Majority
OF r
SASKATCHEWAN ................ J
ON APPEAL FROM THE COURT OF APPEAL OF SASKATCHEWAN One Sarah Stone who died in 1890 left surviving two illegitimate sons and a number of legitimate children.
One of the illegitimate sons, Enos Stone, died in 1918 intestate, unmarried and domiciled in Saskatchewan.
Held that, under the provisions of sections 24 and 25 of The Devolution of Estates Act, Sask. (1907) c. the whole of the property of the deceased, both real and personal, passed to the other illegitimate son. Sections 24 and 25 of The Devolution of Estates Act enact that illegitimate children shall inherit from the mother as if they were legitimate and through the mother if dead any real or personal property which she would if living have taken by purchase, gift, demise or descent from any other person and that if an intestate, being an illegitimate child, dies leaving no widow or husband or issue the whole of such intestate's property, real and personal, shall go to his or her mother. Held that these sections, amending the law of descent or inheritance, are intra vires of the legislature of Saskatchewan.
Judgment of the Court of Appeal Sask. L.R. 159) affirmed.
APPEAL from a decision of the Court of Appeal for Saskatchewan (1), reversing the judgment of the trial judge on an application by the administrator of the estate of Enos Stone deceased for the opinion, advice and direction of the court as to claims to the deceased's property. Enos Stone, an illegitimate son of one Sarah Newton, died on or about the thirteenth January, 1918, intestate and unmarried. At the time of his death he was domiciled in Saskatchewan. His estate consisted of real and personal *PRESENT:-Anglin C.J.C. and Idington, Duff, Mignault and Rinfret JJ.
(1) [19201 Sask. L.R. 159; (19201 1 W.W.R. 563.
property situated in the province of Saskatchewan. land comprised in the estate was on the first day of September, 1905, the date of the coming into force of the Saskatchewan Act (4-5 Edward VII (Dom.) c. 42)-Crown land within the province, vested in the Crown and administered by the Government of Canada for the purposes of Canada, and was patented to Stone at a later date. On the 23rd September, 1918, letters of administration to his estate were granted to the Western Trust Company as official administrator for the Judicial District of Swift Current. Sarah Newton, the mother of the intestate, was also the mother of another illegitimate son called William Stone, who is living and resides at Madelia, in the state of Minnesota. After the birth of the two illegitimate sons, Sarah Newton was married to one Walter E. Stone who predeceased her, and bore ten children to him. Eight of these children are still alive. Two of the children are dead, but have left issue surviving them. Sarah (Newton) Stone died on the 16th October, 1890. Claims were made to the estate by William Stone and the legitimate children and grandchildren of Sarah Stone, as well as on behalf of the Attorney General for Canada and the Attorney General for Saskatchewan.
An application was made under the rules in that behalf by the administrator for the opinion, advice and direction of the Court of King's Bench on the following questions: (1) What persons, if any, are entitled to share the estate of the said deceased.
(2) In the event of none of the said persons being entitled to share the estate of the said deceased, whether the property of the said estate will escheat to the Crown, in the right of the Dominion of Canada, or in the right of the province of Saskatchewan. The matter was heard by Bigelow J., in chambers, who held against the claims of William Stone and the legitimate children of Sarah Stone. The learned judge also held that the lands of the intestate escheated to the Crown in the right of the Dominion. As to the personal property, it was held to be bona vacantia and to belong to the Crown in the right of the province, after the payment of all claims of creditors, solicitors' costs and administration fees. The Court of Appeal set aside in toto the judgment of Bigelow J. and declared that all the property of Enos Stone had gone to William Stone, the other illegitimate son of Sarah Newton Stone.
Lafleur K.C. and Plaxton for the Attorney General of Canada. The whole estate, personal as well as real, of the deceased Enos Stone, upon his death intestate without heirs or next of kin, ipso facto passed to and became vested in the Crown in the right of the Dominion of Canada as escheat and bona vacantia.
As between the Dominion of Canada and the province of Saskatchewan, sections 102 and 109 of the B.N.A. Act (1867) have no application to the decision of the question at issue; and, on the true construction of the provisions of " The Saskatchewan Act " ( (C.) 1905, c. 42) the royal revenues arising from escheat and bona vacantia within that province belong to the Crown in right of the Dominion. The provisions of " The Saskatchewan Act " do not give the province power to enact the sections 23, 24 and 25 of the Devolution of Estates Act (R.S.S. 1909, c. 43). Upon their proper construction, these sections do not operate to carry the real and personal property of the deceased to William Stone or to the legitimate children of Sarah Stone, and the said property have consequently escheated to the Crown in the right of the Dominion.
Blackwood and Haywood for the Attorney General of Saskatchewan. Sections 23 and 24 of The Devolution of Estates Act are intra vires the provincial legislature. In the alternative, if these sections are. held to be ultra vires, the personal property of the deceased should be declared to have passed on his death to the Crown in right of the province.
Crysler K.C. for the respondent W. Stone.
Under the provisions of The Devolution of Estates Act, which the legislature of Saskatchewan was competent to enact, William Stone was entitled to the whole estate of the deceased, real and personal.
The judgment of the majority of the court (Anglin C.J.C. and Duff, Mignault and Rinfret JJ.) was delivered J.-This litigation arises out of an originating summons issued at the instance of the Western Trust Com- IN R pany, administrator of the estate of the late Enos Stone, in his lifetime of Cabri, in the province of Saskatchewan, and to which were made parties the Attorney General of the Dominion, the Attorney General of Saskatchewan, William Stone, stated to be the illegitimate son of Sarah Newton, and the children issue of the marriage of the said Sarah Newton and Walter E. Stone. The latter children will be hereafter referred to as the legitimate children of the said Sarah Newton Stone.
Sarah Newton is said to have had two illegitimate children before her marriage with Walter E. Stone, to wit, the deceased Enos Stone, who died unmarried and intestate, and William Stone (neither of whom apparently were children of Stone, although they assumed his name), but the appellant objects that the filiation of William Stone has not been legally proved. Sarah Newton Stone had of her marriage with Walter E. Stone ten children, all now living except two who are represented by their children. She died in 1890, many years before Enos Stone. estate of the latter is valued at $19,757.33, consisting of real and personal property, his lands having been patented to him by the Crown in the right of the Dominion subsequently to the passing of The Saskatchewan Act, c. 42 of the statutes of Canada, 1905.
Two questions were submitted for the opinion of the 1. What persons, if any, are entitled to share the estate of the said deceased?
2. In the event of none of the said persons being entitled to share the estate of the said deceased, whether the property of the said estate will escheat to the Crown in the right of the Dominion of Canada, or in the right of the province of Saskatchewan?
The trial judge, Bigelow J., decided that none of the children, legitimate or illegitimate, of Sarah Newton Stone were entitled to share the estate of Enos Stone; that the land of which he died possessed had escheated to the Crown in the right of the Dominion of Canada and his personal estate as bona vacantia had gone to the Crown in the right of the province of Saskatchewan.
The Attorney General of Canada appealed to the Court of Appeal of Saskatchewan from' that part of the judgment of Bigelow J. which declared that the personal estate of Enos Stone as bona vacantia had gone to the province Saskatchewan. On this appeal, although the children, legitimate and illegitimate, of Sarah Newton Stone had not themselves appealed, the Court of Appeal intimated that it would consider whether they had any right to the deceased's estate, and no objection appears to have been taken to this course. The judgment set aside in toto the judgment of Bigelow J., and declared that all the property of Enos Stone had gone to William Stone, the illegitimate son of Sarah Newton Stone. From this judgment the Attorney General of Canada appealed to this court, and at the hearing the two attorneys general, and William Stone were represented by counsel. The legitimate children of Sarah Newton Stone were not represented by counsel before us, although notice of the appeal was given them. If William Stone-who, it will be convenient to assume, was the illegitimate son of Sarah Newton Stone, subject to considering later the objection of the appellant that his filiation has not been legally proved-is entitled to the estate of Enos Stone, there can be no question of escheat or of devolution of bona vacantia either in favour of the Crown in the right of the Dominion or of the Crown in the right of the province. If he is not entitled to the estate, it is conceded that the lands of Enos Stone, patented to him from the Dominion after the creation of the province of Saskatchewan, escheated to the Crown in the right of the Dominion, and the issue between the Attorney General of the Dominion and the Attorney General of the province is as to which government is entitled to his personal estate. Counsel for the province of Saskatchewan also conceded that if the Dominion takes the lands of Enos Stone by escheat it takes them subject only to such charges as affect them and not to the general debts of Enos Stone.
In declaring William Stone entitled to the estate of Enos Stone, the Court of Appeal based its decision on sections 24 and 25 of The Devolution of Estates Act, c. 16 of the statutes of Saskatchewan, 1907.
These sections (carried into the revision of the statutes of the province in 1909, as ss. 23 and 24 of c. 43, and into the revision of 1920 as 45 and 46 of c. 73), read as follows:- The contentions of the Attorney General of Canada-and much assistance has been derived from .the very able and learned factum filed on his behalf-may be briefly stated in the following propositions.
1. Sections 24 and 25 of the Saskatchewan statute, in so far as they purport to add to the persons who at common law are entitled to claim the estate of an intestate in the province, and thus to defeat the right of escheat of the Crown in the right of the Dominion, are ultra vires of the 2. Properly construed, these sections do not support the claim of William Stone, assuming him to be the illegitimate son of Sarah Newton Stone, to the estate of Enos Stone. 3. The Crown in the right of the Dominion is entitled to take by escheat -the lands of Enos Stone and as bona vacantia his personal property, and it takes the latter free from the obligation to pay the general debts of the intestate.
First proposition. Very important constitutional problems are involved in the decision of this question.
Under the authority granted it by The British North America Act, 1867, the Parliament of Canada, in 1905, created the new provinces of Alberta and Saskatchewan out of what was known as the North West Territories, which territories were subject to its legislative jurisdiction. The Saskatchewan Act, with which we are concerned here, is c. 42 of the statutes of Canada, 1905.
Very briefly, the effect of this statute is to create a province with the rights and powers of the other provinces of the Dominion. Some important provisions should however be specially noted.
Thus it is provided by section 3 as follows:
Dominion, as if the said province of Saskatchewan had been one of the IN E provinces originally united, except in so far as varied by this Act. and except such provisions as are in terms made or by reasonable intendment may be held to be specially applicable to or only to affect one or more Mignault J. and not the whole of the said provinces.
And by section 21 it is enacted:- 21. All Crown lands, mines and minerals and royalties incident thereto and the interest of the Crown in the waters within the province under The North-West Irrigation Act, 1898, shall continue to be vested in the Crown and administered by the Government of Canada for the purposes of Canada subject to the provisions of any Act of the Parliament of Canada, with respect to road allowances and roads or trails in force immediately before the coming into force of this Act, which shall apply to the said province with the substitution therein of the said province for the Northwest Territories.
At this late date it would be idle to deny that within the limits of their jurisdiction the provinces of the Dominion possess powers as ample as the Imperial Parliament in the plentitude of its own power possessed and could confer. Hodge v. The Queen (1); Liquidators of the Maritime Bank of Canada v. The Receiver General of New Brunswick (2).
Legislation as to rights of succession and devolution of estates on intestacy undoubtedly comes within the 13th heading " property and civil rights in the province " of s. 92 of The British North America Act. And Attorney General of Quebec v. Attorney General of Canada (3), decided by the Quebec Court of Queen's Bench, is authority for the proposition that the power to extend the degrees of succession so as to comprise illegitimate children is not curtailed by any rights of escheat belonging to the Crown. If therefore s. 92, s.s. 13, of The British North America Act fully applies to Saskatchewan, it seems clear that provincial legislation of the kind in question could not be attacked because in a particular case it may defeat the right of escheat of the Crown, assuming such right to belong to the Crown in the right of the Dominion.
But the appellant relies on s. 21 of The Saskatchewan Act, as restricting the right of Saskatchewan so to extend the degrees of succession as to deprive it of the benefit of an escheat which under the common law and irrespective of this legislation it could have claimed.
(1) [1883] 9 App. Cas. 117.
(2) [18921 A.C. 437. (3) [18761 2 Q.L.R. 236.
Section 21, no doubt the result of a bargain made with the new province, reserves to the Crown in the right of the Dominion
The reservation of royalties, jura regalia, is merely of those incident to Crown lands, mines and minerals, and while the province cannot by statute appropriate the right of escheat of the Dominion in respect of Crown lands, mines and minerals in Saskatchewan and Alberta, and it has not done so here, it does not follow that it cannot change its laws of inheritance. The contention of the appellant that ss. 24 and 25 are ultra vires should therefore be rejected. Second proposition. The question here is as to the proper construction of ss. 24 and 25 of the Saskatchewan Devolution of Estates Act.
It will be useful to give in very few words the history of this legislation.
At common law a bastard is nullius filius and cannot therefore inherit from ascendants or collaterals, nor can ascendants or collaterals inherit from him. His only heirs are those of his body.
The laws of England relating to civil and criminal matters, as they existed on the 15th of July, 1870, were introduced into the North West Territories (49 Vict. (D.) 25, s. 3). Thus the common law as above stated and also the Inheritance Act of 1833 (3-4 William IV, c. 106) became a part of the law of these territories, subject of course to change by competent legislation.
In 1886, by The Territories Real Property Act, c. 26 of the statutes of Canada, 1886, the right of inheritance of and from illegitimate children was first recognized and provisions (ss. 16 and 17) substantially the same as the sections under consideration were enacted by the Parliament of Canada. These provisions, as ss. 14 and 15, were carried into the Dominion Land Titles Act, 1894, c. 28 of the statutes of that year.
The latter statute continued in force after the creation of the new provinces and was repealed as to these provinces on the coming in force of the provincial Land Titles Act. This provincial Act reproduced the provisions to which reference has been made, and they were finally inserted in The Devolution of Estates Act of 1907. In passing from one statute to another they have been somewhat broadened out. -Coming now to the construction of ss. 24 and 25 of the Saskatchewan statute, s. 25 can give rise to no difficulty. It means what it says, and under it the whole of the property, real and personal, of an intestate, being an illegitimate child who has left no widow or husband or issue, goes to his or her mother. It will be necessary to determine whether this devolution of the intestate's estate can properly be termed a descent in the sense in which that word is used in s. 24, but for the moment the question is merely as to the meaning of these sections, and the only one that can give us any difficulty is s. 24.
That the language of s. 24, while seemingly clear is in reality somewhat equivocal, is shewn by the different constructions which the two courts below have placed on it. The first member of the phrase stating that.
is sufficiently plain. As far as inheritance from the mother of property belonging to her at her death is concerned, the illegitimate child is placed on the same footing as a legitimate one, and both Mr. Lafleur, representing the appellant, and Mr. Chrysler, who appeared for the respondent William Stone, agreed that the illegitimate child would inherit with the legitimate children property belonging to the mother at her death intestate.
The remainder of s. 24 goes much further and gives to the illegitimate child a right of inheritance through his or her mother which, as expressed, seems greater in extent than that enjoyed by her children born in lawful wedlock. For the illegitimate child inherits
The words " through the mother " are probably used here to indicate the course of descent, although the possibility that the legislature considered this as a case of representation cannot be excluded with any certainty. By a fiction of law, the mother, although dead, is supposed to have been living and to have acquired some property by purchase, gift, demise or descent, and this property the illegitimate child inherits " through the mother." No such right of inheritance was granted by the Alberta statute to the legitimate child, and in the case of Enos Stone, if there had not been another illegitimate child, no one would have been entitled to claim that he had inherited the estate. Perhaps unwittingly but none the less effectively the legislature has put a premium on illegitimacy.
The appellant, however, contends that the generality of s. 24 is cut down by the use of the terms which he submits should be construed in their strict technical sense. He argues that the only possible title here is one by descent and that descent necessarily supposes that the person taking by this title is the heir of and related by consanguinity to the person from whom he takes.
Descent is defined as taking real estate by inheritance, that is, as heir of the former holder (Halsbury, vo. Descent and Distribution, No 1). The Inheritance Act, 1833, states that it is
As used in olden times it was an apt expression, for it was a maxim of the law that on the death of the tenant in fee the land should descend and not ascend (Bouvier, Law Dictionary, vo. Descent and Distribution), but now a title of inheritance ascends as well as descends, although it is still called a descent. In a legal system like that of Saskatchewan, where the real and personal property of a decedent is vested in his personal representative and where both devolve according to the same rules (R.S.S. c. 73, s. 3), it matters little that in the technical language of the law " descent " is used in respect of real estate and " distribution " for the division of the personal estate of an intestate (Bouvier, loco citato supra).
" Purchase " and " descent " are very wide and mutually exclusive terms, and as a purchase includes any title other than one by descent, it could comprise a title, if it be not a title by descent conferred by a statute such as the one in question. But in view of the enactment contained in s. 25, it can be said that in Saskatchewan the mother is the heirat-law of her illegitimate child who dies intestate and leaves neither husband or wife, nor issue surviving, and in that respect a modification of the common law is made by the statute to which full effect must be given. So the title a conferred by s. 25 can well be considered a title by descent. If therefore the mother takes by descent under s. 25 it would be consistent with the rules of legal interpretation to conclude that the term " descent " in s. 24 comprises a title by descent such as the mother acquires by virtue of s. 25. The conclusion consequently seems inevitable that Sarah Newton Stone, if living, would have inherited the property left by Enos Stone by descent and as a result her illegitimate son William Stone takes this property through her under s. 24.
It is a matter of regret that the legitimate children of Sarah Newton Stone cannot take a share in this property, but while s. 24 remains unamended nothing can go to them, for they are not at common law the heirs of Enos Stone. Due consideration has been given to the memorandum of additional authorities filed by the appellant some time after the argument.
The only case among those cited which appears to call for any comment is the decision of the Supreme Court of Indiana in Jackson v. Hocke (1). It may be observed however that while s. 2998 of the Indiana statute is somewhat similar to, although not identical with, s. 24 of the Saskatchewan Devolution of Estates Act, there is no provision in the Indiana statute to the same effect as s. 25 of the Saskatchewan Act. The inheritance of the mother under the latter section is certainly an inheritance by descent, and if so it is difficult to appreciate why it should not be considered as an inheritance by descent within the meaning of s. 24.
In view of what has been said, the third proposition of the appellant need not be considered, for there is no escheat and there are no bona vacantia.
At this late stage of the proceedings, it does not seem proper to order a reference to determine whether William Stone is really the illegitimate son of Sarah Newton Stone. He was treated as such by the two courts below, and this question should have been tried out before the trial court. The appeal therefore fails and I would dismiss it with costs against the appellant in favour of the respondent William Stone. I would not order these costs to be paid out of the estate, for that virtually would oblige the respond- J. ent William Stone to pay them out of his property. would grant no costs on this appeal to the Attorney General of Saskatchewan.
J.-Enos Stone late of Cabri in the province of Saskatchewan, farmer, was the illegitimate son of Sarah Newton of Lincolnshire, England (later Sarah Stone, wife of Walter E. Stone of the same place), and James Dykens of the same place and died intestate, unmarried, and possessed of real and personal estate.
Letters of administration of all and singular the property of the deceased were duly granted to the Western Trust Company of the city of Regina, in Saskatchewan, as the official administrator of the judicial district of Swift Current, on the 23rd of September, 1918.
There was born to the said Sarah Newton, prior to her marriage to the said Walter E. Stone, another illegitimate son called William Stone. After her marriage she gave birth to a number of legitimate children, some of whom died leaving legitimate issue.
The said Sarah Stone died the 6th October, 1890. The said Enos Stone was domiciled in Saskatchewan at the time of his death.
The lands comprised in his said estate were patented from the Crown subsequent to the. passing of the Saskatchewan Act, being c. 42 of the statutes of Canada 4-5 Edw. VII.
An originating summons having been taken out by said administrator to determine who is entitled to the estate of said deceased, the parties were heard by Bigelow J. in Chambers, who held that the land escheated to the Crown in right of the Dominion, and that the goods belonging to the estate of the deceased escheated to the Crown in the right of the province of Saskatchewan, after payment of all claims of creditors, solicitors' costs and administrator's fees out of same.
Upon appeal therefrom by the Crown on behalf of the Dominion to the Court of Appeal for Saskatchewan, that court set aside said judgment and declared that all the property of the said deceased, Enos Stone, should go to William Stone, the illegitimate son of Sarah Stone, the mother of the said deceased; subject to payment of debts, succession duty, costs of administration and all other claims and expenses properly chargeable against the estate. The learned Chief Justice of the Court of Appeal properly points out that though the English law as introduced in the North West Territories might have produced an escheat in favour of the appellant, yet there had been very important changes made by the Territories Real Property Act, c. 26 of the statutes of Canada, 1886 (later R.S.C. 1886, c. 61) in the law relating to inheritance by and from illegitimate children to which I am about to advert,.as the continuation thereof is in truth the turning point of this I also attach, however, great importance to the ss. 4 and 5 of said Act as consolidated.
S. 4 is as follows:and s. 5 is as follows:- Imagine how this would have shocked the founders of so much of the law cited in many pages of the appellant's factum, as if binding us now.
I most respectfully submit that if we would correctly interpret and construe the later legislation we have to consider as bearing upon the issues raised herein, we must bear in mind the true meaning of s. 5.
The sections following are in harmony therewith but need not be quoted until we come to ss. 16 and 17, which are as follows:- Then we have the Land Titles Act of 1894, of which the general tenor is the same and in that we have ss. 14 and 15, which are as follows:- The course of succession generally was also changed by this Act, and the heir was superseded by the next of kin by s. 3, which is as follows:- I agree with the learned Chief Justice of the court below that all this must be taken as an explicit waiver by the Crown of its right of escheat in favour of the mother and I may add that the clear resultant effect of the foregoing helps us to interpret and construe in a wider sense than appellant's counsel urges we can.
I can conceive that the word " descent " might be given a much more limited meaning than has been given it by the Court of Appeal, but I submit that in light of the foregoing history of the legislation, and adding thereto much of the history thereof, given us by the learned Chief Justice, which I have not seen necessary to repeat, we must interpret and construe the said word "descent"
as it evidently was intended to be interpreted and construed by the legislators using it.
To discard that, to a Canadian, almost self-evident meaning, and substitute the meaning an English Parliamentary draftsman possibly would have attached thereto, and rejected it, and substituted something else more absolutely accurate, would deprive the legislation of any effect. I submit we must try to give it some effect and doing so we must adopt the meaning given it in the court below. When we have done that this appeal in my opinion fails. All that ensued upon the creation of the province of Saskatchewan was obviously the result of the negotiations between the then Dominion Government and those suppliants desiring the creation of a new province, or indeed two new provinces, for the creation of Alberta as a province was considered and disposed of at the same time.
And the Saskatchewan Act (being 4-5 Edw. VII, c. 42 of the Dominion Parliament) declared by s. 3 thereof as follows:- Idington J.
3. The provisions of The British North America Acts, 1867 to 1886, shall apply to the province of Saskatchewan in the same way and to the like extent as they apply to the provinces heretofore comprised in the Dominion, as if the said province of Saskatchewan had been one of the provinces originally united, except in so far as varied by this Act and except such provisions as are in terms made, or by reasonable intendment may be held to be, specially 'applicable to or only to affect one or more and not the whole of the said provinces.
And by s. 16 thereof all the laws and regulations made thereunder were, so far as not inconsistent therewith, continued in force.
I see nothing in said Act that interferes with the said enactments in question herein, or the interpretation and construction thereof in the sense I have suggested and which has been adopted by the judgment appealed from. It so happened that the only large question dealt with by said Act and the only one pretended to be inconsistent with said law, is s. 21 of said Saskatchewan Act, which reads as follows:- 21. All Crown lands, mines and minerals and royalties incident thereto, and the interests of the Crown in the waters within the province under The North-West Irrigation Act, 1898, shall continue to be vested in the Crown and administered by the Government of Canada for the purposes of Canada, subject to the provisions of any Act of the Parliament of Canada with respect to road allowances and roads or trails in force immediately before the coming into force of this Act, which shall apply to the said province with the substitution therein of the said province for the North-West Territories.
It has been submitted to us in course of argument herein that inasmuch as the granting of
Crown lands, mines and minerals and royalties incident thereto were to continue vested in the Crown and be administered by the Government of Canada, the right of escheat was intended to belong to the Crown in right of the Dominion. I cannot see anything therein to warrant such a pretension. Indeed if such a thing had been thought of I imagine it would, if so decided, have been expressed in entirely different language.
The right of escheat, of course (where existent, as it is not herein), belongs to the Crown, but the question remains whether of the Crown in right of the Dominion or of the The case of The Trusts & Guarantee Company v. The King (1), does not, whatever it decides, determine that point, for, as Chief Justice Haultain points out, the opin- 1-* ion of our former Chief Justice, Sir Charles Fitzpatrick, held expressly another way, and I, and Mr. Justice Brodeur, certainly were not of the opinion that there was an escheat in favour of the Crown in right of the Dominion.
I may be permitted here, with great respect, to submit that neither the said judgment, nor that in Attorney General of Ontario v. Mercer (2) goes quite as far as submitted in the judgment appealed from.
For the present I feel no necessity for passing upon the question, inasmuch as there is in the view above expressed, no ground for escheat.
The newly created legislature re-enacted the law as it had stood under Dominion legislation, and with the result that William Stone, according to the opinion of the court below, with which I agree, is the party entitled to receive what remains after the due administration of the estate of the late Enos Stone in the hands of the administrator. I would therefore dismiss this appeal with costs of all parties to be paid by the appellant.
Appeal dismissed. Solicitors for the Attorney General of Canada: Turnbull, Turnbull & Kinsman.
Solicitor for the Attorney General of Saskatchewan: H. E. Sampson.
Solicitors for the respondent W. Stone: Begg, Hayes & Friesen.
ACTION-Malicious prosecution
Damages ultra petita-Appeal Supreme
Court of Canada-Dcath of plaintiff- Revivor appeal-New trial-Order conditional.] The appellant sued respondent for malicious prosecution claiming
$490 and $5,000 as general damages.
At the trial, the jury rendered a verdict awarding the appellant $490 as special damages and
$10,000 as general damages.
The appellant did not ask to amend his claim, but, through his counsel, requested that his recovery be restricted to the amount demanded in his statement of claim.
Thereupon, without of the respondent, the trial judge entered judgment for $490 special damages and $5,000 general damages.
The Court of Appeal set aside this judgment and ordered a new trial. The appellant appealed to this court and obtained stay of proceedings on giving security for costs.
Before his appeal came on for hearing, the appellant died. His personal representative moved to be allowed to enter a suggestion of death in order to continue the prosecution of the appeal. The respondent contested the application upon the maxim actio personalis moritur cum persona.- Held, that the application should be granted.
The personal cause of action of the appellant for tort was merged in the judgment of the trial court; and although that judgment had been vacated on appeal, the effect of the merger was not entirely gone.
The "cause of action"
preferred in this appeal is not the injuria plus damnum which the appellant originally asserted in the action, but his right to have restored the judgment of which he complains that he has been wrongly deprived and that "cause of action" survives to and is enforceable by his personal representative.-Held also that the judgment of the trial judge for $490 for special damages should be restored.
As to general damages, the court may require the defendant as a condition of affirming the order for a new trial, to undertake not to raise the objection that the original cause of action was extinguished by the plaintiff's death. Should that undertaking be refused, the appeal should be allowed with costs and the judgment of the trial court restored in toto.-Judgment of the Court of Appeal (33 B.C.
Rep. 271) varied.
LEw .....
2-Municipal corporation-Action to set aside by-law or proces verbal-Statutory means of relief--Supervising control
Superior Court-Art. 50 C.C.P.-Art. 430,
ACTION-Concluded
433 M.C.]
The right of appeal to the Circuit Court (Art. 430 M.C.) in order to set aside a municipal by-law or proces verbal does not exclude an action en nulliti taken before the Superior Court under Art. 50 C.C.P., this right of action being expressly reserved by the Municipal Code (Art. 100 former M.C.; Art. 433 new M.C.) Idington and Duff JJ. expressing no opinion.-Shannon Realties Limited v. La Ville St. Michel A.C. distinguished.
or
3-Tutor against father-Insurance- Automobile-Insured injuring oum child- Damages paid without consent of company- Right to recover-Arts. 250, ..............................
4--Declaratory judgment-Status. . . . .331 5- In nullity-Before Superior Court- Art. 50 C.C.P....................... AGENCY-Fire insurance.......... 2-Statute of Frauds-Memo. in writing -Signature as owner-Evidence of agency-- Admissibility...................... AMOUNT
CONTROVERSY - Appeal-Jurisdiction............. .184 2-Jurisdiction--ppositin afin de conserver-Amount in controversy-"Supreme Court Act," s. (a) as enacted V., 32,
The plaintiffs conafin $18,580 filed by the respondents on the proceeds of a sale of property upon the execution by the plaintiffs against the defendant of judgments obtained in each case for an amount less than $2,000. The plaintiffs appealed from the judgments dismissing their contestation.- Held, that "the amount or value of the matter in controversy in the appeal" being under $2,000, these cases were not appealable under section 39 (a) of the Supreme Court Act as enacted by 10-11 Geo. V., 32.
Kinghorn v. Larue (22 Can. S.C.R.
followed.-C6di Richardson (38 Can. S.C.R. 41) Pulos v. Lazanis (57 Can. S.C.R. 337) are no longer applicable as section 46 of the Supreme Court Act (R.S.C., c. 139), has been repealed by the above-mentioned APPEAL-Continued
2-Jurisdiction - Criminal law-Bail- Section 1019 Cr.
A judge of the
Supreme Court of Canada has no jurisdiction to admit to bail an accused person pending his appeal to this court, such jurisdiction being conferred by section
1019 (1) of the Criminal Code upon the Chief Justice of the appellate court or a judge of that court designated by him.
KING...............
3- Jurisdiction-Criminal law--Conviction-Appeal by the Attorney General- Addition to sentence-Art. 1013 Cr. C. as amended by 13-14 Geo. V., c. 41, s. 9-Art.
1024 Cr. C.]
The appellant was found giilty of a criminal offence and sentenced to pay a fine of $400, or to be imprisoned during three months in default of payment. After the fine had been paid, the
Attorney General appealed against the sentence under Art. 1013 Cr. C., as amended by 13-14 Geo. V., c. 41, s. 9;
and by judgment of the appellate court, in addition to the fine the appellant was condemned to be imprisoned for a period of six months.-Held that there is no jurisdiction in the Supreme Court of
Canada to entertain an appeal, as, under section 1024 Cr. C., the right of appeal is restricted to an appeal against the affirmance of a conviction.
Idington J.
dubitante.
KING
.................
4- Final judgment-Discretion.] An interlocutory judgment which definitely decides a question of law and from which no appeal is taken may be res judicata when the question is raised between the same parties even in the same action.- On appeal to the Appellate Division from a decision of a judge refusing to grant an application for payment out of court to the applicant of over $6,000 the appeal court granted the application to the extent of $800 but refused any order as to the residue until rights of other parties had been determined.-Held,
J. dissenting, that the judgment of the
Appeal Division was not a "final judgment" as that term is defined in the
Supreme Court Act and was non-appealable on the further ground that it is discretionary in its nature.
Supreme
Court Act, section 37.-The judgment appealed against was affirmed as to the question of damages.
DIAMoND v. THE
WESTERN REALTY Co..............
5 - Jurisdiction - Promissory note - Loan-Both made simultaneously-Prescription-Action for less and crossdemand for more than 82,000-Same judgment dealing with both.] The appellant was creditor and the respondent debtor of an annuity of $300.
In May, 1923, the appellant sued the respondent for $150 then due. The latter did not repudiate
APPEAL-Continued appellant's claim but pleaded that it was compensated by a loan of $3,000 represented by a promissory note, dated Septenber, 1917;
and the respondent also instituted a cross incidental demand for that amount. The appellant, in her answer, admitted the existence of the loan but added that the note was payable at her death only.
The trial judge by the same judgment dismissed the appellant's action and maintained the incidental demand.-Held, that a promissory note given in consideration of a loan of money, even though there be nothing commercial transaction, stitutes, if the note and the loan are made simultaneously and in absence of legal proof to the contrary, the contract between the parties which is subject to the prescription of Ave years; and therefore the respondent had no existing claim against the appellant.-Held also that this court has authority to deal with the judgment in the principal action for an amount of $150 as ancillary to its authority to give effect to a judgment allowing the appeal from the same judgment maintaining the incidental demand. 6-Judgment sent to appeal court for transmission to trial court-Petition to suspend execution-Jurisdiction.] record to be transmitted to the Superior Court having received full effect by its being sent to the Court of King's Bench, ajudgehasnolonger jurisdiction to grant a petition for stay of execution of such judgment pending petition for leave to appeal to the Privy Council. 7-Jurisdiction - Criminal matter - Dissenting opinion - Question of law - Section 1013, as enacted by 13-14 Geo. V., c. 41, section 1024 Cr.
The Supreme Court of Canada has no jurisdiction to hear an appeal against a conviction where only questions of fact are involved, since the announcement of any dissent in the court of appeal is in such a case prohibited (s. 1013 (5) Cr. C. as enacted by 13-14 Geo. V., c. 41).
An appeal lies to this court under 1024 Cr. C. read with s. 1013 Cr. C. only where a dissenting opinion has been expressed by a member of the court of appeal, upon a question which that court deems a question of law and pursuant to its direction. Mignault J. dubitante. DAvis v. THE 8- Jurisdiction - Final judgment - Supreme Court Act, s. 2, as amended by 10-11 Geo. V., c. 32-Insurance-Arbitration as to amount of loss-Decision of majority - Statutory condition 19241
IND
APPEAL-Concluded
No. 22-Alberta insurance Act, R.S.A.
[1922] c. 171-Interpretation Act, RS.A
On a submission to an arbitration of three persons under statutory condition No. 22 in schedule
C to The Alberta Insurance Act, R.S.A.
[1922] c. 171, to determine the amount of loss, the decision of a majority of the arbitrators is binding.
Mignault J. (dissenting)
.-In this case the appellate court, while deciding that the majority of the arbitrators could render a valid award, allowed an amendment of the statement of defence to the effect that the arbitrators had considered the replacement value and not the real value of the insured buildings and sent back the case for trial upon this issue.-Held, per Mignault J., that such a judgment was a final judgment within the meaning of s. 2 of the Supreme Court
Act as amended by 10-11 Geo. V, c. 32.- Judgment of the Appellate
Division
(20 Alta. L.R. 114) affirmed, Mignault J.
9-Jurisdiction - Action - Malicious prosecution-Jury awarding greater damages than claimed-Trial judge reducing amount
-Judgment reversed by appellate court- Appeal to Supreme Court of Canada- Death 6f plaintiff-Revivor of appeal by representative- New trial-Order conditional........................
10-Right of Appeal-Local Government
Board- Saskatchewan Act.............654
ARBITRATION AND AWARD-Insurance-Majority award.............. 531
See 8
ASSESSMENT
AND TAXES-Municipal Corporation-Crov land-Contract
-- Construction-B. N.A.
.
125- "The Town Act," R.S.S. [1909] c. 85, ss. 2 and 301.1
Certain land had formed part of an Indian reservation and was surrendered in trust for disposal by the
Crown. Under a contract with the
Crown the respondent paid an advance of
$10 per acre and the Indians were to share equally with it in the proceeds of sale of the townsite lots after the respondent had recouped itself for the advance and subdivision expenses; title to be retained in the Crown and patent to issue from it direct to each purchaser from the respondent.-Held, Davies C.J.
dissenting, that the respondent had no beneficial or proprietary interest in the land which would render it liable to assessment under "The
Town Act."
ASSESSMENT AND TAXES-Continued (R.S.S. [1909] c. 85), and that the land was at the time of the assessment Crown land and as such exempt from assessment.-Judgment of the Court of Appeal (16 Sask. L.R. 429) affirmed, Davies C.J. TowN oF V. CAN.. NOR. TOWN Co ...... 2-Income of non-residents derived from working of mines-Re-enactment of taxation clause - Retrospectivity - Ultra vires - B. N.A. Act [1867] s. 92, ss. 2-Taxation Act, R.S.B.C. [1911] c. 222, s. 155 -(B.C.)
Section 155 of the Taxation Act, R.S.B.C. [1911] c. 222, as re-enacted by section 25 of c. 89, 1918, has not the effect of making taxable the income of non-residents, as well as the income of residents, derived from the working of mines. The words therein "as provided in Part I," have reference not only to the manner and machinery of taxation of incomes but also to the persons to be taxed; and,-by Part I, the non-residents are expressly not assessable to income tax. Idington J. expressing no opinion.-Per Idington J. Section 19 of c. 89 of B.C. Statute of 1920, making the re-enactment of section 155 of the Taxation Act retrospective so as to make any person who earned income from mines in the years 1915 and 1917 liable to taxation under its provisions, is ultra ires.-Judgment of the Court of Appeal [1923] 3 W.W.R. 865) reversed. KINo.................... - Mining company - Deductions from gross income-Taxation Act, R.S.B.C. [1911] c. 222-(B.C.) 1917, c. 62, ss. 8, 15.]
In 1917, K. assigned to the appellant company an option to purchase certain mining properties from S.
By the assignment, the appellant acquired the immediate right to take possession of the property, to work it, to ship the ore produced and to retain 90 per cent of the proceeds, depositing 10 per cent in the Bank of Montreal to the credit of S. to be applied on the final instalment of the purchase price when paid but to belong to S. in any event. The appellant company was to pay $17,500 upon the execution of the option, the same sum in 1918, 1919 and 1920, and $80,000 in 1921.
In 1918, the appellant, being assessed to income tax in respect of the income derived from the mine, claimed as deductions: 1, as to the 10 per cent of the proceeds of the mine paid to S.; 2, as to the instalment of $17,500 paid to K.; 3, as to the costs of plant additions, and 4, for depletion of mine.
These deductions were disallowed by the Court of Revision.-Held, that (reversing the judgment of the Court of Appeal), as to tie first claim, the 10 per ASSESSMENT AND TAXES-Continued cent of the proceeds of the mine paid to the credit of S. should have been declared a proper deduction; (affirming the judgment of the Court of Appeal), as to the second claim, the determination of the assessor made in conformity with the provision of the Taxation Act, treating the payment of $17,500 as part of the purchase price and therefore chargeable against capital rather than against revenue, should not be disturbed; Idington
J. contra; as to the third claim, upon the facts, such expenses have been properly treated by the assessor as a capital expenditure; and as to the fourth claim, allowance for depletion of mine is entirely within the discretion of the Minister of
1017) reversed in part. v. THE
4-Lease-Demise of railway-Covenant lessee-Construction-Payment of taxes.]
In 1882 The N.B. and Can. Rd. Co. leased its railway to The N.B. Ry. Co. for 999 years and the lessee covenanted, inter alia, to pay "all taxes that may be lawfully assessed upon the (lessor) and upon the real and personal estate taken under this lease" and a rental of $35,000 per annum.-Held, affirming the judgment appealed from (50 N.B. Rep. 376), Idington J. diss. that, the covenant as to taxes only applied to those imposed in respect of the property demised and did not oblige the lessee to pay taxes imposed on the lessor under the Dominion Income
War Tax Act, 1917, and amendments.
NEW
Co. Co.
5-Bank branch-Personal property - Situs-Transmission of deposits head office or other branches-Arbitrary assessment.] Of the deposits by customers of the branch of the Bank of Nova Scotia at W. sufficient is retained by the branch to meet the requirements of its local business and the surplus transmitted to the head office or another branch to be used there.-Held, per Idington
Duff JJ., Anglin and Malouin JJ. contra, that the money so transmitted by the branch is not an asset of the bank localized at W. and cannot be taxed by the municipality personal property.- The bank was assessed by the municipality of W. on personal property valued at 865,600.-Held, per Mignault
J. that no justification is given for such assessment which must have been made arbitrarily and without consideration of the real value of the personal property of the branch and cannot be allowed to stand.-Judgment of the Supreme Court of New Brunswick (50 N.B. Rep. 435)
ASSESSMENT AND TAXES--Continued reversed, Anglin and Malouin JJ. dis- W OODSTOCK..................*..... 6--Excise tax-Dominion Sales Act, 5 V., s. amended 11-12 V., s. 19BBB and V., c. 13-Tax on manufacturers-Sale direct consumers.] By
War Revenue Act of as amended in and 1922, a tax is imposed on sales by manufacturers to consumers, the purchaser in each case to be given an invoice. -Held, that notwithstanding the difficulty of furnishing invoices of sales for very small amounts, and that in such cases the exact amount of the tax cannot be collected from the purchaser, the manufacturer of candy for sale over the counter at 30 cents and 40 cents per pound is liable for the amount of the prescribed tax on each such sale. Valuation Machinery -Action nullity
Superior Court-Art. 50 C.C.P.-Arts. 16 430, 656, 662, 664
The appellant is owner of a pulpmill located in the municipality respondent.
The valuation roll included in the value of the property assessed the value of a large quantity of machinery.
The appellant took an action before the Superior Court under Art. 50 C.C.P. to have the roll declared null and void.-Held, that the machinery was non-assessable as immovable property under articles 16 (27), 651 and 656 M.C. Idington and Malouin JJ. expressing no opinion.- Held also, Idington and Malouin JJ. dissenting, that the appellant had the right to take proceedings before the Superior Court under article 50 C.C. P. in order to have the valuation roll declared null.
having been assessed for property non-assessable, the valuation roll was void ab initio and this case falls within the principle of the decision of the Privy Council in Toronto Railway Company v. City Toronto A.C.
809)--Per
Anglin Mignault JJ. The decision in Shannon Realties Limitt d v. Ville St. Michel A.C. applies only when, the subject matter the assessment being within the jurisdiction of the assessors, the grounds of complaint are illegality, over-valuation or other causes injustice in the making of the valuation roll (Arts. 430, 662, 664 LAMALBAIE... & -- Taxation - Exemption- "Building used for church purposes"-School Assessment Act, R.S.A. c. 52, s. 24 (d).- Appeal against assessment-Right to exemption after. A building was owned a religious order incorporated by Act ASSESSMENT AND TAXES-Concluded of Parliament whose members were priests the Greek Ruthenian Church
Rite.
It was built, used and occupied a seminary for education of missionary priests, no charge being made for their education and maintenance, and at one end thereof on the first floor was a chapel where mass was usually held daily except on Sundays when it was held in a church of the order on the opposite side of the road.- Per Idington, Duff and Newcombe JJ.
The building could not be deemed to be one "used for church purposes" within the meaning of 24 "The School
Assessment Act, R.S.A. 52 and was not exempt from taxation.
Anglin
C.J.C. and Mignault and Rinfret JJ.
contra.-Held, also, that, although the had already submitted its assessment to the Court of Revision, as provided for by the School Assessment
Act of Alberta and further had appealed from that decision to the District Court, the appellant has still the right to institute the present action, as the question involved is one with regard to the jurisdiction to assess.
Toronto Railway Co. v.
City of Toronto A.C. 809) followed.
Idington J. (dissenting)
.-Judgment of the Appellate Division Alta.
L.R. 338) affirmed, this court being equally divided.
DISTRICT..................
9--Grain futures-Taxation on tracts..............................317
10- Municipal corporation-Exemption from taxes-Resolution of council--By-law- Approval of electors-Existing industry- 34 Vict., 18-(Q.) 34 Vict., 68, s. 943-(Q.) 40 Vict., 29, ss. 229,
366-(Q.) 44-45 Vict., 20, 62 Vict.,
39, s. 1-R.S.Q. ss. 4004, 4005,
4006, 4559, 4642, 4643-R.S.Q.
s. 5775-Charter of Maisonneuve, Vict.,
57, 65; 63 Vict., 53, s.
AUTOMOBILE INSURANCE-Insured injuring own child-Action tutor against father-Damages paid without consent company-Right to recover-Arts. 165,250,
The appellant company issued in favour of the respondent an automobile insurance policy against loss from liability imposed by law upon him for damages resulting from any accident caused reason of the use of the respondent's automobile.
The respondent, while backing his car from his residence to the public highway, ran over and injured his minor son.
The respondent took the necessary steps to have a tutor appointed to enable an action to be brought by his son against himself for damages and was
AUTOMOBILE INSURANCE-Con. condemned to pay $5,000.
The respondent paid this amount to the tutor before the delay for appealing had expired and while the appellant company was considering the advisability of so appealing. The liability of the appellant under the policy was subject to certain conditions amongst which were condition which provided that the assured should "at all times render to the company all co-operation and assistance within his power," and condition E. which provided that settle without the written previously given."
Upon an action by the respondent to recover from the insurers the amount of $5,000 paid by him to the tutor.- Held, Idington J. dissenting, that was not entitled to recover on the policy, as such payment by him without the consent the company was a voluntary payment and constituted a settlement the claim made in violation condition E. of the policy.- Per Davies C.J. and Duff J. Such payment of condition of the policy.-Held also that the respondent was guilty of actionable negligence against his own child for which he was liable under Art. C.C.
Anglin J. semble.-Per Idington J. (dissenting).
Such payment was not such an acquiescence in the judgment as to bar an appeal by the company, if it had been desirous to take it.-Judgment the Court of King's Bench (Q.R. K.B. reversed, Idington J. dissenting. & MARCHAND............... 2-Fire and theft-Insurance Act, R. 183-Application of ss. and 195-Special condition in policy- Representation-Materiality to risk.] Sectnotwithstanding its position among a group of sections under the heading "Contracts of Fire Insurance" applies to all kinds of insurance and requires the statutory conditions to be printed every policy insuring against fire and other causes loss.-Qu. Should they be printed on a policy that does not insure against loss by fire?-In an action on a policy insuring, on payment a single premium, an automobile against loss fire or theft in which action loss by theft alleged, the insurer cannot invoke breach of a special condition restricting the use of the automobile when such condition is not printed in the form required by section of the Act.- If the insured, on applying for the insurance, in answer to a question asked the company's agent states that the car was paid for when he had given a promissory note for part of the price which was AUTOMOBILE INSURANCE-Con.
paid at maturity he is not guilty of omitting to disclose a circumstance material to the risk which would avoid the policy.
AssURncE CO. V.
BAIL-Criminal lao-Appeal-Jurisdiction-Section 1019 Cr.
BANK-Assessment taxes-Bank branch-Personal property--Situs-Transmission of deposits to head office or other branches-Arbitrary assessment.] Of the deposits by customers of the branch of the Bank of Nova Scotia at W. sufficient is retained by the branch to meet the requirements of its local business and the surplus transmitted to the head office or another branch to be used there.-Held, per Idington and Duff JJ., Anglin and
Malouin JJ. contra, that the money so transmitted by the branch is not an asset of the bank localized at W. and cannot be taxed by the municipality as personal property.-The bank was assessed by the municipality of W.
on personal property valued at $65,600.-Held, per
Mignault J. that no justification is given for such assessment which must have been made arbitrarily and without consideration of the real value of the personal property of the branch and cannot be allowed to stand.-Judgment of the
Supreme Court of New Brunswick (50
N.B. Rep. 435) reversed, Anglin and
Malouin JJ. (dissenting)
.
TOWN OF .........
BONA VACANTIA - Illegitimate child- Devolution of estate.................
BY-LAW-Building restrictions .....
2--Exemption from taxes-Approval of electors.......................
CAPIAS-Abandonment by debtor before judgment-Surety-Liability-Arts.
913,
926, 930, 854 to 892 C.C.P.]
In order to relieve the surety of a debtor arrested under a writ of capias ad respondendum from the conditional obligation he is required to assume to answer for the debt
(Art. 913 C.C.P.), the debtor must make an abandonment of property within thirty days after the rendering of judgment maintaining the capias. An abandonment preceding such judgment is insufficient to relieve the surety.
RAYv. DuvAL...................
CASES-American Druggists' Syndicate v*
The Bayer Company ([1923] Ex. C.R. 65)
rev..................
. .. .......
CASES-Continued
2----Caledonian Insurance Co. v. The King (33 B.C. Rep. 29) aff ........ 3-Canadian National Railways Clark ([1923] S.C.R. 730) disc ...... 4--Canadian Pacific Ry. Co. v. Smith (62 Can. S.C.R. 134) disc......... 5--Channell Ltd. v. Rombough (33 B.C. R. 452) afl...................
6--Chase v. Starr (33 Man. R. 233) aff. ..... ........... 7-Clinton v. County of Hastings (53 Ont. L.R. 266) aff..
..... See CORPORATION 3. 8-Corporation of Chambly v. Lamoureux (19 Rev. L6g. 312) disc...... .. 9--Cdtd v. Richardson (38 Can. S.C.R. 41) no longer applicable........... 10--Cridland v. City of Toronto (48 Ont. L.R. 266) fol.. ............
11-Dipelteau v. Birard (Q.R. 34 K.B. 515) rev.......................... 12-Dupre v. City of Montreal (Q.R. 35 K.B. 43) rev ..................... 13-Fidelity & Casualty Co. of New York v. Marchand (Q.R. 35 K.B. 5) rev. .....
. .......................... 14-Orand Trunk Ry. Co. v. McDonald (57 Can. S.C.R. 268) fol.......... 15-Orunder Estate, In re W .W .R. 161) rev................. 16- Indermaur v.
Dames (L.R. 2 C.P. 311) disc.................... 17-Kamsack, Town of, v. Can. Nor. Town Properties Co. (16 Sask. L.R. 429) aff...........................
18- Kent v. The King ([1923] 3 W.W. R . 865) rev....................... 19- King, The, v. Town of Woodstock (50 N.B. Rep. 435) rev............ See TAXEs 4. CASES-Continued
20-Kinghorn v. Larue (22 Can. S.C.
R. 347) fol.......................
21-Lew v. Lee (33 B.C. Rep. 271)
varied............................
22-Livesley v. Horst (34 B.C. Rep. 19)
aff..............................
23- Local Government Board v. Grand
Council of Can. Order of Chosen Friends
(18 Sask. L.R. 280) aff ............
24-Mackay Co. v. British American
Assur. Co. ([1923] S.C.R. 335) disc.. 666
See FIRE 4.
25- Martin v. National Union Fire
Ins. Co. ([1923] 3 W.W.R. 897) aff.. 349
See FIRE
26- McColl v. Canadian Pacific Ry.
Co. A.C. 126) disc..........
27-McPherson v. Fidelity-Phenix Ins.
Co. ([1924] 2 W.W.R. 1019) aff ......
See FIRE 4.
28-New Brunswick and Canada Railroad Co. v.
New Brunswick Ry. Co.
(50 N.B. Rep. 376) aff............
29--Ottawa Electric Ry. Co. v. LItang
(Q.R. 36 K.B. 512) rev............
30- Pulos v. Lazarus (57 Can. S.C.R.
337) no longer applicable..........
31---Quebec Liquor Commission v. Moore
(Q.R. 36 K.B. 494) rev............
32-Raymond v. Bosanquet (59 Can.
S.C.R. 452) dist..................
33-Rosebery-Surprise Mining Co. v.
The King ([1924] 1 W.W.R. 1017) rev. in part...........................
See TAXEs 3.
34-Ruthenian Catholic Mission v.
Mundare School District (20 Alta. L.R.
338) aff..........................
35-Ruthenian Farmers' Elevator Co. v.
Lukey W.W.R. aff.
36---Shannon Realties Ltd. v. Ville St.
Michel A.C. disc ....
See 2, 6.
CASES-Concluded
37--Sincennes-Mc Naughton Lines, Ltd. v. Bruneau (Q.R. 35 K.B. 247) aff .. 168 38--Smith v. Attorney-General of Ontario (53 Ont. L.R. 572)................ 39--Smith v. Glasgow
Underwriters (20 Alta. L.R. 114) aff ............ 40-Stone, In re (13 Sask. L.R. 159) aff.....
......................
41-Toronto Ry. Co. v. City of Toronto ([19041 A.C. 809) fol........... 511, 621 42- Vancouver Milling Co. v. The C.C. Ranch Co. (20 Alta. L.R. 307) aff.... 43- Van Dyke Co. v. Laurentide Co. (Q.R. 34 K.B. 565) rev............ 44-Workmen's Compensation Board v. Canadian Pacific Ry. Co. ([1920] A.C. 184) disc......................... CIVIL CODE-Art. 165 (Marriage). 86 2- Art. 250 (Tutorship) .......... 3- Art. 297 (Tutorship) .......... 4- Art. 944 (Substitution)...... 159 5-Art.
1053 (Fault)......86, 375, 4, 6-Art.
1054 (Fault) .......... 375, 540 See 4, 7. 7--Art. 1056 (Faull).........168, 8-Arts. 1065, 1069, 1073, 1074, 1075 (Effect of obligations) .............. 9-Art.
1106 (Joint and several obligation).........................
10--Art. 1235 (4) (Testimony).... 120 11--Arts. 1487, 1488, 1517, 1535 (Sale) ......... 12--Art. 1544 (Sale)............. 13-Art. 2390 (Maritime Lien).... 168 CODE OF CIVIL PROCEDURE-Art.
(Interpretative provisions) ........
2- Art. 50 (Superior Court)... 186,
3- Art. 500 (New trial)..........
4--Arts. 854 to 892 (Abandonment property).........................
- Arts. 913, 926, 930 (Capias) ....
6-' Art. 1248 (Appeal Court of King's
3ench)..........................
7--Art.
(Sale of property minors, &c.).....................
between vehicles-Accident-Negligence of both drivers-Joint and several liability
-Rule of common fault-Absence of fault the victim-Verdict - Articles 1053,
1054, 1106 C.C.-Articles 500,
1248 C.C.P.......................
COMMON FAULT- Negligence- Collision between vehicles- Accident Negligence of both drivers-Joint and several liability- Rule of common fault-Absence of fault the victim-Verdict-Articles
1054,1056, 1106 C.C.-Articles
500, 1248 C.C.P.
- Dominion company-Right to sell its shares-Provincial legislation-Prohibiting same without licence- Ultra vires- B. N.A. Act, sections 92-Interpretation Act, R.S.C. s. 30--Companies Act, R.S.C. 79, s. 5-The
Sale of Shares Act, R.S.S.
The respondent a company incorporated by authority of the
Parliament of Canada with its head in Winnipeg.
Its agent obtained in the
Saskatchewan from the appellant Lukey an application for shares in the respondent company for which he gave the promissory notes sued on.
This application was forwarded to Winnipeg where it was accepted and the shares allotted to him.
Section 4 of "The Sale of Shares Act" of Saskatchewan (R.S.S.
provides that "no person shall sell or offer or attempt to sell in without first taining from the Local
Government
Board a certificate; and in the case of agent a licence."
No such certificate or licence had been obtained by the respondent company or by its agent.- COMPANY-Concluded
Held, Idington J. (dissenting)
and Anglin J. expressing no opinion, that the provisions of section of "The Sale of Shares Act," in so far as they purport to apply to the sale of its own shares by a Domincompany, are ultra vires the provincial legislature.-Held also, Duff and Anglin JJ. contra, that there had been an attempt by the respondent to sell its shares in Saskatchewan within the meaning of section 4 "The Sale Shares Act."-Judgment the Court Appeal W.W.R. affirmed, Idington Fire-Quebec Federal winding-up-Deposit with Provincial Treasurer-Administration--Quebec Fire Insurance Act, R.S.Q. sections 6929, 6930, 6931, 6932,
When a fire insurance company incorporated under a Quebec charter is placed in liquidation, the administration the company's deposit made under the Quebec Insurance Act with the provincial treasurer for the guarantee of its insured is governed sections 6930 and 6931 and not by Co.; NICOL........ CONFLICT OF LAWS-Contract-Forcontract-Damages for breach-A ssessment of damages-Application of foreign law-Sale of Goods Act, R.S.B.C. 203, s.
The right to damages breach a contract made in a foreign country and to be executed there governed by the lex loci contractus and not by the lex fori.-Judgment the Court Appeal
B.C. Rep. V. HORST...... 605 Dominion company-Right to sell its shares-Provincial legislation-Prohibiting same without licence- Ultra vires-B. N.A. sections 92-Interpretation Act, R.S.C. 1, s. 30--Companies Act, R.S.C. s. 5-The Sale of Shares Act, R.S.S. ss. 4, respondent is a company incorporated by authority of the Parliament Canada with its head in Winnipeg. Its agent obtained in the province of Saskatchewan from the appellant Lukey an application for shares in the respondent company for which he gave the promissory notes sued on.
This application was forwarded to Winnipeg where it was accepted and the shares allotted to him. Section 4 "The Sale of Shares Act" Saskatchewan (R.S.S. provides that "no person shall sell or offer or attempt to sell in Saskatchewan any without first obtaining from the Local CONSTITUTIONAL LAW-Continued
I CONSTITUTIONAL LAW-Concluded Government Board a certificate; and the case an agent a licence."
No such certificate or licence had been obtained by the respondent company or by its agent.-Held, and Anglin J. expressing no opinion, that the provisions of section 4 of "The Sale
Shares Act," in so far as they purport to apply to the sale its own shares by a
Dominion company, are ultra vires of the provincial legislature.- Held also, Duff and Anglin JJ. contra, that there had been an attempt by the respondent to sell its shares in Saskatchewan within the meaning of section 4 of "The Sale
Shares Act."-Judgment of the Court
Appeal W.W.R. affirmed,
-Legislative jurisdiction-A ccident vessel-Right of surviving consort-Workmen's Compensation Act, R.S.Q.
Sections et sec.-Canada Shipping
Act. R.S.C. sections 915 to
921 -B. N.A. Act, sections 92- Edw. VII, 66, 1-Arts. 1056,
2390 C.C.1-Sections 7321 and 7323 the
Quebec Workmen's Compensation Act, in so far as they affect "workmen, apprentices in any transportation by water "are intra vires the provincial legislatures, as they are not in their operation necessarily in conflict with the provisions of the Canada Shipping Act, contained in sections 915 to 921 nor, per
Duff J., in their application to the circumstances of this case, with Article
2390 C.C. Workmen's Compensation Board v. Canadian Pacific Ry.
A.C. and McColl v. Canadian Pacific
Ry. Co. A.C. discussed.- The husband, de facto but not judicially separated from bed and board, has the right to claim indemnity as "surviving consort" under the provisions of clause of section 7323 of the Quebec Workmen's Compensation Act.-Judgment the Court of King's Bench (Q.R. 35 K.B.
247) affirmed.
Statute-Validity--Grain
Futures
Taxation Act, V., (Man.)]
The Grain Futures Taxation Act,
Manitoba, purporting to impose a tax upon every person whether broker, agent or principal, entering into a contract for the sale of grain for future delivery, is ultra vires of the legislature.
AcT, GEo. c. 17............
4-Temperance legislation - Temperance Act, 8, part IV, V.,
8 (D)-Ontario Temperance Act- Prohibition of sale of liquor-Action for declaratory judgment-Parties-Status.]
Part IV of the Canada Temperance Act enacted by Geo. V., 8, prohibiting, in a province which adopts it, the manufacture and importation of intoxicating liquor, is in force in Ontario.-The Ontario Temperance Act, 6 Geo. V., c. 50 and its amendments, is an Act prohibiting the sale of intoxicating liquor beverage purposes and enables the Legislative Assembly, by resolution and a vote favourable thereto, to make Part IV the Canada Temperance Act a law of the province notwithstanding it permits the manufacture and sale of wine containing a large percentage alcohol, the manufacture and export malt and spirituous liquors and extra-provincial transactions in liquor.-S., residing in Ontario, gave an order to a firm in Montreal to send him a specified quantity intoxicating liquor.
The firm refused the order the ground that by filling it the Ontario Temperance Act would be violated and brought an action against the Attorney General of Ontario asking for a judgment declaring that Part IV of the Canada Temperance Act was not in force in that province.-Held, that had no status to maintain such action.
Judgment of the Appellate Division (53 Ont. L.R. ONTARIO................. 5-Devolution of estates-Illegitimate child dying intestate, unmarried and predeceased mother-Right of other illegitimate child to inherit-The Devolution Estates Act (Sask. Ultra vires.] One Sarah Stone who died in left surviving two illegitimate sons and a number legitimate children. One the illegitimate sons, Enos Stone, died 1918 intestate, unmarried and domiciled in Saskatchewan.-Held that, under the provisions of sections 24 and 25 of The Devolution of Estates Act, Sask. the whole of the property of the deceased, both real and personal, passed to the other illegitimate son.-Sections 24 and 25 of The Devolution of Estates Act enact that illegitimate children shall inherit from the mother as if they were legitimate and through the mother dead any real or personal property which she would if living have taken purchase, gift, demise or descent from any other person and that if an intestate, being an illegitimate child, dies leaving no widow or husband or issue the whole such intestate's property, real and personal, shall go to his or her mother.- Held that these sections, amending the law of descent or inheritance, are intra vires of the legislature Saskatchewan.- Judgment of the Court Appeal (13 Sask. L.R. 159) affirmed.
...... 1--Sale - Option - Mine -Extension of time for payment-Condition-Damages.
The respondent, a mine owner, gave the appellant, a mine operator, an option to purchase a mine for a sum payable by instalments.
On the first instalment falling due, the appellant negotiated for an extension of time for payment which was granted by the respondent, on condition that the appellant should do certain development work not mentioned in the option. The appellant failed to pay;
he subsequently relinquished possession of the mine and surrendered the option, but without having done the work. The respondent sued for an account and for damages amounting to the cost of the work.-Held, Idington J. dissenting, that the respondent was entitled to recover.- Per Duff and Anglin JJ. Upon the assumption of a finding by the trial judge that the work was part of a scheme the execution of which the respondent regarded as essential to the proper development of the mine, the respondent had the right to ask as damages resulting from the breach of agreement the cost of performing the development work which the appellant had agreed to do and the measure of damages ought not, as is usual, to be restricted to the pecuniary value of the advantage the respondent would have obtained by performance of the agreement.-Per Idington J., dissenting. The undertaking to do the work in question and consideration therefor were not a collateral independent contract but by the express terms thereof declared to be a mere "modification of the terms and conditions" of the optional agreement for purchase, and should therefore be construed as if same had conditionally formed a clause therein, and thus subject to the effect to be given the pivotal and predominant provision thereof which entitled appellant at any time to terminate the whole agreements by the relinquishment, as happened, of his option, involving therewith the surrender to respondent of all machinery, implements and equipment by and with which it was contemplated the work in question was to have been done and thus creating such a situation as basis for estimating damages as never could be properly held to be the actual cost of the work, and thus within the reasonable contemplation of the parties which must ever form, according to our long settled rule of law, the basis for awarding damages for breach of such like contracts.
CUN- INSINGER..............
2 - "1920 cut"- "About 4,000 cords '-Construction.] The appellant sold to the respondent a certain
CONTRACT-Continued quantity of pulpwood described as follows: "All our rough pulpwood now hauled and being hauled (1920 cut) about four thousand cords, 4,000 cords *
*
*
*."-Held,
J. dissenting, that in the circumstances of this case the subject matter of the sale was the entire cut of 1920, the words "about 4,000 cords" being mere words of estimate as to quantity.-Judgment of the Court of King's Bench (Q.R. 34 K.B. 565) reversed, Idington J. dissenting. T. H. v. THE 3-Licensed pilots-Public officers - Agreement-Pooling of fees-Validity- Public order.] In 1918, the appellant and the respondents, being all the licensed pilots for the pilotage district of Montreal, entered into an agreement whereby for a period of twenty-five years they agreed to form an association with the view to further their common welfare and to divide all their earnings equally among themselves.
In May, 1921, the appellant having refused to pay over to the association the fees then earned by him as pilotage dues, the respondents sued him to recover the sum of $2,400.-Held that such an agreement was not illegal nor contrary to public order.
GAuTHIER........................ 4- Negligence-Contract-Work ordered by owner of building to employees of contractor - Accident - Temporary control- Absence of warning as to possible danger- Liability of Quebec Liquor Commission for tort, Arts. 1053, 1054 C.C.-The Alcoholic Liquor Act [1921] 11 Geo. V., c. 24.] The appellant was owner of a building used as a warehouse and had let through its manager A. a contract to H. for repairing the water spouts of the roof, including the erecting and demolition of the necessary scaffolding.
The work being nearly done, A. notified directly some employees of H. then on the premises that the windows must be closed for the protection of the stores against a possible fall in temperature during some coming holidays. Although forbidden to do so except by the orders of their immediate employer, the employees of H. started to remove the scaffolding in order to fulfil the request of A. who had no knowledge of the above prohibition. The respondent while entering the building on business with the commission was injured through the fall of a plank and sued the appellant to recover damages.-Held, Idington J. dissenting, that the appellant was not liable.-Per Anglin and Mignault JJ. Under the circumstances of this case the employees of H., in dismantling the scaffolding, did not pass under the CONTRACT-Concluded temporary control of the appellant and the latter did not become their patron momentand. Idington and Duff JJ. Contra
-Per Duff J. Upon the facts the appellant would have been liable owing to its default in neglecting to give warning of a possible danger to wayfarers in the street and particularly to persons entering and leaving the premises on business with the commission; but-Per Duff J.
The Quebec Liquor Commission, being an instrumentality of the Crown in right of the province of Quebec, is not answerable in an action for a delict committed by its servants. Idington J. contra, and
Anglin and Mignault JJ. expressing no opinion.-Judgment of the Court
King's Bench (Q.R. 36 K.B. 494) reversed,
5---Conflict of laws-Foreign contract- Damages for breach-Assessment of damages-Application of foreign law-Sale of
Goods Act, R.S.B.C. [1911], c. 203, s. 64.]
The right to damages for breach of a contract made in a foreign country and to be executed there is governed by the lex loci contractus and not by the lexfori.- Judgment of the Court of Appeal (34
B.C. Rep. 19; affirmed.
6--Construction-Municipal Corporation-Assessment and taxation-Crown land-B. N.A. Act, s. 125-"The Town
7-F.O.B. at point of shipment-Inability to obtain cars.....................
8-Breach-Damages ...............
CRIMINAL LAW - Bail - Jurisdiction-Section 1019
Cr. C.] A judge of the Supreme Court of Canada has no jurisdiction to admit to bail an accused person pending his appeal to this court, such jurisdiction being conferred by section 1019 (1) of the Criminal
Code upon the Chief Justice of the appellate court or a judge of that court designated by him.
KING..........................
2 - Jurisdiction viction-Appeal by the Attorney General- Addition to sentence-Art. 1013 Cr. C. as amended by 13-14 Geo. V., c. 41, s. 9- Art. 1024 Cr. C.]
The appellant was found guilty of a criminal offence and sentenced to pay a fine of $400, or to be imprisoned during three months in default of payment.
After the fine had been paid, the Attorney General appealed against the sentence under
CRIMINAL LAW-Concluded
Art. 1013 Cr. C., as amended by 13-14 Geo. V., c. 41, s. 9; and by judgment of the appellate court, in addition to the fine the appellant was condemned to be imprisoned for a period of six months.- Held that there is no jurisdiction in the Supreme Court of Canada to entertain a appeal, as, under section 1024 Cr. C., the right of appeal is restricted to an appeal against the affirmance of a conviction. Idington J. dubitante. 3- Appeal-Jurisdiction - Criminal matter-Dissenting opinion-Question of law-Section 1013, as enacted by 13-14 Geo. V., c. 41, section 1024 Cr. C.] Supreme Court of Canada has no jurisdiction to hear an appeal against a conviction where only questions of fact are involved, since the announcement of any dissent in the court of appeal is in such a case prohibited (s. 1013 (5) Cr. C. as enacted by 13-14 Geo. V., c. 41). Cr. read with s. 1013 Cr. C. only where a dissenting opinion has been expressed by a member of the court of appeal, upon a question which that court deems a question of law and pursuant to its direction.
Mignault J. dubitante. DAMAGES-Common fault-Jury misapprehending law - Apportionment-Correction on appeal.................. DECLATORY JUDGMENT....... DEVOLUTION OF ESTATES-Illegitimate child........................ ESCHEAT-Illegitimate child-Devolution of estate...................... ESTATE-Devolution of-Illegitimate child............................ ESTOPPEL-Fire insurance........ 348 EVIDENCE-Statute of Frauds-Memo in writing-Signature as oumer-Evidence of agency-Admissibility ........... EXCISE TAX-Assessment and taxes- Excise tax-Dominion Sales Act, 5 Geo. V., c. 8, s. 19 amended by 11-12 Geo. V., c. 5, s. 19BBB and 12-13 Geo. V., c. 47, s. 13- Tax on manufacturers-Sale direct to consumers.] By the Special War Revenue Act of 1915 as amended in 1921 and 1922, a tax is imposed on sales by manufacturers to consumers, the purchaser in each case to be given an invoice.-Held, that notwithstanding the difficulty of furnishing invoices of sales for very small EXCISE TAX-Concluded amounts, and that in such cases the exact amount of the tax cannot be collected from the purchaser, the manufacturer candy for sale over the counter at 30 cents and 40 cents per pound liable for the amount of the prescribed tax on each such
FRAUDULENT MISREPRESENTA- TION.......................
FOREIGN LAW.................
GRAIN FUTURES TAXATION ACT
.............
.. ............ .....
Repair-Dangerous place-Warning travellers- Negligence...............
ILLEGITIMATE CHILD-Devolution
ESTATE.........................
INSURANCE AUTOMOBILE-Insured injuring own child............. . ...
Fire and theft-Insurance Act, R.S.O.
183-Application of ss. and
195-Special condition in. policy-Representation-Materiality risk ........
INSURANCE, LIFE-Application - Statements insured-Non-disclosure- Materiality-R.S.O. 183, Insurance Act-5 V., 20, s. (0).- The Ontario Insurance Act, provides that no inaccuracy the statements contained in an application for insurance shall avoid the policy unless it is material to the contract.
A policy of life insurance declared that constitute the entire contract between the parties" and that the statements made by the insured should "be deemed representations not warranties."
In his application the insured declared that the statements and answers to the
Medical Examiner were true and were offered to induce the company to issue the policy.
The Medical Examiner by question asked:
What illnesses, diseases, injuries or surgical operations have you had since childhood.
Give the attacks, dates, duration, severity, etc., of each.
State every physician who prescribed for you or treated you or whom you consulted in
INSURANCE, LIFE-Concluded the preceding five years, and the nature of the complaints with full details under question
In reply to questions 19 and 20 the insured declared that he had answered the first two questions fully.- Held, that questions to 20 must be read together; that the insured was only required by to state what physicians had prescribed for or treated him or had been consulted in respect to the illnesses, etc., to be specified under Q. which did not comprise those which could be termed trivial ailments.
INSURANCE, FIRE - Agency - Draft for loss sent company-Signature insured procured fraud of agent-Subsequent action insured upon the draft- Company's responsibility-Estoppel.] The respondent had taken fire policies in several companies, amongst which were the appellant company and The Farmers'
Company, both represented by one Dace as their agent. The property insured having been destroyed by fire, the respondent received from the adjuster a memorandum shewing him entitled to $2,864.45 as against The Farmers' Company, and to $1,841.45 and $2,861.60, as against the appellant company, under two policies.
Later on, The Farmers' Company, sent to Dace their cheque payable to the respondent; and Dace appropriated its proceeds by forging the signature of the respondent. latter, pressing Dace for a settlement, the amount claim against The Farmers' Company. On the afternoon of the same day, Dace informed the respondent that the cheque of The Farmers' Company had arrived. At that time, Dace had also received from the appellant company two drafts, payable to the order of the respondent, for the amounts already mentioned. Dace then obtained the respondent's endorsement on the larger one of the drafts on the representation that it was the cheque of the Farmers' Company, which he would use to reimburse himself for his personal cheque, and also secured the respondent's signature on the other draft on the representation that it was a receipt, the execution of which was a formality required
Farmers' Dace indorsed both drafts and deposited them to his own credit, and they were later paid and charged to the appellant's account by its bank. respondent sued company on his policies and the defendant pleaded payment and release.-Held, Davies C.J. and Duff J. dissenting, that Dace, in the fraud practised upon the respondent, was acting within the scope 19241
INSURANCE, FIRE-Continued of his agency so as to make his fraid of his principals, the appellant company; and the indorsements on the drafts of the appellant company were not binding on the respondent in the circumstances in which they were given.- Per Davies C.J. and Duff J. (dissenting).
Dace did not profess to act and was not in fact acting within the scope his authority as agent of the appellant company; and as to the larger draft indorsed by the respondent, the latter was estopped from claiming upon it, as by his conduct he represented to the bank that
Dace was authorized collect it.-Judgment of the Appellate
Division W.W.R. 897) affirmed,
Davies C.J. and Duff J. (dissenting)
.
FIRE
MARTIN.............
-Quebec charter - Federal winding-up
-Deposit
Provincial Treasurer- Administration-Quebec Fire Insurance Act
R.S.Q. sections 6929, 6930, 6931,
6932,
When a fire company incorporated under a Quebec charter is placed in liquidation, the administration of the company's deposit made under the Quebec Insurance Act with the provincial treasurer for the guarantee of its insured governed by sections
6930 and 6931 and not by
FIRE
Ins. Co.; NICOL .........
3-Arbitration as to amount of loss- Decision of majority -Statutory dition No. 22-Alberta Insurance Act,
R.S.A. 171-Interpretation Act,
R.S.A. 1, ss. 29-Appeal- Jurisdiction-Final judgment - Supreme
Court Act, 2, as amended
V.,
On a submission to an arbitration of three persons under statutory condition No. 22 in schedule to The
Alberta Insurance Act, R.S.A.
to determine the amount of loss, the decision of a majority of the arbitrators binding.
Mignault J. (dissenting)
.-In this case the appellate court while deciding that the majority of the arbitrators could render a valid award allowed an amendment of the statement of defence to the effect that the arbitrators had considered the replacement value and not the real value of the insured buildings and sent back the case for trial upon this issue.-Held, per Mignault J., that such a judgment was a final judgment within the meaning of s. the Supreme
Court Act as amended by Geo. V.,
32.-Judgment of the Appellate Division (20 Alta. L.R. 114) affirmed, Mignault J. dissenting.
.................
INSURANCE, FIRE-Concluded 4-Warranty clause-Variations of statutory conditions-Want of proper form- Alberta Insurance Act,
R.S.A. s. A fire insurance policy on railway ties issued by the appellant company contained, immediately after word descriptive the subject insurance and its location, a clause reading
"warranted assured that the property insured is not within 1,000 feet of any scrub or brush nor within 50 feet of any railway track or siding."-Held that this clause was a variation of the statutory conditions, and, not being indicated as such in the manner required by 70 of the Alberta Insurance Act, R.S.A. was ineffective against the insured.
differences between the wording this clause and the one in The W. M. Mackay Co. v. The British America Assur. Co. S.C.R. 335) are of form merely and not substance.-Judgment of the Appellate Division 2 W.W.R. 1019) affirmed.
Res judicata-Appeal -Final judgment - Discretion.] An interlocutory judgment which definitely decides a question of law and which no appeal is taken may be res from judicata when the question is raised between the same parties even in the same action-On appeal to the Appellate Division from a decision of a judge refusing to grant an application payment out of court to the applicant over $6,000 the appeal court granted the application to the extent of $800 but refused any order as to the residue until rights of other parties had been determined-Held, Idington J. dissenting, that the judgment of the Appellate Division was not a "final judgment" as that term defined in the Supreme Court Act and was non-appealable the further ground that it is discretionary its nature.
Supreme section
37.-The judgment appealed against was affirmed as to the question Declatory.................... JURY - Negligence-Railway-Injury- Jury trial-Evidence--Question for jury.] Where there is.conflicting evidence on a question of fact, whatever may be the opinion of the judges of an appellate court as to the value of that evidence, the verdict of the jury should not be disturbed.
CANADIAN PAcIFIc Go................. 2- Vendor and purchaser-Contract for sale-Completion-Cheque for purchase JURY-Concluded money-Stoppage of payn c-Fraudulent misrepresentation-Instructions to jury- M isdirection......................
- A ction-Malicious prosecution - Jury awarding greater damages than claimed-Trial judge reducing amount- Judgment reversed appellate court- Appeal to Supreme Court of Canada- Death of plaintiff-Revivor of appeal by representative- New trial-Order conditional............
............
LEASE-Demise of railway--Covenant lessee-Construction-Payment of taxes.]
In 1882 The N.B. and Can. Rd. Co.
leased its railway to The N.B. Ry. Co.
for 999 years and the lessee covenanted, inter alia, to pay "all taxes that may be lawfully assessed upon the (lessor) and upon the real and personal estate taken under this lease" and a rental of $35,000 per annum.-Held, affirming the judgment appealed from (50 N.B. Rep. 376),
Idington J. diss., that the covenant as to taxes only applied to those imposed in respect of the property demised and did not oblige the lessee to pay taxes imposed on the lessor under the Dominion Income
War Tax Act, 1917, and amendments.
NEW
Co. RY. Co.... 450
LEGAL
MAXIM
Actio personalis moritur cum persona...............
LEVEL CROSSING - Negligence - Railway......................2,
See 1, 6.
LOAN-Promissory note-Prescription- Action for less and cross-demand for more than 82,000 ame judgment dealing with both-Jurisdiction.] The appellant was creditor and the respondent debtor of an annuity of $300. In May, 1923, the appellant sued the respondent for $150 then due.
The latter did not repudiate appellant's claim but pleaded that it was compensated by a loan of $3,000, represented by a promissory note, dated September,
1917; and the respondent also instituted a cross incidental demand for that amount. The appellant, in her answer, admitted the existence of the loan but added that the note was payable at her death only. The trial judge by the same judgment dismissed the appellant's action and maintained the incidental demand.- Held that a promissory note given in consideration of a loan of money, even though there be nothing commercial in the transaction, constitutes, if the note and the loan are made simultaneously and in absence of legal proof to the contrary, the contract between
LOAN-Concluded parties which is subject to the prescription of five years, and therefore the respondent had no existing claim against the appellant.-Held also that this court has authority to deal with the judgment in the principal action for an amount of $150 as ancillary to its authority to give effect to a judgment allowing the appeal from the same judgment maintaining the incidental demand.
v. e- LOCAL GOVERNMENT
BOARD - Statute-Interpretation-Order under-The Local Government Board (Special Powers) (Sask.)
1922,
- Right appeal.] There is no right of appeal from an order of the Local Government ment Board (Special Powers) Act, Sask., s. 1922, c. 13.-Judgment of the Court of Appeal (18 Sask. L.R. 280) affirmed. J. dubitante.
MARKET PRICE-Re-sale........ MASTER AND SERVANT-Contract for building-Order workman-Contra order owner . . .....
.
. ... .. .. See S
Option Extension of time for payment-Condition MINING COMPANY - Taxation - Deductions from gross income-Taxation Act, R.S.B.C. c. 222-(B.C.) 1917.
S. By assignment, the appellant acquired the immediate right to take possession of the property, to work it, to ship the ore produced and to retain 90 per cent of the proceeds, depositing 10 per cent in the Bank of Montreal to the credit of S. to be applied on the final instalment of the purchase price when paid but to belong to S. in any event.
The appellant company was to pay $17,500 upon the execution of the option, the same sum in 1918, 1919 and 1920, and $80,000 in 1921. 1918, the appellant, being assessed by income tax in respect of the income derived from the mine, claimed deductions: 1, as to the 10 per cent of the proceeds of the mine paid to S.; 2, as to the instalment of 817,500 paid to K.; 4, for depletion of mine.
These deductions were disallowed by the Court of Revision.]-Held, that
(reversing the judgment of the Court of Appeal), as to MINING COMPANY-Concluded the first claim, the 10 per cent of the proceeds of the mine paid to the credit of S. should have been declared a proper deduction; (affirming the judgment of the Court of Appeal), as to the second claim, the determination of the assessor made in conformity with the provision of the Taxation Act, treating the payment of $17,500 as part of the purchase price and therefore chargeable against capital rather than against revenue, should not be disturbed; Idington J.
contra; as to the third claim, upon the facts, such expenses have been properly treated by the assessor as a capital expenditure; and as to the fourth claim, allowance for depletion of mine is entirely within the discretion of the Minister of
Finance for the province (s. 6, s.s. 9 of c. 79 of the Statute of 1919.)-Judgment of the Court of Appeal ([1924] 1 W.W.R.
reversed part.
THE 445
MUNICIPAL
CORPORATION - Assessment and taxation-Crown land- Contract-Construction-B. N.A.
s.
125-"The Town Act," R.S.S.
Certain land had formed part of an Indian reservation and was surrendered in trust for disposal by the Crown.
Under a contract the Crown the respondent paid an advance of $10 per acre and the Indians were to share equally with it in the proceeds of sale of the townsite lots after the respondent had recouped itself for the advance and subdivision expenses;
title to be retained in the Crown and patent to issue from it direct to each purchaser from the respondent.]-Held,
Davies C.J. (dissenting)
, that the respondent had no beneficial or proprietary interest in the land which would render it liable to assessment under "The Town
(R.S.S. (1909] c. 85); and that the land was at the time of the assessment
Crown land and as such exempt from assessment.-Judgment of the Court of
Appeal (16 Sask. L.R. 429) affirmed,
Davies C.J. (dissenting)
.
TowN
2-Action to set aside by-law or procks verbal--Statutory means of relief-Supervising control of Superior Court-Art.
C.C.P.-Art. 430, 433
The right of appeal to the Circuit Court (Art.
430 M.C.) in order to set aside a municipal by-law or procks verbal does not exclude an action en nullit6 taken before the Superior Court under Art. 50 C.C.P., this right of action being expressly reserved by the Municipal Code (Art.
100 former M.C.; Art. 433 new M.C.)
Idington and Duff JJ. expressing no opinion.-Shannon Realties Limited v.
MUNICIPAL CORPORATION-Con. La Ville St. Michel
A.C. distinguished.
CoUNTY DRuMMoND ........... Repair place-Warning travellers- Negligence.] The failure of a municipal corporation to provide an adequate guard for the approach to a bridge at a place where the narrowing of the road and other conditions make such approach dangerous is a breach of its statutory duty to keep the highway in repair and makes it liable to compensate a person injured for want of such guard.
Raymond v. Bosanquet (59 Can. S.C.R. 452) dist.- Judgment of the Appellate Division (53 Ont. L.R. 266) affirmed.
4-Exemption from taxes-Resolution council-By-law--Approval of electors- Existing industry-(Q.) 34 Vict., 34 Vict., c. 68, s. 943-(Q.) 40 Vict., c. 29, ss. 229, 231, 366-(Q.) 44-45 Vict., c. 20, 62 Vict., c. 39, s. 1-R.S.Q. [1888] ss. 4004, 4005, 4006, 4559, 4642, 4643-R.S.Q. 5775-Charter Maisonneuve, 61 Vict., 57, s. 65; Vict., c. 53, s. 19.]
A town corporation governed by the provisions of the "Cities and Towns Act"
(R.S.Q. [1888] Title XI) cannot by a mere resolution of -its council exempt from the payment of municipal taxes a party not actually carrying on an industry within its limits, but such exemption must be granted by a by-law brought before the council at two different meetings.
Duff and Maclean JJ. contra. Corporation of Chambly v. Lamoureux (19 Rev. Leg. 312) discussed.-Per Idington and Mignault JJ. Such a by-law does not require the approval of the municipal electors who are proprietors. Malouin J. contra.- (Q.R. 35 K.B. 43) reversed, Duff and Maclean JJ. dissenting.
5--By-law-Building restrictions- Prior status of owner-Deposit of plans-Legal right to permit-Municipal Act, V., c. 63, s. 10.]
The Municipal Act of Ontario by section 399a passed in 1921 empowers the council of a city, inter alia, to pass a by-law to prohibit, within a defined area, the erection of any building other than a private dwelling but such by-law is not to apply to any building the plans for which were approved by the city architect before it was passed. The city of Toronto passed such a by-law in respect to part of a street on which the Separate School Board owned two lots on which it intended to erect a school house and had filed the plans therefor with the architect who refused to grant MUNICIPAL CORPORATION-Con.
he permit to build by direction of the
Board of Control in view of the contemplated by-law.- Held, reversing the judgment of the Appellate Division (54
Ont. L.R. 224) and applying Cridland v. City of Toronto (48 Ont. L.R. 266)
Idington J. (dissenting)
, that the architect had no right to refuse to issue the permit;
that under the law as it stood the Board was entitled to have its plans considered and approved if in conformity with the law; and the by-law in this case was not a valid exercise of the statutory authority.
CITy or v. THE To- RONTO..........................
Valuation
Pulpmill
Machinery-Action nullity before
Superior
Court-Art.
C.C.P.- Arts. (27),
430,
656,
662,
664 M.C.1
The appellant is owner of a pulpmill located in the municipality respondent.
The valuation roll included in the value of the property assessed the value of a large quantity of machinery.
The appellant took an action before the
Superior Court under Art. 50 C.P.C. to have the roll declared null and void.- Held that the machinery was non-assessable as immovable property under articles
16 (27), 651 and 656 M.C.
Idington and
Malouin JJ. expressing no opinion.- Held also, Idington and Malouin JJ.
dissenting, that the appellant had the right to take proceedings before the
Superior Court under article 50 C.C.P.
in order to have the valuation roll declared null. The appellant having been assessed for property non-assessable, the valuation roll was void ab initio and this case falls within the principle of the decision of the Privy Council in Toronto Railway
Company v. City of Toronto ([1904) A.C.
809).-Per Anglin and Mignault JJ.
The decision in Shannon Realties Limited
Ville St. Michel
A.C. 185)
applies only when, the subject matter of the assessment being within the jurisdiction of the assessors, the grounds of complaint are illegality, over-valuation or other causes of injustice in the making the valuation roll (Arts. 430, 662, 664
M.C.)
DoNoHUE LA
7-Negligence--City operating winter slide-Accident-Liability- Ultra vires.]
In January, 1923, the city respondent at the occasion of a winter carnival converted portion of a street into a coasting slide for bobsleighs.
At the head the slide, the city placed one of its employees in charge with instructions to see to the starting of sleighs and to collect the tolls prescribed for the use of the slide.
The city bad also there other men employed generally in connection with the
MUNICIPAL CORPORATION-Con. slide.
The appellants, Dr. Dixon and his wife, went down the slide in a bobsleigh until they reached a curve on the roadway where the city had constructed an embankment; and then a rut caused the sleigh to upset, its occupants falling off and finding themselves sprawling on the slide. The appellants then attempted to go off the path of the slide by crossing the embankment; but, the footing being found practically impassable on account of soft snow several feet in depth, the appellants crossed the slide again in order to go out on the other side. Just then another sleigh coming down upset with its occupants in front of the appellants further up. It was followed at a short interval by a third sleigh which, while apparently trying to avoid the second overturned sleigh, came into contact with Mrs. Dixon, who sustained serious injuries. The appellants brought action against the city respondent to recover damages.-Held, that as the city was responsible not only for the preparation of the slide but also had assumed its control, it was its duty to see that no sleigh would be started from the top until the slide was clear; and that the city was negligent in not having a signal man stationed at a convenient point of observation to give notice or warning to the starter of any obstruction on the part of the slide which the starter could not see on account of the curve of the roadway.-The city of Edmonton, by s. 221 of its charter (Alta. s. [1913], c. 23) is authorized to "make by-laws and regulations for the peace, order, good government and welfare of the city of Edmonton."- Held that the city had authority under that section to pass a by-law in order to operate the slide; and, as the question of ultra vires had for the first time been raised before this court it must be assumed that such a by-law had been passed.
DixoN THE CITY NEGLIGENCE - Level crossing-Absence of statutory signals- Proper lookout-Contributory negligence- Questions for the jury.] In an action against a railway company for injuries sustained through a collision of appellant's train with respondent's automobile at a railway crossing, it was established that appellant failed to give the statutory signals; and the respondent declared in his evidence that if the whistle had been sounded and the bell rung, he would have heard and thus avoided the accident. He also detailed circumstances which led to his not giving greater attention to the possibility of a train coming. The trial judge found negligence on the part of appellant but withdrew the case from the jury and dismissed the action on NEGLIGENCE-Continued the ground that the plaintiff was guilty of contributory negligence in not keeping a proper lookout for approaching trains.
On appeal, a new trial was ordered.- Held, Davies C.J. dissenting, that, it was a question for the jury to determine, having regard to all the circumstances, whether there was a reasonable excuse for the respondent's failure to perceive the approach of the train by which he was injured.-Canadian Pacific Railway
Co. v. Smith (62 Can. S.C.R. and
Canadian National Railways v. Clark
S.C.R. 730) discussed.-Judgment of the Court of Appeal W.W.R.
affirmed, Davies C.J. (dissenting)
.
2--Railway-Injury to passenger - Announcement of stoppage-Stoppage short of station-Mistaken belief of passenger- Finding of jury.] M. was travelling to
West Toronto on a G.T. train.
When the last station on his journey had been passed an official went through the train calling out "next stop" or "next station"
West
Toronto.
reaching station the train had to stop for a. few seconds in obedience to a stop signal and
M. went to the platform of his car, which there were no step doors, and alighted falling to the ground and sustaining severe injury.
In action against the Ry. Co. he admitted that he had understood the announcement to mean that the next station would be West
Toronto. The jury found negligence the company and that such negligence was-"We believe that the defendants trains use precaution to prevent passengers from alighting."
verdict for M. was maintained by the Appellate Division.- Held, Idington and Duff JJ. dissenting, that the action should be dismissed;
that it was the duty of the officials of the company to stop the train as they did;
that they were under no duty, either statutory or imposed by regulations of the
Railway Board, to warn passengers that the train had not reached the station which was the only precaution suggested on M's behalf as available; and that there was no breach of the common law duty to carry safely as, owing to the :brief period of the stoppage and the haste which M. left the car, an effective warning was not possible.-Per Duff J. By the announcement "next stop West Toronto"
M. was placed in a situation which, without further warning, might be one peril, and the trial judge refused to submit to the jury the suggestion of counsel that the announcement should have been accompanied by a warning that the train might stop at the semaphore, basing his refusal on the admission of M. that
NEGLIGENCE-Contnued he understood the announcement mean that the next station was West Toronto. This may have been regarded by the jury as a direction that on this crucial question such admission was conclusive against M. and there should be a new trial the finding of the jury as to negligence being too vague and uncertain to permit of a judgment against Injury
Jury trial Evidence-Question for jury.] Where there is conflicting evidence on a question fact, whatever may be the opinion of the judges of an appellate court as to the value of that evidence, the verdict of the jury should not be disturbed.
4--Collision between two vehicles-Accident-Negligence of both drivers-Joint and several liability-Rule of common fault- - Absence of fault the victim-Verdict- Articles 1053, 1054, 1056, 1106 C.C.-Art. icles 500, 1248 C.C.P.] In a case of collision between two vehicles in consequence independent acts of negligence committed by their respective drivers, both directly contributing to the accident and to the injury suffered by a person having no control over the driver of the vehicle in which he was travelling, both drivers are jointly and severally liable.
The Grand Trunk Ry. Co. v. McDonald (57 Can. S.C.R. 268) followed.-In such circum-stances, the rule of common fault (which mitigates the liability of the negligent party owing to the contributing fault of the victim) does not apply; and the injured person is entitled to the full amount of the damages suffered by him, as the negligence of the driver or of any other passenger of the vehicle cannot imputed to him.-The jury assessed the damages at $30,000; but under a niapprehension as to rule of law applicable to the case (the question of common fault above stated), they awarded only "fifty per cent of the damages" to the respondent.- Held, Mignault J. dissenting, that the Court of King's Bench had authority under the provisions of articles and 1248 C.C.P. to give effect to the conclusion necessarily resulting from the findings of the jury under a proper application of the law; and that court had the right, when affirming the judgment of the trial judge, to award to the respondent the full amount of the damages as found by the jury.
Co. Duos................
A train, drawn by a locomotive with tender attached and moving reversely, so that the tender is foremost, is not a train "not headed by an engine" within the purview of section
310 of the Dominion Railway Act as enacted by 9-10 Geo. V., c. 68. Idington and Malouin JJ. dissenting.
Ry. Co. v.
6--Injury-Obvious danger- Knowledge injured person - Liability.] The respondent brought an action against the appellant company to recover damages suffered by his wife in passing over a stairway leading to the appellant's station. It was proved by the respondent that the stairway was, at the time of the accident and had been for a considerable time before, covered with ice and snow to such an extent that it was extremely dangerous for any person to use it. The respondent's wife had used these steps twice daily on six days of the week during that period and it was shown that there was a safer route of approach.- Held, Idington J. dissenting, that the danger being so obvious that, if actual knowledge of it should not be inferred, notice of its existence must be imputed to the injured person, and there was no duty owing to her in respect of it by the appellant company, and therefore no actionable breach of duty. Indermaur v. Dames (Q.R. 2 C.P. 311) discussed.- (Q.R. 36 K.B. 512) reversed, Idington J.
THE C .
v. LETANG........................
7--Contract-Work ordered by owner of building to employees of contractor- Accident-Temporary control-Absence of warning as to possible danger-Liability of Quebec Liquor Commission for tort,
Arts. 1053,
1054 C.C.-The Alcoholic
Liquor Act [1921] 11 Geo. V., c. 24.]
The appellant was owner of a building used as a warehouse and had let through its manager A. a contract to H. for repairing the water spouts of the roof, including the erecting and demolition of the necessary scaffolding.
The work being nearly done, A. notified directly some employees of H. then on the premises that the windows must be closed for the protection if the stores against a possible fall in temperature during some coming holidays.
Although forbidden to do so except by the orders of their immediate employer, the employees of H. started to remove the scaffolding in order to fulfil the request of A. who had no knowledge of the above prohibition.
while entering the building on business with the commission was injured through the fall of a plank and sued the appellant
NEGLIGENCE-Continued to recover damages.-Held, Idington J. dissenting, that the appellant was not liable.-Per Anglin and Mignault JJ. Under the circumstances of this case the employees of H., in dismantling the scaffolding, did not pass under the temporary control of the appellant and the latter did not become their patron momentand. Idington and Duff JJ. contra. -Per
Duff J. Upon the facts the appellant would have been liable owing to its default in neglecting to give warning of a possible danger to wayfarers in the street and particularly to persons entering and leaving the premises on business with the commission; but-Per Duff J. The Quebec Liquor Commission, being an instrumentality of the Crown in right of the province of Quebec, is not answerable in an action for a delict committed by its servants.
Idington J. contra and Anglin and Mignault JJ. expressing no opinion.- (Q.R. 36 K.B. 494) reversed. Idington J. MOORE................. 8---City operating winter slide-Accident-Liability- Ultra vires.] In January, 1923, the city respondent at the occasion of a winter carnival converted portion of a street into a coasting slide for bobsleighs.
At the head of the slide, the city placed one of its employees in charge with instructions to see to the starting of sleighs and to collect the tolls prescribed for the use of the slide. The city had also there other men employed generally in connection with the slide. The appellants, Dr. Dixon and his wife, went down the slide in a bobsleigh until they reached a curve on the roadway where the city had constructed embankment; and then a rut caused the sleigh to upset, its occupants falling off and finding themselves sprawling on the slide.
The appellants then attempted to go off the path of the slide by crossing the embankment;
but, the footing being found practically impassable on account of soft snow several feet in depth, the appellants crossed the slide again in order to go out on the other side. Just then another sleigh coming down upset with its occupants in front of the appellants further up.
It was followed at a short interval by a third sleigh which, while apparently trying to avoid the second overturned sleigh, came into contact with Mrs. Dixon, who sustained serious injuries. The appellants brought action against the city respondent to recover damages.-Held that, as the city was responsible not only for the preparation of the slide but also had assumed its control, it was its duty to see that no sleigh would be started from the top until the slide was clear; and that the NEGLIGENCE-Concluded city was negligent in not having a signal man stationed at a convenient point of observation to give notice or warning to the starter of any obstruction on the part of the slide which the starter could not see on account of the curve of the roadway.-The city of Edmonton, by s.
221 of its charter (Alta. [1913], c. 23), is authorized to "make by-laws and regulations for the peace, order, good government and welfare of the city of Edmonton."-Held that the city had authority under that section to pass a by-law in order to operate the slide; and, as the question of ultra vires had for the first time been raised before this court it must be assumed that such a by-law had been passed.
DixoN v. CITY
EDMONTON........................
9 - -Repair
Warning travellers.......................
NEW TRIAL.....................
PARTITION-Statute of Limitations - Possession of land-Interruption-Proceedings for partition-Declaratory judgment..........
............
See LIMITATIONS.
PILOTAGE-Contract - Licensed pilots
Public
Pooling of fees-Validity-Public order.] In 1918, the appellant and the respondents, being all the licensed pilots for the pilotage district of. Montreal, entered into an agreement whereby for a period twenty-five years they agreed to form an association with the view to further their common welfare and to divide all their earnings equally among themselves.
In May, 1921, the appellant having refused to pay over to the association the fees then earned by him as pilotage dues, the respondents sued him to recover the sum of $2,400.
Held that such agreement was not illegal nor contrary to public order.
PRESCRIPTION - Promissory note - Loan - Both made simultaneously.. 436
And See
PROBATE-Surety bond-Succession duty
............
... 207, 406
See SuccEssION 2.
PROMISSORY NOTE - Loan - Bcth made simultaneously-Prescription-Action for less and cross-demand for more than
$2,000-Same judgment dealing with both- Jurisdiction.] The appellant was creditor and the respondent debtor of an annuity
PROMISSORY NOTE-Concluded of $300.
In May, 1923, the appellant sued the respondent for then due. The latter did not repudiate appellant's claim but pleaded that it was compensated by a loan of $3,000, represented a promissory note, dated September, 1917; and the respondent also instituted a cross incidental demand for amount.
The appellant, in her answer, admitted the existence of the loan but added that the note was payable at her death only. The trial judge by the same judgment dismissed the appellant's action and maintained the incidental demand.- Held that a promissory note given consideration of a loan of money, even though there be nothing commercial the transaction, constitutes, if the note and the loan are made simultaneously and in absence legal proof to the contrary, the contract between the parties, which is subject to the prescription five years; and therefore the respondent had no existing claim against the appellant.- Held also that this court has authority to deal with the judgment in the prjncipal action for an amount $150 as ancillary to its authority to give effect to a judgment allowing the appeal the judgment maintaining the incidental
QUEBEC LIQUOR COMMISSION - Liability for tort.................... See 8.
RAILWAY- Negligence-Level crossing- Absence of statutory signals-Proper lcokout-Contributory negligence-Questions for the jury.] In an action against a railway company for injuries sustained through a collision of appellant's train with respondent's automobile at a railway crossing, it was established that appellant failed to give the statutory signals; and the respondent declared in his evidence that the whistle had been sounded and the bell rung, he would have heard and thus avoided the accident. He also detailed circumstances which led to his not giving greater attention to the possibility a train coming.
The trial judge found negligence on the part of appellant but withdrew the case from the jury and dismissed the action on the ground that the plaintiff was guilty of contributory negligence in not keeping a proper lookout for approaching trains.
On appeal, a new trial was ordered.-Held, Davies C. J. dissenting, that it was a question for the jury to determine, having regard to all the circumstances, whether there was a reasonable excuse for the respondent's failure to perceive the approach of the train by which he was injured.-Canadian RAILWAY-Continued
Pacific Railway Co. v. Smith (62 Can.
C.R. 134) and Canadian National Railways v. Clark S.C.R. 730) discussed.-Judgment
Appeal W.W.R. affirmed,
Davies
C.J.
RY. V.
Injury
Announcement of stoppage-Stoppage short of station-Mvlistaken belief of passenger- Finding of jury.] M. was travelling to
West Toronto on a G.T. train.
When the last station on his journey had been passed an official went through the train calling out "next stop" or "next station"
West Toronto.
reaching station the train had to stop for a few seconds in obedience to a stop signal and
M. went to the platform of his car, which there were no step doors, and alighted falling to the ground and sustaining severe injury.
In action against the Ry. Co. he admitted that he had understood the announcement to mean that the next station would be West
Toronto.
The jury found negligence the company and that such negligence was-"We believe that the defendants trains use precaution to prevent passengers from alighting."
A verdict for M. was maintained by the Appellate Division.- Held, Idington and Duff JJ. dissenting, that the action should be dismissed;
that it was the duty of the officials of the company to stop the train as they did;
that they were under no duty, either statutory or imposed by regulations the Railway Board, to warn passengers that the train had not reached the station which was the only precaution suggested on M's behalf as available; and that there was no breach the common law duty to carry safely as, owing to the brief period of the stoppage and the haste which M. left the car, an effective warning was not possible.- Per Duff J.
announcement "next stop West Toronto"
M. was placed in a situation which, without further warning, might be one of peril, and the trial judge refused to submit to the jury the suggestion counsel that the announcement should have been accompanied by a warning that the train might stop at the semaphore, basing his refusal on the admission of M. that he understood the announcement to mean that the next station was
West Toronto.
This may have been regarded by the jury as a direction that on this crucial question such admission was conclusive against M. and there should be a new trial the finding of the jury as to negligence being too vague and uncertain to permit of a judgment against the
RY. Co. or .....
RAILWAY-Concluded
3--'Negligence-Level crossing-Engine with tender leading-' Section 310 of the Dominion Railway Act-Interpretation- Dominion Railway Act,
R.S.C. 2, 25, 34, s. 276; 9-10 Geol V., s.
train, drawn by a locomotive with tender attached and moving reversely, so that the tender foremost, is not a train "not headed by an engine" within the purview of section 310 of the Dominion Railway Act as enacted by 9-10 Geo. V., 68.
and Malouin JJ. dissenting.
RY. RES JUDICATA................ RESTRAINT OF TRADE......... REVIVOR OF APPEAL........... SALE OF GOODS-Breach of contract- Damages-Market price-Re-sale-Refusal buyer-Acquiescence to late delivery-Arts. 1069, 1073, 1074, 1075, 1235 1544
The appellant contracted to purchase from the respondent five car-loads of flour to be shipped in the month of November, 1920. the 29th of November, the appellant notified the respondent that delivery the goods would not be accepted unless, in accordance with an alleged custom of trade, the contract price should be reduced to the market price at the time of delivery.
The respondent refused to accede to the demand and had one car shipped on the 29th November, two on the 30th of November and two on the 3rd of December. The appellant having definitely refused to take the flour on the 1st of December, the respondent held it warehouse for a long time and resold only on the 12th of January, on a falling market and at a price substantially lower than had been obtainable in the beginning of December.
then brought an action against the appellant for breach contract, claiming as the difference between contract price and the price received the re-sale.-Held that, in a contract sale, if the buyer illegally refuses to accept the goods, the proper measure damages arising from the breach of contract is the difference between the contract price and the market price on the date of the breach, and not the loss to the vendor on subsequent re-sale by him the goods.-Held, also, that the refusal of the goods by the buyer for an unfounded reason did not, under the circumstances, prevent him from complaining, as to the goods shipped in December, that the shipment was too late.
8.C. SALE OF GOODS-Concluded
2 - Contract cut"-"About cords"-Construction.]
The appellant sold to the respondent a certain quantity of pulpwood described as follows: "All our rough pulpwood now hauled and being hauled cut)
about four thousand cords, 4,000 cords
*
* *."-Held, Idington J. dissenting, that in the circumstances of this case the subject matter of the sale was the entire cut of 1920, the words "about 4,000 cords" being mere words of estimate as to quantity.-Judgment of the Court
King's Bench (Q.R. 34 K.B. 565) reversed,
T. H.
Co. Co.. 294
3--Contract to supply f.o.b. at point shipment-Liability to obtain cars-Rights and obligations of seller and buyer-Implied condition as cars being obtainable.]
September 1922, the respondent,
Cayley, Alberta, contracted to supply to the appellant, of Vancouver, 30,000 bushels of wheat f.o.b. cars, Cayley, shipment to be made during September and October.
Four shipments to Vancouver were made, but the Canadian
Pacific the only railway at Cayley, refused, from October to October 30, to accept shipments of wheat to Vancouver.
notified the railway company of its requirements of cars, and was ready, able and willing to deliver the balance the wheat on the cars at Cayley before the end October if cars could have been obtained.
The appellants claimed damages for non-delivery.-Held that the respondent was not liable as delivery within the stipulated period was excused to the extent to which it was prevented by the railway company's inability or refusal to supply necessary cars.-Per
Anglin C.J.C. and Idington, Mignault,
Newcombe and Rinfret JJ. Where from the nature of the contract and the circumstances under which it was made it apparent that the parties must have proceeded on the footing that certain conditions, without which performance would be impossible, should exist, their existence may be regarded as an implied term of the obligation undertaken and non-performance due to their non-existence, without default of the obligor, will relieve him from performance.-Judgment of the Appellate Division (20 Alta. L.R.
307; affirmed.
C.C. Co..
4- Vendor and purchaser-Contract for sale-Completion-Cheque for purchase money-Stoppage of payment-Fraudulent misrepresentation-Instructions jury- Misdirection ......................
SALE OF LAND-Crop payment agreement-"Crop payments Act" (R.S.S.) 1920, 126, s. 3-Strict construction- Attornment clause-Premature seizure grain vendor.
2----Contract
Mine tension of time for payment-Coition- Damagees.......................... 3-Substitution-Property owned eral institutes- Undivided ownership- Sale without consent of all-Arts. 297, 944, 1487, 1488, 1517, 1535 C.C.-Art. 1342 C.C.P ........................
SALES TAX
SHIPPING LAW-Charter party-Demise-War Measures Act, V., 2 (D)-Appropriation Crown of ship- Compensation-Indirect injury.] Though some provisions of a charter party and expressions used therein may indicate an intention to demise the ship to the charterers if other provisions and the purview of the whole document shew a contrary intention the shipowners do not lose possession.-By section 7 of the War Measures Act "Whenever any property or the use thereof has been appropriated by His Majesty under the provisions this is to be made therefor and has not been agreed upon the claim shall be referred by the Minister of Justice to the Exchequer Court or to a Superior or County Court the province within which the claim arises or to a judge of any such court."-Held, affirming the judgment of the Exchequer Court Ex. C.R. that the charterer of a ship which not demised is not entitled to compensation under this section for loss of his rights and profits under the charter party.-Per Mignault J.
Section the War Measures Act does not create a liability but only provides a mode ascertaining the amount of compensation when the right to receive it is admitted.- Held, per Idington J., that the court judge to which a claim is referred is curia designata whose decision is final. Compensation Act.................. Succession duty - Probate-Surety bond-Lien- "Succession Duty Act"-R.S.B.C., 217, ss. 20, 50.] When under the "Succession Duty Act" of British Columbia, as a condition granting probate, a surety bond favour of the Crown for payment of the STATUTE-Continned succession duty has been obtained by the executor and accepted by the Crown, the executor virtute officii is clothed with authority to distribute the estate and to receive and give a good discharge for moneys payable to it and the estate is thus freed from any claim for a lien by the Crown in respect of succession duty.- B.C. Rep. 29) affirmed.
2 -- Construction-Workmen's Compensation Act, 8 Geo. V., c. 37, ss. 48, 57 (2)
and 61 (N.B.)-Industry under Part I- Failure to furnish statements to Board- Transfer to operation of Part II-Continuance of default-Operation of s. 48.]
By section 48 of the Workmen's Compensation Act of New Brunswick every employer shall, on or before the first of
January in each year, furnish the Workmen's Compensation
Board a statement giving an estimate of the payroll for that year of each of its industries within the scope of Part I and by section
57 (1) the Board may levy upon each employer a provisional amount based upon such estimate and other information obtained and collect the same, the money thus obtained to furnish a fund out of which compensation may be paid to any employee injured by negligence of his employer or in consequence of a defective system.
If an industry falls only under the operation of Part II of the Act the compensation must be paid by the employer.-Section 57 also provides (s.s. 2) that if the estimate required by section 48 is not furnished the Board may itself estimate the amount due from the employer and collect same, and section 48 (2) prescribes a penalty for such default. Then section 61 provides that (1) Any industry in respect of which the employer neglects or refuses to furnish estimate
*
*
* shall, during the continuance of such default, be deemed to be an industry within Part
*
*
* and except as provided in subsection (3) no compensation shall be payable under Part I during the continuance of such default; (2) Notwithstanding subsection (1) such employer shall be liable to pay to the Board the full amount or capital value of any compensation to which any workman would be entitled under Part I
*
*
If, and to the extent that, such employer shall pay to the Board such amount or capital value he shall cease to be liable under subsection (1) and such workman shall be entitled to compensation under Part
I."
Subsection (4) provides for relief where the default is excusable.- Held, that section 61 does not, in case of default, place the employer permanently under the operation of Part II; nor does it give
STATUTE-Continued him a right of election as to which Part he will be subject; notwithstanding the terms of this section the Board may proceed to assess the employer as provided in section 57 (2).
- Validity - Grain Futures Taxation Act, 13 Geo. V., c. 17 (Man.)] The Grain Futures Taxation Act, of Manitoba, purporting to impose a tax upon every person whether broker, agent or principal, entering into a contract for the sale of grain for future delivery, is ultra vires of the legislature. 13 GEO. V., c. 17.................. 4-Interpretation-Local Government Board Order under The Local Government Board (Special Powers) Act, (Sask.) 1922, c. 137- Right of appeal.] There is no right of appeal from an order of the Local Government Board made under the Local Government
Board
Powers) Act, Sask., 1922, c. 13.-Judgment of the Court of Appeal (18 Sask. L.R. 280) affirmed, Idington
J. dubitante. ................... 5-Validity-Constitutional law-Devolution of estates-Illegitimate child dying intestate, unmarried and predeceased by mother-Right of other illegitimate child to inherit-The Devolution of Estates Act (R.S.S.
c. 43).]
One Sarah Stone who died in 1890 left surviving two illegitimate sons and a number of legitimate children.
One of the illegitimate sons, Enos Stone, died in 1918 intestate, unmarried and domiciled in Saskatchewan.-Held that, under the provisions of sections 24 and 25 of The Devolution of Estates Act, R.S.S. [1909] c. 43, the whole of the property of the deceased, both real and personal, passed to the other illegitimate son.-Sections 23, 24 and 25 of The Devolution of Estates Act enact that illegitimate children shall inherit from the mother as if they were legitimate and through the mother if dead any real or personal property which she would if living have taken by purchase, gift, demise or descent from any other person and that if an intestate, being an illegitimate child, dies leaving no widow or husband or issue the whole of such intestate's property, real and personal, shall go to his or her mother.- Held that these sections, amending the law of descent or inheritance are intra vires of the legislature of Saskatchewan.- Judgment of the Court of Appeal (13 Sask. Q.R. 159) affirmed.
STATUTE-Concluded
6-antario Insurance Act-Statutory conditions-Fire insurance ..........
7-Ontario Temperance Act-Validity
.................................
8- Taxation-Income of non-residents derived from working of mines-Re-enactment of taxation clause-Retrospectivity- Ultra vires-B. N.A. Act [1867] s. 92, ss.
OF FRAUDS-Memo.
writing-Signature as owner-Evidence of agency-Admissibility.] Property was listed with a broker for sale the listing card stating that "the owner's name
Mrs.
Mrs. K. who signed had no interest in the property but her husband had.
sale was effected and in an action by the broker for his commission:-Held, that parol evidence was not admissible to contradict the statement in the document as to ownership by showing that Mrs. K. in signing it was acting as agent of her husband.
STATUTE OF LIMITATIONS-Possession of land-Interruption-Proceedings for partition-Declaratory judgment.]
In proceedings were taken for partition and sale of land which had belonged to the deceased father of the parties.
one of the parties thereto and a tenant in common with the others; had then had exclusive possession of the land for less than ten years.
The proceedings resulted in a judgment declaring five of said parties, including to be the owners the land and the partition and sale were not proceeded with. In 1922 proceedings were again taken for partition in which claimed a statutory title possession of the whole land.- Held, that the former judgment had interrupted the continuance of possession by and his title had not accrued.-Whether or not a summary proceeding for partition and sale shall be fully tried by a judge in chambers or an issue be ordered to try some important matter raised is a question of practice and procedure with which the
Supreme Court will not, as a rule, interfere.-Per Anglin and Mignault JJ. It also a matter of judicial discretion and cannot be said that the order of the
Appellate Division in this case, that it should be tried in chambers, was a wrongful exercise of such discretion.
STATUTES-(Imp.) B.N.A. Act, 91 and 92.................
37, s. sss. 25, 34, s. 276......(Railway Act).......... 6-R.S.C. [1906] c. 71, s. 42 (Trademark and Design Act) .............. 7-R.S.C. [1906] c. 79, s. 5 (Companies 8-R.S.C. 113, ss. 915 to 921 (Shipping Act).................... 9-R.S.C. [1906] c. 139, s. 37 (Supreme Court A ct)........................ 10- R.S.C.
139, s. 39 (a) (Supreme Court Act)............. 11-(D.) 5 Geo. V., c. 2 (War Measures .......
12-(D.) 5 V., 8, s. (Sales See TAXEs 4. 13-(D.) 9-10 V., 68, (Railway Act)..................... 14-(D.) V., c. 8 (Temperance 15-(D.) 10-11 V., 32 (Supreme Court A ct)........................ 16-(D.) 10-11 V.,
32, s. 2 (Supreme Court Act) ............... 17- (D.) 11-12 Geo. V., c. 5, s. 19 BBB (Sales Act)....................
18-(D.) 12-13 V., 47, s. 13 (Sales A ct)....................... 19-(D.) 13-14 41 (Criminal Code)............
............
STATUTES-Continued
20- (D.) 13-14 Geo. V., c. 41, s. 9
(Criminal Code)...................
21-R.S.O. [1914] c. 183 (Insurance
See LIFE.
22- R.S.O. 183, ss.
(Insurance Act)...................
23- (0.) 5 Geo. V., c. 20, s. 19 (Insurance A ct).........................
24-(0.) 6 Geo. V., c. 50 (Temperance
25--R.S.Q.
Arts. 4004, 4005,
4006, 4559, 4642, 4643 (Cities and Towns
..........
26-R.S.Q. [1909] Art. 5775 (Cities and
Towns Act)....................
27-- R.S.Q.
Arts. 6929, 6930,
6931, 6932, 6933 (Fire Insurance Act) 402
28--R.S.Q.
Arts. 7321 et seq.
(Workmen's Compsnsation Act)...... 168
29-(Q.) 34 Vict., c. 18
(Industry
30-(Q.) 34 Vict., c. 68, s. 943 (Municipal Code).......................
31- (Q.) 40 Vict., c. 29, ss. 229, 231,
366 (Cities Act)...................
32-(Q.)
44-45 Vict., c. 20 (Cities
33-(Q.) 61 Vict., c. 57, s. 65 (Charter of
M aisonneuve).....................
34- 62 Vict., c. 39, s. 1 (Cities
M aisonneuve).....................
36--'-(Q.) 9Edw. VII., c. 66, s. 1 (Workmen's Compensation Act) ............
37-(Q.) 11 Geo. V., c. 24 (Alcoholic
Liquor Act).......................
STATUTES-Continued
38-(Q.) 11 Geo. V., c. 63, s. 10 (Municipal Act).....................
39-(N.B.) 8 Geo. V., c. 37, ss. 48, 57 (2) 61 (Workmen's Compensation Act) ......... ..
............... 40- R.S.A. 1, ss. 29 (Interpretation Act) .....................
41-R.S.A. [1922] c. 52, s. 24 (d.) (School Assessment Act) ............. 42-R.S.A. [1922] c. 171 (Insurance See FIRE 43-R.S.A. [1922] c. 171, s. 70 (Insurance A ct)......................... 44-R.S. B.C. [1911] c. 203, s. 64 (Sale of Goods Act)..................... 45-R.S. B.C. [1911] c. 217, ss. 20, 50 (Succession Duty Act).............. 46-R.S. B.C. [1911] c. 217, ss. 21, 23, 24, 29, 34, 40, 43 (Succession Duty 47-R.S. B.C. [1911] c. 222 (Taxaticn 48--R.S. B.C. [1911] c. 222, s. 155 (Taxation Act) ...................
49-(B.C.) 7 Geo. V., c. 62, ss. 8, 15 (Taxation Act).................... 50-(B.C.) V., 89, ss. 25, (Taxation Act).................... 51-(B.C.) 10 Geo. V., c. 87, s. 19 (Taxation Act).................... 52- (Man.) 13 Geo. V., c. 17 (Grain Futures Taxation Act).............. 53-R.S.S. [1909] c. 85, ss. 2, 301 (Town Act)....................... 54-R.S.S. [1920] c. 126, s. 3 (Crop Payments Act).................... 55- R.S. [1920] c. 199, ss. 4, 21, 22 (Sale of Shares Act)................ STATUTES-Concluded
56--(Sask.) 7 Edw. VII., c. 16 (Dissolution of Estates Act) .............
57-- (Sask.) 13 Geo. V., c. 13 (Local
Government Board (Special Powers) Act)
..........
....
................
STAY OF PROCEEDINGS-Case remitted to court below-Appeal to Privy
Council..........................
SUBSTITUTION- Property owned several institutes- Undivided ownershipwithout all-Arts.
297, 944, 1487, 1488, 1517, 1535 C.C.-Art.
1342 C.C.P.]
A testator divided an immovable owned by him into six distinct portions which he bequeathed to each of his six sons with substitution in favour of the eldest son of each and a further substitution to the eldest son of each of the latter. He provided that upon the death of any one of his sons without male children, the share of the one so dying should accrue to his surviving sons in equal shares.
This accretion, so called, was not ordered to be by distinct portions.
Held that the five surviving sons took the share of the predeceased son jointly and in undivided ownership and consequently even with judicial authorization under Art. 953 C.C., four of the sons, without the consent of the fifth, could not sell four divided fifths of the share of the predeceased son, such a sale being equivalent to a partition to which the fifth institute had not assented.
J. dissenting.-Per
J. dissenting.
Any irregularity in the proceedings authorizing the sale has been rectified by subsequent ratification.- (Q.R. 34 K.B. 515) reversed, Idington J.
SUCCESSION
DUTY-Statute-Probate-Surety bond-Lien "Succession Duty
Act"-R.S.B.C., c. 217, ss. 20, 50.] When under the "Succession Duty Act" of
British Columbia, as a condition of granting probate, a surety bond in favour of the Crown for payment of the succession duty has been obtained by the executor and accepted by the Crown the executor virtute officii is clothed with authority to distribute the estate and to receive and give a good discharge for moneys payable to it and the estate is thus freed from any claim for a lien by the Crown in respect of succession duty.- B.C. Rep. 29) affirmed.
2 -Letters probate - Valuation -Bond
-Petition by executors-Determination of
Although executors, when applying for ancillary letters patent in British Columbia, had placed a value on the estate in the province for the purpose of succession duty and, such valuation being accepted by the Crown, had given a bond to secure payment of the duty, they are not bound by such valuation and its acceptance Crown; but they have still the right afterwards to present a petition under section 43 of the Succession Duty Act to a judge of the Supreme Court of the province who has jurisdiction to determine what property of the estate is liable to duty and the amount due thereof.- Judgment of the Court of Appeal ([1924] 1 W.W.R. 161) reversed.
SURETY-Capias-Abandonment debtor before judgment-Liability-Arts. 913, 926, 930, 854 to .892 C.C.P.] order to relieve the surety of a debtor arrested under a writ of capias ad respondendum from the conditional obligation he is required to assume to answer for the debt (Art. 913 C.C.P.), the debtor must make abandonment of property within thirty days after the rendering of judgment maintaining the capias. An abandonment preceding such judgment is insufficient to relieve the surety. DUVAL................... TAXATION
TEMPERANCE ACT - Constitutional law - Temperance legislation - Temperance Act, c. 8, part IV, 10 Geo. V., c. 8 (D.)-Ontario Temperance Act-Prohibition of sale of liquor-Action for declaratory judgment-Parties-Status.] Part IV of the Canada Temperance Act enacted by 10 Geo. V., c. 8, prohibiting, in a province which adopts it, the manufacture and importation of intoxicating liquor, is in force in Ontario.-The Ontario Temperance Act, 6 Geo. V., c. 50 and its amendments, is an Act prohibiting the sale of intoxicating liquor for beverage purposes and enables the Legislative Assembly, by resolution and a vote favourable thereto, to make Part IV of the Canada Temperance Act a law of the province notwithstanding it permits the manufacture and sale of wine containing a large percentage of alcohol, the manufacture and export of malt and spirituous liquors and extra-provincial transactions in liquor.-S., residing in Ontario, gave an order to a firm in Montreal to send him a specified quantity of intoxicating liquor. The firm refused the order on the ground that by filling it the Ontario TEMPERANCE ACT-Concluded
Temperance Act would be violated and
S. brought an action against the Attorney
General of Ontario asking for a judgment declaring that Part IV of the Canada
Temperance Act was not in force in that province.-Held, that S. had no status to maintain such action.
Judgment of the Appellate Division (53 Ont. L.R. 572)
Surrm v. THE GEN- OwrRIO..................
TRADE-MARK - Descriptive term - Mode of selling product-Acquiring distinctiveness-Validity of mark-Validity at registration-Subsequent right of public user-Removal from register-Trade-Mark and Design Act, R.S.C. [1906] c. 71, s. 42.]
A trade-mark properly registered cannot be expunged under the provisions of section 42 of the Trade-Mark Act if it ceases to be used as a trade mark and becomes merely descriptive of the article to which it has been applied. The authority to expunge "any entry made without sufficient cause" means without sufficient cause at the tine of registration.-Judgment of the Exchequer Court ([1923]
Ex. C.R. 65) reversed, Idington and
Malouin JJ. (dissenting)
.
- Common descriptive word - Right to exclusive use-Trade-Mark "O'Cedar."]
A person cannot obtain an exclusive right to use, by registering it as a trademark, a word in common use as a descriptive word of the character and quality of the goods in connection with which it is used.-The registration of such a word as "O'Cedar" as a trade-mark does not prevent the use by another person of the word "Cedar" as applied to goods manufactured for a similar purpose.-Judgment of the Court of Appeal (33 B.C.
Rep. 452) affirmed.
TRADE UNION-Provisions of constitution- Unlawful purposes-Restraint of trade-Protection of property-Resort to courts-Necessity to plead illegality.] The secretary-treasurer of an unregistered trade union was removed from office but declined to hand over to his successor a fund which he held for payment of certain expenses and salaries. In an action on behalf of the union for the amount:- Held, per Duff and Malouin JJ., Idington
J. contra and Mignault J. expressing no opinion, that though some of the purposes of the union may be illegal as being in restraint of trade the union is not thereby deprived of its right to hold a beneficial interest in the fund and to invoke the aid of the courts for its protection.- Per Mignault J. In the absence of a plea raising the defence that the union is
TRADE UNION-Concluded an illegal association and the necessary proof to support it such defence should not be considered.-Per Duff J. Illegal- -ity was not pleaded and the claim cannot be rejected on that ground onless it has before it all the matter germane to the question so that it can see that some purposes are illegal in the sense that the law will not aid them and are so interwoven with the others that the legal and illegal parts cannot be separated. But the constitution and rules of the union do not show that any of its purposes are in unreasonable restraint of trade or, if any are, the whole constitution is not thereby affected with illegality.-One section of the constitution provides for expulsion of any member who takes the place of a striker.-Held, per Duff J. that this cannot be pronounced oppression or unreasonable without hearing such explanations as might have been given if illegality had been pleaded.- Man. R. 233)
affirmed, Idington J. V. ....... .495 TUTORSHIP-Action by tutor against father............................ VENDOR AND PURCHASER-Contract for sale-Completion-Cheque for purchase money-Stoppage of payment-Fraudulent misrepresentation-Instructions to jury- Misdirection.] A contract for the purchase and sale of property is completed when the purchaser receives an executed conveyance and then gives a cheque for the purchase price which the vendor accepts as cash though payment by the bank is stopped before it is presented.- In an action for the purchase money under such contract to which the purchaser pleaded fraudulent misrepresentations in respect to the property the trial judge misdirects the jury in telling them that proof of intention to deceive is refusing to submit to them the question of whether or not the vendor made the representations without caring whether they were true or not, to induce the contract. A new trial was therefore WAR MEASURES ACT - Shipping - Charter party - Demise - War Measures Act 5 Geo. V., c. 2 (D.)-Appropriation by Crown of ship-Compensation-Indirect injury.] Though some provisions of a charter party expressions used therein may indicate an intention to demise the ship to the charterers if other provisions and the purview of the whole document shew a contrary intention the shipowners do not lose possession.- By section 7 of the War Measures Act WAR MEASURES ACT-Concluded
"Whenever any property or the use thereof has been appropriated by His
Majesty under the provisions of this
*
*
* and compensation is to be made therefor and has not been agreed upon the claim shall be referred by the Minister of Justice to the Exchequer Court or to a Superior or County
Court of the province within which the claim arises or to a judge of any such court."-Held, affirming the judgment of the Exchequer Court ([1923] Ex. C.R.
195) that the charterer of a ship which is not demised, is not entitled to compensation -under this section for loss of his rights and profits under the charter party.
-Per Mignault J. Section 7 of the War
Measures Act does not create a liability but only provides a mode of ascertaining the amount of compensation when the right to receive it is admitted.- Held, per
Idington J., that the court or judge to which a claim is referred is curia designata whose decision is final.
Co. KING ......
WINDING-UP - Insurance company - Fire-Quebec charter-Federal winding-up
-Deposit with Provincial Treasurer- Administration-Quebec Fire Insurance
Act, R.S.Q.
sections 6929, 6930,
6931, 6932, 6933.]
When a fire insurance company incorporated under a Quebec
WINDING-UP-Concluded charter is placed in liquidation, the administration of the company's deposit made under the Quebec Insurance Act with the provincial treasurer for the guarantee of its insured is governed by sections 6930 and 6931 and not by J. dissenting. IN STRATEONA FIRE TENI'E WORDS AND PHRASES-"About" .. . . . . . . ....
WORKMEN'S COMPENSATION Legislative jurisdiction- Accident on vessel-Right surviving consort- Workmen's Compensation Act, R.S.Q. Sections 7321 seq.-Canada Shipping Act, R.S.C. sections 915 to 921-B. N.A. Act, sections 91, 92-(Q.) Edw. VII, 66, s. 1-Arts. 2390 C.C..... See CoNsTITUTIoNAL 2. Construction men's Compensation Act, 8 Geo. V., ss. 48, and (N.B.)-Industry under Part I-Failure to furnish statements to Board-Transfer to operation Part II-Continuance of default-Operation of s. 48......................
Cases cited
- 3 W.W.R. 865 3 W.W.R. 865
- Canadian National Railways v. Clark scr-1923-730
- Mackay Co. v. British American Assur. Co. scr-1923-335
- 3 W.W.R. 897 3 W.W.R. 897
- 2 W.W.R. 1019 2 W.W.R. 1019
- 1 W.W.R. 1017 1 W.W.R. 1017
- A.C. 184 A.C. 184
- 1 W.W.R. 161 1 W.W.R. 161
Statutes and regulations cited
-
- section 39
- s section 46 of the Supreme Court Act
- Section 1019
- section 37
- Section 1013
- s. 1013
- s. 2
- 29
- ss. 2
- 301.1
- s. 92
- s. 155
- ss. 25
- 26
- s. 19
- section 25
- Section 19
- ss. 8
- 15
- s. 6
- s. 24
- s. 943
- s. 1
- ss. 4004
- 4005
- sections 92
- section 1019
- ss. 29
- s. 1922
- 231
- 366
- 2
- s. 37
- s. 39
- 24
- 92
-
Unresolved citations
- sections 24
- 25 of The Devolution of Estates Act
- Sections 24
- sections 102
- 109
- sections 23
- 24
- 25 of the Devolution of Estates Act
- Sections 23
- 24 of The Devolution of Estates Act
- ss. 23
- 25
- section 3
- section 21
- s. 92 of The British North America Act
- s. 92
- s. 21 of The Saskatchewan Act
- Section 21
- ss. 24
- 25 of the Saskatchewan Devolution of Estates Act
- s. 3
- ss. 16
- 17
- ss. 14
- 15
- s. 25
- s. 24
- s. 2998
- s. 24 of the Saskatchewan Devolution of Estates Act
- s s. 25 of the Saskatchewan Act
- ss. 4
- 5 of said Act
- s. 5
- s. 16
- s s. 21 of said Saskatchewan Act
- Section 155 of the Taxation Act
- section 155 of the Taxation Act
- section 7323 of the Quebec Workmen's Compensation Act
- s. (0)
- Section 310 of the Dominion Railway Act
- section 310 of the Dominion Railway Act
- section 7 of the War Measures Act
- section 48 of the Workmen's Compensation Act
- subsection (3)
- subsection (1)
- Subsection (4)
- section 43 of the Succession Duty Act
- section 42 of the Trade-Mark Act