Petry v. La Caisse d'Économie de Notre Dame de Québec

THE REVEREND H. J. PETRY et al.

APPELLANTS, (PLAINTIFFS).

........................

*May 12, *Nov. LA CAISSE

D'ECONOMIE

DE)

NOTRE DAME

I)E

QUEBEC

RESPONDENTS. (DEFENDANTS) ......... ..................

ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE).

the judgment of the court below, that the debt of W. G. P. having been paid by the curator with full knowledge of the facts, the appellants could not recover.

Arts. 1047, 1048 C. C. Per Strong and Fournier JJ.-Bank stock cannot be held as regards third parties in good faith to form part of substituted property on the ground that they have been purchased with the moneys belonging to the substitution without an act of investment in the name of the substitution and a due registration thereof. Arts. 931, 938, 939 C. C.

(Patterson J. dissenting.) APPEAL from a judgment of the Court of Queen's :-Sir W.

Bench for Lower Canada (appeal side), affirming the PTY judgment of the Superior Court (1) which dismissed the appellants' action.

The appellants claiming to represent the estate of the late William Petry and the substitution created by his will, by their action demanded to be refunded the sums which they allege the Reverend James Henry Parker, one of them, has paid, by error, as curator to the substitution, to the respondents to redeem thirty-four shares in the capital stock of the Bank of Montreal belonging to the substitution and which Wentworth Gray Petry one of the grev6s and manager of the estate had illegally transferred to them.

The circumstances which gave rise to the litigation between the parties are as follows:

From the 12th February to the 1st of December, 1885, Wentworth Gray Petry borrowed from the respondents, an incorporated saving bank and loan company, divers large sums of money, upon his own notes secured by transfers of thirty-four shares in the capital stock of the Bank of Montreal.

At the respective dates at which these transfers were made, these shares stood in the stock ledger of the Bank of Nfontreal, as being held by Wentworth Gray Petry, in trust, without any indication of the name of the beneficiary or cestui que trust for whom they were held.

On the 16th March, 1886, Petry, who had then become insolvent, and was indebted to the respondents in a sum of $9,400 paid them by a cheque of the Rev. George Henry Parker, curator to the substitution created by the will of the late William Petry, and drawn on the funds of the estate, a sum of $6,000, and on the same day or on the next day the balance of $3,400 was paid by a note of the Rev. M. Parkerbearing date the 16th March, 1886.

Upon this settlement the notes of Petry were returned and he authorised in writing the respondents to transfer to Parker, in trust, the thirty-four shares of the Bank. of Montreal which they held as security. The transfer being Mr. Parker's note for $3,400 was subsequently paid, and the whole transaction was absolutely closed, as far as the respondents were concerned.

Nearly three years after this settlement had taken place, the Rev. George Henry Parker, in his capacity of curator to the substitution created by the last will and testament of the late William Petry, Gertrude

Petry, his wife, and the Rev. Henry James Petry, two of the three surviving children of the late William

Petry instituted this action.

It was admitted that out of the $9,400 paid by Parker $768 were due by the estate William Petry and that it is only the difference

.$8,632, claimed by the action, which was paid by error.

It was not contended that there was any error of fact in the matter, but that the payment was made through an error of law which Mr. Parker declared he had only discovered in 1887, after the decision of the Privy

Council, of the case of Sweeny v. The Bank of Montreal (1).

The appellants' action was dismissed in the Superior

Court on the ground that two out of three conditions essential to the success of. the action condictio indebili, were wanting, viz., that there was no debt and that the payment was made by error.

The Court of Queen's Bench (appeal side) affirmed the judgment. Mr- Justice Boss6 dissenting.

If Mr. Parker had refused to pay but had sued the bank for the restitution of the stock fraudulently pledged, could the bank have successfully resisted the action ? In face of the decision of this court in Sweeny v. The Bank of Montreal confirmed by the Privy Council (2), it would be difficult to do so, but it is pretended that by voluntarily paying the debt, for which he was no wise responsible, he has deprived himself of all recourse.

We submit, 1st, that the action condictio indebiti will lie when there is error in the use or consideration, as well as when there is error as to the existence of the debt.

Arts. 1047, 1048, 1140.

See also Pothier, Prdt de Consomption Larombibre, Obligations Aubry & Rau Dalloz, Repertoire, Vo. Obligations Haight v. The City of Montreal Baylis v. The City of Montreal City of Montreal v. Walker (9).

2nd. That the bank being a party to the fraud practised by W. G. Petry in pledging trust property,. will not be heard to urge its own wrong-doing as a reason why the appellants should be deprived of their rights.

The bank at the time that it took the shares in pledge, had notice that they were held " in trust." At the time of the payments, now sought to be recovered back, it had express notice of the nature of the trust, by the cheques with which it was signed " G. H. Parker, curator," and by the acknowledgment of the indebtedness which it took from Mr. Parker for the sum of $3,400, balance remaining after payment of the $6,000: the acknowledgment of the indebtedness is expressed to be by " Revd. George Henry Parker Compton, Curateur Succession feu W. Petry." The bank is evidently in bad faith; it received money which it knew it had no right to receive in consideration of the transfer of shares to their proper owner, which it had no right to withhold.

. Bank of Montreal v. Stoeeny

They also contended that the appellants' claim could not be maintained, because the curator to the substitution was not, authorized to receive and claim the rights of those entitled under the substitution. See Dorion v. Dorion The institutes to make this claim should all be parties in the case and W. G. Petry, the respondents' debtor, is not a party to these proceedings, and the institutes cannot claim from the respondents whateventually may return by the effect of the substitution to W G. Petry, its debtor.

Sir W. J. RITCHIE C.J.-I concur in dismissing this appeal.

J.-I am of opinion that this appeal should be dismissed for the reasons given by the late Chief Justice Dorion.

FOURNIER J.-I am opinion that this appeal should be dismissed for the reasons given by Mr. Justice Larne in the Superior Court.

I also adopt the view p'^'y taken of the case by the late Chief Justice Sir A. A. of the Queen's Bench. The requirements of the laws with regard to the registration of the substitution have not been complied with. If the substitutes and grevis had such confidence in their manager as not to Fournier J. see that the necessary precautions had been taken to save the moneys belonging to the substitution, they cannot now complain if he has acted imprudently. There is another reason why this appeal should be dismissed. It is not a case of condictio indebiti, for the curator to the substitution paid the debt of one of the substitutes with full knowledge of all the facts. cases to be cited by my brother Taschereau are in point, and I concur with him in holding that the reasons given by the Superior Court for dismissing the appellants' action are good, and, therefore, that this appeal should be dismissed with costs.

TAScHEREAU J.-(Oral). Je suis d'avis de renvoyer le pr6sent appel.

L'action n'est pas prise en vertu de l'article 1047 du Code Civil, car cet article d6clare que: " Celui qui regoit par erreur de droit on de fait ce qui ne lui est pas dft, est oblig6 de le restituer."

Or, dans le cas pr6sent il est 6vident que la Caisse d'Economie n'a requ que ce qui lui 6tait dd. Elle ne tombe pas non plus sous Particle 1048 qui d6clare que:

Dans le cas present, les demandeurs n'ont certainement pas pay6 le montant parce qu'il s'en croyaient les d6biteurs. L'article 1140 n'a pas non plus d'application:

Il y avait ici un montant d.

A la Caisse, par

Wentworth

Petry, et c'est cette dette que les

P demandeurs ont paybe, non pas parce qu'ils croyaient erron6ment en Stre les d6biteurs, mais but de recouvrer les parts on acment dans le btd eove epasoua'DA31E tions que Wentworth Petry avait donnies en gage A la Caisse. Les demandeurs alkguent qu'ils auraient eu le droit de recouvrer ces parts sans payer la dette de Wentworth Petry, sous 1'autorit6 de la d6cision du Conseil Priv6, dans la cause de Sweeny v. Bank of Montreal Cela pent 6tre. Nbanmoins ce qu'ils ont pay6 6tait rbellement A la Caisse.

* Larombibre et Laurent (3) cit6s par le savant juge de la Cour Sup~rieure, dans ses notes rapporties en 16

Q.L.R. 193, ainsi qu'Aubry et Rau sont autorit6s que, sous ces circonstances, les demandeurs ne peuvent pas recouvrer.

Pothier dit que lorsqu'une personne, qui a 6t0 pay6, n'a requ que ce qui lui 6tait dfl, il faut qu'il y ait en erreur de fait, pour donner droit A 1'action condictio indebiti. Et d'apris la loi romaine " 'erreur dans la cause n'empiche pas la validit6 du paiement quand la chose est due d'ailleurs, et 1'erreur dans le paiement donne lieu A la r~p6tition seulement s'il y a eu erreur de fait, et si celui qui a requ en est devenu plus riche, c'est-A-dire a requ frauduleusement ce qui ne lui 6tait pas dfi. Thevenot-Dessaules dit: (5) " 'ignorance de droit s'admet rarement."**

Le principe 6tait que nulla repetitio est ab qui suum recipit, lorsque celui qui pay6 l'a fait an nom du debiteur (6).

Le juge en chef Dorion pouvait bien dire, comme il 'a fait dans 1'espice, qu'il est douteux si le paiement par un tiers d'une somme 16gitimement due peut donner lieu A l'action condictio indebiti, except6 pour erreur de fait bien clairement prouv6e.

Ici les demandeurs disent qu'ils se sont crus oblig6s de payer pour d6livrer leur gage, et que ce n'est que subs6quemment, par la d6cision in re Sweeny v. Bank of Montreal (1), qu'ils ont decouvert leur erreur. Mais, dit la Cour de Cassation re Leblanc (2).

Ui endosseur d'un billet le paie apris protat. Plus tard, il d6couvre que le prot~t 6tait nul.

ne peut rip6ter, parce que, dit la Cour de Cassation dans deux arr~ts, ce qu'il a pay6 6tait (3); Mongaley et Germain, Code de commerce (4) ; Mass , Droit commercial (5); Nouguier (6); Pardessus, Droit commercial (7) ; Demolombe, Des contrats (8); aussi in re d'Erlanger Et la r6p6tition est toujours plus difficilement accord&e que l'exception pour se refuser payer (10).

Dans Caldwell v. Patterson il fut jug6 que- Quelle est la cause du paiement ici ? On plut6t, qu'est-ce qui a & pay6 ? Clairement, la dette de Wentworth Petry. Et la Caisse se s'est pas enrichie aux d6pens d'autrui. Elle n'a re~u que ce qui lui 6tait L'erreur des demandeurs a port6 sur le motif qui les a fait agir.

Mais la Caisse n'avait rien A voir A ce motif.

Elle n'en a pas mame et inform6e.

Elle pouvait bien croire que o'6tait un prt que les deman- LA deurs faisaient & Wentworth Petry. Wentworth 1'a autoris6 & remettre le gage aux demandeurs, et elle a dii le faire, sans s'enqu6rir des rapports qui pouvaient exister entre eux, les demandeurs et Wentworth Petry, ou des motifs qui les faisaient agir.

Ici,je le r6pite, c'est la dette de Wentworth Petry que les demandeurs out de fait payee et voulu payer.

C'est l ]a cause commune du paiement; la seule cause de la r6ception du paiement par la Caisse. Ils ne 1'ont pas fait, il est vrai, pour b~ndficier

Wentworth

Petry, mais dans leur propre int~rit, et c'est IA leur motif d'action, le but qu'ils voulaient atteindre

Mais il y a une distinction A faire entre la cause d'un contrat, et le motif qui de fait a dtermin6 l'intention des parties, disent Mass6 et Verg&, sur Zacharie

Maynz, Obligations dit (3):

La Caisse ne pouvait refuser le paiement. Elle 6tait oblig6e de 1'accepter.

Et en la payant, les demandeurs sont devenus les cr~anciers de Wentworth Petry, qui a 6t, ds lors, complktement lib6r6 vis-A-vis d'elle.

§

De plus, Wentworth Petry a plac6 ces argents des demandeurs dans la soci&t6 Petry et Beaulieu. Et les .

demandeurs, lorsqu'ils en out t informis, en 1835, 1886, ils lal guent, out reconu Wentworth Petry et la socit6 Petry et Beaulieu comme leurs d6biteurs, ratifiant par l tout qu'il avait fait, en filant une r~clamation contre le syndic de la faillite Petry et Beaulieu.

Le placement fait par Wentworth Petry pouvait-il plus clairement 6tre ratifi6 par eux ? Et en supposant que les demandeurs eussent pA recouvrer de la Caisse, est-ce qu'ils auraient pu le faire sans mettre Wentworth Petry en cause?

Leur action tend a faire annuler.le contrat de gage, fait entre Wentworth Petry et la Caisse.

Comment pourraient-ils le faire en 1'absence de Wentworth Petry ? Ils alliguent bien, et prouvent qu'il a refus6 de les joindre comme demandeurs, mais alors it fallait le joindre comme d&fendeur. Dans Sweeny v. La Banque lontrial Rose, le trustee qui avait mis en gage les parts des demanderesses 6tait en cause. . Dans Raphael v. Mc Farlane une action du mime genre, celui qui avait transf6r6 sans droits des parts de banque appartenant an demandeur 6tait aussi d6fendeur co-joint.

Je renverrais 1'appel.

J.-This case being purely one of French law I do not pretend to discuss it with confidence, though we have had ample assistance in apprehending the views presented on each side, in the well-reasoned opinions of Chief Justice Dorion and of Mr. Justice Boss6, and in the full and able arguments of counsel. My opinion at the argument was in favour of the views of Mr. Justice Boss6 the dissentient judge in the court below, and after a further careful consideration of the case I retain the same opinion.

I do not understand that there is any conflict on questions of fact, although in one important particular

PrR something depends on the way the facts are looked at. There is no dispute as to the fact that W. G. held the shares of the Bank of Montreal stock "in trust," and that the bank, the respondents in this appeal, took the shares in pledge for the loan made to Patterson J. W. G. Petry personally, knowing that they were held in that manner. That being so, it would be against ordinary principles of fair dealing, and contrary to the doctrine acted on in v. Bank of Montreal(1) and in Raphael v. Macfar/ane to hold that they were taken innocently, as against those beneficially entitled, or in good faith; wherefore it appears to me the defence of want of registration of the substitution, so strongly urged and so much relied on in the opinion delivered in the court below by the learned Chief Justice, is excluded by the terms of article 940 of the Civil

Code.

Then as to the motive of the appellant in redeeming the shares, which is the fact that I say may be looked at in more than one way.

The payment certainly had the effect of discharging G. Petry's debt to the bank, but it was not made for the sake of paying that debt.

The motive was to save the shares for the estate, which the appellant Parker, by reason of a mistake in law, believed he could do only by repurchasing them, the price being measured by the amount of the debt.

Under that mistake the appellant Parker paid the money which belonged to the estate. Having discovered his mistake he demands a return of the money he paid, and is met in the first place by the defences to which I have just alluded and by another which, under the present constitution of the record would not be fatal to the action, but which only touches his personal right to sue. The respondent says to him " True, you paid us the money and we have no right to retain it, but you who paid it are not the right person to demand the return of it."

It appears to me that the position of Mr. Parker differs materially from that of the curator to the substitution in the case of Dorion v. Dorion (1) PattersonJ. who was held not to be entitled to maintain an action to recover moneys belonging to the institutes which he had never had possession of.

I think, though with distrust of my conclusion, that the appeal should be allowed.

Tessier.

ACTION-Mtoneys entrusted or investment-Con- APPEAL-Title land-Supreme and Exehedition precedent--Prescription-Art.2262-Trans- quer Courts 29(b).] an action brought fer-Prte-nom.] was entrusted to M. for the Superior Court with seizure recapthe being invested land specula- wider arts. and P. and art. tion, but not and claim against C. C. the defendant. pleaded that M. sous seing priv to J. held property (valued at over since who brought action the amounts expiration under trusted. Held, that it appearing that the trans- agreement ofsale. judgment appealed fer sous seing prive had admitted M. the reversing judgment Court Review. transferee, even if considered a prite-nom, had that the action ought have instituted sufficient legal interest to bring the action. the Circuit Court.

appeal the 266 Court: Held, that the was originally 2-Injury resulting in death-Claim of widow instituted Superior Court and upon -Prescription-Arts. proceedings the right the C.-Arts. P.

busband session property 'mmovable property respondent was injured while engaged in his involved, appeal Supreme and duties as appellants' employee and the injury chequer Courts Act, 29(b) and and resulted in death about months afterwards.

ing the lifetime of the husband the widow, act- 2-Solicitor-Bill ofcosts-Reference taxing ing for herself as well as the capacity master-Procedure.] It doubtful decision cutrix for her minor child, brought an action for affirming master's ruling taxation a compensation within one year after his death. solicitors bill costs, which relates wholly Beld, reversing the judgment of the courts practice and procedure of the Court (Fournier J. dissenting):

That the Justice forOntario, and ofan officerofthatcourt respondent's right of action under art. construing rules and executing order C. depends not only upon the character of the proper subject act which death ensued, but upon the appeal to the Supreme Court.

death, and if claim such shape that could not then have enforced it, had death 3-By-law-Appeal costs-Jurisdictionnot the article of the not give Supreme and Exchequer Courts Act right of action, and creates no liability what- Since the rendering of the judgment ever the person inflicting the injury.

Court of Queen's refusing quash That it appeared the record that the plain- law passed corporation the village tiff right action the court would grant Huntingdon, the by-law question repealthe defendant's motion forjudgment non obstante appeal to te Supreme Court Canada: Art. U. P. C.

That at the Held, that the only matter dispute between time of the death of the respondent's husband parties being stion the all right of action was prescribed under art. court would not enteain

0. and that this prescription and Exchequer Courts Act, which the tribunals are bound to give effect although not pleaded.

Arts. and

292 4-urisdiction-Action aside procsverbal or by-law-Appeal aside mortgage-Fraud against credi- of Supreme end Exchequer Courts Act.] tors-Prescription-Art.

Municipality the County Verchres passed by-law or procs-verbal defining liable the rebuilding and main- AFFIDAVIT-To bill of sale-Adherence certain bridge.

municipality statutory form-Effect of departure fro

Varennes their action prayed have by-law orproca-verbal question set aside on - - - - - 53 was maintained and the by-law set aside-On appeal Supreme Court of Canada :-Held, APELTtetoln-urmeadEce

APPEAL- Continued.

i APPEAL-Continued.

that the cas- was not appealable and did appeal dismissed want of prosecution, or to within or of the have the record remitted to the court below. Supreme and Exchequer Courts Act future The petitioner asserted right to have rights within the meaning of the former section deposit returned him.-Ield, per Patterson being question and the appeal not being J., that the determination of the right to rule or order of court quashing or refusing costs being kept suspense the appeal to quash by-law of municipal corporation. motion should refused.-Held, also, inasmuch money deposited the court below ought 365 that 5-.-Juisdctin-Apea-Fuure

Tile registrar this court should certify to the court lndeictud-SpemFite rigs-Ti below that appeal not heard, and that Courts judgment of the petition dropped reason the dissolu- Court Queen's-Benclh Lower Canada tion of Parliament 2nd February, peal side) the defendants the action were CASE

The question Canada the Superior Court damages was reserved.

appeal the Province Quebec, in cases which, the law preme Court Canada:-IHeld, that the of that Province are appealable direct to the was not appealable, there being controversy Judicial Committee of the Privy Council. A over, and title to lands or judgment was delivered the Superior Court future rights in question within the meaning Review at Montreal favour of the 29,sub-see (b) of the Supreme Court Act.spondent, the day which the amend- The words title to lands this sub-section are ing act came into appeal to the only applicable to case where title to the Supreme Court of Canada taken al.: property right to the title may Held, that the appellants not having shown tion.

fact that a question of the right of that the judgment was delivered subsequent to servitude arises would not give jurisdiction.the passing the amending act the court Wheeler Black Can. S.C.R. referred no jurisdiction.

Quere-Whether an appeal to.-Gilbert Gilman Can. S.C.R. will lie judgment pronounced after the ing the change the law.

judgment-Practice-Specially dorsed writ-Order for signing Judg' ment.] A appeal not decision the Court

Finding of courts below-Questions offactof Queen's judge, made the return summons to allowing judgment % - Question of fact-Finding of trial judgethe plaintiffs specially indorsed writ,

Interference with appeal.

not final judgment" within the meaning of the Court Act.-Per Patterson J.- Such decision judgment," but the 11-Amount in controversy - Arbitrationorder which it was one made the Damages and costs-Interest

AWARD-Petition 434 Right-Submission-Nediators-Award-Finaliof-Art. P.

7-Election petition-Appeal -Dissolution of claimed large of money from the Govern- Parliament-Return deposit.]-ln the interval ment the Province of Quebec under between taking of appeal from decision tract for the construction of portion delivered the 8th a the North Shore Railway, agreed submit to troverted election petition and the February three mediators amiables compositeurs all sittings the Supreme Court o1'Canada, controversies and difficulties existing between parliament was dissolved, and the of the Government and himself, and the submisthe dissolution the petition dropped.

The sion stated that these mediators should inquire spondent subsequently, order to have the into, inter alia, the extent of the obligation costs that were awarded at the trial taxed the contract passed between the Government and paid out of the depositedin the court and the said the alterations below-by the petitioner security costs, and modifications made in the plans, particujudge the Supreme Court lars specifications mentioned the chambers (the full court having referred the contract; what influence the said alterations motion judge chambers) to have the and modifications may have had the obliga- ARBITRATION AWARD-Continued.

AWARD-Continued. tions of the said and those of the courts below, thatthe appointment ofrespond- Government; the delays caused reasons ent's arbitrator was valid under the statute irrelevant to the action of contractor; the and hound both parties, and that awarding value, whether for more for less. damages three feet land injuriously atof the alterations any increase in the works;

of track the arbitrators and finally, all things connected with the not exceeded their jnrisdiction. Strong matter and the execution of the said contract, and Taschereau JJ. doubted if amount and with regard to the charges and obligations controversy sufficientto givethe courtjurisof both thetGovernment and the said contractor, diction the appeal.

according to the terms of the said contract. The executed and conclusive judgment of the highest couit justice.

media- TAXES-unicipal Act, tors their award, after reciting matters Manitoba K c. a. 626-50 V. (Man.)-Penatty taxes-Inand annexed thereto affidavit stating they had inquired into all matters and ties submitted them as appeared the

2-Taxation lands-Beneficial -Prerogative petition of right, asking that the award set aside the ground that it did not cover the matters referred the arbitrators in the sub- -Exenption Quebec

"-Exemption tet

(appeal side) that court reversed the judgment of the Superior Court and dismissed the petiright.

ettate-Acc the Court of Queen's Bench for Lower that 2-Ofchose action-Parties suit-Denurjudicata ernment, and the specification the several matters referred to the submission was merely 3-Crown lands-Transfer of rights-Location secure that determining tickets-Waiver-Cancellation should consider all these matters, and that all matters having

AWARD

180,426 Taschereau JJ. dissenting.-Per Fournler J.

ject to the provisions of art. P. C. and BANK-4gent of-Excess ofauthority-Dealing funds instructiots -Liability fraud or collusion if given the matters bank-Discotnting for his otn accommodationred them.

Position ofparties accommodation paper.1 K., agent bank and also member business 2- Expropriation-R. S. Q. art.

procured accommodation drafts a 18,24-Award-Arbitrators-Jurisdiction ofcustomer the bank which discounted afected-43 J agent and, without indorsing drafts, In the proceeds, violation instrucrailway expropriation the respondent tions the head the business naming his arbitrator declared that only ap- having insolvent; executpointed to watch over the arbitrator of the assignment trust all their property company, but the company recognized him the trustee was pay "all debts cially and subsequently award of assignors or either and owing damages and costs for land expropriated was accruing becoming and owing" the made under art. Q. demand for bank preferred creditor and the expropriation formulated in their notice to makers the accommodation paper, among arbitrate the appellants was the width of others, preferred creditors. their track, but the award gianted damages not proving the bank full a three feet outside of the on each side dispute the accommodation drafts being valueless.

In action to set aside the bank claiming right to disavow acaward: Held, affirming the judgment of the, of the agent discounting them and ap- 47+ ment court below, Gwynne J. dissenting, that the drafts "debts and owing"

the insolvents the bank and within the first preference created thedeed.-Per Ritchie

C.J.-K. procured accommodation paper the purpose of borrowing the money the bank and the received that money they became debtors the bank the amount.-Per Strong and Patterson JJ.agent being bound account the bank funds placed at disposal debtor bank, authority being revoked, amount these drafts which to account.

Whether not the bank right to elect treat the act the agent tort was not important any there debt

Per Gywane

J.-The evidence not establish that these drafts anything than paper discounted the ordinary of banking business, to which the bank had its recourse against appeared the the paper and not obliged to look other payment.

2--Bank security-Banking

(D.)-43 s. 8-46 ss.9, 10-Arts.

Exchange Bank advancing on security Merchants' Bank shares caused the shares to assigned their managing director and entry made their that the managing director held the shares in question behalf the bank security loan. The bank subsequently credited F.

with dividends accruing thereon.

Later the managing director pledged these shares to another bank personal debt absconded.

Held, judgment of the court below, that repaymentprohibition advance upon security shares another bank contained the amendment to the general banking act applies the bank not the borrower.-Per Patterson J.-Assumthat subsequent amendment the ral banking act forbade the taking security any bank, the amendment alter the charter of the Exchange Bank, under which the Exchange power to take the shares question its corporate collateral security.

take security may have become, against the banking law, punishable the beginning misdemeanour and subject a pecuniary penalty, but it was not ultra vires.

BANK-Continued.

laws import nullity has application banks-B.N. 91-Legislative authority-Winding-up trust-Substitution-Registry -Arts.931,

91-Legislative authority-Winding- BY-LAW-Proceedings quash-Judgment in-Subsequent repeal-Appeal

2--Action aside-Appeal in-Supreme aunicipality-Exercise Contract-Enforcenent

CASES-JEtna 3-Molsons Halter 4-Renaud, Pugs. fol- -Perf work-Final MORTGAGE-Bill.of sale-Affidaform- Proof dissenting.-The

3--Arts.

5--Arts.

CODE-Continued.

266, LAW-B.N.A. 4- -Interest-Legislative Act-49 -Taxation-Penalty paying taxes-Additional par; feld, overruled.-Lucn 2-Education-Authority to-Denominational (1an.)-33 CONSTITUTIONAL LAW-Continued.

CONTRACT-Agreement for service-Arbitrary established provided the act; schools of dismissal-Exercise of-Forfeiture province to free and non-sec property.] an agreement under and no religions exercises were had tween invetitorof certain machine, except prescribeg advisory boards arc gr th ef ad e ar ngreed toh tain patents improvements indiscriminately taxed their support.

dmahnendsigtesmeo c.wh Cathlicratpayr mved qasha b-la ofin consideration thereof agreed Winnipeg tor collecting these frtoyast aet ntemr rates showing affidavit the position paying a certain salary and lie schools union, the practice expenses, and giving percentage church control and regulate the education the sales.

agreed to Catholics and have doctrines their whole the business, church taught the and that Cathol ployer having the right, it was not successful, children would not allowed attend the cancel agreement at any after the public schools.

reversing the judgment expiration months its date paying of court below, that this act salary and share profits, ifany, date eprvin

Caholcs f te rght tohave cancellation.

clause the agreecdern agtholicofdn the rt to ment the employer absolute judge their childrenataughtcaccording cof the employed performed their ~

~

~

~

~

~ ~ chrhadtycopllnetesto and was given the right dismiss t~ ibute the support of aytmefricp to could not scien tiously their yhlrn thamlyda n naaiyo prejudicially rights and privilegos with hisc saar datter dsmissaeu have respect their schools had prasalam wpthate agaismissa ha1. the province at the uniun, and ultra 10camwaee gis mlyr tires the legislature the province.

Ex summarily dismissed within itee months Renaud Pugs. ishe the date of agreement alleged capacity and disobedience orders. reversing judgment the Court Appeal toislation-Bankinig the Divisional Court, that the agreeinsolenci-41 gave employer right at any time D.)-33 (D.)- of-B incapacity breach duty N. Act,

91-Crown lnsEepi without notice, and without specifying any parfront taxation-R. ticular act calling dismissal.-Held, the Bank Canada RitchiCJ, une

Tshra solvent and assigned all its property and assets PtesnJ.

htsc imsa o to trustees.

the Dominion prive claim share the Parliament incorporated said trustees giv- the business-Per Stroiig and Gwynne JJ., authority the that the share the was only a of bank necessary far wind- part his remuneration services which ing all the lost being dismissed equally 1,n vete salary.

transferred to the Dominion Government who became seized of all the powers of the trustees.

Held, affirming the judgment of the Court

Appeal, that these acts intra vires the

Dominion Parliament.-Per Ritchie C.J.-That the legislative authority Parliament

"banking and the incorporation of banks" and over " bankruptcy and insolvency " empowered it the acts.-Per Strong, Taschereau and Patterson JJ.-The authority to the said acts cannot referred to the legislative jurisdiction of Parliament over "banking and the incorporation of banks " but to that over

''bankruptcy and insolvency" only.-After the property the bank became vested the

Dominion Government piece of land included therein was and mortgage taken the purchase money, the mortgagor covenanting to pay the taxes. Not having done the land was sold non-payment.

In action to set aside the tax sale: Held, affirming the judgment the Court Appeal, that crown having a beneficial interest in the land it was from taxation crown lands.

2--Suretyship-Endorsement ofnote-Right for endorsiny-Consideration.] agreement writing, agreed to surety for & endorsing their promissory note, and & their part agreed to transfer certain property M. security, to everything necessary to done to realize securities, to protect against any expense regard thereto. or connection with the note, pay commission endorsing, and to retire said note within six months the date of the agreement. note was made and endorsed and the securities transferred, but & were unable discount it at the bank where it was made payable,. and having afterwards quarrelled with each other the note was never action M1. his commission : Held, affirming the of the Court of Appeal, Taschereau and Gwynne JJ. dissenting, that having done everything his part to done to earn commission, and having had control the note after endorsed it, and being way responsible for the failure to discount it, [S. C. R. VOr. XIX. was entitled to the commission.

V. agreements the commencement and completion of the work dates, and the prosecution thereof until completed. These 3-Damages from ditions were not performed and the contract railway-Parol eventually other prsons. for of action against

. thebond :-Held, crown-Effect Held, affirming the judg- the judgment Court Appeal, that the ment of the Exchequer Court, that where agreement made the bond was unilateral tain work done the Government Railway that the railway company under obligaauthorities the city of St. John the pipes for tion accept the sureties give the water supply of the city were interfered the contract; that and the agreement with, claimants were entitled to recover for the the construction of the concost reasonably and properly incurred their temporaneous acts, and such agreement engineer good faith, restore their property was entered into not liable gineer of the Government railway, and

6-Coportion-Contract of-Seal-Performance-Aopton-Municipatity-By-low-al- JJ. dissenting the ground that-the Chief En- Act, 8. corporation gineer had no authority to bind the crown to liable executed contract for the perpay damages beyond any injury done.

formance work within purposes which it was created, work it adopted and [125 it received the benefit though the not under corporate invemet-Conditionseal, and this applies municipal precedent-1Prescription-Art.2262 C.C.-Trans- other corporations.

Ritchie J. and Strong fer-Prite-nom.] having funds belonging J. dissenting-In Ill Manitoba to J. investment, agreed invest nicipal Act, provides that municipal them with of Winnipeg in a certain land corporations may by-laws relation to speculation, and after correspondence accepted matters thervin enumerated, may" and paid draft for mentioning the permissive not prohibit corpoletter notifying M. the acceptance of the rations exercising their jurisdiction otherdraft the understanding had to the share than by-law.

Ritchie J. Strong that dissenting.

conditions of the prospectus carried out, and if that at '--StatuteofFrauds-iattersforfturearrangement-Sale conditions of the prospectus never carried out. signed document which agreed J. transferred seing prie this claim sell certain property to A. and A. to the plaintiff who brought an action against signed agteement purchase M. amount of the draft.-Held, affirming document signed stated that the property the judgmentof the courtsbelow, (I.) Thatthe was purchased "subject the incumaction being for the recovery of money braices thereon."

With this exception the entrusted defendant fora special purpose, papers substance, the and the prescription of two years did apply.contained at the this clause

Art.

That the conditions upon deeds, etc., to arranged which the money had advanced were next."

the day that these papers were ditions precedent and not having been fulfilled, signed reques W.'s. solicitor M was bound refund the money.

That the terms sale put writing, added the transfer sing the claim plain- signed folloving : Tetms, tiff had admitted and the plaintiff, this day, delivery the if considered asa prite-nom, had sufficient the Parker property with interest every legal interest bring the present action.

three months until the thousand fivehundred dollars are paid, entire executed."

propet ty menof railtoay-Bonddocuments with other pro- Condit ion-Mutuality.]

tendered for the perty mortgaged paid construction line railway pursuant and demanded advertisement tenders, and his was Parker property which was refused. In conditionaily accepted.

At the action against L., performance the executed bond reciting the fact tender above agreement the defendant set verbal and conditioned, within four days, provide agreement that a was the two acceptable sureties and deposit per cent other propert was released the amount of tender in the Bank of mortgage a also pleaded statute frauds. Montreal, and also execute all necessary affirming the judgment court CONTROVERTED ELECTIONS-Eection that tition-Preliminar pleted agreement writing satisfy the statute eti atlaving offt documents at the residence the respondent only provides payment leaving thewith adult member household during greater part the purchase money unprovided the days after the presentition the same for. If was to assume the mortgage it was sufficient service under the necessary to provide for the release of L.'s other Controverted Elections Act though property and for matters in relation to the papers not into the leasehold property.-Per Strong J.-The agree- within knowledge respondent. ment was sale of an equity of redemption now Vic., KIN'S to release L.'s other property from the mort- 2-Election petition-Appeal-Dissolntion to the mortgagee, which should have formed Parliament -Return ofdeposit.] Intheinterval part of the preliminary agreement, per- between taking Oran appeal decision formance could not decreed.

v. delivered November, troverted election petition and February Engineer's certificate-Finality of-Bulk sittings of the Supreme Court Canada, sum contract-Deductions-Engineer's parliament dissolved, and the Interest.] bulk contract for various dissolution petilion dropped. works and materials, executed, performed and spondent subsequently, order have the furnished the Quebec Harbour Works, the that were awarded at the trial contractors were allowed the final certificate and paid out of the deposited the engineers balance

The con- court below the petitioner security tract contained the ordinary powers given in judge the Supreme such contracts to the engineers to determine all Court chambers (the court having referpoints in dispute their certificate.

The the motion judge chambers) have work was completed and accepted the the appeal want prosecution, missioners the October, but the the remitted court certificate was only granted the 4th February, petitioner asserted rght In action brought the contractors deposit returned tohim. per Patterson J., (appellants) alleged balance of that the determination right costs contract price and extra work : Held That being kept suspense appeal motion the certificate of the engineers was binding on should refused-hed, also, that inasmuch the parties and could not set aside regards money deposited court ought any matter coming within the jurisdiction of to disposed an order of ihtt the the engineers, but that the engineers had no registrar this court should certify court right deduct any the bulk con- that appeal not heard, tract price account of an alleged error the petition dropped reason dissolution calculation of the quantities dredging to Parliament February, ties actually done, and therefore the certificate that COSTS-Intestat estate-Distribution-Paid estate-Order of I 2-Solicitors -Procedure-Appeal regards item removal sand er;oneously paid to other contractors the commissionppealjor Jurisdiction-By-law weight-Damage weighing-Possession vendor-Depopetition-Disoletion ofParliapetition-Return Evidence-Quality parties-Claim for

CROWN-Prerogative of-Dominion sent-Mortgage-Beneficial land- NEGLIGENCE-Municipal taxation-B. corporation-Control streets-Alteration

LANDS-Crown P.Q.-Loca-'CROWN LANDS-Continued.

righte-Re- such etc. trees remaining the gistration of-Waiver cro'vn-Cancellation license-23 20-32 8.

te patent t f (Q.)-36 V. (Q.).] location ticket cernt territory was issued tain lots was granted to thebackof the licensewas aschedule put record with the Crown

Lands Department that arrangement with locatin location the Crown lands agent, had performed set- lot metiond the copnycaime th. tlement duties another lot known the homestead lot. In C. transferred righttocy t si

Hd his rights to appellant, paid all moneys due been aprpitd with interest the lots, registered the transfer firi th n the our Appal under Vic. and the crown ac- fo

Ri ta pri cepted the for registering the transfer and for the issningtrees territory, only apply to lots missioners cancelled location ticket been s;ecifically appropriated under default to perform settlement duties.

Held3 revrsig udmen ofth cortbelow, tatnew year year, only annual reversing the judgument court beothat the egitraionby cmmisioersin

874license; that the license issued not gv of the transfer to respondent was waiver th hodr rightiuner th regulatins the right of the crown to the location

18d to timbrn ad ptentticket for default to settlement du their licence that the lot question had and the cancellation was illegally patented than three years pre ----- -- -Crown (Ont.)-Licenseto grants-Patent-Interferencc of payment-Failure pay-Secret of-Arts. propriate any public lands

*

December, grants to actual settlers, etc., and the creditors resolved accept 4 such grants or appropriations shall con- composition payable promissory notes to lands

'at 4, 8 and months.

At time inwithin the tract or territory that debted Exchange Bink (in liquidation), tion.

trees land located not sign the composition a sold within the limits of the free grant terrieta'., the appellants, at that tory after shall considered accommodation endorsers ofthat as reserved from the location, and shall the amount, but security mortgage dated property of Her Majesty, and enacts that the mer, L's real estate. patents of such lands located or sold shall hank hi to accept tain a reservation all pine the land for its claim B. the January, and that any licensee to cut timber thereon advanced and his promissory may, during the continuance of his license, notes and mortgage registered the enter upon the uncleared portion and cut and 13thofJanuaryfortheamount, havingdischargremove trees, etc.

held license, and released the the previous issued 30th, to cut timber land mortgage September, This within the grant territory but which had transaction was not made known not appropriated under of the above at., respondents, act. license was first issued to the company January, advanced and had renewed each year since enable payoff Exchan Bank and that time.

license authorized the cutting which they accepted L's promissory notes. of timber lands unlocated and sold at its the debtor, having failed pay the date; lands sold located while it was instalment note.. at., not force; pine trees lots sold under Orders originally parties composition, Council of and pine trees, brought an action have the transaction reserved, lots under Order Council and apellants set aside and the April the location described mortgage declared ground of havback of license.

Regulations made Order in lg granted fraud of the rights the Council provided that "all debtor's creditors.

Held, reversing judg pine trees any public land thereafter to ments of the courts that the agreement sold, which at the time of such sale previous- the debtor L. with the appellants was included any timber license, shall valid, the debtor having at the time the right considered reserved such sale and shall pledge a part assets secure the paysubject any timber license covering or ment of a loan made to assist the eluding such land force at the time of such ment composition.

Chief Justice and sale, granted within three years the Taschereau J. dissenting-Per Fournier J.- DEBTOR CREDITOR-Continued.

DISTRIBUTION ESTATE-Continued. The mortgage having registered the and prohibits any dealing with it without of January, the respondent's right of consent only suspends the husband's rights in action set aside the mortgage was prescribed the property during corerture, and death one year that date: art. C. the takes personal property 531 would the act had never passed-The fo accmmoatin L of Court Brunswick while decid- 2- Agent of bank-Discounting par t lug agaIn.t the next claim for accommodation-Liability estate directed that should paid out the. estate. appeal decree varied bystriking Loan of money- Subrogation- Art. out direction.

2 CC.- --.- EDUCATION-Laws with respect to-Legisla- I- 3-Transfer

(D.)-53 Preference-Pressure-Intent-49

(Jian.)

DEPOSITARY - Sale of goods weightof school district-Appeal-Approval Damago weighg-Possession retained ofthree visitors-40 V. .. (P.Q.)-R.S.Q. vendor-Acts. 1rt.

C. C.

----- - -227

See

ESTATE- - - - - DISTRIBUTION OF ESTATE

Statute-Repeal of-Restoration of former l w--Distribution coverte-Husband's EVWENCE-Reeeipt-Error-Parol residuum-Next of Arts.

an action to ture of Brunswick, Geo. 3, c.

render account and re-enacted the Imperial act & which alleged paid the Car. 2 c. (Statute of Distributions) ex-6th October, applied S's first proplained Car. 2 3 (Statute of' missorv notes maturing and acknowledgment Frauds). which provided that nothing the which V's book-keeper gave the followin former act should construed to extend to receipt

'"Montreal

October estates femes dying intestate, but D.

the two thousand that their husbands should enjoy their personal hundred dollars applied theretofore.

the statutes notes maturing.

per L." and which Brunswick were revised the act 2, V and neglected apply.

pleaded 3 c. was re-enacted, but cor- that never got and that receipt responding to the Statute Frauds, given error and mistake clerk. was omitted.

the administration of the After documentary rol evidence tate afeme her next kin claimed the gien Superior Court, judgment was personalty the ground that the husband's affied bythe CourtofQueen'sBench, rights swept away this omission. Held, S's action.

appeal the Supreme that the personal property passed hus- Curt Canada : Held That the finding band and not the next kin of the wife.the two courts the question fact Per Strong J.-The repeal the Revised whether the receipt had given through Statutes c. which was passed error should not interfered with.

affirmance of the Imperial acts, operated to Ithe prohibition art. against the the Statute Frauds part admission parol evidence contradict the law of Brunswick.-Per vary written instrument, not d'ordre public, Gwynne J.-When a colonial leghlature that if evidence admitted without an Imperial act it enacts it inter- objection at trial it cannot subsequently preted Imperial courts, and fortiori court appeal.

That parul other Imperial acts.

Hence, the evidence commercial matters admissible English

Statute Distributions was ainst written document to prove error. enacted it was not I

Insurance Company Brodie (5Can. necessary to enact the interpreting section R.lfollowed.

the Statute Frauds, and its omission the 2-Bill of sale-Proof of execution-Attesting Revised Statutes did not affect the construction witness- - - - - -1 put upon the whole act.-Held, per

Ritchie C.J., Fournier, Gwynne and Patterson

JJ.. that the Woman's Property Act 3-Title land-Possession-Acts of ownerof Brunswick which ship-341 exempts the separate property of married

See woman from liability for her usbandcs debtso

EVIDENCE-Continued.

4-Railway Co.-Injury by-Quesfact-By of

Contract-Quality work-Conversation parties-Claim for

Arbitration-R. Q. art. 5164-Lands injuri- JUDGMENT-Specially for judgment-Appeal

Plea of-Fall of fire-Want of prevent-Art.

Application-Proquestions: Where vessel ? to sail ? contained the following: at " Buenos

Ayres near port February bound river; would tow and back." The was damaged coming

LICENSE-Crown (Ont.)-Free grantstimber-Patent-Rights for Arbitrary missal-Forfeiture of from taxation-R.S.O. 7 1

--aside-Fraud Prescription-Art.

of land under-Release sold-Equity of

MNICPA the trial action the policy it streets-Alteration grade-Negligencejudgment

(N.B.)-45

(NB.)] Portland, 11 remained town was incorporated a missory representation that vessel would towed and down, and this representation corporation out, regulate, reair, not having been carried out policy was amend clean the road', streets, eld, that the corporation had authority, under this it.-W. owner INTEREST-Legislative over-B.N.A. 92-Penalty for back the street with steps front. taxes-Municipal s. corporation the removed and the left placed two small planks platform 2trot dd going planks necessary her daily 685 avocations slipped and receiving .

JUDGMENT-Appeal from-Act peal-Jiedgment Juris- corporation having authority liable.-Ifeld, t hat the was DISCRETION-Specially guilty of contributory negligence using the writ-Order for summaryjudgment-Appeal planks did knowing that such [434 dangerous.

MUNICIPAL CORPORATION-Continued.

'PATENT-Of land-Crown lands (Ont.)-Li- 2- Constitutional law-B. N. Act, & timber-Right ofpatentee 92-Interest-Legislative authority over-Municipal Act-49 c.52 V. c. 4312-To P. Ry. Co-Lands in N. T.- (Man.)-Taxation-Penalty for not payjing taxes Exemptionfrom taxation -Additional rate.] The Municipal Act of toba provides that persons paying taxes before

December let cities and December in rural POLICY-OfMarine Insurance -Applicationfor municipalities shall allowed per cent -Promissory representation count; that that date until the taxes shall payable at par; and after per the original amount of the PRACTICE-Receip-Error-Parol evidencetax shall added.

Held, reversing the judg- Arts.

The prohibition art. ment of the court below, Gwynne J. dissenting,

.

against admission parol that the percent added larch was only evidence to contradict or vary written additional rate tax imposed penalty strument, not d'ordre public, and if forlio-pamen whch oca leisltu.

evidence admitted without objection at under its authority legislate with respect t trial cannot subsequently set aside a municipal institutions, had power impose, court ofappeal.

Parol evidence and it was not "interest"

within the meaning matters admissible againstawritten document of of the Act. Ross Tor- prove error.

zEtna Insurance Company rance (2 Legal overruled.

3-Corporation-Contract of-Seal-Perform- the death her husband injuries a nc-Adptin-Muiciali~q-B-la-Ma ~-ceived the defendanits. t

Aw that at okthe husband's all right Municipal Act. 11.]

Acorporation action was prescribed under art. C. liable execftrd contract the per-formance work within purposes for Ipescription was which the it as reaedwhih orkit doped ndcourts hound although whicheithsied, he saothoug not pleaded.

contract was not executed under its corporate and this applies municipal well 3-Parties suit-Assignmnt of other corporations.

and Strong J. tion - Denurrer-Res Judicata r instrudissenting-In 11 of the

Cuniment under seal assigned defendant, cipal Act, which provides that municipal security for moneys interest in corporations may pass by-laws relation policies insurance which actions matters therein enumerated, the "may"

pending.

afterwiards gave to & peimissive only and not prohibit Qortor- order defendant the balance'of the insurations exerciing their jurisdiction otter- ance money that would after paying than by-law.

Ritchie C.J. Strong debt defendant.

& endorsed J. dissenting.

delivered it plaintiff it NEGLIGENCE

Responsibility is major- Fall ofwall after fire- Iaage3-Arts. 19, subdestroyed defendant's leaving the walls standing dangerous condition.

and the defendant, knowing the fact, neglected secure support wall take it down, and after the was blown down high wind and damaged plaintiffs house : Held, the judgments the courts that defendant could not shield under vis major, and liable damages caused.

2-Municipal Corporation -Control the streets-Alteration grade-Contributory negligence----------------159

See

NOTICE -Dis missal front Construction of contract-Non -performance of duties across its

& afterwards livered to plaintiff docuf~ent signed them statig that, having that the dorsed order wa not inegotiable endorsement, perfect plaintis title and enable obtaiin money defendant's hands, they assigned aid transferred their iterest therein and appointed plaintiff their attorney, their name, but and benefit, to collect defendant having received the amounts policies formed plaintiff; demanding account, that there were prior claims that would absorb it all.

Plaintiff then bill equity and payment amount due him to which defendant demurred want parties, alleging that the order, though solute fact, only given security, and that an account between & and being necessary protect C.s rights was necessary party suit. murrer and judgment overruling it appealed the fence of want of parties was set up in the share was get and adding: "1 also answer to the bill. Held, affirming the judg- that lands are properly and the ment of the court below, Strong and Patterson conditions the prospectus carried out, JJ. dissenting, that the question of and not, that at refundparties was resjudicata the judgment the lands never properly conveyed demurrer and could not raised again the aid conditions the prospectus never caranswer.

Even if it could the judgment was ned out.

J. transferred seing print right was not a necessary party.

this the plaintiffwho brought an action between plaintiff and. defendant the order was against M. the amount the draft. Held an absolute transfer the fund to received affirming the judgment the courts belov, defendant, and treated all the par- that the action being the recovery of ties negotiable instrument. Defendant had entrusted defendant special nothing to with the equities between and purposethe prescription of two years & or between & and plaintiff, but apply. Art. C. C.

was bound account to plaintiff accordance death-Claim ance of the order.

489 Prescription-Arts. C.-Arts.

husband 4--Solicitor-Bill respondent injured while engaged 356 duties appellants' employee and the injury Seeresulted death about months after- See ubiu~oa.wards.

indemnity having claimed dur- 5-Specially writ-Order for ing lifetime the husband the widow, actmaryjudgment-Appeal ing herself well as capacity executrix for her minor child,brought an action fur compensation within year after death. petition-Service-R. 9s. that atthe the death ofthe respond- -- 526 ent'ehusband all right of action was prescribed uder art. and that this prescription which the tribunals are bound give 7-Election petition-Dissolution of Parlia- although not pleaded.

Arts. and ment-EFect of-Return deposit-Costs

857 2188C.C.

shre getan appeal-udment

PREFERENCE-Construction of act against- Press ure-Intent-49 gage-Beneficial land-Exemption taxation-R.

Property of bank became vested the inion Government and piece of land included therein was sold and mortgage taken for the purchase the mortgagor covenanting to pay the taxes.

Not having done the land was sold for non-payment.

In action aside the tax sale: Held, affirming the judgment the Court of Appeal, that the crown having beneficial interest land it was exempt taxation crown lands.

c. 7 1.

for ment-Condition precedent-Prescription-Art.

2262-Transfer-Prgte-nom.]

to invest them with M. of Winnipeg in certain land speculation, and after correspondence accepted and paid

.'s draft for mentioning the letter notifying M. of the acceptance of the draft the understanding had the

3-Action creditors-Registry-Art.

AGENT-Agent funds for business procured accommodation drafts from a customer of the bank which discountused the proceeds, violation of instructions, the business of whether these drafts constituted debt due the estate bank or whether the bank could repudiate the act of its agent and claim the whole amount from the solvent acceptors. Held, Gwynne J. dissenting, that the drafts were debts due and owing the insolvents bank.-Held, JJ.. that the bank for the funds placed at his disposal being revoked, for the amount of these drafts of-Comission-Surety-Failure of [S. C. R. Voi.. XIX. WORKS-Work rail- COMMISSIONERS-Continued. ways-Damage by-Indemnification

Parol the petition app3al not having approved three qualified visitors. the superintendent alleged that the RAILWAYS-Action against railway company petition was approved one inspector of employee-Injuries of-Right action-Prescription

292 Judgment the Court Queen's Lower Canada (appeal that the petition appeal must have the approval three visitors qualified the municipality railway-Tender-Contract the appeal the superintendent origin- -lutuality-Action

336 ated, and of the three visitors had signed the petition in appeal parish priest ofan adjoining parish, not Co.-Injury by-Que visitor the micipality offacr-By of tiire, the sentence rendered the superinten- Co. dent was null and void.-Taschereaa sented the ground that the decree the RES JDICATA-Assignment of inaction.

the inspector etofudgoe was visitor, it was primil -Practice-Parties suit-Judgment that formalities required to the murrer - - - - - 489 superintendent jurisdiction had with.

U.S.L.C. ; arts. GOODS-Sale weight-Contract

Hts of-Depositary-Arts

SOLICITOR-Bitt C.J., master-Procedure-Appeat.] executors Fournier JJ., affirming the judgment of the estate having taken proceedings obtain below, that where goods and merchandise accoint the solicitor the latter pro. are sold weight the contract sale accont for costs and disbursements, not perfect and the property in the goods which were referred taxing mains the vendor and they are at risk taxed and have an acconnt taken all until they are weighed, or until the buyer moneys received the solicitor for estate. default to have them weighed ; and this proceeding under this order the took where the buyer has made examination evidence alleged agreement for settlement goods and rejected such as were not to of solicitor's hill and reported balance satisfaction -Held, also, per Ritchie C.J., the solicitor ordered the JJ., that application.

sold weight and the property remains in judgment Court Appeal, that the possession the vendor the vendor only authority. but was obliged, prolaw depositary, and if the goods while in and report aid report should possession are damaged through his fault affirmed-It doubtful if matter and negligence cannot bring action for their kind, which relates wholly the practice value.-Per Patterson J., dubitante, whether procedure the High Court Justice there was sufficient evidence of acceptance tario and that court constrnthis to dispense with the writing neces- tug rules executing order reference under art. to perfect proper subject appeal the tra.t

227 SupremeCourt.

LANDS-Contract for-1latters for STATUTE-Repealof-Restoration offrauds

-Distribution 7.Husband's residuum-ext 7.Legislature of Brunswick. by Geo. 3 c. COMMISSIONERS - Mandamusand re-enacted the Imperial act 22 district-Superin- & Car. Statute of Distributions) jurisdiction of explained s.25 Car. (Statute Frauds), visitors-40 which provided that nothing former (P.Q.)-R. art. Upon applica-' should construed to extend estates feies but that their husbands the respondents to establish sld enjoy their personal estate theretofore. school district the parish Ste. Victoire in statutes ofNew Brunswick accordance with the terms of sentence ren- act 3 re-enacted, dered appeal the Superintendent ofEdu- but corresponding the cation under Vic. s. (P.Q.), the Statute Frauds, was omitted.

the adminrespondents pleaded inter alia that the superin- istration estate ofafeme hernextof tendent jurisdiction make the order, claimed personalty the ground that the STATUTE-Continued.

I STATUTE-Continued.

husband's 3-Asessment tx's-Lands Co-Exemption the husband and not to the next of kin ofthe the charter of the P. Ry. -Per Strong J.-The repeal the the lands the company North-west Sttues Stog

. 1.wih aspseinTerritories, until they are either sold or occuaffirmance of the Imperial acts. operated to pied, exempt Dominion, provincial restore of the Statute of Frauds part municinal taxation twenty years after the of the common law of Brunswick.-Per grant tnereof tbe crown.

Gwynne J.-When a colonial legislature thejudgmentofthecourtbelow,thstlandswhich enacts an Imperial act it enacts it interpreted company have agreed and which the Imperial courts, and a fortiori other the conditions have not been fulfilled are Imperial acts. Hence, when the English Statute not lands "sold"

underthis charter-Held, of Distributions was re-enacted further. that the exemption attaches lands it was not necessary enact the inter- alloted the cmpany before the patent pretation section the Statute Frauds, and granted

Laids its omission the Revised Statutes did not allotted the company the construction put upon the whole not their exemption becoming, afteract.-Held, per Ritchie C.J., Fournier, Gywnne wards, part province Manitoba. and Patterson JJ., that the Married Woman's

Property Act Brunswick which exempts the separate property of a

14-Municipal -Statutory debts and -Control her eonsent,only suspends the husband's rights the property during coverture, and the death the takes the personal property 5-Construction-33 Y. c. 3 (D.)-Educationwould if the act had never passed.

of-Transfer of perty-Preference by-Pressure-Intent-49 OF FRAUDS- Contract- Manitoba 'for Ters, '" next-Sale ofland 673 person at a time when insolvent circumstances

*

*

* with intent to defeat, OF LIMITATIONS-Title landdelay or prejudice his creditors, to give to Possession-Nature of-Evidence]

In an any or them preference over other creditors over any more of tio ain t 0. recover possession or which shall against them was swn ossion utterly void." Held, Patterson J. dissenting, ove ey ya ws n that the word ' preference " this act imports wards the property judicial a voluntary preference and not appi toa and such owner nas ordered convey where tie transfer has induced the certain port the others; that after the pressure of the creditor.-Held, further, that severance 0. performed acts showing that mere demand the creditor without even was still acting the owners; and that also threat legal proceedings, sufficient pressure rebut the presumption of preference.-The Ixland f ther ways he words or which has the act reversing the judgment the Court Appeal only where that had done and restoring that of J. at trial, that t hd eendoe directly, the severance property not alter would have preference within the statute. relation between the owners and 0 The preference mentioned the act being act 0 at any time declaring that voluntary preference, instruments to would not continue act caretaker ; and avoided having the of pre- that possession, therefore, continued are only those which are the spon-: that caretaker and had acquired title taneous acts the debtor.

Nolsons Bank possession.

Ryan v. lyon (5 5CR. Halter

Can.

approved and followed. Held, per Patterson J., that any transfer an insolvent debtor which the giving creditor priority over the others payment of debt, which ar. 2

(Inp.)Statutej given with the intent that it shall operate, of Frauds.

void under the statute whether or not it result ofpressure.

McAan3A. 446:

STATUTES-Continued.

1,

J

42,

R.S.C.

42, d55

16-23

V. c.

J

&

Q. art.

R.S.Q. 426

21-26 (Man.)l (Man.)

SUBROGATION-Conventional effect-Art. 2-Erroneous declaration of subrogations required under art. 2 when the debtor borrowing the money declares deed loan that it the purpose of paying his debts, and in the acquittance declares that the payment has been made with the moneys furnished subrogation given the terms of the erroneous noting the the registrar discharge, and the granting him erronecertificates, cannot prejudice the party sub- SUBSTITUTION-Bank stock-Registration- C.-Shares indebiti-Arts. SURETY-Endorsement for commission-Failure discount-Right LAND-Possession-Nature of Limitations-Evidence.] against 0. to recover possession of land it was shown that 0. had been in over twenty years; that was originally caretaker for one of the owners that afterwards property severed judicial decree and such owner was ordered convey certain portions to the others; that after the severance 0. performed acts showing that was still acting for the owners ; and that also exercised acts ownership enclosing the land with fence and in other ways.

Held, reversing the judg- LAND-Continued.

Ryan lease-Jrisdiction trial

Servitude-Action for to-Future stock-Substituted

Reqistration-Arts. 0.C.-Shares trust-Condictio indebiti-Arts.

C..-The

WITNESS-To sale-Aestation-Proof