Judgment of the Court
- SIR W. J. C.J.-As to the merits we have to deal with the important question of the respon- RiteieC.J. sibility of executors for the funds in their hands under the circumstances of such a case as this.
The first thing will be to see what it was precisely that the defendant did. The evidence shows, first, that on 1st November, 1875, Mrs. Lawford handed over to Hunter $2,916.81 to invest on mortgage from Emma Roussel.
No mortgage was ever executed, and the money was appropriated by Hunter, who seems to have paid the interest on the supposed mortgage to Mrs. Lawford out of his own pocket.
On 1st December, 1880, a sum of $3,000 which had been loaned to Mrs. Joseph Bouchard and secured by a mortgage on real estate became due. Mrs. Lawford signed a receipt and acquittance bearing that date, which is filed with the record.
No proof is offered to explain the disappearance of this money, but defendant can only suggest that when she signed the receipt she imagined that she was signing an extension of the mortgage.
On 6th July, 1877, Mrs. Lawford handed Hunter $1,000 to invest on mortgage from Mrs. John Clarke. No such mortgage was ever executed or registered, and the money was appropriated by Hunter, who paid interest on the supposed investment out of his own pocket.
On 20th February, 1882, Mrs. Lawford handed Hunter $20,576.60, to be used in payment of assessments due by the estate Philips, and held partly by Robert Hamilton and partly by the city, from whom subrogation was to be obtained.
On 28th February, 1682, Mrs. Lawford signed a subrogation for $9,579.30. Hunter appropriated the balance of 10,997.30, and defendant can only suggest that when she signed the deed she imagined it was for the whole amount. The question will be whether, all this money having been lost by the misconduct of Hunter, the defendant has any lawful excuse for not paying it to the plaintiff qual.
It is abundantly clear that trust money ought not necessarily to be left with strangers.
In this case it is beyond question that the executrix placed herself completely in the hands of Hunter delegating to him the confidence reposed in herself placing the most implicit confidence in him, acquiescing without question or investigation in all he proposed, accepting his statements without any inquiry as to their correctness, and generally without exercising any surveillance or control over the money to be invested, or without any inquiry as to whether the investments had been made or the security properly executed and registered before the money to be invested in the securities was paid over, but gave him the absolute control of such moneys by drawing checks payable to him personally when no necessity existed for such a course being adopted and when if such checks had been drawn in favor of the borrowers or their order it could not have been in his power to have perpetrated the gross frauds of which he appears to have been guilty in this case. It was, however, stated in the evidence that the plaintiff was a woman who professed to possess a certain knowledge of business; if she does it is quite clear that she failed to put any such knowledge in practice, but on the contrary, without any direction, supervision, inquiry or superintendence, in a blind confidence, she placed the moneys of this estate in the hands of this man who fraudulently appropriated the same to his own use.
Now who should be the sufferers by this rascality? Should it be the executrix who by an entire abandonment of her control over these funds, and of her duties as executrix, and substituting in her stead the author R of those wrongs and needlessly placing in his hands the moneys of the estate thereby enabling him to perpetrate them, and whose only answer practically is "I had such confidence in him that I did not believe he could do wrong
; or the infant children of the testator, guilty of no improper conduct or wrong ?
I think this executrix cannot be considered in any other light than as guilty of culpable negligence. cannot conceive any system of law recognising the duties of executors that would throw such a loss as this case develops on the devisees and relieve the negligent executor from all liability. No doubt when Hunter was perpetrating these frauds and until his flight his reputation was unquestioned and he enjoyed public confidence and esteem. No doubt he was an ancient friend of the Low family, and appears to have been particularly so of the plaintiff, but this case is not to be decided on sentiment.
What we have to do with are the business relations of the plaintiff as executrix with the notary Hunter, and in those relations did she exercise that due care and control over the interests the estate, and that surveillance over the transactions in question, that her duty as executrix and her duty to the estate demanded ?
I can discover no substantial difference between the French and English law on the question at issue in this case.
I have not thought necessary to go into the authorities French or English, because I think the principle involved in the case is too clearly established to require that I should do so.
The law applicable to this case is clearly stated in Clough v. Bond
It was held by Lord Cottenham, affirming the decree of Sir L. Shadwell V.0., (reported 8 Sim. 594 nom. Clough v. Dixon), that the estate of John Bond was answerable for the loss.
. . It will be found, " said his lordship," to be the result of all the best authorities upon the subject, that, although a personal representative, Ritchie C.J. acting strictly within the line of his duty, and exercising reasonable care and diligence, will not be responsible for the failure or depreciation of the fund in which any part of the estate may be invested, or for the insolvency or misconduct of any person who may have possessed it ; yet, if that line of duty be not strictly pursued, and any part of the property be invested by such personal representative in funds or upon securities not authorized, or be put within the control of persons who ought not to be entrusted with it, and a loss be thereby eventually sustained, such personal representative will be liable to make it good, however unexpected the result, however little likely to arise from the course adopted, and however free such conduct may have been from any improper motive..
So when the loss arises from the dishonesty or failure of any one to whom the possession of part of the estate has been intrusted. Necessity, which includes the regular course of business in administering the property, will in equity exonerate the personal representative. But if, without such necessity, be be instrumental in giving, to the person failing, possession of any part of the property, he will be liable, although the person possessing it be a co-executor or co-administrator : Langford v. Gascoyne (1), Lord Shipbrook v. Lord Hinchinbrook (2), Underwood v. Stevens (3).
This case does not come at all within the case of Speight v. Gaunt (4), which, in my opinion, is entirely distinguishable from it.
Persons who accept the office of executors or trustees must be supposed to accept it with the responsibility at all events for the possession of ordinary care and prudence. Learoyd v. Whiteley (5), per Lord Halsbury. Appeal dismissed with costs. Solicitors for appellants : Abbotts,
Campbell Meredith.
Solicitors for respondent : Lafleur 4. Rielle.
(1) Yes. 333.
(4) 9 App. Cas. 1.
(2) Yes. 252 ; 16 Yes. 477.
(5) 58 L. T. 94.
(3) 1 Mer. 712.
44%
Vol,. XVI. APP'ElvTDITK
UNREPORTED CASES DECIDED SINCE THE ISSUE OF VOL, XVI, THOMSON v. QUIRK.
ON APPEAL FROM THE - SUPREME COURT OF THE NORTH- Mar. 29,30. WEST TERRITORIES.
Chattel mortgage-Renewal-One year from date of filing-Description of goods-Sufficiency of.
The ordinance of the North-West Territories relating to chattel mortgages (Ordinance of 1881 No. 5) provides by section 9 that " every mortgage filed in pursuance of this ordinance shall cease to be valid as against the creditors of the persons making the same after the expiration of one year from the filing thereof, unless a statement, &c. is again filed within thirty days next preceding the expiration of the said term of one year."
A chattel mortgage was filed on August 12th, 1886, and registered at 4.10 p.m. of that day. A renewal of said mortgage was registered at 11.49 a.m. on August 12th,
Held, affirming the decision of the court below that the renewal was filed within one year from the date of the filing of the original mortgage as provided by the ordinance.
Per Patterson J. In computing the time mentioned in this seetion the day of the original filing should be excluded and the mortgagee would have had the whole of the 12th August, 1887, for filing the renewal.
Section 6 of the same ordinance provides that
All the instruments mentioned in this ordinance whether for the mortgage or sale of goods and chattels shall contain such sufficie3t and full description thereof that the same may be readily and easily known and distinguished."
The description in a chattel mortgage was as follows
All and singular the goods, chattels, stock-in-trade, fixtures and store building of the mortgagors, used in or pertaining to their business as general merchants, said stock-in-trade consisting of a full stock of general merchandise now being in the store of said mortgagors on the north-half of section six, township nineteen, range twenty-eight
-west nf the fourth principal meridian."
Held, affirming the decision of the court below, (1 N. W. T. Rep. No. 1 p. 88) that the description was sufficient.
McCall v. Wolff (13 Can. S.C.R. 130) distinguished.
Hovey v. Whiting (14 Can. S.C.R. 515) followed.
-Strong, Fournier, Tasehereau, Gwynne and Patterson JJ. JONES v. THE GRAND TRUNK RAILWAY COM- - PANY OF CANADA.
Mar. 30.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO. Railway (ompany-Station buildings-Planked way-Invitation public to use-Duty of company-Negligence.
The approach to a station of the Grand Trunk Railway from the highway was by a planked walk crossing several tracks, and a train stopping at the station sometimes overlapped this walk, making it necessary to pass around the rear car to reach the platform. J., intending to take a train at this station before daylight, went along the walk as his train was coming in, and seeing, apparently, that it would overlap, started to go around the rear when he was struck by a shunting engine and killed. It was the duty of this shunting engine to assist in moving the train on a ferry, and it came down the adjoining track for that purpose before the train had stopped.
Its headlight was burning brightly, and the bell was kept ringing. There was room between the two tracks for a person to stand in safety.
In an action by the widow of J. against the company :
Held, Fournier and Gwynne JJ. (dissenting)
, that the company had neglected no duty which it owed to the deceased as one of the public.
Held, per Strong and Patterson JJ., that while the public were invited to use the planked walk to reach the station, and also to use the company's premises, when necessary, to pass around a train covering the walk, there was no implied guaranty that the traffic of the road should not proceed in the ordinary way, and the company was under no obligation to provide special safeguards for persons attempting to pass around a train in motion. Held, per Taschereau J., that the death of the deceased was caused by his own negligence.
The decision of the Court of Appeal (16 Ont. App. R. 37) was affirmed. :-Strong, Fournier, Taschereau, Gwynne and Patterson JJ. BATE v. THE CANADIAN PACIFIC RAILWAY
April 4, 5. ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO: June 14. Railway Co.-Contract to carry wassenger-Special contract-Reduced fare-Notice of conditions-Negligence.
The plaintiff purchased from an agent of the defendant company at
Ottawa what was called a land seeker's ticket, the only kind of return ticket issued on the route, for a passage to Winnipeg and return, paying some thirty dollars less than the single fare each way.
The ticket was not transferable and had printed on it a number of conditions, one of which limited the liability of the company for baggage to wearing apparel not exceeding $100 in value, and another required the signature of the passenger for the purpose of identification and to prevent a transfer. The agent obtained the plaintiff's signature to the ticket explaining that it was for the purpose of identification, but did not read nor explain to 'her any of the conditions, and having sore eyes at the time she was unable to read them herself. On the trip to Winnipeg an accident happened to the train and plaintiff's baggage, valued at over $1,000, caught fire and was destroyed.
In an action for damages for such loss the jury found for the plaintiff for the amount of the alleged value of the baggage.
Held, reversing the judgment of the Court of Appeal (15 Ont. App.
R. 388) and of the Divisional Court (14 O.R. 625), Gwynne J. dissenting, that there was sufficient evidence that the loss of the baggage was caused by defendants' negligence, and the special conditions printed on the ticket not having been brought to the notice of plaintiff she was not bound by them and could recover her loss from the company.
:-Strong, Fournier, Taschereau and Gwynne JJ.
IMPERIAL FIRE INSURANCE CO. v. BULL.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO. April 5,6. Fire insurance-Insurance mortgagee-Interest insured-Payment June mortgagee-Subrogation.
Mortgagees of real estate insured the mortgaged property to the extent of their claim thereon under a clause in the mortgage by which the mortgagor agreed to keep the property insured in a sum not less than the amount of the mortgage, and if he failed to do so that the mortgagees might insure it and add the premiums paid to their mortgage debt. The policy was issued in the name of the mortgagor who paid the premiums, and attached to it was a condition that whenever the company should pay the mortgagees for any loss thereunder, and should claim that as to the mortgagor no liability therefor existed, said company should be subrogated to all the rights of the mortgagees under all securities held collateral to the mortgage debt to the extent of such payment.
A loss having occurred the company paid the mortgagees the sum insured, and the mortgagor claimed that his mortgage was discharged by such payment.
The company disputed this and insisted that they were subrogated to the rights of the mortgagees under the said condition.
In an action to compel the company to give a discharge of the mortgage
Held, per Fournier, Taschereau and Gwynne JJ., that the insurance effected by the mortgagees must be held to have been so effected for the benefit of the mortgagor under the policy, and the subrogation clause which was inserted in the policy without the knowledge and consent of the mortgagor could not have the effect of converting the policy into one insuring the interest of the mortgagees alone ; that the interest of the mortgagees in the policy was the same as if they were assignees of a policy effected with the mortgagor ; and that the payment to the mortgagees discharged the mortgage.
Held, also, that the company were not justified in paying the mortgagees without first contesting their liability to the mortgagor and establishing their indemnity from liability to him ; not having done so they could not, in the present action, raise any questions which might have afforded them a defence in an action against them on the policy.
The result of the decision of the Court of Appeal (15 Ont. App. R. 421) and of the Divisional Court (14 0. R. 322) was affirmed. :-Strong, Fournier, Taschereau and Gwynne JJ.
OSBORNE v. HENDERSON.
May 20,21
Jn 21. ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO. Partnership-Dissolution-New partnership continuing partner-Liability of new firm-Right of third person to enforce-Trust-Novation. A firm consisting of two persons dissolved partnership, the retiring partner receiving a number of promissory notes in payment of his share in the business which notes he indorsed to the plaintiff H. The continuing partner of the firm afterwards entered into a partnership with 0., the defendant, and transferred to the new firm all the assets of his business, his liabilities, including the above mentioned promissory notes, being assumed by the copartnership and charged against him.
The new firm paid two of the notes and interest on others, and made a proposal for an extension of time to pay the whole which was not entertained. Held, reversing the decision of the Court of Appeal (17 Ont. App. R. 456 sub-nomine Henderson v. Killey) and of the Divisional Court (14 O.R. 137), Fournier J. dissenting, that the agreement between the continuing partner and the defendant did not make the defendant a trustee of the former's property for the payment of his liabilities, and the act of the defendant in paying some of the notes did not amount to a novation as it was proved that plaintiff had obtained and still held a judgment against the maker and endorser of the notes in an action thereon and there was no consideration for such novation. W.J. Ritchie C.J., and Fournier, Taschereau, Gwynne KENNEDY v. PIGOTT.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO. May2. Contract-Public work-Sub-contractor-Rescission -Quantum meruit- Arbitration-Setting aside award.
P. was a contractor with the Government of Canada for building a post office and K. was sub-contractor to do the mason and brick work for a lump sum, the sub-contract consisting simply of an offer to give the work for the sum named and an acceptance by K. P. being dissatisfied with the work done by K. took the contract out of his hands before it was completed and finished it himself. K. then brought an action for the value of the work done by him and on reference by the court to arbitration an award was made in K.'s favor.
The Court of Appeal set aside the award and remitted the case to the arbitrator for further consideration, holding that though the contract did not authorise P. to take over the work and finish it at K.'s expense, and the latter was therefore entitled to recover on the quantum meruit, yet the cost of completing the work was considerably in excess of the contract price. Held, reversing the judgment of the Court of Appeal, that as it appeared from the evidence that the arbitrator fully understood the matter and got all the information that could be obtained on the subject, and as no impropriety or mistake was shown to have been committed by him, no benefit could result from sending the award back for reconsideration, and the decree of the Court of Appeal was not justified.
W.
ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA. Contract of sale-Particular chattel-Representation.
McD. bought at auction, through an agent, a billiard table described in the auctioneer's advertisement as "a full size 6 pocket English billiard table made by Thurston," etc., and wrote to M. & Co., makers of billiard tables in Toronto, describing his table and asking terms of exchanging it for a new one of another style. On receiving the information asked McD. wrote that he could not accept the terms offered.
M. & Co. afterwards wrote the following letter
TonoNro, Oct. 2nd, 1886. D. Esq.. Agent Halifax Banking Co. Antigonish. Sna,-Your laconic reply to our letter of 24th instant to hand. We would drop the matter if it was not for an inquiry which we have just received from a private party in the far North-West who would like to purchase a good second-hand English table. We would therefore kindly ask you to make us your offer for the proposed exchange, and if we can possibly do it we will accept it. 'Give us as near description as you can of your table, maker's name essential, but you have nothing with it but the billiard outfit (no life and pyramid balls and boards) you should not make your price too high, or deal will be impossible.
Awaiting your kind reply, we remain, yours truly,
& To which McD. answered: I may just say I never saw our table yet, bet am informed it is a very nice one, made by " Thurston " and very little the worse of wear, being in the private family of Sir Edward Kenny in his country residence near Halifax.
This gentleman who purchased the table for us writes thus : " I got the 3 billiard balls and marker, and 19 cues, which is all that is needed for billiards. I am told the table is a great bargain, cost £200 in England, and is not much the worse for wear."
The table is 6 x 12, and for particulars we would refer you to Jerry E. Kenny, Esq. or F. D. Clark, auctioneer, Halifax.
D. C. M. & Co. then wrote accepting the offer and adding, " We trust that the English table is fully as represented ; and if you are satisfied, you may ship it at once, with billiard balls, markers, 19 cues, cloth and what else there may be. In the meantime we will get up a 4 x 9 Eclipse Combination table in best style, and with outfits for pool, carom and pin pool games.
Awaiting you early reply, we remain, dear sir,
MAY & The table shipped by McD. on reaching Toronto was found to be an American made table with English cushions and worth only from $15 to $25.
M. & Co. brought an action for the original price of the new table.
Held, affirming the the judgment of the court below, that MeD. agreed to deliver to M. & Co. an English built table made by Thurston as described in his letter and having failed to deliver such a table he was liable to pay the full price of the one obtained from & Co.
PRESENT.-Sir W. J. Ritchie C.J., and Strong, Tascbereau, Gwynne KLOEPFER v. WARNOCK.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO. Mar. 29. Assignment-Benefit of creditors-Fraudulent preference-R.S.O. c. 118- 48 V. c. 26 s. 2 (0).
Mar. One N. owed defendants a sum of money which he was unable pay in full, and he assigned to defendants all his book debts and accounts, the assignment providing that the book debts should be placed in the hands of a firm of financial agents for collection, who should account to the defendants for the proceeds less the commission, and whatever amount remained in defendants' hands after their debts were paid should be paid over to N. Plaintiffs, judgment creditors of N., brought an action to set aside this assignment having the effect of hindering, delaying and defeating them in the recovery of their claim and giving defendants a preference over other creditors, and -being void under R.S.O. c. 118, as amended by 48 V. c. 26 s. 2 (0). Held, affirming the judgment of the Court of Appeal (15 Out. App. R. 324), and of the Divisional Court O.R. 288), Gwynne J. dissenting, that N. being unable to meet the demands of his creditors for payment must be deemed insolvent within the meaning the said act ; that book debts are a species of property included in the provisions of 48 V. c. (0.), and that the assignment by N. to the defendants was void under that section.
:-Strong, Fournier, Taschereau, and Gwynne 33.
SEARS v. THE MAYOR., ALDERMEN AND COM- Oct. 24, 25.
MONALTY OF THE CITY OF ST. JOHN. Lessor and lessee-Covenant for renewal-Option of lessor-Second term- Possession by after expiration of term-Efect of-Specific performance.
A lease for a term of years provided that when the term expired any buildings or improvements erected by the lessees should be valued and it should be optional with the lessors either to pay for the same or to continue the lease for a further term of like duration. After the term expired the lessees remained in possession for some years when a new indenture was executed which recited the provisions of the original lease and, after a declaration that the lessors had agreed to continue and extend the same for a further term of fourteen years from the end of the term granted thereby at the same rent and under the like convenant, conditions and agreements as were expressed and contained in the said recited indenture of lease, and that the lessees had agreed to accept the same, it proceeded to *grant the further term. This last mentioned indenture contained no independent covenant for renewal. After the second term expired the lessees continued in possession and paid rent for one year when they notified the lessors of their intention to abandon the premises.
The lessors refused to accept the surrender and after demand of further rent, and tender for execution of an indenture granting a further term, they brought suit for specific performance of the agreement implied in the original lease for renewal of the second term at their option. Held, affirming the judgment of the court below (28 N.B Rep. 1) Ritchie C.J. and Taschereau J. dissenting, that the lessors were not entitled to a decree for specific performance.
Held, per Gwynne J., that the provision in the second indenture granting a renewal under the like covenants, conditions and agreements as were contained in the original lease, did not operate to incorporate in said indenture the clause for renewal in said lease which should have been expressed in an independent covenant. Per Gwynne J., Assuming that the renewal clause was incorporated in the second indenture thelessees could not be compelled to accept a renewal at the option of the lessors, there being no mutual agreement therefor ; if they could the clause would operate to make the lease perpetual at the will of the lessors.
Per Gwynne and Patterson JJ. The option of the lessors could only be exercised in case there were buildings to be valued erected during the term granted by the instrument containing such clause; and if the second indenture was subject to renewal the clause had no effect as there were no buildings erected during the second term.
Per Gwynne J. The renewal clause was inoperative under the statute of frauds which makes'leases for three years and upwards, not in writing, to have the effect of estates at will only, and consequently there could be no second term of fourteen years granted except by a second lease executed and signed by the lessors.
Per Ritchie C.J. and Taschereau J. The occupation by the lessees after the terms expired must be held to have been under the lease and to signify an intention on the part of the lessees to accept a renewal for a further term as the lease provided.
:-Sir W.J. Ritchie 0.J. and Strong, Taschereau, Gwynne VAUGHAN v. WOOD.
Oct. 28. Dog-Injury committed by-Ownership-Scienter-Evidence for jury. W. brought an action for injuries to her daughter committed by a dog owned or harbored by the defendant V. The defence was that V. did not own the dog, and had no knowledge that he was vicious. On the trial it was shown that the dog was formerly owned by a man in V'.s employ who lived and kept the dog at V'.s house. When this man went away from the place he left the dog behind with V'.s son, to be kept until sent for, and afterwards the dog lived at the house going every day to V'.s place of business with him, or his son who assisted in the business.
The savage disposition of the dog on two occasions was sworn to, V. being present at one and his son at the other.
V. swore that he knew nothing about the dog being left by the owner with his son until he heard it at the trial. The trial judge ordered a nonsuit, which was set aside by the full court and a new trial ordered.
feld, affirming the judgment of the court below, that there was ample evidence for the jury that V. harbored the dog with knowledge of its vicious propensities and the non-suit was rightly set aside. PRESENT.-Sir W.
DIXON v. RICHELIEU NAVIGATION COMPANY. Dec. 2,3. ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO. Common carrier-Special contract-Exemption from liability-Construc- ~.
lion of terms-At owner's risk against all casualties.
The Commercial Travellers Association of Ontario, by written agreement with the defendants' company, obtained for its members for the season of 1885 special privileges in travelling by the company's boats, one of the terms of the agreement being that the members should receive tickets at a reduced rate " with allowance of 300 lbs. of baggage free, but the baggage must be at the owner's risk against all casualties." This agreement was continued during 1886 by verbal agreement between the manager of the company and the secretary and traffic manager of the association. D. a commercial traveller obtained a ticket for a passage on one of the company's boats under this agreement, paying the reduced fare, and took on board three trunks containing the usual outfit of a traveller for a jewellery house valued at about $15,000. The trunks were checked in the usual way and no intimation was given by D. to any of the officials on the boat as to their contents. On the passage the contents of the trunks were damaged by the negligence of the officers of the company and an action was brought by D. and his employers to recover damages for such injury. Held, affirming the decision of the Court of Appeal (15 Ont. App. R. 647), that the agreement between the Association and the Company was in force in 1886 ; that the term " baggage " in the agreement meant not merely personal baggage, such as every passenger is allowed to carry without extra charge, but commercial baggage, and would include the outfit in this case ; and that in the expression "must be at owner's risk against all casualties," the words "against all casualties"
do not limit, control or destroy, but rather strengthen, the protection which the former words " at owner's risk afforded the defendants.
:-Sir W. J. Ritchie C. J. and Strong, Tasehereau and Gwynne JJ.
MERCHANT'S BANK OF CANADA v. LUCAS. Dec. 4,5,6.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO. Forgery-Ratiflcation-Estoppel.
Y., who had been in partnership with the defendants, trading under the name of the H. C. Company, but had retired from the firm and become the general manager of the company but with no power to sign drafts, drew a bill of exchange for his own private purposes in the name of the defendants on a firm in Montreal, which was discounted by the plaintiff bank.
Before the bill matured Y. wrote to defendants informing them of having used their name, but that they would not have to pay the draft. The bill purported to be indorsed by the company per J. A. Y. (one of the defendants), and the other defendant having seen it in the bank examined it carefully, and remarked that "J.M.Y.'s signature was not usually so shaky."
J.M.Y. afterwards called at the bank and examined the bill very carefully, and in answer to a request from the manager for a cheque he said that it was too late that day but he would send a cheque the day following. No cheque was sent, and a few days before the bill matured the manager and solicitor of the bank called to see J.M.Y., and asked why he had not sent the cheque.
He admitted that he had promised to do so and at the time he thought he would. Y. afterwards left the country, and in an action against the defendants on the bill they pleaded that the signature of J.M.Y. was forged, and on the trial the jury found that it was forged and judgment was given for the defendants.
Held, affirming the decision of the Court of Appeal (15 Ont. App. R. 573) which reversed that of the Divisional Court O.R. 520), that though fraud or breach of trust may be ratified forgery cannot, and the bank could not recover on the forged bill against the defendants.
La Banque Jacques Cartier v. La Banque d'Rpargne (13 App. Cas. 118), and Barton v. London and North-Western Railway Company (6 L.T. Rep. 70) followed.
:-Sir W. J. Ritchie O.J. and Strong, Taschereau, Gwynne DIOCESAN SYNOD OF NOVA SCOTIA v. RITCHIE.
Feb.20. ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA. Mar. 10. Diocesan fund-Support of Clergymen-Condition as to participation. The Diocesan Church Society of Nova Scotia holds a fund for distribution among the Church of England clergymen of the Province, and one of the rules governing its distribution is that no clergyman receiving an income of $1,000 and upwards from certain named sources shall be entitled to participate.
Held, affirming the judgment of the court below (21 N.S. Rep. 309) that a rector was not debarred from participating in this fund because the salary paid to his curate, if added to his own salary, would exceed the said of $1,000, his individual income being less than that amount.
PRESENT :-Strong, Fournier, Taschereau, Gwynne and Patterson JJ. CARTER MACY & CO. v. THE QUEEN. far. 21.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA. Customs laws-Teas in transit through United States to Canada-52 Vic. c. 14-Tariff Act (1886) item 781.
The plaintiffs made two shipments of tea from Japan to New York for transportation in bond to Canada. In one case the bills of lading were marked "in transit to Canada ;" in the other the teas appeared upon the consular invoice made at the place of shipment to be consigned to the plaintiffs brokers in New York for transhipment to Canada. On the arrival of both lots at New York, and pending a sale thereof in Canada, they were allowed to be sent to a bonded warehouse as unclaimed goods for some five or six months and were finally entered at the New York Customs House for transportation to Canada, and forwarded to Montreal. There was nothing to show that the plaintiffs at any time proposed to make any other disposition of the teas, and there was nothing in what they did that contravened the laws or regulations of the United States or of Canada with respect to the transportation of goods in bond.
Held, affirming the judgment of the Exchequer Court (2 Ex. C.R. 126) Gwynne J. dissenting, that as it clearly appeared that the tea was never entered for sale or consumption in the United States; that it was shipped from there within the time limited by law for goods in transit to remain in a warehouse; and that no act had been done changing its character during transit, it was therefore " tea imported into Canada from a country other than the United States but passing in bond through the United States " and under s. 10 of the act relating to duties on Customs (R. S. C. c. 33) not liable to duty as goods exported from the United States to Canada. But see now 52 Vic. c. 14 (D).
:-Sir W. J. Ritchie C.J., and Strong, Taschereau, Gwynne FORSYTHE v. THE BANK OF NOVA SCOTIA. IN RE THE BANK OF LIVERPOOL.
May 6. ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA. Winding-up act-R.S. C. c. 129-Insolvent bank-Appointment of liquidators-Right to appoint another bank-Discretion of judge.
The winding-up act provides that the shareholders and creditors of a company in liquidation shall severally meet and nominate persons who are to be appointed liquidators and the judge having the appointment shall choose the liquidators from among such nominees. In the case of the Bank of Liverpool the judge appointed liquidators from among the nominees of the creditors, one of them being the defendant bank.
Held, affirming the judgment of the court abelow (22 N. S. Rep. 97) that there is nothing in the act requiring both creditors and shareholders to be represented on the board of liquidators; that a bank may be appointed liquidator ; and that if any appeal lies from the decision of the judge in exercising his judgment as to the appointment such discretion was wisely exercised in this case. PRESENT.-Sir W. J. Ritchie C.J., and Strong, Fournier, Gwynne 1ETNA INSURANCE CO. v. ATTORNEY GENERAL OF ONTARIO.
June 2,3, ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO. Fire insurance- Construction of policy-Asylum for insane-Main building-Annex.
The Asylum for the Insane, London, cnsists of a centre building containing all necessary accommodation for patients, etc., and a kitchen, laundry, and engine room built of brick and roofed with slate, situate some fifty feet to the rear of the middle of the centre building, and connected with it by a passage or covered way with brick walls about ten feet high and also roofed with slate and with a tramway to convey food from the kitchen to the southern portion of the centre building.
A policy of insurance against fire insured the " main building."
Held, affirming the judgment of the Court of Appeal and of the Divisional Court, that the policy covered the kitchen, laundry and engine room.
:-Sir W.
45%
GRANT v. THE BRITISH CANADIAN LUMBER Mar. 19.
June 12.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO. Compyany-Winding-up---Possession of books by manager-Refusal to deliver up-Evidence.
G. was the manager for the Ottawa District of a lumber company whose head-quarters were in Edinburgh and whose head office for Canada was in Toronto.
The company having gone into liquidation an order was obtained from the Court of Sessions in Edinburgh for the delivery of its books by the manager to the liquidator or to some person appointed by him.
This order not having been obeyed an action was brought by the company to recover possession of the books from G. who set up the defence that he had already given them up, and also that the company had no locus standi to maintain the action.
The evidence given on the hearing showed that after the proceedings in liquidation were commenced G. was dismissed from his employment as manager, whereupon he demanded an audit of the books which was commenced but never completed, and G. swore that after banding over the books to the auditors he had never had possession of them. He also swore that they had never been in his control, having been keptin a safe of which a clerk of the company and the new manager alone had the combination.
It was shown by the plaintiffs, however, that some time after the audit an agent of the liquidator Went to Ottawa to get the books and saw G. who first agreed but afterwards refused to deliver them up, giving as the ground of his refusal that he was liable for the rent of the office, and for other debts of the company, and that he wished to retain what property of the company he had to protect himself. The agent, with the assistance of G's. landlord, then obtained access to the office where he saw some books which he took to belong to the company, and a safe in which he believed there were others, but G. coming in refused to allow him to remove them and ejected him from the office.
On this evidence the trial judge made an order against G. directing him to deliver to the liquidator all the books and papers of the company in his possession or under his control. This decision was affirmed by the Divisional Court and the Court of Appeal. On appeal by G. to the Supreme Court of Canada :
Held, that the books having been shown to have been in the possession of G. at the date of the visit of the liquidator's.agent to Ottawa, and the defendant not having attempted to show what became of them after that date, and his testimony that he did not know what had become of them having been discredited by the trial judge, there was no reason for interfering with the order appealed from.
:-Sir W. J. Ritchie C.J., and Strong, Fournier, Gwynne TITUS v. COLVILLE.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO. Mar. 20. Evidence-Question of fact-Finding of trial judge-Interference with on June T. a solicitor, brought an action against the officers of the Liberal- Conservative Association of the East Riding of Northumberland for services alleged to have been rendered as their solicitor and counsel in the matter of an election petition against the return of the member for the Riding in the Legislative Assembly of Ontario. At the trial of the action the plaintiff swore that he was duly appointed solicitor to carry on the election petition by resolution passed at a meeting of the association, and that in consequence of such resolution he acted as such solicitor in the conduct of the petition. The defence to the action was that no such appointment was made, or if it was that the plaintiff agreed to render his services gratuitously, and the evidence given for the defendants was that the plaintiff offered his services free of charge, and that it was decided to protest the election in consequence of such offer. The trial judge held that no retainer of the plaintiff was proved and dismissed the action.
His decision was reversed by the Queen's Bench Division, and their decision in its turn was reversed by the Court of Appeal and the judgment of the trial judge restored.
On appeal by the plaintiff to the Supreme Court of Canada:
Held, affirming the judgment of the Court of Appeal, that the question being purely one of fact which the trial judge was the person most competent to determine from seeing and hearing the witnesses, and it not being -lear beyond all reasonable doubt that his decision was erroneous but, on the contrary, the weight of evidence being in its favor, his judgment should not be interfered with on appeal.
:-Sir W. J. Ritchie C. J., and Strong, Fournier, Gwynne Nov. 3.
Evidence-Improper ad mission -ross-examination-Conversation partly given on examination in chief-Belief as signature on note-Evidence of counsel.
To an action on a bond the defendants pleaded that it was given in settlement of promissory notes made by a brother of defendants the indorsements to which were forged to the knowledge of plaintiffs, which settlement was the only consideration for the execution of the bond. On the trial a verdict was given for plaintiffs which was set aside by the full court and a new trial ordered on the ground of improper admission of evidence as follows : 1st, evidence by a solicitor of what one of the officers of the plaintiff bank had told him relative to an admission by the alleged forger that the notes weregenuine; part of this conversation, which related to a different matter, had been given in evidence by the same witness on direct examination, but the court below held that the balance could notbe given on cross-examination as it was not connected with what had been already proved. Secondly, evidence by counsel for plaintiffs in the proceedings on the notes which had led to the making of the bond of his belief in their genuineness, which the court below held was not good evidence.
On appeal to the Supreme Court of Canada from the judgment ordering a new trial
Held : That the evidence objected to was properly admitted and that the judgment should be reversed.
:-Sir W.J. Ritchie C.J., and Strong, Fournier, Taschereau, Gwynne and Patterson JJ.
ROGERS v. DUNCAN.
Dec. 10,11.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO. Easement-Adjoining lands-Way of necessity-License--Prescription- No10.
- Agreement for right of way-Construction of.
In an action for obstructing a right of way the plaintiff claimed the use of such right both by prescription and agreement, and also claimed that by the agreement the way was wholly over defendant's land.
The evidence on the trial showed that plaintiff had acquired the land from his father who retained the adjoining land which was eventually conveyed to defendant, and that after so acquiring it the plaintiff continued to use a track or trail over the adjoining land, and mostly through bush land, to reach the concession line, and his claim to the use of the way by prescription depended on whether or not his user was of a well-defined road, or merely of an irregular track and by license and courtesy of the adjoining owner. Finally an agreement was entered into between the plaintiff and his brother, who had acquired the adjoining lot which he afterwards conveyed to defendant, by which, in consideration of certain privileges granted to him, the brother covenanted to permit plaintiff to have a right of way along a lane to which the way formerly used led, and extending forty rods east from the centre of the lot, so as to allow plaintiff free communication from defendant's lot along said lane to the concession line. The issue raised on the construction of this agreement was, whether the right of way granted thereby should be wholly or in part on plaintiff's land, or wholly on that of the defendant. Held, reversing the judgment of the Court of Appeal (16 Ont. App. R. 3) and restoring that of the Divisional Court (15 0. R. 699) Ritchie C.J. dissenting, that plaintiff bad no title to the right of way by prescription, the evidence clearly showing that the user was not of a well-defined road but only of a path through bush land and that he only enjoyed it by license from his father, the adjoining owner, which license was revoked by his father's death but,
Held, affirming the judgment of the Court of Appeal, that under the agreement the right of way granted to the plaintiff was wholly over defendant's land the agreement, not being explicit as to the direction of such right of way, requiring a construction in favor of the plaintiff and against the grantor.
:-Sir W.J. Ritchie C.J., and Strong, Taschereau, Gwynne ROYAL INSURANCE COMPANY v. DUFFUS. ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA. Feb. Evidence-Weight of-Admissibility-Grounds for admission urged at Dec. 9. trial-New grounds taken on appeal-Effect of.
In an action on a policy of insurance against fire on a stock of goods the verdict for the plaintiff was moved against on the grounds of its being against the weight of evidence and of improper exclusion of evidence.
The first ground was mainly urged in regard to the amount, of damages.
As to the second ground the evidence tendered related to the fact that a quantity of unburnt matches and shavings had been found near the part of the premises in which the fire occurred where the bulk of the goods were alleged to have been burnt. The evidence was rejected by the trial judge for the YOL. XVIII.]
reason that there was no defence pleaded that the fire was incen- .diary, and on appeal to the full court below it was for the first time urged that it was admissible as showing the nature and extent of the fire in the vicinity.
The verdict for the plaintiffs was sustained by the full court. On appeal to the Supreme Court of Canada :
Held, Gwynne J, dissenting, that the decision of the court below should be affirmed.
Per Ritchie C.J., that though the amount of the damages found in the case was not satisfactory and might well have been submitted to a jury of business men as a question proper for their determination lie would not dissent from the judgment dismissing the appeal. As to the other ground the evidence was rightly rejected. When evidence is tendered the judge and opposing counsel are entitled to know the ground on which it is offered and none can be urged on appeal that has not been put forward at the trial.
:-Sir W.J. Ritchie C.J., and Strong, Tasehereau, Gwynne SEETON v. KING-.
May 6,7. ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA. Dec.
Evidence-Agreement for transfer of vessel-Absolute or conditional sale- Findings of fact.
In a suit for an account of the earnings of a steamer transferred to the defendants by the plaintiff the case had been heard and judgment given when defendants made application to be allowed to put in newly discovered evidence, which was refused by the court below but allowedby the Supreme Court of Canada,which latter court also gave leave to both parties to amend their pleadings.
The original answer of the defendants to the action alleged that the transfer of the steamer was made by the plaintiff as security for all advances made or to be made, while plaintiff claimed that it was only as security for a fixed amount. After the order of the Supreme Court of Canada defendants set up a new case, namely, that the transfer was absolute in consideration of an annuity of $1,000 to be paid to plaintiff during his life.
This defence was raised in accordance with the newly discovered evidence which consisted of an agreement purporting to be executed by plaintiff to transfer to to defendants said steamer and all power and control over the same in consideration of such annuity and to execute an absolute bill of sale thereof to defendant. Pursuant to the order of the Supreme Court evidence was taken of the execution of this agreement and resulted in a judgment by the judge in equity, who heard the case, declaring that it did not contain the true agreement between the parties, that it was executed by plaintiff while intoxicated and incapable of transacting business and that the only consideration for the transfer to defendant was the fixed sum stated by plaintiff, and he ordered an account to be taken as to the state of the general accounts between the parties.
This judgment having been affirmed by the full court:
Held, that under the evidence and considering the nature of the transaction and all the circumstances attending it the courts below could not have found otherwise than they did and their decision should be affirmed.
:-Sir W.J. Ritchie C.J., and Strong, Fournier, Gwynne YON v. CASSIDY.
Promissory notes-Oonsideration-Transaction.
May 17. C. having purchased Y.'s interest in certain lands which were in the Dec. City of Montreal, and upon which there was a mortgage of $80,000, gave his promissory notes to Y. for the balance of the purchase price.
Subsequently C. failed and Y. being liable for the mortgage C. agreed to take the necessary steps to obtain Y.'s discharge from the mortgagees on a payment of one thousand dollars, and Y. signed a document sous seign privd, dated 18th February, 1879, agreeing that all parties should be in the same position as if the deed of sale had never been passed.
The mortgagees subsequently gave a discharge to Y. in conformity with the above agreement. In an action taken by Y. against C. on his promissory notes:
Held, affirming the judgments of the courts below, that there was no consideration given for the notes, and that C. was discharged from all liability under the document of the 48th February, 1879.
33 L.
:-Sir W. J. Ritchie C. J. and Strong, Fournier, Gwynne ROSS v. HURTEAU.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO. June 3,4. Sale of goods-Non-delivery-Part of large parcel-Lien of unpaid vendor. Dec. The defendant H. had over 4,000,000 feet of lumber in a yard in Rockland, Ont., and sold 1,500,000 through an agent to L. of Montreal on six month's credit, ratifying the sale by a letter to the owners of the yard as follows :
W.C. &
You will please ratify Mr. Lemay's order for one million feet 3 mill culls 8-13 feet and 493,590 feet 3 mill culls 14-16 feet sold to Mr. William Little, f.o.b., of barges with option to draw them from the piles, if he wants some during winter.
Sd.
N. FRkRE. A few days after the sale the agent gave an order on the owners of the yard for delivery of the lumber to L. which order was accepted by the owners.
L. bad given a six month's note for the price of the lumber and just before it matured he asked defendants to renew which they refused, and on L. saying that he could not pay defendant replied that he must keep his lumber, whereupon he was informed by L. of his agreement with the plaintiff made about a month after the purchase from defendant by which he pledged to plaintiff the warehouse receipt for the lumber collateral security for advances to him by plaintiff.
On the trial of an interpleader issue to determine the title to this lumber it was shown by the evidence that the quantity sold to L. had never been separated from the defendant's lot in the yard and that defendant had always kept it insured considering it his until paid for.
Held, affirming the judgment of the Court of Appeal, Strong and Gwynne JJ. dissenting, that the property in the lumber never passed out of H. the defendant.
:-Sir W.J. Ritchie O.J., and Strong, Fournier, Gwynne HARDMAN v. PUTNAM.
Feb APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA. Practice-Nova Scotia Judicature Act rule 476-Alotion for new trial- Disposal of whole case on-Directions to jury-Observations by judge on issue not pleaded.
In an action for winding-up a partnership in the gold mining business the defence pleaded was that there never was a partnership formed between the plaintiff and the defendants, or, if there was, that it had been put an end to by a verbal agreement between the parties. The case was tried by a jury and the result depended on the credibility to be attached to the respective witnesses on each side who gave evidence as to the agreement that had been entered into.
No issue of fraud was raised by the defendants but the trial judge, in charging the jury, made strong observations in respect to fraudulent concealment of facts from the plaintiff and submitted questions to the jury calling for findings in relation to such fraud.
The plaintiff having obtained a verdict which was sustained by the Supreme Court of Nova Scotia :
Held, reversing the judgment of the court below Gwynne J. dissenting, that there should be a new trial.
Per Gwynne J. Unless either party desires to give further evidence the court should render the judgment on the evidence as it stands which the court below ought to have given.
Per Strong J. Under rule 476 of the Judicature Act the court can take a case which has been passed upon by a jury into its own hands and dispose of it if all the proper materials on which to decide are before it, but in this case the materials essential to the final disposition of the case are not before the court and there must be a new trial.
Per Ritchie C.J.-The Supreme Court, as an appellate court for the Dominion, should not approve of such strong observations being made by a judge as were made in this case, in effect charging upon the defendant's fraud not set out in the pleadings and not legitimately in issue in the cause.
Per Strong, Fournier, Taschereau, Gwynne and Patterson JJ. that the case was essentially an equity case and one in which a jury could advantageously have been dispensed with.
:-Sir W.
SEATH v. HAGAR.
Jurisdiction--Appeal-Insolvent Act of 1875-40 Vic. c. 41, 28- Mar. 3, 4. Effect of.
A final judgment of the Court of Queen's Bench for Lower Canada (appeal side), upon a claim of a creditor filed with the assignee of an estate under the Insolvent Act of 1875, is not appealable to the Supreme Court of Canada, the right of appeal having been taken away by 40 V. c. 41, s. 28 (D).
Cushing v. Dupuy, 5 App. Cas. 409 followed.
:-Sir W.J. Ritchie C.J. and Strong, Fournier, Taschereau, Gwynne and Patterson JJ.
GRANT v. CAMERON.
May 6.
ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA. Statute of Limitations-Acknowledgement of debt barred by-Sufficiency of -Assignment of chose in action-Right of assignee to sue-Notice to debtor-R.S.N.S. 4 ser. c. 94, 355 and 359.
The following letters written by a debtor to his creditor were held to take the debt out of the operation of the Statute of Limitations: August 9th, 1876. FINLAY,-I received a letter from you some time ago about your money. I delayed writing because I did not know what to write.
I did not know but something would turn up that would enable me to pay you.
I have a good deal of property-too much for these hard times-and I want to sell some of it, but cannot in the meantime, as times are that bad that people do not want to buy anything, only what they cannot do without.
But this state of matters will not continue long, and when the times get better I will make some arrangement to pay you your money.
Be not afraid of it, as I have but a small family and no boys, I will have plenty to pay my debts. I did get somewhat behind hand by railway affairs, but have recovered, and I am now in possession of a good deal of property and in a fair way of doing well whenever the times get better.
I regret very much keeping it from you so long ; however, I hope the time will soon come when I will be able to pay you.
Yours very truly,
ALEX. June 19th, DEAR UNCLE,-I am in receipt of yours of the 31st of May about your money, and must say I am not astonished at you for wanting it. You ought to have bad it long ago, and you would have had it, only I was unfortunate in a railroad contract I took, on the railroad between Truro and Pictou, in which I lost considerable money, and got largely in debt besides.
After giving up the work I hired with the Government to carry on part of the work. At this time James and I commenced to build a cloth factory on a small scale, in order to have some permanent work. I borrowed most of what I put in.
The man who had your money on mortgage, after haviDg it two years, left. I had to sell the property, which I took from him by deed, for one thousand dollars (81,000), losing by this likewise.
I then got an offer from the Government to go to the Red River and North-west Territory to explore there for two years among the Indians, and got back last winter.
I have now my debt nearly paid and the amount of your claim secure in property, viz., land property, so that you will be as sure of your money in a short time as if you had it.
Do not think, Finlay, that I intend to do you, or any other body, out of one shilling.
So rest assured that I have your money secured in a manner that you will get it, although I cannot send it now. You had good patience, so I hope you will have a little more, and I will put you all right.
I believe I worked as hard and travelled far more than you did, and have been much more unfortunate than you were since you left ; but since two years I have done well, and hope soon to do well by you.
Now, Finlay, rest assured that I have your money secured so that you will get it, whatever becomes of me. MR. F.
Very truly yours,
Port Ludlow, British Columbia.
ALEX. The Revised Statutes of Nova Scotia, 4 ser. c. 94, s. 355, authorises the assignee of a chose in action in certain cases to sue thereon in the Supreme Court as his assignor might have done, and sec. 357 provides that before such action is brought a notice in writing, signed by the assignee, his agent or attorney, stating the right of the assignee and specifying his demand thereunder, shall be served on the party to be sued.
Pursuant to this section the assignee of a debt served the following notice
PleTou, Nov. 21st, 1878. Esq.:
Admr. Estate of Alexander McDonald, deceased.
DEAR SI,-You are hereby notified in accordance with ch. 94 of the Revised Statutes, sec. 357, that the debt due by the above estate to Finlay Thompson has been assigned by him to Alexander D. Cameron, who'hereby claims payment of twelve hundred dollars, the amount of the said debt so assigned to him.
H.
Att'y. of D. Held, affirming the judgment of the court below, that the notice was a sufficient compliance with the statute.
:-Sir W. J. Ritchie C.J. and Strong, Fournier, Taschereau, G-RIFFITHS v. BOSCOWITZ.
June 16.
ON APPEAL FROM THE SUPREME COURT OF BRITISH COLUMBIA.
Practice-Charge to jury-Misdirection-New trial-Taking accounts. W., a trader, being in financial difficulties assigned all his property to B. who undertook to arrange with W.'s creditors. W. subsequently assigned his property in trust for the benefit of his creditors and the assignee and some of the creditors brought an action to have the transfer to B. set aside.
On the trial, after the evidence on both sides was concluded, plaintiff's counsel asked the judge to instruct the jury as to what constituted fraud under the statute of Elizabeth, and he also urged that an account should be taken of the dealings between W. and B. The judge refused to define fraud to the jury as requested and the jury stated that they were unable to deal with the accounts.
Judgment having been given for the defendants and affirmed by the full court
Held, that the refusal of the judge to charge the jury as requested amounted to misdirection, and there should be a new trial; that the case could not be properly decided without taking the accounts : and that it could be more properly dealt with as an equity case.
:-Sir W.J. Ritchie C.J., and Strong, Fournier, Gwynne PAINT v. THE QUEEN.
June 17.
Expropriation-Prospective capabilities ofproperty-Value to owner- Unity of possession-Advantage accruing to paper town from railway. Appeal and cross-appeal from the judgment of the Exchequer Court on a claim arising out of an expropriation of land at Port Hawkesbury, N.S., for the purposes of the Cape Breton railway. amount awarded to the claimant was $9,223.50, and the Exchequer Court judgment which is reported at length in 2 Ex. C. R. 149, was unanimously affirmed by the Supreme Court.
PRESENT :-Sir W. J. Ritchie C. J. and Strong, Fournier, Gwynne No. 86.
Rules and are hereby repealed and the following substituted therefor :
In Controverted Election Appeals the party appellant shall obtain from the Registrar, upon payment of the usual charges therefor, a certified copy of the record, or of so much thereof as a Judge may direct to be printed, and shall have forty (40) copies of the said certified copy printed in the same form as hereinbefore provided for the in ordinary appeals, and immediately after the completion of the printing shall deliver to the Registrar thirty (30) of such printed copies, twenty-five thereof for the use of the Court and its officers and five (5) thereof for the use of the respondent and to be handed by the Registrar to the respondent or his solicitor or booked agent upon application made therefor.
For printing in election appeals the same fees shall be allowed on taxation as for printing the in ordinary appeals.
Ottawa, September 25th, 1891.
Sd. W. J. O.J.
Sd. H. E. J. S. H. J.
S. J. T. J.
.
of-Contractor build ernment Railwau-Government Railway Act,
109-Construction of term "
ployee."] of Railway
Act of Vic. that "
shall brought against of [Railfor anything virtue within after act writing."
Held, judgment of court Ritchie C. J.
that contractor with of Railways the for construction of of the
Intercolonial not "
within
Fournier that given of to public work only with the requiring land description Aled ; if not with, in council authorizing land to in council contractor with land to construct public work liable to in entry:
2-Contract-Right recover for work done-- Condition precedent-Certificate of engineer
- 3 against municipality - Employment physician board of health - Dismissal-Form ofremedy - ---- AFFIDAVIT-Bill of sale-R. N. S. 5 Ser.
Jurat
IN CONTROVERSY-Judgment for appealable amount at trial-Reduction Court of Queen's of Appeal-Functions of- Difference jury and non-jury cases.] Held, Strong court different functions in dealing with tried judge without jury in jury
In the court jurisdiction facts trial judge, with it In latter court cannot substituted for jury to parties facts for 2- Jurisdiction - Amount in controversy Supreme and Exchequer Courts Act, 29-Damages-Discretion of court of first instance as amount.] plaintiff in action for for judgment in Lower for to of judgment of the plaintiffto of the matter in the of judgment of Court. JJ. dissenting).-The of judge tries in discretion in court of first not with by court of clearly error in law fact, partiality the part of judge. Levi v. Reed, 6 Gingras v. Desilets, followed.
at 3--Validity of by-law-Supreme andExchequer Courts Acts, (a) and (b) and (g)- Constitutional Question-When not matter in troversy.] plaintiff to of of two of the authority of municipal by-law. that by-law illegal ultra vires of municipal council, ultra vires of Legislature of of that statute by-law intra vires the that court judgment of Court validity but tax of plaintiff to complaining of APPEAL-Contknued.
APPEAL-Continued.
that part of the judgment which declares the assignment facts the jury and business tax invalid. There was cross- quent proceedings and ordered venire motion quash for want of juris- ground that the assignment diction.
Held, that the appeal would not facts was defective and Insufficient the of the Supreme and Exchequer Courts answers the jury insufficient and Act not being applicable, and the case not dictory.
Held, that the order Court coming within of the act, the amount Queen's nota final judgment and being under future rights within the noteomewithin the exceptionsallowingan appeal meaning of said sec being controversy nor trials, and therefore the appeal any question to the constitutionality of the would not lie.
Act of the legislature being raised. Strong J.
dissenting the ground that the judgment ap- 8_Application Judge in chambers aside pealed involved the question of validity writ of summons -Final Judgment
Applicathe Provincial Act.
served out of the jurisdiction of the Mandamus-Judgment demurrer-Supreme court on the grounds that the of action and Exchequer Courts Act, (g)-Secs. in England and defendant was and Interlocutory judgments upon pro- subject court, and if the ceedings and upon writ mandamus are court had jurisdiction that writ was not not appealable the Supreme Court under proper form.
Thejudge refused the application the Supreme and Exchequer Courts and decision was the full court. Act. The word " judgment " in thatsub-section Held, Gwynne hesitante that the decision means the judgment in the case.
Strong full court was judgment an and Patterson JJ. dissenting.
action, suit, matter other judicial proceeding within the meaning Supreme Court 599 appeal would from such decision Order for a trial-When not appeal- the Supreme Court Canada.
able-Supreme
(g.) and Where a new trial has been 9-udicature Act
Disposal oj whole ordered upon the ground that the answer given case-Proper materials-Trial-Observations the jury to the questions insufficient trial judge.]-Per Strong J.-Under rule to enable the court to of the interest of the Judicature Act Scotia the court can the parties the findings of the jury as take casewhich has beenpassedupon ajury whole, appeal will lie such order which into its hands and it if all the pronot judgment and cannot held permaterials which decide are it. but within the exceptions provided for the this the materials essential the Supreme and Exchequer Courts Act relation disposition ofthe case not the court and appeals otnew trials.
See Supreme there must new trial.-Per Ritchie C.J.-and Exchequer Courts Act 4(g), and Supreme Court, appellate court the Dominion, should notapprove of strong 615 observations being made judge Saisie conservatoire-Judgment ordering a made in this chargin upon the petition quash seizure dealt with at the defendant's fraud not pleadings merits of main actionand not legitimately the cause. R.
judgment the
Court of Queen's Bench for Lower Canada 10-Jurisdiction
Insolvent Act 1875-40 (Appeal Side) reversing judgment the Vic
28-Effect of]-A judgment Superior Court, which quashed petition ofthe judgment, and ordering that the ada (plid)
upo' Bech f LoweiCan hearing the petition contesting the seizure (appe na cre should proceeded with the Superior Court Insolvent Act not appealable the at time as the hearing of the main S not judgment appealable to the having beentkenaa peal Supreme Court.
R.S.C.
Cshing v. Dupuy, 5App.Cas. followed. -622
7-New trial ordered Court of
Bench motu-Final judgment-Supreme and 1.-Questions effect-Findings oftrial judge Inan bya with judge and jury the judgment of the Superior
Court in review dismissed the plaintiffs' motion for judgment and granted thedefendants' motion 12-Evidence tendered trial- Grounds to the action.
On appeal the Court of urgedfor admissibility-New grounds urged Queen's Bench, the judgment of the Superior appeal-711
Court reversed, and court set the
[S. C. R. YOL. XVIII. AWARD-Award final aside-Grounds objection.]-An the ground that memo., furnished the arbitrator to the losing party after its publication, that the accounts between the parties adjusted upon wrong principle, the defect, if any, not being a mfstake the the award paper forming part and incorporated with, the award, there being admission the arbitrator that had made mistake.
award-Time for applying-9 3 c. s.2-R.S.0.
yince Ontario governing statute the time applying setaside award which the arbitrators re-consideration and re-determination, c. and it is not required that the application should made the last day the term next after the making the award provided 9 & 10 c. 2. Gwynne J. dissenting.-An award may remitted arbitrators for consideration and re-determination under the
Ontario statute though the result of the re-consideration the award virtually set aside a different, contrary, decision .of the arbitrators.-The court justified.inremitting award the arbitrators if fraud frandulent concealment the part the pirsons whose favor it is made established, if evidence covered which, the exercise reasonable diligence, could not have, discovered fore award maded V.
3-Sending pality preference-R.S.O.
(0).]-One N. defendants asum of which was unable pay full, and assigned defendants all book debts and accounts, the assignment providing that the book debts should placed the hands of a agents for collection, should account to defendants the proceeds and whatever amount remained should paid over
Plaintiffs, judgment creditors broughtan action set aside this assignment having effectof hindering, laying and defeating them the recoveryof their claim and giving defendants preference
46other creditors, and being void under R.S.O. c. amended c. s. 2 (0). Held, affirming the judgment the Court Appeal Ont. and of the Court Gwynne J. dissenting, that being unable meet the demands creditors payment must deemed insolvent within the meaning of the said act; that debts are species property included in the provisions c. s.2 (0), and that the assignment the defendants under Scotia-R.S.N.S. 67-Enployment by-Liability DEBTS.-Assignment of-Benefit of ditors-Preference-R.S.O. s. municipality-Liquor on-47 of594 CARRIER-Railway conditions-Notice 2-Carriage ofpassengers-Speial risk all CASES-Banque Baique o1 3-Brisebois 4-Cushing Dig. 6-Hovey Whiting Can. S.O.R.
followed
- - - - - 7-Jones (7 Can. R.
followed
- - - - - 8-Levi (6 Can. S. R. followerchants Bank of Halifax Gillespie (10
S.C.R.
fcCallv. Wolf(13 Can. S.C.R. 130)distin- 11--S. John Rykert Can. C. R.
followed
----- 12-Sweeny Bank Montreal Can. S.C.
R. 661; Cas. referred and fol- 13-The Queen Lacombe L. Jur.
ruled
- - - - - -Shares ofjoint stock pany-"in trust" for minor-Sale of-Notice to purchaser - ---- CERTIFICATE-to practise as solicitor-Nommember
2-Contract-Public work-Final of engineer-Condition
3-Ofengineer- Contract-Condition precedent- Final ofsale-Registry
-Defective ajfidavit-Assignment for of creditors- Writ ofexecution-Signature ofprothonotary-Seal of court.] assignment personal property trust sell the and apply the proceeds the payment debts due certain named creditors the assignor bill of within 4 the Nova Scotia Bills ofSale
5th c. it not being assignment for the general of ereditors and soexcepted the operation of the act the date and the words " before the jurat ofan affidavit accompanying a bill of sale under of the said act makes affidavit void and the defect cannot parol evidence proceedings a oreditor the assignor against the mortgaged goods.
Gwynne J. (dissenting)
.-Per Gwynne J. Sec. the act only applies bills of sale way cbattel mortgage and not an assignment absolute its terms and upon trust to the property assigned. v. - 116 2-Renewal-One year from date of filing- Description of goods-Sufficiency The ordinance of the North-West Territories relating to chattel mortgages (Ordinance 5) provides section that "every mortgage in pursuance of this ordinance Sihall to valid against the creditors the making the after the expiration of year the filing thereof, unless statement, &c. again within thirty days next preceding the expiration of said.term of one year." A chattel mortgage was A ugust registered at oftbat day. renewal said mortgage was registered at a.m. August
Held, affirming the deciof the court below that the renewal was within year the date of the of the original mortgage as provided the ordinance.-Per Patterson J.
In computing the time mentioned this section the day the original filing should excluded and the mortgagee would have had the whole of the August, filing the renewal.-Section 6 the ordinance provides that: " All the instruments mentioned this ordinance whether the mortgage sale ,gobds and chattels shall contain such description thereof that the may readily and easily known and distinguished."
The description in chattel mortgage follows:
singular goods, chittels, stock-in-trade, tures and store builditig the mortgagors, or pertaining to\their business general merchants, said stock-in-trade consisting a full stock general-merchandise being the store said mort'gaors the north-half of section townslip, nineteen, range twentyeight west the fonrth principal meridian." Held, the the court below, (1 N.W.T. 1 that the description was sufficient. Call Can.S.C.R. distinguished.
Hovey Whiting Can. 2- Arts.
- 3-Arts.
Art.
5-Arts. Arts.
- CONDITION-Contract-Public work-Certziiofengineer-Condition
2-Contract
3-Railway Co.-Contract conditions-Notice
R.S.C. 3-Foreign
Winding-up Act" (R.S.C. c.
which provides that the act applies * * * incorporated trading companies doing business
Canada wheresoever incorporated intra vires of the Parliament Canada.
Inre
(Q)-By-law under-Business statute-R.
2.-Assignment for statute-"Employee"
for work-Notice contractciation-"At all
CONTRACT-Public work-Claim for
15-Change sum-Efect oJ-Approval
CONTRACT-Contianed.
which question was submitted for the opinion the court special This report was approved the Intercolonial Railway missioners or the Minister of Railways and Canals under Exchequer Court,'Fournier J. presiding, held that suppliant was entitled to recover certificate appeal to the Supreme Court Canada. Held, reversing the judgment of the Exchequer Court. per Ritchie J. and Gwynne J., that the report of F. assuming to have the Chief Engineer to give the certificate under the contract, cannotbe construed to certificate the Chief Engineer which entitle the contractor to recover any remaining due and payable tinder the terms contract, nor any legal claim whatever against the Government founded thereon.-2nd, per Ritchie C. J., that the contractor was not entitled paid anything until the certificate the Chief Engineer was approved by the sioners Railways and Canals, 31 and37 Jones The (7 Can. S.C.R. 570)-3rd, per Patterson J., that although was duly appointed Chief Engineer ofthe Intercolonial Railway, his report may held the and closing certificate which the suppliant entitled under the eleventh clause of the contract, yet it provided the fourtt clause the contract that any allowance fo increased work to decided the Commis. sioners and not the Enginer, the suppliani not entitled recover S.'s certificate.- Per Strong and Taschereau JJ. (dissenting) tha was the Engineer and had power under the eleventh clause the contrac deal with the suppliant's claim and that report " closing certificate" entitling the respondent to the amount found Exchequer Court the submitted.-Pei Strong, Taschereau and Patterson JJ., tha the of Commissioners having ished and their powers transferred generally to the Minister o Railways and
Canals, the approval th certificate was not condition precedent tc entitle the suppliant claim the amoun awarded him the certificate th Chief Engineer. 37 respondent petition right the
Piblic
Sub-contract-Engineer' arising out of contract construction certificate-Couditionprecedet]-A sub-contrac section the Intercolonial Railway with- construction part the North Sor having obtained certificate F., Railwayprovidcdinter that, "the saidworl held at the time the position of Chief shall, all particulars, made Engineer.
In having resigned, F.
the plans, specifications and directions appointed Chief Engineer the Inter- party ofthe part, and Engineer colonial Railway and investigated, amongst classifications, measurements and others, respondent's claim, and reported culations, quantities and amounts th balance favor
Thereupon several kinds work perfoimed under this the respondent amended petition and made tract shall determined, shall hay special claim for the alleging that power reject all work F. S.'s report certificate was final closing terials which, not certificate within the the spirit this agreement and CONTRACT-Coninued.
decide every question which may arise between the parties relative to the execution thereof, and decision shall conclusive and binding both parties hereto. The party of the part hereby agrees, and binds himself, that upon the certificates of his Engineer that the work contemplated to under this contract been fully completed by the party of the first part, will pay said party of the first part for performance of the same full, for materials and workmanship.
It further agreed, the party of the part, that estimates shall made during the progress of the work about the first mouth, and that payments shall made second party upon the estimate and certificate of engineer, the party the first part, on or before the day month, the amount and value work and materials furnished during the previous month, ten cent. being deducted and retained the party of the second part until the completion the work embraced this contract, when due the party of the first part shall fully paid, and this contract considered cancelled."
completion of the contract the engineer made a final estimate fixing the value work done the sub-contractor at and after deducting the money paid to received the sub-contractor, and clerical error appearing the of the certificate, a remained due the sub-contractor. an action brought the subcontractor to recover the of
Superior Court, whose judgment was thelCourt Queen's granted the plaiutiff the amount of with interest costs. appeal the Supreme Court : Held, affirming the judgment of the court below, that the estimate given the engineer substantially such certificate as the contract templated, but if not the plaintiff must fail a final certificate the engineer condition precedent his right to recover.
a.
3- Public work-Sub-contract-Rescission- Quantun meruit - Arbitration - Setting aside award.] -P. was contractor with the Government of Canada building post was sub-contractor the and brick work for lump the sub-contract consisting simply of to give the work for the named and acceptance
P. being satisfied with the work done took the tract out of his hands it was completed and it himself. then brought action for the value of the work done and reference the court to arbitration award was made K.'s favor.
Court of
Appeal set aside the award and remitted to the arbitrator for further consideration, holdin tbatthough the contractdid notauthorize to take over the work and it at expense, and the latter was therefore entitled to recover the quantum meruit, yet the cost completing the work was considerably of the contract price. Held, reversing the judgment Court Appeal, that it appeared the evidence that the arbitrator fully understood the matter got all the information that could obtained the subject, impropriety or mistake was to have committed benefit could result sending the award back reconsideration, and the decree the Court of Appeal was not justified.
Contract of sale-Particular chattel - Representation.]
bought at auction through an agent, a billiard table described in the auctioneer's advertisement ' a full 6 pocket English billiard table made Thurston." etc., and wrote 1. & makers billiard tables Toronto, describing table and asking terms of exchanging it for another style.
receiving the information asked wrote that could not accept the terms
M. & afterwards wrote the following letter :-Toronto, Oct. C. Agent Halifax Banking Antigonish.
SIn,--Your laconic reply to our letter instant hand. would drop the matter if it hot inqniry which have just received a private party the far North-West woula like purchase a good second-hand English table. would therefore kindly ask to make your for the proposed exchange, and if can possibly it will accept it. Give near description table, maker's name essential, but have nothing with it but the billiard outfit and pyramid balls and boards) you should not make your price high, deal will impossible.
Awaiting your kind & which answered : may just say never saw our table yet, but informed it made "Thurston"
and very little the of wear, being private family of Sir Edward Kenny country residence near Halifax.
This gentleman purchased table writes thus : got the 3 billiard balls marker, and which that needed billiards.
told the table a great bargain, cost in England, and much the for wear."
The table 6 and particulars would refer you Jerry Kenny, Esq., F. D. Clark, auctioneer, Halifax.
Yours truly, C. & then wrote accepting the and ing, "We trust that the English table fully represented; and if are satisfied, it at with billiard balls, markers, 19 cloth, and what else there may the meantime will get 0 Eclipse Combination table best style, and with outfits for carom and pin Awaiting your early remain, dear Sir, yours truly, & table shipped reaching Toronto was found CONTRACT-Continued.
American made table with English cushions worth only from
M. & brought action the original price table.
Held, affirming the judgment the court that agreed deliver M. &
English built table made Thurston cribed letter and having failed to deliver table was liable pay the full price the obtained M. &
5-- carrier
Special confract-Exemptionfrom liability- Construction ofterms-At owner's risk against all casualties.] The cial Travellers Association Ontario, written agreement with the defendants' company, obtained its the special privileges travelling the pany's boats, the terms the agreement being that the should tickets at reduced rate " with allowance lbs.
baggage but baggage must at the owner's risk against all casualties."
This agreement was continued during verbal agreement between the manager the pany and the secretary and manager the association.
D. commercial traveller tained ticket passage the pany's boats under this agreement, paying the reduced fare, and took board three trunks containing the usual outfit traveller a jewellery valued at about
'runks checked usual way and intimation was given D. to any the boat to their contents.
On the passage the contents the trunks were damaged the negligence the the company and an action was brought D.
employers to recover damages for injury.
-Held, affirming the decision the
Court Appeal Ont. thatthe agreement between the Association and the was that the term " baggage " the agreement meant merely personal baggage, such every ger allowed to carry without extra charge, but commercial baggage, and would include the outfit this case; and that the expres- "must at owner's risk against casualties," the words againstall casualties"
not limit, control destroy, but rather strengthen, the protection which the former words " at owner's risk" the defendants.
COM- Publicework-Governnent Railwa' -Notice of action-Construction of "Employee"- Government Railway Act V. c. s. 109-148
7.-Made void statute-Election law-Funds for election under-38 c. 7 (Q]- PsoMissony 1.
CONTRACT- 8- Construction of-Employment of physicias board of health-Attendance upon small-pox patients for seaso-Dismissal-Forn of remedy -- ---- - 9--Wth passenger rail way-Special conditions-.Yotice
10--Kortgage-Insurance clause-Insurance by mortgagees-.4greement insurers-Sit brogation-Payments of mortgagees-.Discharge mortgage
- --- I-- Written agreement-Iotoication party ezecuting-Consideration
Agreementfor ofland-Construction Adjoining lands-Way ofnecessity-License CORPORATION-Foreign-doing in Canada-Wl"inding-up order-Ancillary abroad-Validity
Winiso-UP 1.
COURT-Prohibition by-Control County Courtfjudge-Inquiry iito civic affairs-R. S. 0. CRIMINAL LAW-Error-Writ j-Otn what founded-Right of crown stand aside jurors panel ofjurors has through-Question of not reserved at trial-Criminal Proce- Act-R.S.C. When panel gone through and a full jury had not obtained the crown the second calling over panel was permitted, against the objection of the prisoner, to direct eleven jurymen the panel to stand aside second and the judge presiding at the trial was not asked to reserve neither reserved nor refused reserve the jection.
After conviction and judgment a writ error issued.
Held, per Taschereau, Gwynne and Patterson, JJ., judgment of the court below, that the tion was of law arising trial which could have been reserved under and the writ error should therequashed.
R.S.C.- Per Ritchie C. J. and Stron and Fournier JJ. that the question arose beFre the trial monced and could not have reserved, the error law appeared the tht record the remedy writ of error was applicable.
(Brisebois The C. R referred to).-Per Ritchie C. J. and Strong Fournier and Patterson JJ., that the could not without showing cause for challeng direct juror to stand aside second time c. C. Lacombe Jur. overruled).-Per Gwynne J CRIMINAL LAW-Continued.
that all the prisoner could complain of was mere irregularity procedure which could
CROWN CASE RESERVED-Question of law arising trial-Causing Jurors stand aside-Right aside after panel has
LAWS-Teas in transit through
United States Canada-52 c. 14-Tarifr
Act item
The plaintiffs made two shipments of tea Japan to York transportation bond Canada.
the bills of lading were marked transit to
Canada the other the teas appeared the consular invoice made at the place shipment to consigned the plaintiffs' brokers in York for transhipment to Canada. On the arrival both lots at pending sale thereof Canada, they allowed to sent to bonded warehouse unclaimed goods months and finally entered at the York Customs
House for transportation to Canada, and forwarded to Montreal.
There was nothing to show that the plaintiffs at any time proposed to make any other disposition the teas, and there was nothing in what they that contravened the laws regulations
United States or of Canada with respect the transportation.of goods bond.
Hld, ing the judgment the Exchequer Court (2
Owynne J. issenting, that clearly appeared that the tea was never entered for sale or consumption the United States;
that it was shiped there within the time limited lawfor goods during transit remain warehouse; and that act had changing its character transit, it was theretea imported into Canada country other than the United States but passing in bond through the United States," and under the act relating to duties Customs c. not liable duty goods exported from the United States to Canada. But of-Discretion trial' judge-Interference court of appeal
FUND-Support of. clergymen- Condition as participatson.]
iocesan
Church Society, of Nova Scotia, holds for distribution among the Church of England clergymen the Province, and of the rules governing its distribution that no clergyman receiving an income and upwards certain named sources shall entitled to participate.
Held, affirming the judgment the court below Rep. that rector not debarred fromiparticipating this because the salarypaid to curate, if added
DIOCESAN FUND-Continued.
to his own salary, would the said individual income being than SYNOD trial judge-Amount damages-Inteference Court of Appeal 222 2-Of judge-Appointment ofliquidator-Insolvent bank-Right appoint another bank 707 DOG-Injury committed Ownership-Sc ienter-Evidence forjury
DUTIES- Customs laws- in transit through United States Canada-Tarif Act sity-License
Prescription
Agreement jor right of way-Construction of. In action obstructing right way the plaintiff claimed the right both prescription agreement, and also claimed that the agreement the way was wholly over defendant's land. evidence the trial showed that plaintiff had acquired the land his father who retained the adjoining land which was tually conveyed to the defendant, and that after acquiring it the plaintiff continued to track trail adjoining land, and mostly through bush land, reach the concession line, and claim to the way prescription depended whether or his user was well-defined road, or merely an irregular track and license and courtesy of the adjoining owner. Finally an agreement was entered into between the plaintiff and brother, who had acquired the adjoining which afterwards conveyed to defendant, which, consideration certain privileges granted the brother covenanted to permit plaintiff right of way along a lane which the way formerly used and extending forty rods east the centre of the lot, to allow plaintiff communication defendant's lot along said lane to the conline.
issue raised the construction this agreensent was, whether the right of way granted thereby should wholly or in part plaintiff's land, or wholly that defendant.
Held, reversing the judgment the Court of Appeal Out.
3) and storing that the Divisional C ourt 0. Ritchie C.J. dissenting, that plaintiffhad title the right of prescription, the clearly showing that the user was not a well-defined road but only a path through land and that only enjoyed it license father, the adjoining owner, which revoked his father's death; Held, affirming the judgment of the Court that under the agreement the right EASEMENT-Continued.
way granted the plaintiff was wholly defendants land the agreement, not being plicit the direction such right way, requiring construction favor the plainagainst the grantor.
LAW-Provincial election-Fund to-Promissory
(Q)-R.S. Q.
a promissory the evidence showed that its proceeds election agent to portion an election fund trolled the maker.
Beld, that the transaction illegal under c. 7 s.
Q. Art. which makes void contract, promise understanding any way relating an election under that act, and laintiff could not recover.
EMPLOYEE-of
/epartent
Raila'ys- 109-Contractor for of-Causing jurors aside-Ritt panel-Question solicitor-Allowing demise-Creationf tenant-Terbal
4-Action pronissory
G. was the manager for the Ottawa District a lumber company whose head-quarters in
Edinburgh and head Canada was Toronto. company having gone into liquidation order obtained the Court
Sessions Edinburgh for delivery of its the manager liquidator appointed This order not having who set the that had already them and also that company had locus standi maintain the action.
The evidence the hearing showed that after the ceedings in liquidation were commenced was dismissed his employment manager, whereupon demanded an audit of the books which commenced but never completed, swore that after handing over the books to the auditors had never had them. also swore that had never control, having kept of which a clerk of company and the new manager alone had the combination. It was shown plainhowever, that time after the audit. agent of the liquidator went Ottawa to books and saw agreed but afterwards refused to deliver up, giving the ground refusal that was liable the rent of the and other debts the pany, and that wished retain what property the company had to protect self. The agent, with assistance of G's. landlord, then obtained access to the where saw books which took to belong to the company, and which believed there others, but coming in allowhim to and ejected this evidence the trial judge made an order against directing him deliver to the liquidator all the books papers of the in possession under control.
This decision was the Divisional Court and the Court appeal the Supreme Court of Canada : Held, that the books having shown in the at the date the visit the liquidator's agent Ottawa, and the defendant not having attempted to what them after that date, and his testimony that not know what them having discredited the trial judge, there was reason for interfering with the order appealed Question fact-Finding trial judgebrought action against the the Liberal-Conservative Association the East Riding Northumberland for services alleged have rendered their solicitor counsel the matter election petition against the return the member the Riding the Legislative Assembly Ontario. At trial ofthe action the plaintiffswore that was duly appointed solicitor to carry the election petition resolution passed at meeting of association, and that consequence of resolution acted solicitor the duct the petition.
The to the action that appointment was made, if was that the plaintiff agreed to the render services gratuitously, and evidence given defendants was that the plaintiff services charge, and that it was decided protest the election consequence The trial judge that retainer the plaintiff was proved and the action EVID ENCE-Continued.
decision was reversed the Queen's
Division, and their decision its turn was versed the Court Appeal and the judgment of trial judge restored.
appeal the plaintiff the Supreme Court of Canada. Held, affirming the judgment of the Court Appeal, that the question being of fact which the trial judge was the person most competent determine seeing and hearing the witnesses, and it not being clear beyond all reasonable doubt that decision erroneous but, the contrary, the weight of evidence being in its favor his judgment should not interfered with appeal.
admission- Cross-examination- Conversation partly given examination in chief
-Belief as signature note-Evidence of counsel.] action A bond the defendants pleaded that it was given settlement promissory notes brother defendants.
the indorsements which were forged to the knowledge of plaintiffs, which settlement was the only consideration for the execution of bond. the trial verdict was given for plainwhich set aside the full court and a new trial ordered the ground improper admission evidence follows : evidence solicitor of what of the the plaintiff bank told relative to an admission the alleged forger that the notes were genuine; partof this conversation,which related a different matter, had been given evidence the witness direct examination, the court that the balance could given cross-examination it was not nected with what had already proved.
Secondly, evidence for plaintiffs in the proceedings the notes which had to the making the bond belief their genuineness, which the court below was not evidence.
appeal the Supreme
Court of Canada the judgment ordering~a new trial : Held, That the evidence objected to was properly admitted and that the jadgment should reversed.
- - - - --- Weight of-Admissibality-Grounds for admission urged at trial-New grounds taken appeal-Bfect of.] In an action policy insurance against stock goods the verdict of the plaintiff was against the grounds its being against the weight evidence and of improper exclusion evidence.
ground was mainly urged regard to .the amount ages.
the ground the evidence tendered; related the fact that quantity unburnt matches and shavings had near the part of the premises which the occuired where the the were alleged been burnt. The evidence was rejected trial judge for the reason that there was defence pleaded that the incendiary, and appeal to the full court below it was the first time urged that it was
EVIDENCE-Continued.
admissible showing the nature and extent the the vicinity.
The verdict,for the plaintiffs was sustained court. On appeal the Supreme Court of Canada-Held, Gwynne J. dissenting, that the decision court should affirmed.-Per Ritchie C.J., that though the amount the damages found the was not satisfactory and might have submitted jury business is question proper for their determination would not dissent from the judgment dismissing the appeal other ground, the evidence was rightly rejected. evidence tendered judge and opposing counel are entitled know ground which it none urged appeal that has not put forward at trial.
5-Agreement for ,transfer of vessel-Absolute or conditional sale-Findings of fact.] In suit account the earnings steamer transferred to the defendants the plaintiff, the case bad heard and judgment given when defendants made application allowed put newly discovered evidence, which was refused the court below allowed the Supreme
Court Canada, which latter court also gave leave to both parties amend their pleadings. The original answer of the defendants to the action alleged that the transfer the steamer plaintiff security all advances to made, while plaintiff claimed that it only as security amount. After the order of the Supreme Court Canada ants set a new namely, that the transfer absolute consideration of annuity paid plaintiff during This was raised accor -ance with the newly discovered evidence, which consisted agreement purporting to executed plaintiff transfer defendants said steamer and all and control over the same sideration such annuity, and to execute absolute bill sale thereof defendant. Pursuant the order the Supreme Court evidence was taken of the execution this agreement and resulted judgment the judge equity, heard the declaring that it did not contain the true agreement between the parties, that it was executed plaintiff while intoxicated and incapable transacting business, and that the only sideration the transfer defendant was stated plaintiff, ordered account taken state the general accounts between parties.
This judgment having tle court-Held, that under the evidence and considering nature the transaction and all the circuistances attending it the courts below could not found otherwise than they and their decision should
-- - FORGERY-Contiinued.
insurance-Total loss-Right late tbat, day, but would send for partial
MARIN.
days the bill matured the manager and solicitor the bank called to J. M. not 703 had time thought would.
afterwards left R ao este o country aad action against the montof TRnet-ilapproiatof ants bill they pleaded that the signature atto ney-Liability for-Art.
of J. Al was forged, and trial the jury that it forged and judgment was given for the defendants.
affirming EXPROPRIATION-Prospective to-Adfron the Exchequer Court expropriation land at Port Hawkesbury,
N'S., th purposes the Cape Railway.
Cout, judg- FINAL
JUDGMENT-Proceedings iandamus-Appeal-R.
trial-Trial juryquestions-R. of conservatoire-Petition seizure-To trial-Trial
FORGERY-Ratificatzon-Estoppel.]
had partnership with the defendants, trading under the the C. Company, but retired the and the general manager the company but with power sign drafts, drew bill exchange private purposes the the fendants which was discotinted the plaintiff bank.
the bill matured wrote to defendants them of having their name, but that would not draft. bill porported indorsed the company per the defendants), and the other ant having it the bank examined it and remarked that J. M1. Y's. signature was not usually shaky."
J..Y. afterwards called at the bank and examined the bill very carefully, and answer to request manager said that it was
A
B which reversed that the Court thatthroLugh fraud orbreneh trust cannot, bank could not recover forged bill against the defendants.
La Banque J3ces th 7 followed. FRAUD -By partnerfirm ame-Promissor npote-Athority ArbitraEonFraud fraudneot oncealmnt favor FUND- of-Diocesan Chre INSOLVENT
1875-Claied ,,n-Aj.poal-40 41s.
FIRE- Insurance mortgageeinsured-Payment mortgaged property extent their claio thereon tinder clause mortgage amount mortgage, and failed mortgages the premiums their mortgage debt ranse paid the premiums, attached to it condition that whenever should the mortgagees for any thereunder, and should claim that mortgagor liability therefor existed, said copany shuld subrogated to rights the mortgagees under collatral the nsortgave debt extent payment. having occurred the, company a mortgagces the insured, mortgagor claimed that mortgage was dischargcd by payment.
company disputed this insisted that they subrogated the rights the mortgagees under condition. In INSURANCE FIRE-Continued.
an action to compel the company to give a discharge the mortgage: Held, per Fournier,
Taschereau and Gwynne JJ., that the insuran the mortgagees must to have ben the benefit of the mortgagor under the policy, and the subrogation clause, which was inserted in the policy without the knowledge and consent of mortgagor, could not Iave the converting the policy into insuring the interest the mortgagees alone; that the interest. of the mortgagees in the policy the as -if they assignees .of a policy with - the mortg and that the payment the mortgagces. discharged the mortgage.-Held, also,, that the company was not justified paying the mortgagees without first contesting their liability to the mortgagor and establishing their indemnity liability to him; not having done they not,. the present action, raise any questions which might have them defence an action against temicen the policy.
The result of the decision the Court of Appeal Ont.
and the Divisional Court 0.
attirmed.
FIRi
2- Construction of policy - Asylun insane-Main building-Annez.]
The asylum the Insane, London,, consists centre building containing all necessary accommoda.
patients, etc., a kitchen, laundry and engine-room, built of brick and with middle the centre building, and connected with it passage way, with brick walls about ten feet high, and,also roofed with slate and with tramway convey from the kitchen to the southern portion the centre building.
policy of insurance against insured the " main building." . Held, the judgment the Court of Appeal and
Divisional Court, that the policy covered
1itchen, laundry, and. engine-room.
Action policy-Verdict for plaintif- Weight of evidence--Admissibility Grounds urged-Practice
MARINE-Total. loss-Evidence recover for partial loss.] vessel ii- Breton went ashore Oct. at a place where there habitations, and the ter had travel several to with owners.
tug to the place' the vessel was, the master which, 'after the situation, refused to try and get her the rocks.
the owners an' the captain went the and caused survey had and the following day the vessel was sold for small amount,
INSURANCE MARINE-Continued. the purchaser eventually stripping her taking out the sails and rigging. notice abandonment was given the underwriters the owners brought action the policy claiming total
The only evidence given at the trial was that of captain related what the tug had and swore that, his opinion, the was high the rocks got jury found, swer questions submitted, that the was total wreck the position was and that notice of abandonment would not have fitted , the underwriters.
a juidgment refusing set verdict plaintiff and order nonsuit trial : per Ritchie J. and Strong J., that there evidence justify the trial judge leaving to the jury the question whether the was total and the finding the jury that total being which reasonable might have arrived at it should not turbed.-Per Taschereau, Gwynne and Patterson, JJ., that having stranded only, and there being satisfactory proof that could not rescued and repaired. the owners could not claim total loss.-Held, Gwynne J. dissenting, that there being evidence of under the and owner being entitled, his action total to recover damages partial non-suit could not entered, but there should a trial unless the parties agreed ascertain the amount damages.- Per Gwynne J. that the plaintiff could not damages partial which evidence at the trial but rested claim wholly upon total
McGuE l-- --- INTEREST-Rate of in mortgage-Fixed time for payment ofprincipal-Rate after principal is due -Term until principal and interest shall be fully
- Judgment in favor of the Escheat
Tierce opposition possessor of land escheated-Intervention purchasersfrom croton-Status of parties
COMPANY-Shares held "in 1 ust' for minor-Sale of-Notice purchaser JUDGE -Discretion of-Insolvent bank-Appointnent of liquidator-Right appoint another bank
- - - - - 2- Trial by-Findings matters of fact- Interference s. (g)-What judgment is meant-Proceedings mandamus- ACT-Nova Scotia-Rule for trial-Disposal of whole appeal-Materials court
- JURY-Criminal law-Causing jurors stand aside-Right of crown after perusal f panel- Form of prisoner's remedy- Writ of error-Case reserved - - - - - -=
Trial
Answers questions
New trial-Final judgment
3-Trial by-Answers questions-Assiqnof facts-New trial-Final judgment 627
4-Charge-Misdirection-New trial - LANDLORD TENANT-Continued. mortgagees the right distrain arrears rent, under the provisions 8 Anne c. as against an execution creditor of the mortgagor; because, the could operate lease although not signed the mortgagees, the rent reserved was unreasonable and excessive as conclusively that the parties could have intended create tenancy and that the arrangement was unreal and fictitious.-The right to impugn the validity lease between mortgagor and mortgagees the ground that it merely fictitious and colorable not any particular class assignees bankruptcy, but may exercised whereever the interests of third parties may involved.- Per Strong J. The execution the the mortgagor estopped him disputing nancy,andthe mortga estopped their acceptance of themortgagor ai theirtenaht, evidenced their accepting the advancing their upon the faith it and permitting the mortgagor to remain possession. mortgage although executed the mortgagor only, operated any event to create a tenancy at will, at rental that pressly reserved the demise clause. 3 of LANDLORD TENANT--Creation of te- 8 & 9 c. (R.S.0. nancy mortgage-Demise Mortgagor-Con- repealing words the statute struction of-Rent reserved-Intention create frauds which required that tenancy.1 mortgage of real estate provided statute writing signed the lessor that the secured thereby, should far create tenancy at Per payable with interest at7 percent. perannum Owynneand Patterson JJ. mortgage follows: t500 not having signed the mortgagees the days June and December each of create tenancy at will-Per the four following years; and June J. adopted the clause is and it contained the following provi- that the mortgagees executing the :
And the mortgagees lease the mort- it would operate lease, and their not gagor the said lands the date hereof until executing the cause would the date herein provided the last payment of operative-Per Ritchie C.J. Taschereau J. any of hereby secured, undisturbed execution the mortgage the mortgagor the mortgagees their assigns, the mort- and continuing under it amounted gagor, paying therefor every year during the attorumeot the relation landlord said term, each and every of the days the and tenant was created. intended above proviso redemption appointed for pay- operate immediate with intent ment the hereby secured, rent the mortgagees additional remedy equals amount the amount payable distress boncifide contract securing days respectively according to the said the payment principal and interest, and the proviso, without any deduction. And it agreed absence any bankruptcy insolvency laws that such payments when made shall there nothing prevent the parties tively taken, and all respects satis- making contract.
BS to the said proviso."
The mortgage did contain the statutory distress clause, or clause 2 -- Landlord and tenant-Verbal lease-Exproviding possession the mortgagor until piration of-Notice guit-Subtemancy-Posdefault and it was iot executed the mortga- session sub-tenant aftcr expiry of original mortgagor was possession part
A. verbal agreement certain of the premises and tenants the remainder to sublet portion and such continued after the mortgage thereof.
After the original tenancy expired, was executed.
of the mortgagor the suh-tenaiit remained having seized under execution the mort- and received notice gagee claimed payment year's rent under quit
June, theStatuteofAnne.
Held, perStrong, Gwynne warrant recover rent saidpreand Patterson JJ. (Ritchie and Taschereau and the subtenant paid the J. dissenting), that the mortgage failed amount claimed rent but create between the mortgagor and mortgagees the herself than months relation landlord and tenant, the after the notice quit given proceedings TENANT-Continued.
were taken M. to recover possession of the premises the sub-tenant. Held, that the notice to quit given to the sub-tenant, and the distress during the latter's possession sufferance, not work estoppel against the landlord the tenancy always repudiated. (Fournier J. dissenting.)
LEASE-Mortgage-Re-demise mortgagee- Rent reserved-Excessive amount Intention 483
2-Covenant for .renewal-Option of lessor- Second term-Possession after expiration-Spe- LESSOR LESSEE-Co for renewal
- Option of lessor-Second term-Possession after expiration of term-Efect of-Spedific performance.] lease for a term of provided that the term expired any buildings valued and it should optional with the lessorseither to pay for the or to continue the lease for further term like duration.
After the term expired the remained possession for years when a indenture was executed which recited the provisions the original lease.and after declaration that the lessors had agreed tinue and extend the for a further of.
fourteen years end of the term granted thereby at the rent and under the like convenants conditions and agreements expressed and contained, the said recited indenture lease, that the had agreed to accept the same, it proceeded to grant the further
This last mentioned indenture contained independent covenant for renewal.
After the second term expired the lessees continued posession and paid rent year they the lessors their intention abandon the premises.
lessors accept the surrender and after demand of further ret, tender for execution of indenture granting a further term, they brought suit for performance of the agreement implied the ginal renewal the at' their option.
affirming the judgment the court below
Ritchic 0 J.
and Tasehereau J. dissenting, that the lessorsl were not entitled for performance.-Held, per Gwynne that the vision the second indenture granting a renewal under the like covenants, conditions and agreements contained the original lease, did not operate incorporate indenture the clause, renewal said lease.
which should have expressed independent covenant.-Per Gwynne J. Assuming that the renewal clause was incorporated the second indenture the could not pelled. accept renewal at the option for; if they could the clause would operate to make the lease perpetual at the will the lessors.-Per Gwynne and Patterson JJ. option lessors could only exercised there buildings valued erected during the tern granted the instrument taining such clause; and if the second indenture was subject to renewal the clause had there buildings erected during the second term.-Per Gwynne J. renewal clause was inoperative under the statute frauds which makes leases three years and upwards, not writing, the of estates at will only, consequently there could second term of fourteen years granted except lease executed and signed the lessors.-Per Ritchie C.J. Taschereau J. The occupation the after the terms expired must to have under the lease and to signify intention the part of to accept renewal for ther term as the lease provided.
LICENSE carry business-Liquor dealer- Municipal by-laiv-47 V. c. (Q) -Constitution- 2--to land-Adjoining lands-Way necessity-Construction of agreement LIEN-Unpaid vendor-Sale of goods-Part parcel-Non-delivery of liquidator-Discretion of judge Right favor for possession of land-Sale advocate- Tierce opposition judgment proprietorintervention-Art::. and judgment-Appeal-R.S.C. c. ()- 2municipality -Assessment of physician board of health-Disamissal- Negliqence - Damages - Arts. and agency are responsible the damages caused MERCANTILE AGENCY- Continued.
person business culpable negligence, imprudence or want skill, false information supplied concerning standing, though the information communicated confidentially subscriber the agency his application therefor.
MISCHIEVOUS ANIMAL-Injury by-Ownership- Scienter-Evidence for jury.]
brought action for injuries to daughter committed dog owned harbored the defendant
The defence was that not own the dog, and had knowledge that was vicious.
the trial was shown that dog was formerly by man V.'s employ, lived and kept the dog at V.'s house.
When this man went away the left the dog behind with to kept until sent and afterwards the dog lived at the house, going every day to
V.'s place business with assisted the business.
The savage tion the dog two occasions sworn to,
V. being present at and at the other.V.
swore that knew nothing about the dog the owner with his until heard at the trial. trial judge ordered non-suit which set aside the full court and trial ordered.
Held, affirming the judgment of the court below, that there was ample evidence the jury that harbored the dog with knowledge its vicious propensities and the non-suit was rightly set aside.
- - - - principal-"
fully paid mortgage real estate provided payment the principal secured date " with interest thereon at t e rate ten per centum annum until such principal and interest shall fully paid satisfied."
Held, affirming the judgment the
Court Appeal Ontario, that the mortgage carried interest at the rate cent, to the time payment of the principal only, and after that date the mortgagees more than the statutory rate of cent. unpaid principal.
St.
Rykert Can. S.C.R. followed.
Co. v. GRANT-262
2-Mortgagor trustee-Personal liability-Right trust.] lands trust are mortgaged the trustee, the mortgagee not entitled to the any equities and rights arising either under express contract or equitable principles, entitling the trustee indemnity
Taschereau
JJ. (dissenting)
.
f to secure the of that amount payable, with interest, nine semi-annual and and it contained provision whereby the mortgagees to lease mortgaged premises the mortgagor the date the mortgave until the time for the last payment, at amountto. and payable at times the secured the mortgage. mort-, gage was not executed mortgagees did not contain the statutory distress clause the clause providing possession the mortgagor until default. the mortgagor taken in execution and the mortgagees claimed a year's rent landlords, under the Statute Anne. Held, Ritchie C.J. and Tascherean J. dissenting, that if the could operate lease without being executed the mortgagees, the amount reserved rent was negative intention to create a tenancy.-The right to impugn the validity such lease the ground that it merely tious not to any particular class such assignees bankruptcy but may exercised whenever the interests third parties involved.
& Priority under-Bar ertai land was devised to the testator's charged with an annuity widow who alre had her dower therein. The devisees mortgagLd the land to and the mortgage was not registered until January, November, second mortgage was givet to Ml. and registered same month. In this mortgage the widow joined barring her and releasing her annuity the benefit of M. had had knowledge of the prior mortgage it was and had refused join it. second mortgagee, not being aware, mortgage was executed, the prior incumbrance, gained priority, and the land was to satisfy mortgage: proceeds the sale being more than sufficient for that purpose surplus was claimed both the widow and Held, reversing the judgment the Court Appeal Ontario, Gwynne and Patterson JJ. dissenting, that the security which the barred and the annuity released having satisfied, the was entitled the fund the court representing her interest in the land priority to C.
(N.S.)-42 (N.S.)-Employment physician-Reasonable season-Dismissal-Form corporations established Scotia c. 1) giving them " the appointment health
* and board of health"
with the powers and authorities formerly in courts ofsessions, not repeal c.
4th ser, providing for the appointment of boards of health the Lieutenant Governor
Council. Ritchie C. J. doubting the thority the Lieutenant-Governor appoint in incorporated counties.-A board of health appointed the executive council resolution, employed a physician, to attend small-pox patients in district " for the season ' at rate remuneration per day.
Complaint having made the manner in which duties were performed was notithat another medical man had ployed consulting physician, but refusing to consult with the appointee was dismissed employment. brought action against municipality setting forth in his statement of claim the facts of ment and dismissal and claiming payment his services the date at which the last small-pox patient was cured and special damaloss of reputation the dismissal.
act N. 4th ser. C. allows board of health to incur reasonable expenses, which are 6 1) to services performed and bestowed and cine supplied physicians carrying its provisions, and makes such district, city county charge to assessed the justices and levied ordinary county rates.
Held, Per Fournier, Gwynne and Tasehereau
JJ. affirming the judgment the court below, that the contract with M. was to pay per day long small-pox should prevail the district during the season; that dishiswrongful and the fulfillment the tract could enforced against the municipality action.-Per Ritchie C.J. and Strong J.
There was sufficient ground for the dismissal
Mt. Assuming, however, dismissal to been unjustifiable, only remedy have mandamus to incurred.
But the being really for damages wrongful dismissal it
MUNICIPAL CORPORATION- Continued. made charge the county, and the municipality therefore, not liable.-Per Patterson J. That the proper remedy for the recovery the expenses mentioned in said tion and not mandamus to compel assessment, but a claim for damages wrongful dismissal not within the section and not made county charge.
2--Inquiry afairs-County judge-Functions inquiry-Control 3-By-law-Business tax-Liquor dealer-47 (Q)-Constitutionality of agency-False formalion-Confidential Solicitor-Neglect Co.-Station buildings-Planked way-Train overlapping-Invitation public use-Duty of
Co.-Special contract-Aotice TRIAL-Appeal from forjury Final offacts-Answers dog-Action for- Ownership-Scienter-Evidence for jury 4-Ordered counsel-Practice 5-Refused case-Alaterials lisdirection-Charge jury
NOTICE-Stat notice-orm.] authorises the assignee of action in ,certain to thereon in the Supreme NOTICE-Continued.
Court assignor might have and provides that action brought notice writing, signed the assignee, agent attorney, stating the right the assignee and specifying his demand thereunder, shall served the party Pursuant this section the assignee served the following notice :-Pictou,
Esq.: Admin. Estate of
Alexander deceased.
are hereby notified accordance with the Revised Statutes, that the debt due the estate to Finlay assigned Alexander
Cameron, claims payment of twelve hundred dollars, the amount the said debt so assigned Atty.
affirming the judgment the court below, that the notice was compliance with the statute.-GnANT
2-Discount -Partner firms-Use for of other-Notice action-Contractor for quit-Sub -tenancy-Expiration
5-Passenger railway-Special partnership-Security member-Liability firm-Payment
PARTNERSHIP-Frad partners-Use name-Promissory note-Authority the C. & and also amember ofthe
& and order raise the & a promissory note which signed with the name the other and indorsing it the name & had it discounted. the bank which counted the note knew the handwriting with the bank had frequent dealings.
pleadel that it made fraud partners and the jury found thatS. C. & not authorized the making of the note but not answer questions submitted the knowledge the bank want authority. Held, reversing the judgment the court below, that the note was made fraud of his partners and that the bank had sufficientknowledge that was using partners' names his purposes put them inquiry to authority. Not having made inquiry the bank not recover against C. 2-Dissolution-Neo Partnership partner-Liability firm-Right enforce-Trust-Novation.] consisting two persons dissolved partnership, the retiring partner receiving her promissory notes in payment his share the business which notes endorsed to the plaintiff
The continuing partner of the afterwards entered into partnership with 0., the defendant, and transferred to the all the assets his business, liabilities, cluding the mentioned promissory notes, being assumed co-partnership charged against
The paid two the notes and interest others, and a proposal for an extension of time to pay the whole which was not entertained. versing the decision the Court of Appeal (17 Killey) and the Divisional Court 0,R. Fournier dissenting, that the agreebetween the continuing partner and defendant not make defendant trustee of former's property for the payment liabilities, and the act the lefendant paying the notes not amount novation it was proved that plaintiff had obtained and still held judgment against the maker and endorser of the notes action thereon and there was consideration such novation. for winding-up-Evidence-Credioftrial insurance-Construction insane-Insurance execution-SigIat prothonotary-Seal Province Nova Scotia writs execution not the seal the court which gives validity to writs, not the signature the ajudgment-Interest rights- C.-Arts., C.-Judgment-When tierce-opposition to judgment obtained the Attorney-General the Province mation against the succession of order to have the judgment set aside the ground that it declared escheated to crown part of the Seigniory Grondines which (P.) bad possession great number years and which judgment it was alleged had been obtained illegally and fraud and collusion, M. an advocate, had purchased all the rights of the crown the said succession, intervened and asked the tierce-opposition.
ney-General and the curator the succession
M. P., the only parties to the judgment sought to set aside, answer P.'s tierce-opposition merely appeared and -declared that being joined the tierce-opposition and the intervention and evidence taken, Superior
Court dismissed intervention and main- P.'s
Court Queen's Bench the crown and M.
jointly, this judgment was reversed, and P.'s tierce-opposition was dismissed.
appeal to the Supreme Court Canada:
Held, reversing the judgment the court below, that
1. had no.locus standi to intervene, the sale the crown's rights being (a) because it was sale litigious right3 an advocate prohibited Arts.
and C. C.
therefore null under arts.
and C.
(b) because it was tainted with champerty, arts.
(c) M1. admitted had interest in the art. C. P. C.
That P. being possession the property clared escheated to the crown proceeding which was not party had sufficient interest under the circumstances the a tierce-opposition. anl that the judgient should set aside because inter alia, it was obtained fraud and collusion; (b) the action being prescribed in (Arts.
under art. had the right to avail himself this prescription. Fournier J.
sented the ground that P. not having leged shown a right superior that of his tierce-opposition should dismissed.
PRACTICE-Continued.
Per Gwynne J. Unless either party desires to give further evidence the court should render the judgment the evidence itstauds which the 'court below ought have given.-Per Strong J. Under rule the Judicature Act the court take which passed by jury into its hands of it if all proper materials which decide are it, but this the materials essential the disposition are not the court and there must trial.-Per Ritchie C. J. The Supreme Court, appellate court the Dominion, should not approve of strong observations being a judge were in this casein charging upon the defendants fraud not set out the pleadings and not legitimately issue the cause-Per Strong, Fournier, Tasehereau, Gwynne and Patterson JJ. that was essentially equity case and which jury could advantageously havebeen diipensed with.
4--Charge jury trial accounts.1-W., financial difficulties assigned all property to B. undertook arrange with W.'s creditors. subsequently assigned property trust for the benefit his creditors and the assignee and of the creditors brought an action to have the transfer to B. set aside.
the trial, after the evidence both concluded, plaintiffs counsel asked the judge instruct the jury to vhat constituted fraud under the statute of Elizabeth, and also urged that account should taken the dealings & judge refused to fraud the jury requested and the jury accounts. Judgment having given defendants and the full court. Held, that the refusal the judge charge the jury 3--No
Scotia Judicture Act rule 476msirecon, an Soti
Juicatre ule476 should trial ; that the trial-Disposal on- properly without takin jury-Osbservations accounts ; and that it could properly issue not pleaded.] In an action winding-up
O a partnership in the gold-mining the
- - - - - - - 5-Solicior-Practising ties.
was tried jury and the
6-Arbitration the respective witnesses who abpli/ist gave evidence the agreement that c
Ssi raised the defendants but the trial judge,
ARATION jury, 7-Criminal trial-Causiap jurors aside-liqht panel- Form ojprisoser's Trit relation such fraud.
The plaintiff having obtained verdict which sustained the judgment Chanbers-Appeol dissenting, that there should a trial.- 10--Tender trial ditors-R.S.O.
2-Construction
2-Assignment-Book debts-R.
PRESCRIPTION-Suit sucession-Es- CC. ----- Uer
AGENT-Testamentary cutor-Power substitute-Liability aqent-Art. C.]-Held, affirming the judgments the courts below, that when testamentary executrix employs agent attorney, supervise his nanagenent the matters entrusted him and take precautions and cannot escape liability the misappropriation funds committed agent, although was notary public excellent standing misappropriation.
council the City Toronto, under provisions R. 0.
c. s.
passed resolution directing county court judge inquire into dealings between the city and persons had contractors civic works and ascertain if the city had defrauded out public connection with such contracts; inquire into the whole system tendering, awarding, carrying out, fulfilling and inspecting contracts with the city; and to ascertain what respect, if any, business the city in that respect was defective.
who had qeen a contractor with the city and name was the resolution, attended before the judge and clained that the inquiry contracts should proceed only charges malfeasance misconduct, and the judge fusing order charges formulated applied writ prohibition.
affirming the judgment the Court Appeal tor Ontario, Gwynne J. dissenting, that the county court judge was not acting judicially holding this inquiry ; that was a
AGENT-Continued. court and had power pronounce judgment imposing any legal duty or obligation person; and was not, therefore, subject to control writ prohibition superior court.-Held, per Gwynne J., that the writ prohibition would and the circumstances shown it ought - -- -- NOTE-Election lant's husband)
brought an action against St. promissory note for a renewal note for the amount made endorsed him and handed St. alleging that the original note had made discounted the accomodation of St. evidence showed that the proceeds the note were paid over to agent to As portion of provincial election fund controlled Held, affirming the judgment the court below, that the plaintiff not recover, assuming promise to pay the part St. Bros., the transaction being illegal under c. 7 ), art. which makes void contract, promise undertaking, any way relating election under the said act. having purcbased Y's. interest in certain lands which were the City Montreal, and upon which was mortgage his the balance the purchase price.
Subsequently C. failed and Y. liable the mortgage C. agreed take the necessary steps obtain Y's. discharge the mortgagees payment of thousand dollars, and signed document privd, dated February, agreeing that all parties should the position if the sale had never mortgagees subsequently gave discharge to conformity with the agreement. In action taken Y.against C. promissory note: ield. affirming the judgments the courts below, that there was consideration given the notes, and that was discharged all liability under the document the February, Jur. - 3--Partnership-Partner firms-Use of for other-Authority- Partnership-Assumption partner-Payment part-Efect of-Novation-Proceedings 5-Action offorgery-Ratification- [S. C. R. Vol. VXIII. bonds-Trust ance-Construction of-Trustees-43 4' F
(P.Q.) c. 49-44 4- (P.Q) c. 43-Privileged claim- Unpaid vendor-Inmovables by destination-Arts.
virtue the provision trust veyaice, granting first lien, privilege and mortgage upon railway property, franchise all additions thereto the South Eastern Railway Company, and executed under the authority & and &
(P.Q.) the trustees the bond-bolders took possession the railway. In actions brought against the trustees after they possession, the appellants, the purchase price certain cars and other rolling stock for operating the road, and work done and materials delivered the pany after the execution the trust, but the trustees took possession of railway. Held,-st, affirming the judgments the court below, that the trustee% liable.
2. That the appellants lost their privilege unpaid vendors the cars 'and rolling stock against the trustees, because such privilege cannot exercised when movables immovable destination was the result with regard the cars and rolling stock this and the immovable to which the movables are attached the third party hypothecated.
Art.
3. But considered movables cars and rolling stock affected charged virtue the statute and mortgage made thereunder, security the bondholders, with right priority over all other creditors, including the privileged unpaid vendors.-Per
Gwynne J., that the appellants might titled equitable decree, framed with regard to the other necessary appropriations of the income accordance with the provision the trust indenture, authorizing the payment the trustees " of all legal claims arising the operation the railway including damages caused accidents and all other charges,"
a decree could not made the present action.-Per Strong J.-Quzere: Whether the principle the applicability current earnings to current incurred either whilst railway under the control the court being placed at the instance of mortgagees the hands receiver, preferto mortgage creditors whose security priority date over the obligation thus curred for working expenses, should adopted courts this country.
........................
f
2-- Railway Company - Station buildings
Planked way-Invitation public
Duty of company-Negligence.] approach to station the Grand Trunk Railway the highway was planked walk crossing several tracks, and train stopping at station overlapped this walk, making necessary to pass around the rear car to reach
RAILWAYS-Continued.
the platform. J. intending to take a train this station daylightwent along the walk his train was coming and seeing, apparentthat it would overlap, started to around the rear when was struck shunting engine and killed.
It was the duty of this shunting engine assist moving the train ferry, and it down the adjoining track for that purpose the train had stopped. Its headlight burning brightly, and the was kept ringing. There was between the two tracks for person to stand safety. In an action the J against the company : Held, Fournier and Gwynne JJ. dissenting, that company had neglected duty which it the the public.-Held, Strong and Patterson JJ., that while the public invited to the planked walk reach the station, and also to the company's premises, when necessary, to pass around train covering the walk,there implied guaranty that the of the road should not proceed in the ordinary way, and the company was under obligation to provide special safeguards persons attempting to pass around a train in motion.-Held, per Taschereau J., that the death of the deceased was caused negligence.
decision of the court (16 Ont.
3-Railway Contract carry passenger- Special contract-Reduced fare-Votice of conditions -Negligence.] plaintiffpurchased what called land seeker's ticket, the kind return ticket the route, for a passage Winnipeg and return, paying thirty dollars less than the single way. ticket not transferable and had printed itanumber of conditions, which limited the liability of the company for baggage to wearing apparel not exceeding value, and another required the signature of the passenger the purpose identification and to prevent transfer. agent obtained the plaintiff's signature to the ticket explaining that it was the purpose of identification but did not read nor explain to her any of conditions, having sore at the time was unable to read them herself the trip to Winnipeg accident happened the train and plaintiffs baggage, valued at over caught was destroyed.
In an action for damages such lofs the jury found the plaintiff for the amount the alleged value the baggage. Held, reversing the judgment of the Court of Appeal (150nt. App. R.388) and the Divisional Court 0. Gwynne J. dissenting, that there was sufficient evidence that of the baggage was caused defendants' negliand the special conditions printed the ticket not having brought to the notice plaintiff was not bound them and could recover her loss the company. Y.
Rail
RATE OF INTEREST-Mort9age-Rate after principal due-Payable principal fully paid
Canada-Tariff
GOODS-Non- delivery-Part oflarge pTrcel-Lien ofunpaid vendor.]-The
. had yard
Rockland, Ont., through agentto Montreal sixionth's credit, ratifying sale letter the owners the yard follows :-Montreal, January,
C. & Rockland,
Ont. Gentlemen,-You will please ratify
Lemay's order million 3 cells feet and 3 culls
William Little. barges with option draw them the piles, if wants during winter. Yours truly, days after the the agent gave order the owners yard delivery the lumber order was accepted the owners.
given mouth's the price lumber and just it matured asked fendant renew which they saying that not pay defendant replied that must lumber, whereinformed L. agreement with the plaintiff made month after the purchase defendant which plaintiff the warehouse receipt collateral security advances to plaintiff. the trial interpleader to determine the title to this lumber it shown the evidence that the quantity sold to had never separated the defendant's lot the yard and that defendant had always kept it insured considering it until
Held, affirming judgment the
Court Appeal, Strong and Gwynne JJ.
dissenting, that the property the lumber never passed out defendant.
Ross v.
M---ship-Evidencefor jury company-In for minor-Sale of-Notice
Practising Estoppel.] solicitor who not taken out certificate entitling practice in the Ontario courts, allowed nane appear newspaper advertisements and cards and letter heads member of a active practice; not, fact, a member receiving its and paying its and the did not appear solicitors record proceedings their professional business. Law took proceedings against M. recover penalties solicitors practising without certificate, which it was shown that the name the was endorsed certain papers record suits carried leld, reversing the the court that M. not " practise solicitor" within the imposing penalties (R.S.O.[1877] and that was not estopped, permitting not member fact.
2-Negligence-Pailure Retainer.] solicitor liable it damagesto client neglecting instructions gister judgment and thereby precluding anount judgment debt--Per Strong retainer cute action not terminate the judgobtained but makes it duty the attorney solicitor without further instruction proceed after judgment and endeavor to obtain the fruits recovery including making it registration charge the lands judgment debtor. by-Election petition-Retainerant for STATUTE-Construction of-R.S.O. Pre erence-Intentbility.1 c. s. 2 makes any of property defeat, delay prejudice creditors, to give any them preference over other creditors over any which affirming the judement of the Court of Appeal, Fournier and Patterson JJ. dissenting, that the section only the case " giving y creditors) preference over other creditors any then.''-Hleld further, that the preference provided against the statute voluntary preference and conveyance obtained pres- STATUTE- Continued.
sure the grantee would not within its terms.-W. having insolvent, and ing secure estate which was executor monies which for purposes, gave co-executors mortgage property the purpose, and ings were taken creditor set aside this mortgage under the section.--Beld,
Fournier and Patterson JJ. (dissenting)
, that the mortgage not under the statute.- Held Strong, Taschereau and Gwynne JJ., that preference under the statute as the persons benefit the security trust.-IHeld
Taschereau JJ.. that the grantor being criminally responsible misappropriating money the estate which was executor the fear penal consequences pressure take the mortgage the voluntary preference.
2--Repeal-R.S.N.S.
(N.S.)-Bocrds act m'nicipal not repeal c.
the appointment of boards health the
C.J.
doubting the authority the Lieut. Governor to appointin incorporated counties.
109-Term of-Confor work-Notice
4--Notice under-Form-Sufficiency of-8
3-R.
2--Lease-Covenant for cithout/resh by-Sa/ficiency of.]
ollolving letters written a debtor areditor of the Statute of Limitations:
August
Dear Finlay,lot times-and
STATUTE LIMITATIONS-Continued. arrangement to you your money. get somewhat behindhand railway fair way doing well whenever the times when will able Yours Dear receipt yours ofthe31st about your would it, only I was unfortunate siderable and got largely debt sides.
After giving the work hired with the Government cary part of the work. At this time James and commenced to build a thousand dollars this likewise.
then got west Territory explore there two years among Indians, got back last winter. your claim secure property, viz., land property, that will sure short time if had it. other body, out shilling. rest assured that your secured manner that get it although cannot send it had patience will little and will put rigit. I believe worked hard and travelled far more than you have unfortunate than were since left; but two years well, and you. Finlay, rest assured that your money secured so that you will get it, whatever of Very truly yours, itR.
(lisp.) 5--40
7- R.S.C. c.
8-R.S.C.
10-R.S.C. c.
11-R.S.C. c.
12- 13-R.S.C.
14- 15-R.S.C.
16--R.S.O.
-R.SO.
20-R.S.O.
s.2
R.S.N.S.
SUBROGATION-lortgage-Iinsurance mortgagee-Agreement FIRE
Issies parties
-- - -filing-Portions insurance-Right for partial
Joint for minor-Sale Tutor-Arts. trust of-Lien railway-Unpaid vendor-Privilege
4-Mortgage by-Rights ofmorgagee-Eq
See 2.
5-Partnership-partner-Efect for
MINOR-Shares for minor-Purchase father-Sale of trist purchaser-'aveut
(Q)-Municipal under-Business tax-Liquor
VENDOR-Ofrolling for rail'oay-Privi- Liability goods-Part lands-License- 3-Foreign
Liquidation]-Sec.
Winding-up
Statutes Canada which provides that the act applies to
* * * incorporated trading companies doing business Canada wheresoever incorporated intra vires the Parliament Canada.-2.
winding-up order Canadian Courtin the
ACT-Continued.
matter a Scotch company incorporated under the Imperial Winding-up Acts doing business Canada, and having assets and owing debts Canada, which order was made upon the petition of Canadian creditor with the sent the liquidator previously appointed the court Scotland ancillary the winding-up proceedings there valid order under Winding-up Act the Dominion. JIalfax
Can. C. distinguished. 2--1R. bank-Appointof liquidators-Right bank-Discretion provides that shareholders and creditors liquidation. shall severally and nominate persons are appointed liquidators and the judge having the appointshall liquidators nominees. In the ofthe Bank of Liverthejudge appointed liquidators the nominees the creditors, of the defendant bank. Held, affirming the judgmentof the courtbelow that thereis nothinginthe act requiring both creditors and shareholders represented the board of liquidators; that bank may appointed liquidator; and that if any appeal the decision the jndge exercising judgment the appointment discretion was exercised this
3-Of company-Manager-Possession by-Refusal
WRIT-of of-Signature prothonotary-Seal aside-Prochanbers-Appeal
0'
Statutes and regulations cited
-
Unresolved citations
- section 9
- Section 6
- s. 2
- s. 10
- s. 28
- s. 355
- s. 109