The Halifax Street Railway. Co. v. Joyce

The action is for damages alleged to be caused by plaintiff 's horse having caught his foot in the groove of a rail laid on defendant's road in Halifax, N.S. The negligence of defendants alleged in the declaration was :

In not keeping the rails level with the street. In using grooved rails and allowing them to project above the level of the street.

In using rails of a pattern not approved by the city engineer as required by the act incorporating defendants company.

The amount of damages claimed was $30 and the action was tried by the Chief Justice without a jury, and judgment was given for the defendants on the ground that no negligence had been proved. This judgment was set aside by the full court and a new trial ordered, one judge being of opinion that the certi- :-Sir ficate of the city engineer approving of the pattern of the rails used was necessary and had not been proved, and two other judges dissenting from that but holding that it had not been shown that the charter had been complied with as to keeping the rails level with the street. The defendants appealed.

Russell Q. C contra.

The majority of the court were of opinion that sec. 24 (d), the section of the Supreme Court Act which provides for an appeal from a judgment ordering a new trial, only applies to cases which have been tried by a jury, and that no appeal would lie under that section from an order granting a new trial in a non-jury case, the expression " that a judge has not ruled according to law " having reference to the directions given by a judge to the jury.

Mr. Justice G-wynne said that he was not satisfied that an appeal would not lie, but as the majority of the court were of that opinion he would not delay the .judgment.

ACTION-Withdrawal of part claim-Judgfor withdrawn-Art.

byfire-Sparks

-Limitation-Six prescrivtion-R.

s.

AGENT-At election-Bribery agency-Proof

APPEAL-Hearing on-Case for trial.]

proved at the trial but relied in the Court

Queen's Bench the first time cannot relied made part of the case appeal to the Sujv. Can. R.411, and Lionais

Molson's Bank Can. R.526) followed.

2-Jurisdiction-Judgment, final-Art. P.-Amount

Act, and 1. judgment the Court of Queen's Bench for Lower Canada (appeal side) quashing a writ of appeal on the ground that such writ had been issued contrary to the provisions Art. C. P. not judgment" within the meaning of section the Supreme and Exchequer Courts Act. Shawe

(Can. S.C.R. distinguished.

Act, to hear an apppal the defendant where the amount in controversy has not been established the judgment appealed

&

Practice-Taking late to raise an objection for the first the argumentbefore the Supreme Court that the legal representatives of the assured not made parties to an action a policy of insurance.

4---Jurisdiction-R. 41-Judgfor trial-Notice of appeal-Extension of for giving-Appliexpired-Effect of

APPEAL- Supreme Court of Canada has no jurisdiction to hear an appeal "from judgment a motion for a new trial the ground that the judge has not ruled according to law," unless the notice required S. of the Supreme Court Act has been given. 1. An order made ajudge the court appealed giving defendants " leave to appeal to the Supreme Court Canada leaving it to plaintiffs to dispute the right of appeal in the Supreme Court," if considered as an enlargement of the time giving notice,will not give the court jurisdiction if notice given pursuant to such enlargement.-The time for giving notice under extended as well after, as the twenty days have elapsed-Held per Strong J.- In s. the act, providing that under special circumstances the court appealed or a judge thereof may " allow an appeal," although the time limited therefor previous sections expired, the expression " allow an appeal " means only that the court judge may settle the case and approve the security.

5-Judgment motionfor trial-R. (d)-Construction of-Non-jury Section the Supreme Court Act C. allowing an appeal " from the judgment a motion for a new trial upon the ground that the judge has not ruled according to law,"

applicable to jury only. Gwynne J. ane. 6-Limitation of-Ontario policy-Mis-statement-Warranty. insurance-Application AWARD-Expropriaof for railway-Validity of TAXES-Lien-Prioract-eatlingj ses.-Efect

City Assessment Act, BANKpaent of by-Jot one-A first lienIthereon except against the

PANSHIP 2. crown.

Ield, affirming tbe judgment of court that lien attached lot BRIBERY-by agent under the act preference to mortthe act was passed.-The act provided that non-payment taxes any lands thereunder the city CASES-s Anderson duplicate lands liable to non-payment, to which statements the mayor should signature and the seal of the 2-Lnsb v. Bank of Toronto A2 with city clerk and the other return- CoNSTNei the collector with warrant annexed thereto, and any suit or other proceeding 3-[ionis

(7 1- R. sold taxes under this act the legality the assessment and sale was attacked.

per Strong, Taschereau and Gwynne JJ., that 5otreal and Mortgage C the assessment caused failure a notice required previous section it was

5-io atively, that the statements had signed

Cas. 612)followed sealed duplicate and required act, and the production and proof of one such

6-Qeen; and Patterson that it was sufficient C. R. I)followed statement returned the collector signed and sealed required, and with the necessary warrant annexed, and absence evidence the contrary it must v. (2 Cas. distiuished the provisions the statute requiring duplicateCoNSTI statements complied with.-The provided that the purchaser of gtised that the provisions with reference the had complied with.

Ifeld,

Strong, Taschereau and Gwynne JJ., that this tor/-Coditios available cure defects the proceedings con- itcttded fital estitate- Net nected with the sale and would not cover the failure notice of assessment required the taxes could imposed.-Held, per CIVIL CODE-Arts Ritchie C. and Patterson J., that the not invoked the present cure

Riots. commenced; therefore a failure give notice that land liable sold taxes, 3-A-.

which notice required the act, rendered

PAiTNctSti void.

for creditors-Release by-Authority for creditor-Ratification

-isoppel

LFE e.Fatteux Chatses CODE OF CIVIL PROCEDURE-Art.451-108

COMITY OF NATIONS-Foreign corporation line-Exclusive privilege-Restraint of foreign telegraph company has a right to enter into contract with a railway company Canada the exclusive privilege of constructing and operating line of telegraph over the road of such railway company provided the contract consistent with the purposes for which the foreign company incorporated and not prohibited its charter nor the laws the

Province of Canada in which the contract made.

The right of foreign corporation to enter into such a contract, and carry the business provided for thereby, a right recognized the comity of nations.

Co.

CONSTITUTIONAL LAW-New Brunswick

Prohibition of Granting sellers-Effect cations for licenses under the Brunswick

Liquor License Act, must endorsed the certificate of one-third the ratepayers the district for which the license asked.

holder of license can member the municipal council, justice the peace, or teacher the public schools. that the legislature could properly impose these conditions to the obtaining of license, and the provision ultra vires the local legislature being a prohibitory measure reason of the ratepayers being able to prevent any licenses being issued;

nor it a measure restraint of trade ing stigma to the business of selling liquor.

Jud. 43-Appeal

Court-Limitation of-Conditions.]

section of the Ontario Judicature Act, which provides that cases where the amount in controversy under$l.000 appeal sball lie the decision the Court Appeal the Supreme Court of Canada, exceptby leave of judge of the former court, ultra vires the legislature of Ontario and not binding this court. Remarks order granting such leave appellant undertaking ask costs stalls-Validity of-37

(P.Q.)-Power of Provincial pass-B. of 92-"

licenses."] The Council of the City of Montreal authorized sub-secs. and c. regulate and license the sale, in any private stall or shop the city outside the public meat markets, of any meat, tables or provisions usually in markets

46y

CONSTITUTIONAL LAW-Continued. Held, affirming the judgments of the courts below, that the in question are intra vires of the Provincial Legislature. Also that a by-law passed the city council under the authority the above-named sub-secs. fixing the license to sell private stall at in addition to the per cent. business tax, levied upon all traders under another by-law and which the appellant had paid, not invalid.-Per Strong J.-That the words " other licenses" of of the Act include such a license as the Provincial Legislature have powered the City of Montreal to impose the terms of the statute under consideration. Bank of tinguished.

CONSTRUCTION OF

OF POLICY - 326,387,394 1, 2. CONTRACT-Claim Government-Cerof engineer-Condition precedent-Arbitration-31 with Her the represented the Minister of Public Works, for the construction a bridge for lump

After the completion of the bridge a estimate was given the chief engineer, and payment thereof made, but al. preferred a claim the value work, not included in such final estimate, alleged have done the construction of the bridge, and caused changes and alterations ordered the chief engineer of radical a nature create, according to the contention of the claimants, new contract between the parties.

Held, reversing the judgment of Henry the Exchequer, Fournier J. dissenting, that the engineer could not make new contract binding the crown; that the claim came within the original contract and the provisions thereof which made the certificate of the engineer condition precedent to recovery, and such certificate not having obtained, the claim must dismissed.

The crown haying referred the claim to arbitration instead of insisting throughout its strict legal rights, costs were allowed.

2-Foreign corporation-Teleyraph Canada-!xclusive rightfor-Restraint of trade-Public interest.]

In the & owning the road St. John, westward to the United States boundary, made an agreement with the Tel. Co., giving the latter the exclusive right for years to construct and operate line of telegraph over its road. In a mortgage the road was foreclosed and [S. C. R. VoL. XVIL CONTRACT-Continaed.

the road itself sold under decree of the Equity

Court of Brunswick the St. J. & M.

which company, 1883,leased it the for a term of years.

The telegraph line was constructed the W. Tel.

under the said agreement, and has been tinued ever since without any new agreement being made with the St. J. & M. Ry. or the

Ry.

W. Tel Americompany, incorporated the State of

York, the purpose of constructing and operating telegraph lines the State. Its charter neither allows it engate, or prohibits it engaging, business outside of the State.

the C. P. Ry. completed a road

Montreal to St. John, a portion of it having ning powers over the line of the ;

which the Tel had constructed its telegraph line. TheN. Ry. having given permission the to construct another telegraph line over the road, the U.

applied obtained an injunction prevent its being built.

appeal to the

Supreme Courtof Canada the decree of tbe

Equity Court granting the injunction-Held, 1.

That the agreement made in between the

& Ry. binding on the present owners of the road.-2. That the contract with the Tel. was consistent with the purpose of its corporation, and not prohibited its charter nor the local laws of

Brunswick, and its right to enter into a contract and carry the business provided thereby right recognized the comity nations.-3. exclusive right granted to the not avoid the contract being against public policy, nor being contract restraintof trade.-Held, per Gwynne J.

dissenting, that the comity of nations require the courts of this country to enforce, in favor of foreign corporation, contract priving railway company in Canada of right to permit a domestic corporation, created the purpose erecting telegraph lines the

Dominion, erect such aline upon its land, and depriving it of the right to construct a telegraph its own land.

Statute offrauds-Contract relating interin land-Part yerformance.) a resident of British Columbia, wrote to sister, England, that would like of her children to out to and letter said

" want to get relation here for what property I have, of sudden death, would eat outsiders and relations would nothing."

hearing the contents of these letters a B.'s sister and a coal miner

England, to British Columbia and lived with for six years.

that time he worked on B.'s and received share of the

After that went to work a coal in

Idaho. While there received a letter containing the following: " want you to at I very bad.

really do not know ifI hurry up and to at for I want If anything should happen to you are the pershould here."

receipt this letter immediately started for farm but B. had and was buried before reached it. After return received the following telegram which had not reached before left for : at if you wish alive, property yours, answer immediately. Under these circumstances claimed the farm and stock of and brought suit performance an alleged agreement that the same should belong to atB.'s death.

Held, affirming the judgment of the court below, that there was agreement in writing the transfer of the property to the facts shown were not sufficient to constitute part performance of such agreement, the fourth section of the statute frauds not plied with and no performance of the contract Co.-Employee-Accident in performance of duty

-----agent-Proof of agency-P roof by conduct.] election petition charged that an agent the candidate whose election was attacked, corruptly and paid $5 to induce a voter to was the habit of assisting this particular voter, and that being told the voter that he contemplated going away a visit election day, promised him $5 towards journey, and brother gave him away and was absent election day. that the and payment of the $5 formed under the Election Act.-At the election in question there formal organization of the party supporting the appellant.

County Association had disbanded and the minutes, regularly kept since destroyed, as were the rough minutes of every meeting convention of the party since that date. lieu of local committees vice-presidents appointed for the respective townships, and the approach of a contest the vice-presidents called a meeting of the county association, posed of all reformers the riding, to go the lists and all the necessary work of the election.

evidence of H's. agency relied the petitioner was, that had always a reformer, had active for two elections, attended important committee meeting recognized the vice-president township active supporter of the appellant, and that acted as scrutineer at the polls in CONTROVERTED ELECTION-Continued. CORPORAT1ON-Continued.

the election question.

The trial judge held to construct telegraph line upon its land. that all these elements combined, in view of the sufficient to constitute agent of the appel- COSTS-ofeecution creditor-Lienfor-Assign- Canada-Reld, for creditors-Extent costs-48 Taschereau J. hesitating, thatthe circumstances V. c. s.9 (O.)-49 v. C. S. 2 (0.) proved justified the trial judge in holding the agency of established.

CASECANADIA graph company-Doing right-Contract for-Restraint oftrade

-Public owning the road from St. John. N. westward the United States boundary, made agreement with the Tel. giving the latter the exclusive right years to struct and operate a line telegraph over its road. In a mortgage the road was closed and the road itself sold under decree of the Equity Court of Brunswick to the St.

J. & M. which company, leased it the Ry. for term years.- The telegraph line was constructed the under the said agreement, and has continued ever since without any agreement being made with the St. J. & M. Ry. or the

Ry.

The American company, incorporated the State of

York, for the purpose of constructing and operating telegraph lines the State. Its charter neither allows it to engage, or prohibits it engaging, business outside the State. In the completed road from treal to St. John, a portion it having running powers the line the which the had constructed its telegraph line,

The having permission to the C. P. to construct another telegraph line over the road, the

Tel. applied and obtained injunction to prevent its being built.

appeal to the

Supreme Court of Canada the the

Equity Court granting the injunction-Held, 1.

That the agreement made between

& Ry. binding the present owners of the road.-2. That the contract made with the W. was consistent with the purof its incorporation, and not prohibited charter nor by the .local laws of Brunswick, and its right enter into such contract and carry the business provided for thereby a right recognized the comity nations.

exclusive right granted to the not avoid contract being against public policy,nor as being contract restraint of trade.-Held, per Gwynne J. dissenting, that the comity of nations not require the courts the country to enforce, in favor a foreign corporation, contract depriving railway pany in Canada the right to perinit domestic corporation, created for the purpose of erecting telegraph lines to erect such a line its land, and depriving it the right for work-Final of engineer-Changes included-New contract-Power of 2-Crown lands-Letters for- Error CROWN PREROGATIVE-Insolvent Bank- Assets-R. 120-Prerogative of crosn- Company-Priority holders.] The prerogatives of the crown in British Colonies to the same extent the Bank Nova Scotia Can. 1) followed.-The the head of the Constitutional Government of Canada, and matters affecting the Dominion at large Her prerogatives are cised the Dominion Government.-The crown prerogatives can only taken away statutory enactment.

Therefore Her Majesty's right payment full of a claim against the assets insolvent bank in priority all other creditors not interferred with the provision the Bank Act s.79) giving note holders first lien such assets, the crown not being named such enactment. contra.-Held, Gwynne J., that under legislation the Province of Canada, left unrepealed the Act, such prerogative could be claimed the Provinces of Ontario and Quebec; the court would not, therefore, justified holding that such a right attached, under the Act, Province of Canada which not exist them all.-An insurance company, order deposit with the Minister Finance and receive license to do business Canada according to the provisions of the Insurance Act C. deposited the money a bank and forwarded the deposit receipt to the Minister.

The money the bank drew interest which, arrangement, was received the company.

The bank having failed the government claimed payment full this deposited the crown. Held, reversing the judgment of the court below, Strong dissenting, that it was not the money of the crown but held the Finance Minister trust for the company; it was not, therefore, subject to the prerogative payment full priority to other creditors.

LlQUIDATORS gravel-Operation railwoay-Farm for all for -Midirection jury-Ex- Riparian proprietor-Navigable river-Obsortie-Railway

DEBTOR CREDITOR-Assignment in trust-Release by-Authority tion-Estoppel.] action against the defence was release the trial it was proved that had executed assignment for benefit of creditors and received authority telegram to sign the for deed was dated October, and afterwards, with knowledge of it, continued to send goods and is desired telegraphing youto sign and confident that will that protected and not cent you.

After you get matters adjusted would like you a '

*

* ..

April, wrote letter which said:

" In year will try again for myself and to pay you full."

In November, the account was stated.

reversing the judgment of the court

, that the execution the his behalf being without sufficient authority bound the release contained therein, and never having subsequently assented the or recognized or acted under it, estopped denying that had executed it.- Held, per Taschereau and Patterson JJ., that though had sufficient authority sign the yet there was an agreement to pound which was binding and the understanding that was to paid full would fraud the other creditors of could only the dividends realized the

DEVIATION-arine voyage-Enhancenent risk-Implied of America-Guano Islandraitlvy-Extension plan-42

EMPLOYEE-of rights-Option at's, (plaintiffs) having leased certain portion of lot land mining purposes described metes and bounds with the following "Pourra dit acqu6reur changer la course lignes et bornes du dit lopin terre sans en adopted certain lines survey made Proulx, containing vein quartz. 13. at's tion of the lot. In action bornage between the parties the court appointed three surveyors the boundaries. Each surveyor made separate report, and the report and ilan of the surveyor Legendre, adopting Proulx's lines, was adopted and homologated the court. IHeld,-affirming the judgment of the court Gwynne J. dissenting, that plaintiffs auteurs having located their accordance with the terms their they were estopped claiming that their property should bounded according to the true the of quartz, and that the judgment gating the survey adopting Proulx's lines 2-Assignment for of by-Authority for repair-ntent-Suspension EVIDENCE-Controverted election-Bribery agent-Proof mark--nfringement-Evidenceofuser prior lill-Intention-Admissiestablish-Joint Co.-unicipal to-Eurning lands-Setting

Error facias

EXPERT-Report

Finality-Right further

Company-Damag, of-R.

(e)-Farm

Where land taken railway company the purpose the gravel thereon ballast, owner only granted.-Gwynne

2-Exiropriationfor land-Farm land expropriated ernment railway purposes farm the owner,although not at time entitled to farm

3-Expropriation for of-Riparian rig/ts-Obstruction

Inan land expropriated for railway purposes award.-A accs parliaientary

Pion Rail- J.was that included compensation the beach lying in front plaintiff's property, which belongs to the crown, and, for that reason, should - - - Railiay company-Expropriation filed-42 company built its line to the termini tioned the charter and then wished extend it than mile the direction. time limited for the completion of road not expired, but the company had terminated the representation the board directors struction and had claimed and obtained the City of exemption taxation company, having failed any statutory consent.-1eld, (D).-Per ceased.-Per for all Jor 1,30 writ-Practice-Art.

P.-R s. --- LIFE-Application for-Referpolicy-IVarrantW-Mis- Ield, bond.-The truth [S. C. R. Vot. XVII. INSURANCE, LIFE-Continued.

IURANCE, MARINE-Delay in prosecuting the answers to the questions and the state- voyage-Deviation-Enhancement ofrisk.) There ments therein, and agreed that if any of them implied condition in a contract of marine not true,full and complete, the bondshould insurance, not only that the voyage shall null and void. of the questions to be coxplished in the ordinary track course answered was:

you ever had snd ofthe navigation but that it shall be commenced and following diseases? Answer opposite each,yes, completed with reasonable and ordinary or "

of the diseases were given diligence; any unronable orunexcused perpendicular columns and at the head of citherin commencingor prosecuting the voyage, each column the applicant wrote " no," placing alters the rtsk and absolves the underwriter under it, and opposite the disease named, marks liability subsequent loss-In of deviation like inverted commas.

the trial an action delay in of departure the to recover the insurance on bond issued pur- navigation, it not necessary to suant to this application it was found that the that the peril has enhanced in order to avoid applicant had had a disease opposite to which the policy. SNNr v. Held, RIBS.

the judgment the court below, that whether 2-Construction ofpolic2-Deviation-Loading the applicant intended this mark to mean port coast of Soutk America-Guano and thus deny that had had such disease, or Islands-Comnerciatiuage.) Thevoyagespedintended it as evasion of the question, the in marine policy included "aloadin.port bond was void for want of a true answer to the the western coast of South America,' and RELIEF payment a under the policy resisted 333 the ground of deviation the vessel having loaded at Lobos, of the &nano Islands, 2-Unconditional policy--.Misrepresentations- twenty-five forty miles coast. the Efect of-Indication of payment-Return of pre- trial of an action to recover the insurance evimium-Additional parties to a suit-R.S.C. ch. deuce was given shipowners and mariners to and 28-Arts. C.C.

that, according commercial usage, unconditional policy of insurance was the said description policy include in favor of a third party, creditor of the the Guano Islands, there was evidence that issured, "upon the representations,agreements the insurance was reduction stipulations" contained in the application premium was foran undertaking that the or the policy signed the assured, of would load guano. jury found, vhich was that if any misrepresentation was direction the court, that island the applicant, or untrue answers given where the loaded was the western coast him to the medical examiner of the company, South America within the meaning of the premiums paid would forfeited policy. Held affirming the judgment of the and the policy null and void.

Upon the court below, tbat words the policy must death of the assured the person to whom taken have been used commercial the policy made payable sued the company, and understood shippers, shipowners and at the trial it was proved that the an- and underwriters; and the jury having swers given the applicant to his health their verdict the evidence what such were untrue, the insurer's medical attendant understanding vould the company being stating that insured's was a not insurable. aware guano freight being contemplated, Held, lst, that the policy was thereby made void the finding should not disturbed.

(b initio, and the insurer could invoke such WASNTON V. ullity against the person whose favor the JOINT TENANCY-Construction of will-Eviw olicy payable and was not obliged to estabtislInention-Seveance return any partof the premium paid.-2nd, that tie statements constituting the misrepresentatons being referred to in express terms the JUDGE-Trial without jury Notion for I policy, provisions of and trial-Appealfrom judgment on-B. c. l35 2 of R.S.C.ch.135,could not relied onto vali- 24(d)-709

( ate the policy, assuming such enactments to be vtra vires of the Parliament of Canada, which JURISDICTION- 141,703, 709 I oint it not necessary to decide.-3rd, that

1 indication the assured of the to

1, the policyshould paid in case of death, JURY-Trial judge without-Afotion for the consent the company to pay such trial-Appeal from judgment on-B. arson, 0

24(d)

the provisions contained in Art.

not applicable in such case.-It too late raise an objection for the first time the 2-Direction to-Action for libel-Innuendoes :gument before the Supreme Court that the offroqiury-Prejudice defendgal representatives of the assured were not ant-Excessive damages parties to the

LIEL.

of-Estimation of

-Gravel ballast-Farm crossing-Compensation-R.

Severance-Farm in-Contract to-Agreeto-Prescription-Arts.

Possession-Art. C.C.-Damage company-Deviation-Description plan-42

LEASE-Mlining rights-Option of

Boundaries--of-Eviction-Entry repair-Intent-Suspension interest-Survival of tator's ife-Protection

Provision for of-Efect

-Intention-Severance

LESSEE-Eviction-Entry repair-Intent-Suspension of preprovided that the lessor could enter the premises for the purpose of making certain repairs and alterations at any time within two months after the beginning the term, but after except with the consent of the action for rent under the lease was resisted the ground that the lessor had of part of the premises after the time without the necessary consent whereby the tenant had deprived of the beneficial the property and had evicted therefrom.

the trial the jury found that consent had given the lessee for such occupation and that the had beneficial of the while it lasted.

Held, per Tascbereau,

Gwynne and Patterson JJ., reversing the judgment the court below, 1. that the evidence did not justify the finding of assent; that express consent was not required, but it could inferred the acts and conduct the

LESSOR LESSEE-Continued. the repairs and notto his subsequent occupation of the premises, and the lessor having entered upon the premises within the prescribed had a reasonable time to complete the work and subsequent occupation was not wrongful. Per Taschereau and Gwynne JJ. that assuming assent was necessary the evidence clearly showed that the lessor was the premises after the of July with the assent the lessee; had right, therefore, to remain until assent was revoked, which was never done.-Per Patterson J., that interference landlord with his tenant's enjoyment ofdemised premises, even to the extent of depriving the tenant of the use of a portion, not necessarily work an tion; a tenant may deprived of the beneficial occupation of the premises for part of his term, an act of the landlord which wrongful against him, but unless the act was done with the intention producing that result it would not work eviction.-Per Ritchie 0. J. and Strong J., approving the judgment the court below, that the jury having negatived consent the and the evidence showing that the acts of the landlord were such grave and to deprive the tenant of the beneficial enjoyment ofa substantial part of the premises,they amountto an eviction ofthe tenant which operated as suspension of the rent. v.Taoor. 527 patentfor-Setting aside-Error title-Evidence-Resjudicata-Estopto F. of certain lands claimed under Manitoba Act 3, amended tion having been under R. at the instance of a relator claiming part judgment avoiding letters patent upon an intormation could only justified and supported upon the same grounds being established in evidence would necessary if the proceedings facias.-2. The term i' improvidence," distinguished error, applies to cases where the grant has been to the prejudice of the commonwealth the general injury of the public, or the rights of any individual the thing granted are injuriously affected the letters patent; and F.'s title and valid under the Manitoba Act and the lands granted recognition that right the letters patent could not set aside having issued improvidently except the ground that other person superior title also valid under the act-3. Letters patent cannot judicially pronounced to have issued error or improvidently when lands have been granted upon which trespasser having color right law, has entered and was in possession without the knowledge of the government upon rests the duty LETTERS PATENT-Continued.

of executing and issuing the letters patent, and investigating and passing judgment the claims therefor; or when such trespasser, or any claiming under has not made any application letters patent; when application has been made and refused without express determination of the refusing the application, any record having of the application having been made rejected.-4. Per Patterson J. In the construction of the statute effect must given to term improvidence meaning something distinct fraud or error; letters patentmay, therefore, held to improvidently if issued ignorance of a substantial persons other than the patentee the which, if it had known, would have investigated and passed upon before the patent issued; and it not the duty of the court form a, definite opinion to the relative strength opposing claims.

Semble

Gwynne J. There sound reason why the

Government.

That committed criminal punishable law.

That continued to hold his interest the contract after his elevation to the bench.

trong, Fournier, Taschereau and Gwynne JJ., that the was improperly left to the jury but only prejudice sustained the dant thereby that of excessive damages, the verdict might stand the plaintiff consenting to the damages being reduced $500.-Held, per Ritchie C.J., that there had mistrial, and consent of both parties such reducof liquor-New provisions-Efect of o/meet-By-law interest and the grounds -Validity of-37 c. 8. s and judgment (P.Q.)-Power Provincial suit.

-B.N.A.Act8.92s

Other licenses" 495 See 2.

LIBEL-Newspaper publication-Innuendoes- Trial ofaction-Direction ury-Consideration LIEN-Costs of jury-Efect creditors-Construction of misdirection-Excessive W., s.9-49 25.2.]

Under judge of the Supreme Court of brought s.9, amended 2, an action against editor, for a libel signment the general creditors tained the following article published in precedence ofexecutions not completely executed paper:-"THE

In by payment subject to the lien of any execution the sworn evidence of defendant creditor his there but in suit of McKenna McNamee. lately tried execution the sheriff's hands, the creditor at Ottawa, the following passage occurs : ' Six who placed his execution the sheriff's of them partnership the dry dock hands there are than field, contract) out British Columbia, one of Gwynue and Patterson JJ. dissenting, that the the Premier of the Province.'

The lien created this statute not the mier of the Province at the time referred costs issuing the execution but covers all the Hon. Walkem, a judge of the Supreme of the action-The section of the Ontario Court.

Walkem's career on the bench Judicature Act, which provides that reproach.

has such in where amount controversy as win the admiration of many of uuder$1,000 appeal shall the decision political

But it to himself of the Court Appeal to the Supreme Court to refute this charge.

sure that Canada except of judge the must laboring under a mistake, court, ultra vires of the legislature Ontario Had the statement the stand it and not binding this court.

Remarks scouted untrue; but having order granting such appellant under. under the sanctity of oath it can- taking to ask of appeal.

not heeded." innuendoes alleged the declar- 2-Asessments taxes-46 (KS.)- Priority statute-Conwith while holding of public structios of act]. Halifax City Assessment trust, and thereby unlawfully acquired large Act, made txes estate sums public

affirming the judgment the pretending that acted interest the

Acourt that lien attached lot [S. C. R. VOL. XVII. assessed under the act in preference mort- brought suit the township gage made before the act was passed.

original road the alternative, pro- 420 vide with access lot, and said road repair and pay damages injuries biank-Bank R.S.C.

caused the road not having opened. 79-Priority of that the provisions act, requiring township to maintain keep repair roads, etc., and prohibiting closing alteration of roads, only applied roads LIFE

333, 394 bad formally opened and and not to which a township, its discretion, considered it inadvisable open-Held also, LIQUOR LICENSE--50 'N.B.)- Validity that the courts Ontario have jurisdiction of-Prohibition of liquor-Powers municipality, at the suit private city-Disqualifying individual, original road allowance MINE-Lease rights-Option of

MINOR-Obiqation of-Loan authority-Ratification-Use for of-Personalremedy-Arts.

for-Exclusive ofrailway-Restraint of act-Sale of for act-Healing 420 void-Granted tutor-Ratificamajority-Hypothecary of-Road alloivance-Obliqation

54-R.

the township for road front of said lot. This road was, however, never opened owing to and by-law passed authorizing a new road defacto-Evidence of right NEGLIGENCE-Railway company-Siding from highway-Notice of to-Duty Co.-Accident employee-Perfre from-Non-jury case-R.S.C., 709 appeal-Judgment for trial-Extension time-Appliexpired-R. 2-Partnership of conditions-Expulofpartner- Waiver-Good

Partner-Liabilityof-Breach of conditions-Expulsion of partner-Notice- PARTNERSHIP-Continued.

tain conditions of the terms of partnership the others him to retire giving three months' notice of their intention to and a partner retiring should forfeit his claim share of the goodwill of the business.

of the partners having broken such conditions of partnership the others verbally notified that must leave the and to avoid publicity consented to immediate dissolution which was advertised dissolution mutual consent."

After the dissolution the retiring partner made assignment his goodand interest the business and the assignee brought an action against the remaining partners for the value of the same. Held, reversing the judgment of the court below, Fournier J.

dissenting, that the action the defendants in advertising that the dissolution was " mutual consent" did not prelude them from showing that it took place in consequence of the misconduct of the retiring partner; that the forfeiture the goodwill was caused the improper conduct which led to the expulsion of the partner fault and not the in which such expulsion was ; and, therefore, the want notice required the articles of intention to could not relied as taking the retirement out that prbvision of the articles which the goodwill was forfeited.-Held also, that if it was dissolution partner voluntarily retiring could made the retiring partner respect to goodwill, the account to taken under the partnership articles in cases not provide therefor.

that the goodwill consisted wholly the trade the

PARTNERSHIP-Contined.

drawees, and give receipts acknowledging the correctness of the they must held to have acquiesced the payment.

POLICY-for life insurance-Reference application-Mis-statement-Warranty

P.-Retrazit- Subsequent action-Document not proved at trial -Consideration of an appeal-Lis pendens and judicata-Pleas of Canada, in an action instituted them against a withdrawal part their demand in open court reserving their right to institute a subsequent action for the amount withdrawn.

The court acted this retraxit, and gave judgment for the balance.

This judgment was not appealed from.

a subsequent action for the amount reserved: Held-reversing the judgment of the court below, Fournier J. dissenting, that the provisions of Art. C.C.P. are applicableto a withdrawal made Buying and sellin land Stock-in-tradeoutside, and without the interference of, the Banker-Payment of c eque-Joint payees-In- court and cannot affect the validity of withdorsement one-Acquiescence in paymentdrawal made in open court and with its permis- Monthly receipts.] When a partnership entered 2.-That it was too late in the second into the purpose of buying and selling lands action to question the validity of the retraxit the lands acquired in the business of such part- upon which the court had in the action acted nership are, in equity, considered personalty, and rendered a judgment which was and and dealt with partner freely conclusive.-A document not proved at the trial if they constituted the stock-in-trade of but relied the Court of Queen's Bench commercial partnership.

active partner in the first time cannot relied or made part such business has implied authority to borrow of the case in appeal.

Montreal L. v. the security of mortgages acquired Fauteux 3 and Lionais the partnership lands.-An amount Molson's Bank Can. C. R. followed. borrowed was paid a made payable to the order of all the partners name. The active partner had authority, power of attorney, to 2-Libel--Trial of action-Improper direction sign partners' to all deeds and con- tojury-Excessivedamages-Reduction ofverdict.] necessary carrying the business Held, per Strong, Fournier, Taschereau and but had express authority endorse cheques.

Gwnne JJ., that where the trial of an action Held, that having authority to the loan for libel the was improperly left to the jury, and receive the amount cash could endorse but the only prejudice occasioned to the defendhis partners' names the cheque, and the ant thereby was that of excessive damages, the drawees had right assume that did it for verdict might stand on the plaintiff consenting partnership purposes and justified in pay- to the damages being reduced to ing it endorsement.-Lleld also, that if the court. Held, per Ritchie C.J., that there the payment the drawees was not warranted had mistrial and consent of both parthe drawers having, for two years after, received ties to such reduction was necessary. monthly statements of their account with the

PRACTICE-Continued.

Act-Procedure ofcourt-Security-Reference courts or judges certain functions the

Winding-up Act Parliament intended that the should performed means of the ordinary machinery of the courtand its ordinary procedure.

It therefore, ground tion to a winding-up order that the security to given the liquidator appointed thereby not order, but left settled a master.

appeal-Extension time-Application of order-R.S.C., trial-R.S.C. s.41-Constitution of-Nonjury

PRESCRIPTION-Actionagainst fire-R.S.C. s. 27-51 s. (d)'

RAILWAYS-Neqligence-Approaching not station nor a highway crossing the

Ry. had siding for loading lumber delivered a saw mill and piled upon platform.

The deceased was at the platform with a team for the purpose taking away when train coming out of a cutting frightened the horses, which dragged the deceased to the main track where was killed the train.

leld, that there no duty upon the company ring the bell or sound the whistle take precautions approaching passing the siding.

2-Railway duty-Contributory negligence.]

J., a switch-tender of the

Ry. was obliged the ordinary discharge of duty to cross track the station yard to get switch and walked along the ends the ties which projected sixteen inches beyond the rails.

While doing an engine behind and knocked him with his arm under the wheels and itwas cut near the shoulder.

the trial of an action against the company consequence of such injury the jury found that there was negligence the management of the engine in not ringing bell and in going faster than the law allowed.

also found that J. could not have avoided the accident the exercise of reasonable care.

Held, that the Workmen's Compensation

RAILWAYS-Continued.

Injuries Act of Ontario, c. applies the Ry. notwithstanding it has brought under the operation of the Government Railways Act of the Dominion-Beld also, Gwynne and Patterson JJ. dissenting, that there was such negligence on J's. part as would relieve the company from liability for the injury caused improper conduct their servants and the judgment the court below sustaining a verdict for the plaintiff was right, therefore, and should aid to-Debentures-Signed of line-Evidence probandi poration, under the authority of by-law, and handed to the Treasurer of the Province of its debentures a subsidy to a railway company, the paid over to company the manner and subject the conditions which the Government provincial subsidy was payable under 2, viz., when the road was completed and good running order to the satisfaction the Lieutenant-Governor

Council." debentures were signed who was elected warden and took and held possession the after the former warden had verbally resigned the position.

In action brought railway company to recover from the Treasurer of the Province the debentures after the Government had paid and in which action the municipal corporation was cause as co-defendant, the Provincial Treasurer pleaded demurrer only, which was overruled, and the County of Pontiac pleaded general denial and that the debentures were illegally signed. held, Ist. Affirming judgment of the court below, that the debentures signed the Warden facto were perfectly legal That the provincial treasurer had admitted his pleadings that the road had completed to the satisfaction the Lieutenant- General in Council the onus was the municipal corporation, mise to prove that the Government had not acted conformity with the statute. Strong J. dissenting. Ross-406 4-Damages from company-R. 287-Limitation for damages.] Running train too heavily laden the loeomotive, whereby the respondents' barn, situated in close proximity the railway field. affirming the judgments of the courts below, that there was sufficient evidence of negligence to make the railway company liable the damage caused the fire.-Per Gwynne J., that the " damage " referred to in chap. and ch. is " damage" done the railway itself, and [S. C. R. Vot. XVII. BAILWAYS-Continued.

reason of the default or neglect of the pany running the railway, or of a company having running powers over it, and therefore prescription of months referred to in said sections is not available an action like the present. RY. Co.

5-Expropriation of land for- of gravel- Compensation-Damages-Parm crossing railway-Ezpropriation of laud for-Farm crossing-Depreciation for want offor all

See

7-Operation of telegraph lines by-Contract withforeign corporation doing business in Canada

-Excluslve righ&-Restraint of trade

RATIFICATION-of authority sign deed-Assignment in trustfor creditors-Authority gram-Estoppel

See

RELEASE-of debt-Assignment in trust for creditors-Authority sign for creditor-Ratification-Estoppel

See

RES JUDICATA-Judgment in former suit- How far binding Dominion Government.]

Per Gwynne J.-There is sound reason the Government of the Dominion should not bound the judgment of court justice a suit to which the Attorney-General, as presenting Government, was party defendant, equally any individual would the relief prayed the information sought the interest and the same grounds as adjudicated upon the judgment the suit.

2-Withdrawal of part of claim in courtaction for amount withdrawn-Art.

C.C.P.

C.O.-C.S.L.C.

51-Improvement of courses.] Where a proprietor, for the purpose improving the value of water power, has built a over water course through property and has not constructed any mill manufactory in connection with the cannot, in action damages brought a riparian proprietor whose land has been over- RIPARIAN RIGHTS-Continued.

reason of the construction the dam, justify under the provisions of Nor can acquire prescription a right to maintain the dam question; Arts. C.C.; can claim title to the land overflowed without proving the requirements of Art.

Fisitni - Naviable river- Obstruction accs sortie-Damages for-Railway

The Brunswick Liquor License Act, provides that applications for license other that in cities incorporated towns, shall presented at the annual meeting of the council of the municipality and shall then taken into consideration, and cities and incorporated towns at a meeting to held not later than the first day April, in each and every year."

The interpretation clause provides that the City St. John the expression "council" means the mayor, who has the powers given to a municipal council. It is also provided that when anything required to done at, on or before meeting counel, and no other date is therefor, the mayor may the date for doing the same -the City ofSt. John.

Held, affirming the judgment the court below, that the provision quiring licenses taken into consideration not later than the first April directory invalid reason of the same being granted after that date.-Held, per Gwynne J., that this provision not to the city of St. John.- Applications for licenses under the act must endorsed the certificate of one-third of the rate-payers of the district which the license asked.

holder a license can a ber of the municipal council, justice of the peace, or a teacher in the public schools. Held, that the legislature could erly impose these conditions to the obtaining ofa license, and the provision not ultra vires the local legislature being a prohibitory measure reason of the rate-payers being to prevent any licenses being issued; nor it measure restraint trade affixing astigma to the business of selling liquor.

2amended V. c. (Man.)- Setting aside letters patent-Error and improvidence.] an action set aside letters patent error and improvidence under the Manitoba STATUTE-Continued.

STATUTE OF FRAUDS- Act c. amended : Held, per it. After return received the following Patterson J.-That the construction of the telegram which had not reached statute must given to the term impro- for : at if you vidence meaning thing distinct alive, property yours, answer imffedifraud or error; letters patent may, therefore, ately.

Under these circtmstances held tohavebeen improvidently ifissuedin claimed and stock and brought tnorance of substantial claim persons other suit for performance aellged agreethan the patentee the land which, if it had ment B. that the should belong to known, would have investigated and at B's death.

feld, affirming the judgment passed upon the patent issued; and it court below, that there was agreement not the duty the court form a definite opin- writing the transfer the property ion the relative strength opposing and the facts were not sufficient the fourth section statute was R.S.C.

crown prerogatives right payment full ofa claim against the assets insolvent bank in priority to all other itors not interfered with the provisions the Bank Act (R.S.C. giving noteholders a first lien such assets, the crown being named in enactment.

Gwynne

4-Construction of-Assignment for creditors-Costs of creditor-Lien- 43-Validity

(N.S.)-Sale of under-Effect clauses-Lien-Priority land-Part dent of British Columbia, wrote to his sister, in

England, that would like of her children to out to and a second letter

" want get relation here for what property have, of sudden death, would eat ip outsiders and relations would get nothing."

hearing the contents of these letters of B.'s sister and coal miner in England, came British Columbia and lived with for six years. that time worked

B.'s and received share the

After that he went to work coal mine in

Idaho.

While there received a letter containing the following: " want you to at as am very bad.

I really not know if shall get over it or not, and you had better hurry and to at for want you and dare you will guess the reason why.

If anything should happen to you are who should here."

receipt this letter immediately started for the farm but bad died and was buried before reached contract could decreed.

8.92 (D)-Trade and Act------ R.S.C. 8--R.S.C.

1o- R.S.C.

R.S.C.

R.S.C.

14--52

[S. C. R. Voil. XVII. STATUTES-Continued.

18-R.S.0. c.

"

292,

20-37

21-44-45 s.

23-51 Vc

TRADE under the Trade and Design Act, (42 person accused infringing a registered trade mark may show that it was in such registration and, therecould not properly registered, notwithstanding the provision s. 8 the act that the person registering shall have the exclusive right to the to designate articles manufactured TaschereauJ. dissenting.-Where the statute prescribes means for rectification of a trade mark improperly registered the courts may afford relief way of defence to an action infringement.-Per Gwynne J.-Property cannot acquired in marks, known to a particular trade as designating quality and not themselves, indicating that goods to which they are are the manufacture a particular person. Nor can property acquiran ordinary English word expressive quality merely though it might foreign - - - - - TRANSACTION"-Arts.1918,1920C.C.-Dedam-Report 44 flvrtherevidence-C.S.L.C. Theplaintiff,a riparian proprietor,broughtan action againstone Se to todemolish adam which L. had erected the river and pay daminjury caused dam. In this V. 3; c. (Man.)

property was subsequently of to the defendant who bought with full establish-Intention-Severance knowledge the agreement question and agreed bound agreement and also judgment if had party thereto. TITLE LAND-Construction of dam-Dam- defendant, however, not completely by-Prescription-Possession-Art. demolish the but portion at and foundation it throughout dam.

plaintiff then brought the present action against the defendant the demolition lands-Setting second dam end damages. this Error action the Superior Court, after hearing number witnesses, appointed expert engineer reported that the caused injury TRADE-Restraint of-Foreign corporation-property.

This report the court -Re~rait ofTyoeigncororaton-gave to, refusing a motion made plaintiff asking leave examine the expert and other showing the incorwith ground that the defendant had only exercised rights given MARK-Infringement of-Effect the C.S.L.C., and the plaintiff gistration-Exclusive of user-Property damage.

per Fournier, Gwynne and atarson JJ., that of the a mark symbol in which property can application, the rights of the parties being raguacquired, and which will designate the article lated the agreement settlement arising which it placed the manufacture the out the action, which wasa "transaction" person claiming exclusive right to within the meaning of articles and that properly registered trade mark the Covin Code.-Per Fournier and Gwnne JJ. TRANSACTION-Continued.

the whole evidence the plaintiff was entitled to judgment and the appeal should allowed.-Per Ritchie J. and Taschereau J.

appeal should dismissed, but any event all the plaintiff could ask was have the remitted to the court of first instance to take further evidence, which was the principal ground of his appeal to the Court

Bench as stated in his factum.-Patterson J..

Trustees-Comnission to-Rule of law.] In the Province of

Scotia prior to the passing V. c.

the rule English law relating to commission to trustees was in and no such commission could allowed unless provided the trust.

TUTOR MINOR-Loan minor-Arts.

and 0. C.-Obligation--rPersonal remedy for moneys used for of minor--Hypothecary action.] Where loan of money improperly obtained tutor for his purposes and lender, through agent who was also subrogate tutor, has knowledge that the judicial authorization borrow has obtained with.

out the tutor having first submitted a summary account as required Art. 0.0., and that such authorization otherwise irregular its the obligation given the tutor null and void.-The ratification the minor after becoming of age of such obligation not binding if made without knowledge of the causes nullity or illegality the obligation given the tutor.-If a mortgage, granted a tutor and subsequently ratified a minor when age, declared null and void, an hypothecary action the lender against subsequent purchaser the property mortgaged will not lie.person lending money to tutor, which proves to have been used to the advantage enefit the minor, has a personal remedy against the minor when of age for the amountso loaned and

ULTRA VIRES.

WAIVER-Partnership-Breach of conditions- Expulsion of partner-Lotice- Goodoill

WARRANTY-Application for life insurance- Reference in policy-Mis-statement - -Life insurance- Unconditional policy-Ef- LIs

WILL-Interest-Contingcnt interest - Protection against waste.] D. was entitled to legacy under will provided survived the testator's wife, and during her lifetime brotight suit protecthis legacy against dissipation ofthe estate the widow.

Held, reversing the judgment the court that D. bad more than a sibility or expectation of future interest; had an existing contingent interestin the estate and was entitled to have the estate preserved that the legacy might of the happening of the contingency which it depended. 2-Construction of.--Devise-Joint tenancy in common-Evidence establish-Admissibility will devised certain property to the testator's two sons, their 'heirs, etc., provided that the devisees should jointly and equal shares pay testator's debts and the legacies the will.

There six legacies of £50 each to other children of the testator, and these to paid the devisees at the expiration 2, and 7 years respectively. The estate vested before the statute aboli-hing joint tenancies in Nova Scotia came into operation. Held, reversing the decision of the court below, Taschereau and Gwynne JJ. dissenting, that these provisions payment of debts legacies indicated an intention the testator's part a severance the devise, and the devisees took tenants and not joints tenants.

Fisher Anderson Can. trial tween persons claiming through the. respective devisees to partition the real estate devised evidence conversation between the devisees, severance was made after the estate vested, was tendered and rejected being evidence to assist constrning the will.

, that it properly rejected.-Held, per Gwynne'and Patterson JJ. that the evidence might have been received evidence of severance between the devisees themselves, if joint ACT-R.S. C.c. 129--Application of provincial company- Winding-up proceedings-Reerence master.)

company incorporated the legislature Ontario may put into compulsory liquidation and wound under the Dominion Winding-up Act, R.S.C. e. 129.-In assigning to provincial courts judges certain functions under the Winding-up Act Parliament intended that the should performed means of the ordinary machinery of the court and its ordinary procedure. It therefore, ground to a winding-up order that the security given the liquidator appointed thereby not the order, but to settled a master.