collision--Damages-Party in fault-Answering signals. The owners of the tug "B.H." sued the owners of the steam propel- lor "St. M." for damages occasioned by the tug being run down by the propellor in the River Detroit.

Held, reversing the judgment of the Maritime Court of Ontario, that as the evidence showed the master of the tug to have misunderstood the signals of the propellor, and to have directed his vessel on the wrong course when the two were in proximity, the owners of the propellor were not liable and the petition in the Maritime Court should be dismissed.

:-Sir W. J. Ritchie C.J. and Strong, Fournier, Taschereau WARNER v. MURRAY.

April 6. Insolvent estate-Claim of insolvent-Money given to husband- Loan or gift-Questions of facts-Finding of court below.

M. having assigned his property to trustees for the benefit of his creditors his wife preferred a claim against the estate for money lent to M. and used in his business.

The assignee refused to acknowledge the claim, contending that it was not a loan but a gift to M.

It was not disputed that the wife had money of her own and that M. had received it.

The trial judge gave judgment against the assignee, holding that M. did not receive the money as a gift. This judgment was confirmed on appeal.

Held, confirming the judgment of the Court of Appeal, that as the whole case was one of fact, namely, whether the money was given to M. as a loan by, or gift from, his wife, who in the present state of the law is in the same position, considered as a creditor of her husband, as a stranger, and as this fact was found on the hearing in favor of the wife and confirmed by the Court of Appeal, this, the second appellate court, would not interfere with such finding. :-Strong, Fournier, Taschereau, Gwynne and Patterson JJ. VIRTUE v. HAYES. In re CLARKE.

Appeal-Finta judgmnent-.Jirisdiction-Discretion of court judge.

April Judgment was recovered in the suit of Virtue v. Hayes, brought to realize Mechanic's liens, and C., the owner of the land on which the mechanic's work was done, applied by petition in the Chancery Division to have such judgment set aside as a cloud upon his title. On this petition an order was made allowing C. to come in and defend the action for lien on terms, which not being complied with the petition was dismissed, and the judgment dismissing it was affirmed by the Divisional Court and the Court of Appeal. On appeal to the Supreme Court of Canada.

Held, that the judgment appealed from was not a final judgment within the meaning of section 24 (a) of the S. & E. C. Act or, if it was, it was a matter in the judicial discretion of the court, from which by sec. 27 no appeal lies to this court.

:-Strong, Fournier, Taschereau, Gwynne and Patterson JJ. HALIFAX BANKING CO. v. MATTHEW.

Chattel mortgage-Action aside-Fraudulent as against creditors-13 Eliz. 5-Riht of creditor of mortgagor

Nov. Plaintiffs having recovered judgment against one H. issued execution under which the sheriff professed to sell certain goods of H. and gave a deed to plaintiffs conveying all the " share and interest " of April 30. H. in the goods. Six months before the recovery of the plaintiffs' judgment, H. had made a mortgage covering all the goods proposed to be sold by the sheriff.

The plaintiffs filed a bill to set this mortgage aside as fraudulent under the statute of Eliz. and fraudulent in fact. The court below held the mortgage good and dismissed the bill.

Held, affirming this judgment, that no fraud being shown and the plaintiffs not offering to redeem the mortgage, the action was rightly dismissed.

:-Sir W.

THE QUEEN v CHARLAND. *

Award of Arbitrators increased Exchequer Court-Hearing of addi- - [Feb. 12. tional witness-Appreciation of the evidence-Appeal Supreme Apri 30. Court-Weight of

In a matter of expropriation of land for the Intercolonial railway, the award of the arbitrators was increased by the judge of the Ex- *The decision of the Exchequer Court and the judgments of the Supreme Court in this case will be found in Vol. I of the Exchequer

Courts Reports shortly to be published.

chequer Court from $4,155 to $10,824.25, after additional witnesses had been examined by the judge.

On an appeal to the Supreme Court it was

Held, affirming the judgment of the Exchequer Court, that as the judgment appealed from was supported by evidence, and there was no matter of principle on which such judgment was fairly open to blame, nor any oversight of material consideration, the judgment should be affirmed.

.

:-Strong, Fournier, Gwynne and Patterson JJ.

18s9

MITCHELL v. MITCHELL.

Mar. 22, 23.

Removal of executor-Arts. 282, 285, 917 0.0.

April 30.

Held, affirming the judgment of the Queen's Bench for Lower Canada (appeal side) (M.L.R. 3 Q.B. 191) that Art. 282 C.C. does not apply to executors chosen by the testator, and that in an action for the removal of one executor when there are several executors, the existence of a law-suit between such executor and the estate he represents, and the evidence of irregularities in his administration but not exhibiting any incapacity or dishonesty, are not a sufficient cause for his removal.

Arts. 285, 917 C.C. (Strong J. dissenting.)

:-Strong, Fournier, Taschereau, Gwynne and Patterson JJ. MILLER v. STEPHENSON.

Nov. 20. Evidence-Goods sold and delivered-Oredit-Direction tojury-Withdrawal of evidence from jury-New trial.

In an action against McK. & M. for goods sold and delivered, the plain- June 14.

tiff swore that he had sold the goods to the defendants and on their credit, and his evidence was corroborated by the defendant McK. The defence showed that the goods were charged in plaintiff's books to C. McK. & Co. (the defendant McK. being a membur of both firms), and credited the same way in C. McK. & Co's. books, and that the notes of C. McK. & Co. were taken in payment, and it was claimed that the sale of the goods was to C. McK. & Co. The trial judge called the attention of the jury to the state of the entries in the books of the plaintiff and of C. McK. & Co., and to the taking of the notes, and to all the evidence relied on by the defence, and he left it entirely to the jury to say as to whom credit was given for the goods.

Held, affirming the judgment of the Supreme Court of New Brunswick, (27 N.B. Rep. 42) Strong and Patterson JJ. dissenting, that the case was properly left to the jury and a new trial was refused.

:-Sir W.

HOOD v SANGSTER.

Appeal-Action for partition and licitation of property-Partnership- Nov. 129. Plaintif's interest less than $2000-R.S. C. c. 135 s. 29.

An action was instituted by the respondent against the appellant for the partition and licitation of a cheese factory, etc., in order that the proceeds might be divided according to the rights of the parties who had carried on business as partners.

The judgment appealed from ordered the licitation of the factory and its appurtenances.

On a motion to quash the appeal by the respondent on the ground that the matter in controversy was under $2000, the appellant in answer to the respondent's affidavit filed another affidavit showing that the total value of the property was $3000, but it being admitted that the respondent (plaintiff) claimed but one-half interest in the property it was

Held, that the matter in controversy, and claimed by the respondent, not amounting to the sum or value of $2000, the appeal should be quashed with costs.

:-Sir W.

ABANDONMENT-Notice ofRailway Co--Exaction-Death ofplaintiff- Act--Appeal--Juridiction 699

ACTION-Ex of duty-Tender freight deniers-Sale to-Bank-Commercial paper-Colsecurity-Parol agreement-insolvency

4-Abatement of-Railway accident-Death plaintif-Lord Act-New

Propriety

-Non-negotiable-Indorsement-Liability

7-Promuissory note-Name of payee-Identity

Court-Jurisdiction

Inland

ParliamentI'-Penalties-P

AGENT--of of lands-Power ofsale-Exercise of- 2-Railway Co.-Contract for terminus-Connecting

Co.-Contersigning premium-Delivery policy-Eviof court-R. (a)-Final judgment-Practice a rule nisi of the Supreme Court of Brunswick was called upon to show cause why an attachment should not issue against committed for contempt court, publishing certain articles newspaper. the return of the rule it was made absolute, and a writ of attachment was issued commanding the sheriff have the body of before the court a day named. the practice in such cases the said court it appeared that the attachment was issued merely in order bring the party into court, where might ordered answer interrogatories and answers purge could contempt. If unable to this the court would pronounce tence. appealed from the judgment making the rule absolute. motion to quash said appeal.

feld, that the judgment appealed from was not judgment from an appeal would lie under (a) of the Supreme and Exchequer Courts Act, C. c. 2-Jurisdiction-Future rights-Supreme several money payments of each, whereof the defendants agreed to pay to the plaintiff every year long as certain security given the plaintifffor the defendants remained the hands of the Government, the defendants contended that the security had released the action of the Government and they were therefore not liable to pay the amount sued for, or any further instalments. The Court (appeal side) held that the security had not released and gave judgment for the amount claimed. The delendants applied to to appeal, on the ground that the judgment was founded then future rights would bound, and they had liable for two other instalments of each which actions pending.

that the appeal would lie, because if the future rights the dants were bound the judgment such future rights had no relation any the matters things enumerated sub-sec. b. & Act. words " where the rights APPEAL-Continued.

relate to duty, rent, revenue sum payable to Her title lands tenements, or to annual rents out lands or tenements, or to like mat- Court-Constructive court-R.

decision of provincial court in a case constructive contempt not matter discretion which an appeal prohibited the Supreme Exchequer Courts Act. Taschereau J. dubitante.-The Supreme Court has jurisdiction entertain such an appeal the judgment of the Court Appeal of the Province, not only under sub-sec. (a) of Supreme and Exchequer Courts act as judgment an action or suit, but also under sub-sec. (1)

of sec. of the same act, judgment matter other judicial proceeding"

within the meaning of said 26.-The adjudication that the appellant, solicitor the court and moved against that quality, has been guilty contempt, itself appealable judgment, although no tence the contempt has pronounced the court.-When the party contempt ordered to pay the costs of the application to commit the court inflicts the

-Right (P.Q.)-Amount

Where the plaintiffbas acquiesced the judgment the court of instance not appealing the same, the measure of value determining his right appeal tinder section 29 the Supreme and Exchequer Courts Act is amount awarded the said judgment the court first instance, and not the amount claimed declaration.

(Levi Reed. 6

C. over-ruled; Allan Pratt,

Cases referred to over-ruling

Joyce Hart, 1 Can.

Judicial same-Value of troversy-Jurisdiction-Supreme and deposited with the prothonotary of the Superior

Court, under the Judicial Deposit Act ofQuebec, of being the amount of life policy issued the company one its terms had payable those entitled the but to one-half of which rival put The appellants, as collateral heirs of the deceased, petition claimed the whole the three thousand dollars, and the pondent (mise-en-cause petitioner), the widw of deceased, a counter petition claimed one-half; and, her answer the appellants' petition, prayed that it claimed than one-half, it should dismissed.

After issue joined,

APPEAL-Contiued.

lants, and the other half the respondent. From this judgment the appellants appealed the Court of Queen's Bench (appeal side) and that court confirmed the judgmentof the Superior Court. appeal the Supreme Court Canada.

that the or value of matter controversy between the parties only the was not appealable. (Fournier J. dubitante). Iabeas for For the purpose of appeal to the Supreme Court of Canada habeas corpus case the first step the filing the case appeal with the registrar.-The judgment of the Court Appeal habeas corpus proceeding was nounced Notice of intention to appeal was immediately given but the in appeal not the Supreme Court until ield, that the appeal was brought within sixty days the date which the judgment sought to appealed from pronounced and there was jurisdiction rights-Supreme a judgment the Court of Bench Lower Cnnada (appeal side)in an action brought recover amount special assessment for drain along the property of the defendants, the respondent to quash want of jurisdition. the ground that the matter controversy was under and not within any of the exceptions tion of the Supreme and Exchequer Courts Act. Held, that the came within the words " such like matters or things, where the rights in future might bound," paragrauh (b) section and was therefore appealable. shares-Actual value.] Where the matter controversy bank shares, their actual value at the time of the stitution of action and not their per value determine the right of appeal under section Supreme and Excheq ur Courts Act, and the actual value such shares shown affidavit.

Quebec-R.S.C. By plaintiffs authorized build and maintain a toll bridge the River LAssomption at called Portage." and if the said bridge should accident or otherwise destroyed, unsafe or impassable, the said plaintiffs bound rebuild the said bridge within months next following the giving said bridge, under penalty forfeiture of the advantages this act granted ; and during any time that the said bridge should unsafe or impassable they were bound to maintain ferry across the said river. for which they might recover the tolls. bridge was dently carried away but rebuilt opened for traffic within months. During the reconstruction, although the plaintiffs maintained a across the said river, the defendant built temporary bridge within the limits of the plaintiff's franchise and allowed it parties crossing the river.

In action brought the plaintiffs, claiming damages, and praying that the defendant condemned molish the temporary bridge, appeal the

Supreme Court it was-Held, that rights in future might bound, the was appealable under

GUILBAULT

---- - Securityfor costs-Right of-Inof third party-Discretion of

Jurisdiction.] brought action against J.

and issued a writ of capias. Bail given and special bail entered due course, but the bailpiece was not nor judgment entered against

J., months after.

application to a judge chambers order was made for the discharge of the bail account delay in entering judgment, and the court to set aside such order.

An appeal was brought to the Supreme Court of Canada titled the suit against J., from the judgment of the full court, and the bond for security costs was given to J. Held, that the bail, the only parties really interested the appeal, were not the court and not entitled benefit the bond, the appeal must quashed for want of proper security.

Held also, that the appeal would not the matter was simply one of practice, the discretion of the court

11-Expropriation of land-Order s.

College

Th6rbse having petitioned for order for payment to them of deposited the appellants security for land taken for railway purjudge the Superior Court chambers after formal answer and hearing the parties granted the order under the Railway Act,

11. c. s. 8 s.s.

The railway pany appealed against this order to the Court of

Queen's for Lower Canada (appeal side)

and that court the decision the judge the Superior Court. Beld, that the order in question having a judge sitting in chambers, and, further, acting under the statute originated superior court within the meaning of section of the Supreme and Exchequer

Courts Act, and the was therefore not appealable. C.P.RY. Cov.

12-Motionfor trial--Jurisdiction-R.

c. 8. (d).] The defendant an action against verdict has passed at the trial

4 7 -.

on the grounds of misdirection, surprise and the discovery of further evidence, and the motion was granted the ground of misdirection (15 0.R. The plaintiff appealed and the Court Appeal that there was misdirection, but that the order of the Divisional Court directing the submitted anotherjury had better not interfered with, the circumstances of the case being peculiar. Held, that the judgment of the Court of Appeal did proceed upon the ground that the trial judge not ruled according to law no appeal would to the Supreme Court of Canada its cision.-In the factum of the respondents no jection was made to the jurisdiction of Supreme Court, but it was urged that the appeal should not entertained and that the court should not interfere with the discretion favor new trial exercised the two lower courts, the circumstances, it was contended, being Eureka Can. As the appeal was quashed for want jurisdiction the costs posed only a motion to quash. Appeal-Province Quebec-R. (b.)-Future rights-Fee of matter-Action for case the Province Quebec, virtue , b) the Supreme and Exchequer Courts Act the matter relating to of where the rights future might bound, must the matter really controversy the suit in which the appeal sought and something merely collateral thereto. This clause wilt not give jurisdiction in which the action was brought to recover penalties for bribery under the Quebec Election Act (R. Q., Art. and the of the judgment may to disqualify the appellant from holding under the crown seven years. trial-Action, of-Death plaintiff-Actio personali persondaccident-Lord brought action against conductor of the LC.R. injuries in attempting to board a train and alleged to caused the negligence of the conductor in not bringing the train standstill.

the trial was nonsuited motion the full court the suit was set aside and trial ordered. tween verdict and the judgment ordering a trial died and suggestion death entered the record.

appeal the Supreme Court of Canada from the order of the full court: Held, that under Lord Campbell's Act, or the equivalent statute Brunsaction arose on the death of P. and the original action entirely gone and could not vived.

There being cause the court APPEAL-Continued.

the appeal was quashed without costs. Wrre

though the court cannot to hear an appeal which only twenty-two dollars involved, yet the bringing of appeals for such trifling amounts objectionable and should

Jurisdiction-Final judgment-Judgment demurrer replication plea.] judgment provincial court allowing a demurrer to the plaintiffs replication to of several pleas the which not operate put end to the whole or any part of the action or is not judgment from which an appeal will lie to the Supreme Court of Canada.

P.

APPEAL-Continued.

peal raised only questions fact and the the court the hearing had the provincial court appeal. Ifeld, that 'Supreme Court, appellate court. would not interfere with finding. Final judgment-Jirisdiction-Discretion of court or judge.] Judgment was recovered in the suit V

Hayes, hroughtto realize mechanic's liens, and owner the land which the mechanic's work was done, petition the Chancery Division to have such judgment set aside cloud upon title. this petition order was made allowing and defend the action for terms, which not being complied with petition was dismissed, and the judgment 17-udgment of.Supreme Court ofNorth-West missing it was the Divisional Territories-Court of first instance-Origin of Court and the Court Appeal.

field, that the proceedings-R. c. 24-51 V. judgment appealed was not judga.

an ordinance of the North-West ment within the section of Territories an appeal from the decision of & Act or, if it was, it was a matter in the Court Revision for adjudicating upon the judicial discretion of the court, which assessments rates to the district court appeal to this court. of the school district; such appeal being brought the clerk of court issuesasummons, making the ratepayer plaintiff and the school 21-Action for partition and licitation of property-'artnership-Plaintif's able at the next sitting of the court when the $2,000-R.

An action was appeal heard.

The district merged instituted the respondent against the appelthe Supreme Court the Territories.

Held, lant partitioi and licitation cheese that an appeal will not lie the judgment of factory, etc., order that proceeds might the Supreme Court affirming a decision of the divided according to the rights of the parties Court of Revision such case, as the proceed- had carried on business partners. The ings not originate Superior Court. judgment appealed ordered the licitation 24.-An appeal such will the factory and its appurtenances. motion since the passing s. which to quash appeal respondent on the allows an appeal the decision the Su- ground that matter controversy was under preme Court of the Territories, although the the appellant answer to the responmatter may not have originated a Superior dent's affidavit another affidavit showing Court. -716 that the total value the property was 18-Expropriation-Award of Arbitrators-Compensation for land taken-Duty of (plaintiff) claimed but one-half interest the )pellate court.] app-al to Supreme property, it :Held, that the matter in Court judgment of Exchequer Court controversy, and claimed the respondent, increasing amount awarded the not amounting to or value of arbitrators the claimant for expropriation appeal should quashed with costs. ) land the Intercolonial Railway. Held, versing the judgment the Exchequer Court and restoring the award of the arbitra- ARBITRATION

AND

AWARD-Railroay tors, that to warrant interference with Act-Expropriation of land- mpensation-Enaward necessarily largelyi speculativefrigardP cte appellate court must satisfied beyond all reasonable doubt that wrong principle has been acted or something overlooked which ought to have been considered the 2--Ojficial Arbitrators - Expropriation arbitrators, and upon the evidence this land-':ompensation-A ppeal-D uty of appel. case this court refused interfere with the late court

----amount of compensation awarded the arbitrators.

arbitrators

Expropriation, lands-Appeal Exchequer Court-Additional Second appellate court - Questions offactevidence-Principle of assessing damages Finding

S. C. K. VoL. XVI.]

constable-Discharge of summons-C. Act-R.

34-Indictment-Evidence- TAXES-Municipal taxes-Special

26-Educational institution all educational houses or establishments which not receive any subvention from the corporation or municipality which they are situated are exempt municipal and school assessments " whatever may the Act in virtue of which assessments are imposed, and notwithstanding all dispositions to the contrary."

Held, reversing the judgment of the court below, that the exemption municipal taxes enjoyed educational establishments under said c. extends to taxes imposed for special purposes, construction of drain front of their property. (Sir J. Ritchie C.J. dissenting.)-Per

Strong J.-Every contribution a public pursuperior authority ''tax.'' us rates-North-West

Judment of Revision-Origin of

ASSIGNMENT-In for creditors-Preference-Fraud creditors-Statute ofElizabeth-Resulting property trust for the benefit of creditors provided for the distribution of the assets the assignee follows : First, pay certain named full.-Secondly, remained after payment to pay certain other named creditors full, or, if the assets should not sufficient, to distribute the pro ratd among such second preferred creditors.-Thirdly, to divide the remaining assets among all the creditors not preferred in equal proportions according to their respective claims, and-Fourthly. to pay the balance remaining quired all creditors executing it to release the assignor any and every claim of the cuting creditor against and provided that money and than should actually receive, nor responsible any damage to the trust, except such as should happen through own wilful neglect action to set aside the : Held. affirming the judgment of the court below, Gwynne and Patterson JJ. dissenting, that the deed was which it was unreasonable expect unpreferred creditors to parties. and therefore, because it contained a resulting trust favor the debtor, it was under the statute, Eliz.

2-ofpolicy -Insurable

ATTACHMENT-for contempt-Practice-Appealfrom judgment-R. ATTORNEY-of mortgagee-Power of-Sale lands-Exercise BAIL-Civil action-Discharge-Order for- Appeal-Security for cost-Benefit 593 BAILMENT-Railway Co.-Carriage of -Contractterminus-Loss transit-Delivery BANK-The seq.-Wrehouse receipts-Parol surplus-Arts. Bank took & several warehouse reieipts collateral security for commercial paper discounted in the ordinary course of business, and having a surplus from the of the goods represented the receipts after paying the debts for which they were immediately pledged, claimed under parol agreement to hold that surplus payment of other debts due &

& having insolvent of the creditors, brought an action against the bank, claiming that the surplus must distributed ratably among the several body creditors. H. & were not made parties to the below, that the parol agrement was not contrary to the provisions of the Banking Act, C. c. that after the goods were lawfully sold the money that remained,after applying proceeds each sale to its proper note, could properly applied the bank under the terms the parol agreement. (Ritchie J.. doubting and ournier J. dissenting).-Per Taschereau J.: That & ought to have made parties to Winding-up-Share-holders-Calls tributory-Set-of against-R.S.C. 456 3--Shares-Suit respecting-Matter versy-Actual of shares-Right policy-Barratry-Proximate Perils against " perils the seas " bility for such loss.-Per Strong J. dissenting: [S. C. R. Voy,. XVI. BILL OF LADING-Carriage of goods

CARRIERS-ositoted.

peril8-Negligence-Improper paid trover against the master afrmig judgment of court Gwynne J. dissenting, that refusal BOND-of surety-Public agent after tender ofthe full freight 306 version the cargo which trover would lie-leld, per Patterson J., that trover would hit not against master, only the for costs-Appeal-Form ofservant the agent, and acting under Objection-Practicedirections.-1fell. that action 1.for of duty not delivering coal according the hill of lading would not for costs-Appeal-Right third party

Railway Co-Carriage for-Carriage ofline-Exenip- BY-LAW-Honus railway-Performance liability-Construction contract- Satuto liability-oint feasors-Release one-Efects

Where railway company See

Iundertakes carry goods point beyond CALLS-Insolvent bank-Contributory--Double the terminus of its line contract liability of carriage over the whole transit, and R.S.C.

456 the other companies over line they must the contracting pany such carriage, and CARGO-Refusal deliver-Tender contract with the shipper.

Ilailofstowage-Lien

( followed- Such contract being which a railway n might enter into. the CARRIERS-Contract-Carriageofgoods--Negli-Railway Act C. c. not prevent gence-.Bill lading-Exceptiori liability it restricting its liability negligence under-Stouwage.] Abillofladingacknowledged carriers otherwise respect to thegoodsto the receipt board steamer the defendants, carried after they had its in order and condition, of goods shipped 0. T. R.

an. S.C. meat) and contracted to deliver the not govern contract-One like good order and condition loss the conditions contract the G. or damage resulting sweating carry goods Toronto to Portage ]a decay, stowage,

*

*

* or any Prairie, beyond the terminus the following perils, v hether arising from the their line, provided that te company should negligence, default or error in judgment of the not responsible any mis-delivery, pilot, master, mariners or other persons the damage detention that mighthappen service the ship, or whose whose acts the sent if such mis-deiivery, damage shipowner liable otherwise howsoever) detention occurred after arrived ways excepted, namely (setting them out). Held, at the stations or their lue nearest to aflirming the judgment of the court below, Sir the points or places which they were consigned J. Ritchie C.J. and Fournier J. dissenting, to, beyond their limits.'-eld, that this that the clause " whether arising the negli- condition would not relieve the company default or error judgment of the liability loss damage occurring during master," covered well the preceding transit even if such occurred beyond ceptions those which followed, and was not limits the company's line.

Ield, limited its application the words

Strong and Taschereau JJ., that the having any the following perils," and the defendants occurred after the transit and the were, therefore, not liable for damage to the goods delivered at Portage Prairie, and the goods shipped resulting improper stowage, liability the company carriers having which was of the excepted petils. V. this condition reduced the contract to bailment the goods were delivered, and exempted company party-Delivery freight-Pa liability warehousemen, and the were ment-Concurrent for that time custody the company Oi cargo-Lien.] cargo coal was consigned Portage Prairie was situate, to and master the vessel to hailees the shipper. (Fournier and Gwynne liver it unless the freight was prepaid, which JJ. dissenting).-Another condition the his turn but to pay it ton tract provided that claim damage to, loss ton delivered.

Py direction of the owner's detention goods should allowed agent was taken out of the and unless notice writing, with particulars, was stored, whereupon tendered the amount of the given to the station agent at nearest to the freight and demanded it, but the agent still place of delivery within thirty-six hours after deliver cost was delivery the goods respect which the claim was made.

Held, per Strong that a plea setting up non-compliance with this condition having demurred and the plaintiff not having appealed against a judgment overruling the demurrer, the question ciency law the defence was resjudicata.- Held also, per Strong J., Gwynne J. contra, that part the consignment having lost, notice must given respect to the same within thirty-six hours after the delivery those which arrive safely -Quaere-In the present state the law a release to, satisfaction from, of several joint tort-feasors, bar to an action against the others ?

CASES-Allan Pratt

Pinsoneault

Can.

6-Eureka Woollen fart ruled

1;

11-Vogel

PARTY-Delivery of payment-Cost of stowage-Lien

Pa tcricE

Party fault Evi- COLLUSION-Judgment by-Application facts

Parliament Canada-Powers of-Imperial jurisdiction on-Inland the Inland Revenue Act, 8) gives the Court of Vice-Admiralty jurisdiction intra ternp-- litigation--Prejudice -Locus CONTEMPT OF COURT-Continued.

the relator Notice of appeal said judgment had given, but the motion was made the notice was countermanded and the appeal abandoned.

Held, that the proceedings the cause before the master being at an end the relator the cause could not prejudiced, asuitor,by the publication complained of; and prejudice was the only ground. which could institute proceedings for contempt had no locus standi and his application should not have entertained.

2-Constructive lHrunswick--Practice--inalI

Co.-Agreement

Performunicipal corporation entered into agreement with railway company which the latter was to bonus certain conditions which was that the company

" should construct at or near the corner of Colborne and William streets Toronto) freight and passenger station with all necessary accommodation. connected switches, sidings otherwise with said road" upon the council the town passing by-law granting necessary right way. le d-1. That such condition was not complied with the erection a station building not nor intended to and which proper station master, ticket agent, etc., were not appointed. Strong J.

dissenting.-2. Per Strong J., that the condition only called for the construction of a building with the required accommodation and connections, and did not amount to covenant to run the trains such station or make any other of it.-3. The words " all necessary accommodation" the condition required that grounds and yards sufficient for freight and passenger traffic station were should provided.

2-Railway Co.-Carriage good-Liability for negligence-Transit-Connecting of the conditions a contract by the G.T.R.

carry goods from Toronto to Portage la

Prairie, place beyond the terminus their line, provided that the company "should not responsible for any loss, mis-delivery, damage or detention that might happen to goods sent them, if such loss, mis-delivery, damage or detention occurred after said goods arrived at the stations or places their line nearest to the points or places which they were consigned to, or beyond their said limits." Held, that this condition would not relieve the pany liability for or damage occurring during the transit,even if loss occurred yond the limits of the company's line.- Held, per Strong and Taschereau JJ., that the

CONTRCT-Contiuned.

having occurred after the transit was over, and the goods delivered at Portage la Prairie, and the liability of the carriers having ceased, this condition reduced the contract to one bailment soon the goods were livered, and also exempted the company from liability warehousemen, and the goods were that time custody of the company whose line Portage la Prairie was situate, as bailees for the shipper. (Fournier and Gwynne JJ. dissenting.)

of goods-Construction of- Bill of lading-Excepted perils-Negligence inisirance-Policy-Construction mine-Lapse of-Efect CONTRIBUTORY-Insolvent bank-Windingup-Double liability-Claim Co.-Running town-Death 231,399 1, COSTS-Proceedings for contempt-Judgment for-Effect

2-Security forof third party

3-Quashing appeal-Jurisdictio n-Factun-636 lease-Care ofpremises-Duty repair-Destruction fire-Liability for-Preference-Statute 2-Goods Entries books-Charge thirdparty-Evidence 445 CREDITORS-Coniinued.

3-Insolvent Estate-Claim of vent-loney husband-Loan gift-720 sold-Credit-Charge third party jury-New trial

LAW-Assault duty-Serving summons-Trial fendant--R.S.C. s.34; R.S.C.

assault a constable attempting to serve a summons issued a magistrate information charging violation of the Canada Temperance execution of his duty and indictable under R.S.

c. 34.-On the trial of an indictment such assault the of the defendant witness behalf.

2-Criminal law-Indictnient-Name third person-Alias

Where two or more names are laid an indictment under an alias dictus it not necessary to prove them all.-J. was indicted the murder of otherwise called the trial it was proved that the deceased was known the name of but there was no evidence that ever went the other name.

ing the judgment of the court below, that this variance between the indictment and the dence did not invalidate the conviction J.

manslaughter.

CURRENCY-Promissory note-Payable of-Payable

DUTIES-Article parts of duty-Scrap brass-Good legislation-Effect

" Automatic Sprinkler," a brass device of several parts, was desirous of importing the into Canada, with the intention of putting the parts together there and putting the completed articles the market. interviewed the appriser hardware at Montreal, plained to the device and its and was told that it should pay duty manufacture brass.

imported a number of sprinklers and paid the duty the several parts, and the toms then caused the to and an information to laid against valuation, and knowingly keeping and selling goods illegally imported, under and judgment of the Exchequer Court, that there was importation ,f sprinklers, completed articles, and the act not imposing duty parts of an article the information should dismissed.-Held also, that subsequent passage of Act re-enacted c. imposing a duty

CUSTOMS DUTIES-Contiued.

parts was legislative declaration that it did previously exist. DAMAGES-Injunction

Prob- Co.-Negligence-Death of for CREDITOR-Insolvent band-Loan gift-Questions facts-Finding to trustees for the benefit of his creditors,bis wife preferred a claim against the estate for lent M. and business. The assignee refused to acknowledge the claim, contending that it was notaloan butagiftto Mt. Itwasnot disputed that the had money of her and that i. had received it. The trial judge gave judgment against the assignee, holding that Ml. did not receive the money gift. This judgment was appeal.

firming the judgment the Court of Appeal, that the whole was one of fact, namely, whether the money was given to M. a loan or gift from. his who the present state of the law the position, considered as creditor of her husband, a stranger, and this fact was found hearing favor of and confirmed the Court of Appeal, this, the second appellate court, would not interfere with such finding.

for creditors-Preference-otatute ofEliz.-Resulting 3-Goods and Credit-Entries third party-Evisold-Credit-Charge third party- Evidence-Direction jury-New trial of-Title lands-Estoppel-Trust-Fiduciary H. Under the provisions 1, generally known the Rideau Canal Act, Lt.-Col. who was employed to superintend the work of making said canal, set out and ascertained acres or thereabouts, part of acres or thereabouts theretofore granted Grace necessary for making completing said canal, but only acres were actually used for canal purposes. Grace intestate, leaving Alexander her husband, and William her eldest and heir-at-law, her surviving. After her death, on the 31st January, Alexander released to all interest the said lands, and on the February, the said veyed the whole of the lands originally granted [S. C. R. Vo,. XVI. DEED-Continued.

to Grace to said Col.

The appellant, the heir-at-law of petition right sought cover the crown acres the land ginally taken but not for purposes of the canal, or such portion thereof still remained the hands of the crown, and indemnity value of portions of these acres had sold the crown.

Ritchie O.J.: of the February, the title the lands passed out

William but assuming it not, estopped act and could not have disputed the validity and general of nor could the suppliant who claims under -Per Strong J.: the express terms of the section of 8 c. 1, the title to lands taken for the purposes the canal absolutely the crown as pursuantto the act, set out and ascertained necessary for the purposes of canal;

all that Grace could have titled to at her death was the compensation act ascertained the manner therein prescribed, and this right to receive recover at which this compensation should vested, on her death, in personal representative forming part of personal estate.

Therefore, regards the acres. nothing the deed of6th February,

1832.-Per Strong J.: This deed did not work legal estoppel favour of which would the statute vesting the legal estate in

William the covenants for title themselves not creating any estoppel.

But if a vendor, having title an estate, undertakes sell and convey it valuable consideration, though having present operation either at law or equity, will bind any interest the vendor may afterwards acquire, purchase value the property, respect of such after acquired interest considered a court of equity to trustee the original purchaser, and or his heirat-law, will compelled to convey to purchaser accordingly.

In other words, the interest subsequently acquired will dered " feeding"

claim of the purchaser arising under original contract of sale, vendor will not entitled retain it for

Therefore, if the suppliant granted relief asked, the land and money recovered her would equity belong to heirs

By.-Although nothing passed under the ofthe February, yet the suppliant not withhold the heirs or representative of anything might recover the crown under the section of7 V.

c. but the heirs or representatives of would torn constructive trustees crown what they might recover of the rule of equity forbidding purchases agents for their own benefit.-Per

Strong J.: of the 6th February, being equity constructively a contract

William to sell and convey any interest the land which or heirs might afterwards acquire, there nothing the statute32 c. the rules of the law avoiding contracts savoring of maintenance, conflicting with this of the deed.-Per Fournier, Henry, and Taschereau JJ.: The the 6th February made the passing of 7 V. c. and years after the crown had of the property in question, conveyed no interest property either personally or trustee for the crown, and the title therefore remained the heirs Grace MuQueen.-Per Fournier, Henry Tascherean JJ.: There could no estoppel against William virtue of the of the 6th February, the of the DEMURRER-Judument on-Disposal ofaction -Appeal-Final.judgment from-Conasidejudgnent-Order terms-Dismissal partsfor-Exemption from taxation-41 26-Special ESTOPPEL-Petition of 7 of Liniitations-32 9-Rideau 1-6

29-9

8 c. 1, generally known the Rideau Canal Act, Lt.-Col. who was employed superintend the work making said canal, out and ascertained acres thereabouts, part acres or thereabouts therefore granted Grace necessary for making and completing said canal, but only 20 acres were actually for canal purposes. Grace died intestate,leaving Alexander her husband, and William her eldest and heir at-law, her surviving. After her death the 31st January, Alexander released to William all interest the said lands, and of Feb.. the said William the whole of the lands originally granted to Grace to said Lt.-Col. £1,200.

appellant, the heir-at-law of liam her petition of right sought to recover the crown acres of the land ESTOPPEL-Continued.

originally taken Col. but not the purposes of the canal, or portion thereof still remained the hands of crown, and indemnity the value portions these acres had sold by the crown. Held-Per Ritchie J.: the of the 6th Febuary, the title the lands passed out William but summing it did not, was estopped act, and could not have disputed the validity and general of nor suppliant who claims under him.-Per Strong J. : This work any legal estoppel favor which would the statute vesting the legal estate William the covenants for title themselves not creating any estoppel.

Fournier. Henry and Tascherean JJ.:

There could estoppel against William virtue of the of the 6th

February. the face the protiso in signed the bond blank-that made davit of justification-and that the certificate of the magistrate of the execution of the bond, required the statute, was irregular and unauthorized. The attesting witness C.'s execution of the bond, and the magistrate, each swore to the correctness of his own action, and that C. must properly executed the bond the affidavit would not have made or the certificate given.

Held, Per Ritchie J., Strong, Fournier and Gwynne JJ.. reversing the judgment of the court that the weight dence was favor of the due the bond U.-Per Patterson J. that 0. was estopped denying that had executed the bond. Held also, Per Patterson J., reversing the judgment of the court below, that the tion of the bond, and not the certificate the magistrate, was the proximate, or real, its acceptance the crown.

-- --- 2-Criminal

C.C.P.-Right duty- Trial Promissory of of indictment-Witness-Coetencyvfiwife ofdesale-Prescription.] fendant-RS.C. 34-2. trustee for certain c-editors of the of

An assault constable attempt- & sons, J. M. M. (the appellant), a member ing summons issued magistrate of the alleging: 1. registered information charging violation of the Canada notarial transfer J.R.M. to Temperance Act assault trustee, of similar with rights, mort- the execution his duty and indictable gages, thereunto appertaining, due the under R.S.O. c.

34-Ot1 the trial said appellant to for the price of certain indictment such assault the the real estate Montreal; 2. transfer certain defetdant not cornetent witness promissory notes signed the appellant for the behalf.

ment thereof only if paid at maturity. The -hred tr as ember appellant was a party and intervened to the of transfer and declared himself satisfied and & and & M. an action sulbjectto its conditions. The appellant pleaded against & M. goods and delivered that the respondent had action trustee appeared trial that the goods tinder article C.C.P., and that the price had ordered and shipped paid the two promissory notes which business of & bit charged were prescribed. Held, 1. affirming the pc judgment the court that article ws at icKs, request.

called a U. 0 P. a~ nt aplicble.Tit defndan witness plaintiff, corroborated this, and having a party to the registered transfer, which gave the plaintiff trustee all mort- jection, the books MK. & which gagee's rights, was estopped denying tte goods were credited ttat verdict of such or of the right of plain- w givet forthe defendant M. ieU, reversing thereunder quality trustee.

Can. S.C.R. and & properly evidence Can. S.C.R. the cross-examingtion and the rule distinguished.

new trial should discharged.

Public

Proofofhandwriing-Su etly acquired knowledge-Change ofsignture]. Tat document not existence written EVIDENCE-Surety-Execuation of bond-Evi- particular individual proved a has and destroyed of bond-Proximate alleged writer under it waswrittenbythesameperson. Gwynn [S. C. R. Vot. XVI. EVIDENCE-Continued.

J. dissenting.-In an action for a written libel defendant was asked, cross-examination.. if had not changed signature since the action begun, which denied.-Ileld, Gwynne

, that documentary admissible to that the signature had changed.-Per Patterson J.: witcould properly asked, cross examination, if had not changed his signature, but the opposing party must satisfied with answer and could not further and give affirmative evidence of the fact.

5-Partnership-Evidence of-Names partagent that his principals are a in distant

Province, and that such composed of and coupled with the evidence receipt the person whom the representation of letters from one of the alleged members the written on paper on which the names of such members are printed. answer to letters person, primd facie dence that and constitute

6-Indictment for of dictus-Proof names-Variance running water-Long dustry-Pollution-Injunction

8--Action for Credit-Charge third party-- tojury--New Trial of-Sufflcient affirming the judgment of the Court of Queen's

Lower Canada (appeal side) (M.L.R.

that Art does not apply to executors the testator, and that an action the removal of one executor when there are several executors, the existence of a law-suit tween executor and the estate represents, and the evidence of irregularities in his administration but not exhibiting any incapacity or dishonesty, are not a sufficient cause for his moval.

Arts. (Strong J.

senting.)

of arbitrators

Court-Hearing ofaddi- In matter of expropriation of land for Intercolonial Railway, the award of the arbitrators increased the judge of the Exchequer

Court from to after additional witnesses had examined the judge.

appeal to the Supreme Court it was-Held, affirming the judgment the Exchequer Court, that the judgment appealed from supported evidence, and there was no matter principle which such judgment fairly

EXPROPRIATION-Continued.

open blame, nor any oversight material consideration, the judgment should money-Securityorder-Abandonment of notice-Enforaward-Possession-Appeal

Awardofoficial arbitrators-Compensation for land-Duty

OFFICE-Province from-Provincial election-Bribery-Action for penatlies-Effect of judgment-Holding Disqualificaion-Collateral FERRY-Toll

Interwere authorized to build and maintain a toll bridge on the River L'Assomption at a place called "Portage,' and the said bridge should accident or otherwise destroyed, or impassable, the said plaintiffs bound to rebuild the said bridge within months next following the giving way said bridge, under penalty of forfeiture of the advantages to them t act granted; and during any time that the said bridge should unsafe or impassable they were bound to maintain a ferry across said river, for which they might recover the tolls. The bridge was accidentally carried away but rebuilt opened for within months. During the reconstruction, although plaintiffs maintained a ferry across the rive-, the defendant built temporary bridge within the limits the plaintiffs' franchise and allowed it to parties crossing the river.

an action brought the plaintiffs, claiming damages, and praying that defendant to demolish the temporary bridge, an appeal to the Supreme Court it was. Held, reversing the judgment the court below, Ritchie J. and Patterson J. dissenting, that the exclusive statutory privilege extended to the ferry, and while maintained the plaintiffs the defendant had right build the temporary bridge, but as the bridge had since been lished the court would merely award nominal FINAL JUDGMENT-Judgment demurrer plea-Appeal-Jurisdiction.] judgment provincial court allowing a demurrer the plaintiffs rep:ication to one several pleas the defendants, which not operate to put an end to the whole any part from which appeal will lie to the Supreme FINAL JUDGMENT-Continued.

2-Appeal-Contempt of court-R.S.C.

3-Contempt court-Discretion-R.S.C.

27-Alatter judicial proceeding-R.S.C.

lechanic'8 lien-Judgmentfor-Petition aside-Order on-Terms-Dismissal of peti- FRAUD-Debtor and creditor-Assignment

Elizabeth-Resulttrust

2-Chattel mortgage-Suit aside-Statute of- Payment-Tender-Trover for

RIGHTS-Adgment from of-Comcase-Time for

Proof of-Written signature-Trial action-Practice

-231

WIFE-Insolvency-Insoldiclarathe defendant may, default of his surrendering the property within the period the court, personally assault-Constable--Serving summons-C. Act-R.S.C. s.34-Evi- --- For murder-Name of dictus-Proofofnames-Evidence

-Pollution of industry-Evidence ofvrit-Probable cause-Dissolution -Joint REVENUE-Prosecutions for ties-Court Jurisdiction-31 FIRE-Insurable interest-Alortgagee-Assignnent a policy of insurance his property which mortgaged and an indorsement the policy, which had annually renewed, the'loss payable to In conveyed his equity of redemption in the property, and a months after, at the request of indorsement was made the policy permitting the premises remain vacant. The policy was renewed each year until when all the policies of the insurance company were called and replaced new policies, that held being replaced another the name of to which objected and returned it to the agent who retained it. The premiums were paid W. up to end

The insured mises were burned, and special agent of the company, having power to settle or compromise the gave to W. a policy the name having vacancy permit and assignment to endorsed thereon, and containing a condition not in the old policy, namely, that all endorsements or transfers were to authorized the at St. John, and signed the general agent there. company having refused payment an action was brought policy against and the agent issued the policy was joined as a fendant, relief being asked against breach of duty and representations. Supreme Court ofNova Scotia setasidea verdict, for the plaintiff action and ordered a trial, the ground that his interest was not. insured and that had insurable interest to enable to recover the assignment. appeal decision to the Supreme Court of Canada-11eld, reversing the judgment of the court Rep. that the pany having accepted the premiums from with knowledge of the fact that had to have any interest in the property, they taken to have intended deal with owner of the property and the contract of insurance was compilte.

company for causing the death of the plaintiffs husband negligence, it appeared that of the deceased was insured, and on the trial learned deducted the amount of insurance the damages assessed. The I)ivisional Court overruled this, and directed verdict stand for the full amount found the jury. This was the Court appeal to the Supreme Court of

Canada-Held, that the judgment the Court

Policy-Memo.

of-Admissibility policy insurance sued had the margin following printed memo: "This policy valid unless countersigned agent at

.

Countersigned this day

Thismemo. was not and policy not, fact, countersigned the agent. Evidence was given of ment of the premium, and rebutting evidence company that it had never paid.

, that the necessity countersigning the agent not condition precedent to the validity policy, and jury having found that paid their verdict should stand.

judgment the former appeals this

Can. S.C.R. and Can. S.C.R.

company-Bond there should any untruth. evasion concealment of facts any bond granted action against company bond issued, it shown that the insured had mis-stated the birth, giving the instead of the with which had and attack; that stated that was

"perfect health" at the date of the application, which was claimed to untrue; that had the fact of being subject to severe bleeding at the ; and that the attack which had admitted occurred the application, when the fact was ibat trial judge found that the mis-statement to date birth was immaterial, it. could have increased the number of years which the premiums were calculated ; that the attack of apoplexy was slight, not a severe attack; that the applicant was " good'" if not "perfect'' health when the application was made; that the bleeding at the which the insured was subject, was not and dangerous his health; but that the mis-statement time of the occurren-e the attack apoplexy was material, and this last issue found for society, and on all the othors for plaintiff.

The court en reversed this decision, and gave judgment for the plaintiff all issues, holding that to the found the trial the society there was variance between the plea and the application which prevented the society taking advantage of the mis-statement. the Supreme Court of Canada-Held, nne and Patterson JJ. dissenting, that the r. right, and should -Barratry-Proximate loss-Perils seas.] Insurance marine policy against "by perils of the not cover should expressly excepted marine policy relieve the insurers liability for such a loss.-Per Strong J. dissenting: If the mate cause of the a peril the covered the policy the underwriter liable, barratrousact. O'Coxno V.

2-Constructive loss-Liability of pany-Cost repairs-One-third for paired.] clause:-"In of abandonment or otherwise, the cost of repairing the vessel, under justing partial under terms of the respect of for according to the rule usually followed adjusting partial loss, and not the estimated amount of the gross costs the repairs forming the basis of average justment therefore the cost of repairs did not amount to half the declared value.

of- of

JUDGE-Order -Perondt

-Expropriation ofland-Practice

JUDGMENT-Bank probandi- judicatatrust at was solvent imports interest somebody and the onus upon party seized shares to prove that they are fact the property of the trustee, and such available to satisfy the demand of his creditors.

Sweeny

Bank of Montreal Cas. followed.-A judgment setting aside an intervention to a seizure of the dividends bank shares founded part a substitution not resjudicata as to the corpus of said shares nor to the dividends of other shares claimed under different title. Art.

C.C.-Strong J. was of opinion, in the case of Holmes Carter, that upon the facts shown the judgment of the Court of Queen's aside-Collusion.]

judgment

Supreme Court of Brunswick affidavits, jr., collusion and fraud, and order cover assets of the said J. sr. The facts alleged the affidavits supporting the application were: that a cognovit was given and said judgment J. sr., was signed the day;

that account ever rendered of the debt;

jr., frequently asked father for settlement, it;

court-Appealfrom-R.S. Fee from-Future rights-B.S.C.

court-Appeal from-Discre- RS.C.c.

6-Service of-Ihijpothecary action-Absent fendant-Waiver irregularity-Art. Provincial election-Bribery-Action for penalties-Efect ofjudgment-.Disqualification- Appeal-Future rights-Fee of demurrer-Replication-Disposal of plaintiff action-Right Assignment-I'leading

JURY-Direction to-Goods sold-Credit-New TENANT-Lease-Accident fire-Arts.

Beld, fire-Liability

LIBEL-written- Proof writing-After-acquired

LIEN-for freight-Refusal

TovR.

Injunction

Q.-Action for company finding the annual reports of the pany misleading applies after notice a writ injunction restrain the company paying dividend, and upon such application company not deny generally the statement and charges contained plaintiff's affidavit and petition, there probable cause for the such writ, consequently the defendant, upon the merits succeeded in getting the injunction right of action for damages resulting the issue of the injunction.

Petition of Right-Direct nance Vesting Act, 7 c

2, Rideau

Canal, and the lands and works belonging thereto, vested in the principal

M. Ordnance Great Britain, and S. 29 it was enacted:

" Provided always, and it enacted that all lands taken private owners at Bytown under the authority of Rideau

Canal Act for the the canal, which have not jor that purpose, restored to the party or parties whom the were taken."

The appellant, the heir-at-law of William her petition of right sought recover the crown acres the land originally taken Colonel but not the purposes the canal, or portion thereof still remained in the hands of the crown, indemnity the value of such portions these acres had sold crown.- Held, Per Strong J.: petition of right an appropriate remedy for the assertion the suppliant any title to relief under Where it within the power of a party having a claim against the crown of such nature present resort to petition right, a mandamus will not lie. and mandamus will never under any circumstances granted where direct relief sought against the crown.

331,

ONTARIO-Collision signal-Party fault accident-Action for damages-Death plaintif-Abatement trial for motion-Appeal-Jurisdiction for sold-Credit-Charge third party-Evidence-Nezo trial sortgaged ofattorney-Authority agent-Sale of mortgage-Application of proceeds-Duty mortgagees authorized their agent to enter and take possession the mortgaged lands at public private sale, and the best price that could gotten for them, and execute all necessary receipts, which receipts " should effectually exonerate every purchaser or other person taking the all liability of seeing to the application of the money therein mentioned to received and from being responsible for the loss, mis-application or non-application thereof."

took possession and sold the land, receiving part the purchase money in cash and the balance promissory note of the purchaser payable to himself, which he caused to discounted and appropriated the proceeds.

The purchaser paid the note the holders at maturity. Held, affirming the judgment the court below, that the power of attorney not authorize a sale upon credit, and the sale ty the agent was, therefore, invalid, and the purchaser was relieved by the above clause seeing that the authority the agent'was rightly exercised. The sale being invalid the subsequent payment of the note the purchaser could not make it mortgage-Action Fraudulent against creditors-13 Eliz. having recovered judgment against issued execution under which the sheriff proto sell certain goods of and gave a to plaintiffs conveying all the " share and interest" of in the goods.

Six months before the recovery of the plaintiffs' judgment, had made a mortgage covering all the goods proto be sold the sheriff.

plaintiffs a bill set this mortgage aside fraudiilent under the statute Eliz. and fraudulent in fact. court below held the mortgage and dismissed the bill. Held, affirming this judgment, that no fraud being shown and the plaintiffs not offering the mortgage, the action was rightly dismissed. 3-Insurance mortgagee-Insurable Public highway-Construction of crossing-Eleporation under obligation to construct a street crossing the same level the sidewalk, and that a sidewalk at an elevation four inches above the level of the crossing such evidence of negligence the construction of the crossing to make the corporation liable in damages injury to foot passenger tained by striking her foot against the curbing while attempting cross the street. Strong

Taxes-Exemption-41

26-Educational establishment-Special

NEGLIGENCE-Carriage of sea-Improper

Bill of

3-Railway Co.-Carriage of goods-Carriage terminus-Restriction liability-Rail- NOVELTY-Invention ments-Carriage tops-Previous NUISANCE-Pollution of running industry-Injunction.] quired lot adjoining a small stream at C6te Montreal, and finding the water polluted from certain noxious substances thrown into the stream brought an action damages against the owner of a tannery situated 15 arpents higher the stream, and asked for injunction.

At the trial it was proved that C. and predecessors had from time immemorial carried the business tanning leather there, using the water for tanning purposes to the knowledge of all the inhabitants without plaint their part; that it was the principal industry of the village; that the stream was partly used drain the other proprietors of the land adjoining stream and manure and filth thrown in, but that every precaution was taken to prevent any solid matter from falling into the creek. W. only acquired the property since had using the stream for the purpose of his tannery, and there was no evidence that the property had depreciated value the made the stream. Held, affirming the judgment of the court below, that W., under the circumstances proved this case, was not entitled to an injunction restrain C. from using the stream PARTNERSHIP

Iining land- Co.-Death in-Agreement partybeing in Newfoundland, discovered pyrites, returning to Scotia proposed that NEW TRIAL-Judgment for-Appeal fromthey should it speculation. agreed, Misdirection-Jirisdic- and advanced towards paying T.'s tion--------------------------636penses going Newfoundland secure the tiontitle.

made the second journey and obtained agreement purchase the owner the for-Death of plain- for limited time, but failing a tiff- of sale within that time agreement lapsed. It 699 renewed, two times, . continuing advance expenses. Finally, a at for sold-Credit aid the iecessary transfers made for the tojury purpose. keeping the matter the secret action share the profit uder the original agreement. held, NORTH - WEST TERRITORIES

Supreme affirming the judgment the court that of-School the related back, between and to the date of agreement, and could ceedings-Superior recover.

2-Evidence of-Letter heads-Names part- NOTICE-of for of goods-Carriage part

OF INVENTION- topstamed patent an improvement the the combination of a 2--Expropriation of land-Railway folding sectional roof, joined to carriage 606 posts such way and such pent of section$ the roof and of the carriage posts that the whole carriage top could made entirely sectidns wood or other rigid material with glass sashes all round, and the carriage opened in centre into two prin.

cipal parts and at converted into an uncovered carriage.

In an action for infringment of this atent-Held, reversing judgment of the d'ourt Queen's Bench for Lower

Canada (appeal side),and restoringthe judgment the Superior Court, Ritchie C J. and Gwynne

J. dissenting, that the combination was not previously and was patentable invention.

RIGHI'-Remedy by-Lands for purposes-Disposal used-7

Rideau Canal Act, 1, certain lands were set apart for canal purposes but all the Ordnance Vesting Act, 7 c. the Ridean Canal, and the lands and works belonging thereto, were vested in the principal M. Ordnance Great

Britain, and section it was enacted: ' Provided always, and it enacted, that all lands taken private owners at Bytown under the authority of the Rideau Canal Actfor the the canal, which have not for that purpose, restored to party or parties the were taken."

The heir-at-law sought to recover the crown, petition of right, the lands not for the canal or indemnity for such had by crown. Held, Per Strong J. : petition right appropriate remedy for the assertion the suppliant any title to relief under within the power of aparty having claim against the crown of such a nature present to resort to petition right a mandamus will not and mandamus will never under any circumstances granted where direct relief sought against the crown.

insurance-Exceptions-Barratry

2-Construction

-Transfer redemption-Insurable margin-Counoffacts-Mis-statement lands-Excess action-Judgment C.C.-Services of judgment-Art. a judgment diclaration thbque certain property in the possession and ownership of respondents was declared hypothecated in favor of the appellant the and interest and costs; they were demned surrender the order that might judicially sold to satisfy the judgment, unless they preferred to pay appellant the amount the judgment. the judgment was also decreed that the option should made within forty days the service to made them of the judgment, and default their doing within the said delay that respondents condemned to pay to the appellant the amount the jnugment. This judgment (the respondents residing in Scotland and having domicile Canada) was served at the prothonotary's and the respondents' attorneys. After the delay of forty days, or option having made, the appellant caused writ fi.fa. terris against respondents for the full amount the judgment. The first seized the property hypothecated, and handed over the proceeds to prior mortgagee.

Another writ of fifa was then issued and other realty belonging to the respondents was seized. this second seizure the d'annuler, claiming that the judgment had not served on them and that they were not personally liable for the debt due appellant. Held,-ist. versing the judgment of the court below, that it not necessary to serve indgment diclaradefendant who absent the Province and has domicile. C. P. and c. 2nd. That the respondents, not opposing the first seizure of their property, had waived any irregularity (if any) as to the of the judgdiclaration pothbque the defendant may, in default surrendering the property within the period the court, personally condemned pay the full amount the plaintiffs claim. 2-If objection made the form of for security for costs on appeal the Supreme Court it should application in chambers dismiss, and if not made the objection will held waived.

3-Railway Co.-Carriage of goods-Claimfor loss-Limitation time-Demurrer injudgment-Resjudicata-Partial loss- Joint one-Effect condition of contract for carriage of goods railway provided that claim damages to, detention of goods should allowed unless notice writing, with particulars, was given to the station agent at or nearest to the place of delivery within thirty-six hours after delivery the goods respect to which the claim was made.

Held, per Strong J., that a plea setting non-compliance with this condition having appealed against a judgment overruling the demurrer, the question the law ofthe was resjudicata.

-Held also,-Per Strong J., Gwynne J. contra, that part of the consignment having lost notice should have given respect to the within thirty-six hours after the delivery of the goods which arrived safely.-Quaere.-In the present state the law a release to, satisfaction of several joint tort-feasors, bar to an action against the others ?

Practice-Set of-Not offjudgment-Equitable and brought counter actions for breaches agreement. obtained a verdictwith leave to for increased damages, which were granted, and June, signed judgment.

April, assigned to all interest the suit against gave notice of such assignment

In February, signed judgment against

G.on confession.

Held, reversing the judgment of the court below Rep. Strong J.

dissenting, that could not set offhis judgment against the judgment recovered against by

5-Evidence-Goods and delivered-Credit juryjury-New trial.]

swore that ie had sold the goods to the dants and their credit, and his evidence was corroborated the defendant showed that the charged in plaintiff's books to & (the defendant being a member of both and credited the way in & Co's. books, and that the notes of & taken payment, and it was claimed that the sale of the goods was to &

The trial judge the attention of the jury to the state the entries in the books of the plaintiff and

& and to the taking of the notes, and to all the evidence relied the and left it entirely to the jury to to whom credit was given the goods.

affirming the judgment of Supreme Court

Brunswick Rep. Strong and

, that the case was properly left to the jury and trial was refused.

court-Supreme

Brunswick-Final

7-Constructive litigation-Prejudice

Co.-Bonus-Action cipality-Specific performance-Counter action-Sale of rights- Appeal-Province of controvery-R.S.C. 15 29-Judgment offirst trial-Evidence

12-Babees appealing-Comproceeding-Filing 13-Criminal trial-Murder-Name of dictus-Proof of

14-Quebec appeal-Matter Bank shares-Actual value-Right 15-Action for libel-Newspaper ms.-Proof of Appeal-Security-Benefit of 17-Railway Co.-Expropriation-Deposit order-Persona 606 18-Quashing appeal-Jurisdictionaction-Final of Quebec-Removal of and tor-Assignment-Resulting trust-Stat of Eliz. estate-Transferpaid money-Promissory notes-Colbeen given collateral for the price sale [S. C. R. Vor. XVI. PRESCRIPTION-Coatinued.

paid for, the plea of prescription as the notes not avail the defendant in an action purchase money.

PRINCIPAL SURETY-Time given

PiorissorY

PRIVILEGE-Toll bridge-Exclusive rightfran- PROMISSORY NOTE-Non-negotiable-In dorjoint stock company, signed, with other directors, joint and several promissory note in favor the company, and took security steamer the company.

The note was, in nonnegotiable, but that fact was not observed the the Hamilton Bank. who discounted it and paid over the proceeds to the company. H1. knew that the note was discounted, and it due had writing acknowledged liability it. In an action on the note the Hamilton Bank against H-ield, affirming the judgment of the Court of Appeal, and that the Divisional Court

, that although, fact, the was not negotiable, the bank, equity, was entitled recover, it being shown that the note was intended makers to have negotiable, and was issued them but, mistake inadvertence, it was not expressed to payable the order of the

2-Indentity payee-Double promissory made payable to John Souther

& Son was sued John Souther &

Held, that it being clear the evidence that the plaintiffs the persons designated payees, they could recover.-It objection to the validity of promissory note that it for payment of a certain currency. Currency mustbe held " United States Currency,' when the note payable in the United States.- If note insufficiently stamped, the double duty may the defect the actual knowledge of the holder.

statute not intend that implied knowledge should govern it.-The appellant claimed that was only a surety for his co-defendant, and that was discharged time being given to the principal pay the note. field, that the fact time being given being negatived the evidence, it was immaterial whether appellant principal or surety. The judgment the Supreme Court of Nova Scotia N.S.R.

RAILWAYS-Aidto-By-law granting prior perforiance agreement between & Railway and the town of C. the latter agreed to pass a by-law granting a bonus to the company aid

RAILWAYSthe construction of a railway, subject to the performance of certain conditions. The by-law subsequently approved the ratepayers, and passed the council of the town, did contain all the conditions of agreement. an action against the town to compel the livery of debentures for the amount bonus conditions of the agreement justifying the withholding of the debentures and, way conditions the plaintiffs. Held-1. Per Ritchie C.J., Strong, Fournier and Henry JJ., Taschereau and Gwynne JJ. contra, that the title to the debentures not depend upon prior performance of conditions the agreement included the by-law, but upon performance of those the by-law alone, and the latter having complied with the debentures should issue.-2. Per Fournier J., that the bentures should, nevertheless, withheld until the damages for non-performance of the conditions the agreement were paid or secured.- 3. Per Ritchie C.J., Strong and Henry JJ., Fournier J. contra, that performance was not appropriate remedy such a case the defendants could only claim damages non-performance.-4. Per Ritchie J .,Strong and Fournier JJ., that the claim defendants for damages could disposed of this action under the counterclaim and there should a reference to the same-5. Per Henry J., that the evidence did justify reference and the counterclaim should dismissed with servation defendant's rights.-One the conditions the agreement to performed the railway company was " to construct at or near the corner of Colborne and William streets Toronto) freight and passenger station, with all necessary accommodation, connected switches, sidings or otherwise with the said road" the council of the town passing a by-law granting the necessary right of way. H7eld-1. That such condition was not complied with the erection of station building used, nor intended to and which proper such as station-master, ticket agent, etc., not appointed

Strong J. senting.-2. Per Strong J., that the condition only called for the construction of building with the required accommodation and nections, and did not amount to covenant to run the trains such station make any other of it.-3. The words " all necessary accommodation" in the condition required thatgrounds and yards suflicient freight and passenger traffic in the station were should provided-The act incorporating the railway pany contained provisions respecting bonuses granted to it municipalities not found in the Municipal Act. field, that special act not restrictive of the Municipal Act, and it was. only necessary that the provisions of the latter should followed pass valid by-law bonus.-Hfeld that fects of the by-law were cured RAILWAYS-Continned.

C. providing for registry of by-laws and requiring application to quash to made within three months after such registry.

2-Railway Co.-Carriage of goods-Contract for-Carriage front liability.] Where railway company undertakes carry goods point beyond the terminus of its line its contract carriage of the goods over the whole transit, and the other companies over whose line they must pass are merely agents of the contracting pany such carriage, and privity of tract with the shipper. Bristol & Exeter Railway

Collins (7 H.L. Cas. followed. Such a contract being which railway company might refuse to enter into, the Railway Act (R.S.C., not prevent it restricting its liability for negligence carriers or otherwise in repect to the goods to carried after they had left its own line. The decision

Vogel G.T.R. Can. S.C.R.

not govern contract.

of land-Abandonment notice-Enforcing award-Possession and Patterson JJ.: That an abandonment a notice to take lands for railway purposes

R.S.C. c. 8 must take place while the notice still notice and the intention has been exercised taking the lands.

That the proper of enforcing an award compensation made under the Railway Act order thejudge.-Quaere-H'hether of t. c. R.S.C. permits possession to given the price and paid land, except land which work of truction to at proceeded with.

4--Negligence death the plaintiff's husband negligence of their servants, it was proved that the accident occurred while the train was passing trough the town of Strathroy; that it was going at rate was rung whistle sounded until seconds before the accident.

ield, affirming the judgment of the Court Appeal Out.

that the company was liable damages.- For it was shown that the deceased was driving slowly across the tract with head down and that did not attempt out the train until shouted persaw it approaching, when whipped horses and endeavored to drive across track and was killed. against this there was evidence that there was curve the road which would prevent the train being also that the buildings at the station would interrupt the view. The jury found that thero was no contributory negligence.

feld, per Rit- Fournier and Henry JJ., that the finding the jury should not disturbed. Strong, Taschereau and Gwynne JJ. contra.- The of the deceased insured, and the trial the learned judge deducted the amount the insurance the damages assessed. the verdict to stand for the full amount found the jury.

This was the Court of feld, that the judgment this res- 4-Accident for damages-Death plaintif-Abatement--Lord 699 of land-Daia of-Principle-Appeal of retrocession-Judgsheriff te-Super

SusaR's

RELEASE-oint tort-feasors-D JUDICATA-Seizure Inter- 2-Condition of contract-Carriage TRUST-Assignment for tors-Preference-Distribution of Eliz.

Sheriff-Super domino-Title-Registration trustee-Riqht of action-Estoppel- Purchase money-Promissory notes-Collateral appeal-Right of-Interest third party-Practice-Jurisdic- Bank- Parol of customer-Pracbank-Set-of 456

2-Judgment plaintiff actions-Not pleaded-Equitable

SALE-Petition dcret

-Sezure possidente-Art.

rights-Art.

(respondent) proprietor of a lot Montreal

0., acquired the interest co-owners retroceded the lot question to

In July, the sheriff of the district at the instance of J. D.

at. (appellants) judgment creditors of sold and adjudicaied the lot question to al., paid the adjudication and obtained a sheriffts title to the lot in question.

did not register her of retrocession until

3rd October, being a date subsequent to the and sale the sheriff. but prior to the registration of the deed from the sheriff.

prayed that the seizure, sale, adjudication sheriff's title set aside and declared null as trial it was proven that from the date of the retrocession had been assessed for the lot question and paid taxes thereon, and that was in of one her tenant at the time of the seizure.

Held, affirming the judgment of court below, that the seizure and sale in present instance having sheriff's title was null. Art. C. P. Per

Taschereau J.: The provisions of Arts. and

C. refer a valid seizure and sale and cannot invoked against the registration of the

SHIP-Maritime Collis*on-Damages- Party infault-Answering the tug " sued the owners the steam propellor "St. for damages occasioned the tug being run down the propellor the

River Detroit. Held, reversing the judgment the Maritime Court of Ontario, that as the evidence showed the master of the tug to have misunderstood the signals of the propellor, and to have directed his vessel the wrong course when the two were proximity, the owners the propellor were not liable and the petition in the Maritime Court should dismissed.

SITIP-Continued.

perils of-Proximate perils -Barraty-Marine party-Delivery offreight-Tender ofpayment-Cosl of stowage-Lien

5-Marine policy-Construction of repairs-Deduction ofnewfor ofcondtions.] railway company against municipal corporation to compel the issue debentures for the amount of bonus granted to the company by-law, subject to the performance of certain conditions the defendants pleaded non-performance of such conditions, and, way ofedunter claim, prayed performance thereof the company. Held, per Ritchie C. J., Strong and Henry JJ., Fournier J. contra, that performance was not an appropriate remedy and that defendants could only claim damages non-performance.

notes-Double by-Customs parts-Subsequent ofduty.] The several parts of an article called an " Automatic Sprinkler"

manufactured the United States and imported into Canada where they were put together. The Crown sought to collect duty such parts according to the value of the complete article. There was duty imposed parts of an article at the time the information was laid.

Held, that subsequent passage of an Act c. re-enacted c. imposing duty such parts was a legislative declaration that it did not previously exist. 2-Railway Co.-Special Act-Restrictive visions-By-law-Bonus-Defects act incorporating railway company contained provisions respecting bonuses granted to it municipalities not found the Municipal Act. Held, that such special act was not restrictive of the Municipal act and it was only necessary that the provisions of the latter should followed to pass a valid by-law granting such a bonus.-Held also, that all defects of the law were cured V. s. providing for registry of by-laws and requiring an application to quash to made within three STATUTE-Continued.

And

STATUTE-Construction of- R.S.C. 8. (b)-Future

2--Lord Campbell's Act-Railway accident- Action for damages-Death of plaintif-Abate- Petition Right-Defence crown-Petition of Right Act, s. 7-Construction to recover from the crown lands set out for the construction of the Rideau Canal virtue of8 c. 1. but not actually used therefor, and sold the crown.

sec. 7 of the Petition of Right Act, the crown allowed to set any to a petition of right that would available the defendant suit between subject and subject. Bythe Ordnance Vesting Act, 7 c. the Rideau Canal, and the lands and works belonging thereto, were vested principal of M. Ordinance Great Britain, and it was enacted: Provided always, and it enacted that all lands taken private owners at Bytown under the authority of the Rideau Canal Act the use of the canal, which have not that purpose, restored to the party or parties the taken."

Ield,-Per Ritchie C.J., Strong and Gwynne JJ.: The suppliant debarred recovering the Statute of Limitations, which the crown has right to set in defence under the section of the Petition Right Act of 1876.-Per Strong J.: Independently of this section, the crown. having acquired the lands persons in favor the statute had begun run possession was transferred to the crown the body incorporated under the title of The Principal of Ordnance"

would entitled the benefit of the statute, which would tinue to run favor of the crown.-Per Fournier, Henry and Taschereau JJ.: The crown was not entitled to set the Statute of Limitations defence virtue of 7 Petition Right Act, that section not having any Eliz.

G.4c.1(P.C.)

(P.C.)

STATUTE-Continued. 9-46 V. 8. See 10-48-49 c. 11-49 V. R.S.C. R.S.C. R.S.C. R.S.C. R.S.C s. 20-R. S.C. 8. 28 R.S.C. 390, R.S.C. R.S.C. 24--51 25--C.S.L. s. STATUTE-Continued.

goods-Carriage sea-Bill lading-Construction perils-Neglijudicata toprincipal-D

"

TIME-for corpus-Coinience- TOLLS-Exclusive to-Statutory bridge-Interference shipping-Charter party of freight-Payment-Concurrent

Tender-Trover for cargo-Lien.]

was conisgned to and the master the vessel refused deliver it unless the freight was pre-paid, which his turn refused, but pay it ton ton as delivered.

direction the owner's agent the coal was taken out and stored, whereupon tendered the amount the freight and demanded it, but the agent still refused deliver it unless the cost of storage also paid. In trover against master-Held, affirming the judgment'of the court below, Gwynne J. dissenting, that the refusal the agent after tender of full freight was conversion the cargo for which the trover would lie.-Held. per Patterson that trover would but not against the master, was only the servant the agent and acting under his directions.

TRUSTEES-Sale ofland-No vendor-Valuable consideration-Afterinterest-Rights of to sell and convey it for valuable consideration his though having present operation either at law or equity, will bind any interest which the vendor afterwards acquire even purchase for value in the same property, and respect such after-acquired interest will considered court of equity trustee for the original purchaser, and and heirat-law; will compelled convey purchaser accordingly.

other words, the interest subsequently acquired will considered as " feeding" the claim the purchaser arising under the original contract sale, and the vendor will not entitled to retain it his own

Per Strong J. 2-Assignment trust-Benefit of creditorsofEliz.-Resultiny 3-Purchase trustee-Bank shares-Inof trustee-Seizure of shares-Burden 4-Transfer trustee-Right denters-Sale rights warranty-Sale for and CC.]

N.D., respondent, owner of a factory, made an agreement with farmers which the latter agreed to give the milk their cows to other factory than to that of N.D.

D. subsequently sold to (the appellant) the factory and sons la simple sesfaits might have under agreement with the farmers, for the bulk of assigned to B. factory and the same rights, excluding warranty, sans for company was subsequently formed to assigned the factory and the rights, and one of the farmers the original agreement having sold milk to another cheese factory, the company but the action was dismissed, the ground that D. could not validly assign personal rights had against the farmers. Thereupon broughtan action against D. recover the price paid for rights which had no right to assign. At the trial it was proved that although the price mentioned the and paid was bulk for the factory and the rights, the parties at the time valued the rights under the agreement with the farmers at

D. also admitted that the action was taken for the benefit the present owners of the factory.

Held, affirming the judgment the court below, Strong and Fournier JJ. dissenting, that inasmuch the appellant, the sale had made to had received full of all that had bought from respondent had no interest the suit, could not claim to reimbursed portion of the price paid.-Per Taschereau J.: If any action lay, it could set the sale aside, parties restored to the status ante if it main- WAIVER-Hypothecary action-Service ofjudg- ACT-Bank aent-Absent Irregularity-Art.

129-Contributory- C.C.P.- C.S.L.C.

on-Double liability-Set-off-Bank R. S.

contributory of vent company, also a creditor, cannot the debt due to the company against facts-Concealmen t-i statement ingsin imposed the Banking Act, Revised Statutes of Canada.