Majority
J.-For the reasons assigned by Mr. Justice
Rogers in his comprehensive judgment as trial judge, I am of the opinion that this appeal should be allowed and the judgment of the said learned trial judge be restored with costs of the appeal therefrom to the Supreme Court of Nova Scotia in banco.
Appeal allowed. Solicitor for the appellant: C. J. Burchell.
Solicitor for the respondents: Finlay MacDonald.
THE CONSUMERS' GAS
OF TORONTO
HIS MAJESTY THE KING,
APPEAL from judgment of Maclean J., President of the Exchequer Court of Canada (1), holding the appellant liable to the respondent in damages for the loss sustained by the respondent through the destruction by fire
(following an explosion) on February 22, 1923, of certain buildings and contents located at Rosedale Heights in the city of Toronto, the accident being alleged to be due to negligence of the appellant's workmen or servants whilst installing gas connections into the buildings.
The appeal was heard by the Supreme Court of Canada on the 5th November, 1926, when judgment was reserved, and on the 9th November, 1926, the Chief Justice orally delivered the judgment of the Court as follows: " Consideration of this case, in the light of the arguments addressed to us, has not satisfied us that we would be justified in interfering with the conclusion reached by the learned President of the Exchequer Court.
The appeal will, accordingly, be dismissed with costs." Maclean J.-Per Anglin C.J.C. (dissenting): The D. was alone to blame. The collision was caused by her failing, after assenting to the H. passing her to port, to maintain her course, and by her crowding upon the course of the H., in contravention of articles 21 and 18 of said rules.
Correlative to the obligation of the H., as an overtaking ship, to keep out of the way of the D., was that of the D. to maintain her course and in no case ADMIRALTY LAW-Continued to attempt to crowd upon the course of the passing vessel. The guide of the overtaking vessel is the presumption that the other will keep her course. To excuse herself the D. must show that her departure from her course was necessary to avoid immediate danger and was no more than was necessary.
Where the leading ship alters her course in contravention of article 21, the otherwise absolute obligation imposed on the overtaking vessel by article 24 "to keep out of the way" is satisfied by her using all reasonable care and skill, and if, having done so, a collision nevertheless ensues, she will not be held in fault. Wm. DoNO- Co. v. SS.
- Shipping - Ship's necessaries - Maritime lien - Foreign law - Exchequer
Court of Canada-Jurisdiction.] Hodder
Co., carrying on business at Boston, in the United States of America, sought, by action in rem, to recover the price of necessaries furnished to the appellant ship, in an American port, under a contract made there with the owner and to enforce against the ship the maritime lien therefor which was created and recognized by law of the United States.
The owner of the ship, at the time of the contract, was domiciled and resident in the United States and the ship, then called the Lincolnland, was registered there, but it was alleged in the defence that later, before action she was sold, her name changed and that she became of British registry.-The Exchequer Court of Canada has been declared in pursuance of the Colonial Courts of Admiralty Act
(1890) 54-54 Vict., c. 27, to be a Court of
Admiralty and has, on its Admiralty side, under s. 2, subs. 2, of that Act, jurisdiction "over the like places, persons, matters and things as the A4mratly
Jurisdiction of the high Court in England
*
*
*," which jurisdiction, relatingto claims for ship's necessaries, is defned by two statutes of the United
Kingdom, (1840) 3-4 Vict., c. 65, 2. 6 and
(1861) 24 Vict., c. 10, s. 5.-Held that, although by the laws of this country the respondent might not have a maritime lien for necessaries supplied to the appellant ship, the Exchequer Court of
Canada, in Admiralty, could entertain an action in rem for the recovery of the price where a maritime lien therefor is created under foreign law.
A right acquired under the law of a foreign state will be recognized and may be enforced under the law of "ngland, unless opposed to some rule of domestic policy or procedure which prevents the recognition of the right; and, as the contract in this case is not void on the ground of immorality nor contrary to any positive law
ADMIRALTY LAW-Concluded which would prohibit the making of it, the right which has accrued under or incident to it may be recognized and enforced by a court having the requisite jurisdiction; and held that, in view of the above stated statutory enactments, the Exchequer Court of Canada has the requisite jurisdiction in this case: Inasmuch however as the case was submitted upon points of law arising upon the statement of claim, the court expressed no opinion upon a question of priorities suggested the defence.-Pittburg Coal Co. v. SS. Belchers ([1926] Ex. C.R. 24) dist.-Judgment of the Exchequer Court of Canada Ex. C.R. 226) aff. SHIP W. W. AGENCY-Findings of trial judge-Duty of appellate court.] It is for an appellate court to ascertain whether there is evidence upon which the trial judge could find as he did find, and if there be evidence of the facts found to which he could reasonably give effect, having due regard to the weight of the evidence, it is for the court to consider further whether his finding is based upon any misdirection occasioning a substantial miscarriage of justice, or the judgment, in the light of the evidence, and having regard to the course of the trial, discloses any error of law; and, if there be no error in these particulars, the judgment should permitted to stand.-The appellants sought to recover $6,000 as money lent. Their transactions were with the respondent, C. R. Tufford, and the liability of the other respondents depended upon the agency of Tufford.
The judgment at the trial proceeded upon the view that all three respondents were jointly severally liable.-Held that while, if the agency were established, there might be an alternative liability, that liability continued only until the election of the appellants to accept one, either the principal or the agent, as their debtor and then only he could be sued to judgment.- Held, in view of the facts that the appellants might elect to have jud ent against the respondents, the C R. Tufford Company, Limited, or E. R. Tufford, but that, as against the other respondent, the Delta Company Limited, the appeal should be dismissed, because there was no proof that either of the respondents was authorized to borrow on its credit.
v. THE COPPER CO..
................. 2 - Sale of goods ditions - Routing of goods- Right to repudiate.] The appellants, under a written contract entered into on the 27th May, 1920, sold to the respondents one carload of prunes growers brand, to be delivered f.o.b. Pacific Coast ship- AGENCY-Continued ping point. The contract contained four terms and conditions which were given special prominence, viz.,-"Destination- St. John, N.B.; Routing-Delivery routing may be given later; Consigned to- Order of seller; Time of shipment- October."
Other terms of importance were:
"Boxing specifications may be changed by buyer, provided such changes are received at this office prior to September 1, 1920."
"Seller shall, where possible, recognize routing named by buyer, but seller has option of selecting the initial line."
"No unimportant variation in the performance of this contract shall constitute basis for a claim."
"Brokers or salesmen not authorized to sign this contract nor change terms or wording without written authorization by seller."
The sale arranged through a representative of Sainsbury
Bros., who advertised themselves to be the "direct representatives in Canada" of the appellant with its knowledge and acquiescence.
Boxing specifications were given by the respondents to the agent and the same were acted upon by the appellant, and later routing instructions were given in writing to the agent and provided that the car should be routed
C.N.R. from Chicago to destination.
The car was, in fact, routed C.P.R., and upon its arrival in Saint John the respondents refused to accept the oods, holding that the failure to comply with their routing instructions was an important variation in the contract entitling them to repudiate.
The appellant thereupon brought this action to recover damages for the alleged breach of contract.- Held, that the notice to the.agent as to the routing of the goods was given in the manner contemplated by the contract.-Held also, that the mode of shipment is a material and indeed an essential term of the contract. The consequence is that its non-performance is not
"unimportant variation,"
which should in the present case be excluded as constituting a "basis for a claim," but on the contrary "may fairly be considered by the other party as a substantial failure to perform the contract at all."
(Wallis v. Pratt [1911]
A.C.
v. BARD
- Mandate - Revocation - Commission - Damages - Quantum meruit- Art. 1756 C.C.]
The plaintiffs sued for
S23,055.85 as commissions earned by them under a contract on orders for the purchase of raisins of the crop of 1920 to the value of $924,420.58 obtained by them as brokers or agents for the defendant company prior to the revocation of their agency on May 10, 1920.]-Held,
2950-1&
71& AGENCY-Concluded that the plaintiffs were not entitled to the commission stipulated in the contract of agenc as, at the date of its revocation,. they had not taken any orders and had not performed various other duties for the discharge of which the stipulated commission would remunerate them.-Held, also, that assuming the revocation of the plaintiffs' agency to have been unfair and actuated by reprehensible motives, it was not open to them to have a judgment based upon a right not asserted in their declaration or at trial, to recover damages for unlawful revocation of the agency.- Per Anglin C.J.C. and Duff, Newcombe and Rinfret JJ. Neither can compensation be allowed on a quantum meruit basis for whatever benefit the defendant company may have derived from such work as the plaintiffs had done before the revocation of their mandate.-Judgment of the Court of King's Bench (Q.R. 40, K.B. 97) aff.
RAISIN Co.............. - Broker and client - Transactions in foreign country carried out broker's correspondents there-Right of client to benefit of exchange.] The judgment of the Appellate Division of the Supreme Court of Ontario (57 Ont. L.R. 113) was affirmed (Duff and Newcombe JJ. dissenting), sustaining plaintiff's right to be credited in the Canadian equivalent of New York funds, according to the rate of exchange prevailing on the dates when the moneys were received in the transactions, in arriving at the profit for which defendant, his broker, was accountable to him on transactions carried out by defendant's correspondents in New York- Barthelmes v. Bickell (62 Can. S.C.R. 599) applied.-Defendant's contention that upon the facts there was an understanding: or implied agreement that all accounts, were to be settled in Canadian funds was negatived by the court on the evidence, Duff and Newcombe JJ. dissenting.
5--Insurance-Life-Premium.... 297 See LIFE 2. ANNEXATION................. Bankruptcy- Leave to appeal-Statutory rule-Delay- To enlarge or abridge-Bankruptcy Act (D) 9-10 Geo. V, rule 72.]
The provision contained in par. 1 of rule 72 of the. Bankruptcy Act that "notice of an application for special leave to appeal shall be, served on the other party at least fourteen days before the hearing thereof," being statutory, there is no jurisdiction in the- Supreme Court of Canada or one of its; judges to abridge the delay so fixed.. Therefore a motion of leave to appeall APPEAL-Continued rom a judgment dated 1st December,
925, although made returnable within he delay of thirty days provided in rule
72, was dismissed as notice of the motion had been served only on the 17th December, 1925.
In re Gilbert ([1925] S.C.R.
275), complemented.
HuDsoN
2-Jurisdiction - Practice and procedure - Special - Application after delay-Extension of time-Powers of appellate court-Supreme Court Act, R.S.C., c. 139, ss. 69, 71.]
When an application appeal to this court is brought on after the expiry of sixty days prescribed by s. 69 of the Supreme Court Act, the appellate court, by its order granting such leave, can also extend the time for bringing the appeal, under the power conferred by s. 71.
McBRIDE.................
- Appeal to Supreme
Court of Canada-Supreme Court Act, s.
2e.-Final judgment-Order in "exercise of judicial discretion"-Quashing appeal as being manifestly devoid of merit.-Life insurance-Designation of preferred beneficiary in policy-Subsequent will-Right to recover under policy without furnishing letters probate-Life Insurance Act, Alta.,
1924, c. 13-Ontario Insurance Act, 1924, c. 50.]
S. 28 of The Life Insurance Act of
Alberta (1924, c. 13) or s. 139 of The
Ontario Insurance Act, 1924 (c. 50), in creating a trust the insurance moneys in favour of the beneficiary (or beneficiaries) in the preferred class, not only takes the moneys out of the estate of the insured, but makes clear the status of the designated preferred beneficiary to recover the same from the insurer, without intervention of the insured's personal representatives, as a trust fund in the hands of the insurer of which such beneficiary is the owner in equty.- If, where either of said statutes apply, a wife is named as sole beneficiary in a policy of insurance on her husband's life, and it appears that subsequent to the date of the policy he made a will, produced and sworn to by her as his last will, which declares her to be the sole beneficiary of his life insurance, and no reason is shown for believing that any alteration in the designation of beneficiary has been made, the insurer is not entitled to require the production of letters probate as a condition precedent to payment to such beneficiary. A requirement of the policy that the "title of the person claiming shall be duly proven" is satisfied by the production of the policy naming the claimant as sole beneficiary.
Letters probate deceased's will form no part of her chain of title.-If an appeal, though within the
APPEAL-Cantinued jurisdiction of the court, be manifestly entirely devoid of merit or substance, the court will entertain favourably a motion to quash it.-The plaintiff sued to recover the amount of a policy of insurance and interest thereon, and, having begun action by a specially endorsed writ, moved before a judge in chambers for speedy judgment under Order XIV, r. 1 of the Rules of the Supreme Court of British Columbia, and it was ordered that judgment be entered for the plaintiff for the sum mentioned in the policy and that the action should proceed as to the demand for interest. The order was affirmed by the Court of Appeal for British Columbia.-Held, the order for judgment was a "final judgment" as now defined in s. 2 (e) of the Supreme Court Act (R.S.C., 1906, c. 139, as amended); also it was not an order amounting merely to an exercise of judicial discretion within the purview of s. 38 of said Act; and grounds urged under those against the defendant's right of appeal to the Supreme Court of Canada were not maintainable; but the court, applying the principles stated in the first part of this head-note, quashed the appeal on the ground that it was manifestly devoid of merit.
LIFE 4 - Interlocutory judg- Inscription in law - Final judgment-Supreme Court Act, R.S.C., c. 139, s. 2 (e).] In an action for damages by the owner of certain land which he alleged had been flooded by the illegal raising of the level of the water in an adjoining lake, the defendant company denying any liability pleaded in justification that the dams and constructions existing from 1835 or replaced since had approximately the same elevation and that certain work done by its predecessors in title had in fact prevented the waters from rising to their normal height. The plaintiff filed an inscription in law asking that these allegations be struck from the plea. Judgment maintaining the inscription was affirmed by the appellate court.- Held, that the judgment appealed from was a "final judgment" within the meaning of par. e of s. 2 of the Supreme Court SKAIFE ........ 5 - Jury trial-Verdict for plaintiff-Appellate court directing new trial-Judicial discretion.] The Supreme Court of Canada should not interfere with the exercise of discretion by an appellate court in directing a new trial in an action for damages maintained upon the verdict of a jury.
SIMMoNDs CANADIAN Ry. Co. ....... APPEAL-Continued
6 - Criminal law - Conviction for manslaughter quashed by court of appeal- Leave to appeal to Supreme Court of
Canada-Sections 1013, 1021, 1011, 1024A
Cr. Code-Appeal to court of appeal on objection as to qualification of juror not raised at trial-Right of appeal to court of appeal without leave-Court of appeal judgment conflicting with judgment of another court of appeal in like case.] The
Court of Appeal for British Columbia quashed a conviction for manslaughter on the ground of disqualification of a juror by deafness, which disqualification that court found to be established by evidence taken subsequent to the trial.
The defendant had not before the verdict raised objection as to the juror's qualification.
The Court of Appeal held that the question as to the deafness of the juror and its effect in respect to the trial and conviction was a question oi law only, and under s. 1013 (1) (a) of the
Criminal Code an appeal to it lay without leave, and it therefore refused leave to appeal as being unnecessary. The Attorney-General for British Columbia moved for leave to appeal to the Supreme Court of Canada.-Held, that, having regard to clauses (b) and (c) of s. 1013 and to s. 1011, of the Criminal Code, the motion should be favourably cousidered if the pre-requisite of jurisdiction to entertain the projected appeal, viz., conflict between the judgment from which it was sought to appeal and that of any other court of appeal in a like case (Criminal Code, s.
1024A) existed; that decisions prior to the enactment of s. 1013 in 1923 on some of the matters covered by that section might properly be regarded as having been rendered in like cases; that such conflict as aforesaid existed by reason of the cases of Reg. v.Earl (10 Man. R. 303), and Rex v. Battista (21 Can. Cr. Cases 1);
and the motion should be granted.
KING v. BoAK.....................
7 - Jurisdiction-Value of matter in controversy-Parties each claiming right to lease of premises used for laundry-Elements to be considered in estimating value.]
On a motion to affirm jurisdiction in the
Supreme Court of Canada to entertain an appeal from a judgment of the Appellate
Division of the Supreme Court of Ontario, deciding which party was entitled to a certain lease of premises used for a laundry business, the Registrar affirmed taking into account, estimating the value of the matter in controversy, the exceptional value of the premises by reason of the existing privilege of running a laundry business thereon;
and his order was affirmed by the court.
In such a case the question to be considered, with regard to jurisdiction, is the value of the subject matter as between the parties.
....... .651
APPEAL-Concluded
8 - Leave appeal between railways-Order from Board of Railway Commissioners-Interpretation- Future rights - Public interest. THE Ry. L. P. Co. v. Ry. Co........................
9 - Leave to appeal - Matter in controversy-Debentures over $2,000-Action for interest coupons-Future rights-Amount exceeding 51,000-Supreme Court Act, 10-11 Geo. V, c. 32, s. 41.
LA DE - Judicial separation - Permanent alimony-Divorce - Matrimonial cause-Jurisdiction affirmed by registrar-Appeal quashed-Question of - Agency - Finding of trial judge - Duty of Appellate Court............ Criminal law - Evidence-Homicide-Admission of dying declaration- Admissibility upheld by court of appeal- Motion for leave to appeal to Supreme Court of Canada under S. 1024a Cr. Code- Alleged conflict with decision in Allen v. The King, 44 Can S.C.R., 331 ...... - Dissenting opinion 1002,
(5) and 1024 Cr. C ............................ Jurisdiction-Value of matter in controversy-Alleged cause of action of a plaintiff (respondent) distinct from that of co-plaintiff-Requirement for right appeal de plano-Negligence-Automobile collision-Injury to gratuitous passengers- Responsibility of driver-Care "reasonale under all the circumstances" .......... Jurisdiction-Costs........... 598 See AccoUr.
- Alien - Opium and Narcotic Drug Act............. APPEAL TO PRIVY COUNCIL... ASSESSMENT
TAXES-Crown lands-Over-valuation............... 155 2 - Municipal taxation - Business tax..........................
3 - Trustee - Judicial tax - Ultra vires............... .. ........... 4 - Trust - Construction of will- Income tax....................... See TAx.
ASSESSMENT AND TAXES-Concluded I BANKS AND BANKING-Concluded 5 -- Municipal corporation - Valuation roll- Pipes, poles, wires and transformers- Meters-Immovable or movable-"Immovable," "real estate," "real property"- Terms similar for purposes of taxation- Action for taxes - Defence - Non-assessable - Cities and Towns Act, art. 5730, R.S.Q. 1909-Art. 2731, R.S.Q.
1909-Arts. 376, 380, 384 C....... 515
AUTOMOBILE - Second-hand dealer...
2-Collision.................. 575
BANKS AND BANKING
Cheque - Definition - Bill of exchange - Postdated-Acceptance by a branch manager - Validity.] The appellant sued upon an instrument bearing date the 2nd of July,
1919, which was in the form of a cheque for $4,000 drawn upon the respondent by P. payable to the order of the "Ministre de la Voirie."
This instrument bore stamped upon it what purported to be an acceptance by the respondent bank, authenticated by what are admitted to be initials of a local manager, dated the
2nd of July, 1921, but placed on the instrument on the day on which it was dated.-Held, Rinfret J. dissenting, that such an instrument is not "payable on demand" and consequently is not a
"cheque" within the terms of s. 165 of the Bills of Exchange Act.-To anybody into whose hands it may come before the arrival of the date of acceptance, the proper interpretation of it would be that the instrument had been treated by the bank and the drawer, not as a cheque, but as an ordinary bill of exchange and accepted as such.-Held also, Rinfret J.
dissenting, that, although the acceptance of a cheque by a local bank manager is binding upon the bank, although at the time the drawer has insufficient funds to meet it, the appellant could not recover, as no evidence had been adduced indicating that the acceptance of a bill of exchange is within the duties included in the ordinary conduct of a branch bank by its ananager.-Per Rinfret J. (dissenting).
The Minister of Roads was a holder in due course and for value. By "accepting" the instrument, which was a cheque within the terms of the Bills of Exchange
Act, the bank was binding itself unconditionally to pay the holder of the cheque on the date named in the acceptance.- Per Rinfret J. (dissenting). The internal regulations concerning the authority of the manager of a branch of the bank are a matter between the latter and its local manager. A holder in due course and the public at large are entitled to act upon the apparent authority of this manager and cannot be affected by regulations unknown to them.
LE D'HOCHELAGA......... 2 - Alleged preferential payments by debtor-"Intention".............. 621 BANKRUPTCY - Guarantee - Creditor proving claim in bankruptcy and valuing security-Retention of security at assessed valuation-Subsequent recovery against guarantors.] Directors of a company guaranteed payment of its liabilities to a bank. The company went into bankruptcy and the bank, pursuant to the Bankruptcy Act, proved its claim and valued its security consisting of an hypothecation of collateral notes. The bank was allowed to retain its security at the valuation placed upon it. The bank subsequently sued the guarantors for the balance unpaid of the company's debt.- Held, that s. 46 (6) of the Bankruptcy Act did not have the effect of vesting in the bank the complete ownership of the collateral notes and of reducing the company's debt for all purposes by the amount at which the notes were valued; and the guarantors were not relieved from liability on their guarantee to the extent of such assessed value.-Canadian Bank of Commerce v. Martin ([1918] 1 W.W.R. 395), distinguished. Bank of Hamilton v. Atkins ([1924] 1 W.W.R. 92), overruled.- Judgment of the Appellate Division of the Supreme Court of Alberta (21 Alta. L.R. 553) aff.
2-Alleged preferential payments by debtor-"Intention" to give a preference- Bankruptcy Act, D., 1919, c. 36, a. 31- Banks and banking-Bank's lien on, and right to appropriate, credit balance in current account.] Appellant, trustee in bankruptcy, sued to recover from respondent bank the amount of certain payments to the bank made within three months of the assignment in bankruptcy, alleging that said payments were illegal, as made with a view to giving the bank a preference over other creditors and therefore obnoxious to s. 31 of the Bankruptcy Act. The debtor firm had with the bank a current account and a "liability account." All moneys were paid into the current account and the firm's cheques were charged to that account. When that account became overdrawn the credit balance was restored by a loan secured by a demand note, the amount of which was credited in the current account, the note being recorded in the liability account. Interest was charged on these notes, and it was the practice when, from time to time, the current account was in funds, to transfer moneys available to the firm's credit in the liability account so as to reduce the BANKRUPTCY-Concluded interest bearing obligations.
Of the six impeached payments, five were made by cheque, charged to the firm's current account, retiring notes previously given, in accordance with this practice, and one was effected by the bank charging the amount of an unpaid note to the current account without the formal authority of a cheque.-Held, on the evidence, the prima facie presumption under s. 31 (2)
that the payments were made with a view to giving a preference to the bank had been displaced.
There was not, within the meaning of said Act, an intent to create a preference on the part of the debtor firm or of the bank.
The circumstances in evidence indicated that the firm gave the cheques without any expectation that the bank would obtain advantage over any other creditor.
It is settled law that the intention to give a preference envisaged by .s. 31 is an ntention in fact, and it must be an intention entertained by the debtor.
to the payment effected by appropriating the credit balance in the current account for the payment of the note, the bank possessed a lien upon any such balance as security for any indebtedness and a right to set off such indebtedness against any such balance.
The question would have been different it it could have been maintained that the credit balance was composed of moneys deposited in such circumstances as to mark the deposits themselves as preferential payments, but any such contention in this case was untenable.-Judgment of the Court of
Appeal for Manitoba (34 Man. R. 565)
SArER & LTD. DOMIN- BANK....................
3- Leave to appeal ...............
4 - Civil law - Judgment-Registration-Judicial hypothec.............
BILL OF EXCHANGE............
See BANK 1.
BROKER....................
BULK SALES ACT (ALBA.) ......
See SALE 2.
CASES
Allen v. The King (44 Can. S.C.R. 331)
ref..........................
Bank of Hamilton v. Atkins ([1924] 1
W .W .R. 92) rev...................
Barthelmes v. Bickell (62 Can. S.C.R. 599)
CASES-Continued
Baskerville's Case (12 Cr. App. Cas. 81) ..
See CRIMNAL 5. Blair v. Ste. Rose (63 Can. S.C.R. 526) foll...........................516-655 Burrows v. Gower (119 Fed. Rep. 616) ref............................... Canadian Bank of Commerce v. Martin ([1918] 1 W.W.R. 395) dist......... 532 - Optical Co., In re; A. R. Williams Co's. Claim (2 Ont. L.R. 677) dist.... 693 Donahue v. St. Etienne de la Malbaie ([1924] S.C.R. 511) foll ............ Gilbert, In re ([1925] Q.C.R. 225) complemented....................... Gosselin v. The Independent Order of Foresters (11 R. de J. 259) rev ....... Or GoODs 7. Haigh v. Brooks (10 A. & E. 309) app. 693 See CoNrracr 3.
Hanley v. Toronto, Hamilton & Buffalo Ry. Co. (11 Ont. Q.R. 91) ref ........ Hardaker v. Idle ([1896] 1 Q.B. 335) ref.. ..........
Harris v. Perry & Co. ([1903] 2 K.B. 219) ref.......................... Imperial Life Assur. Co. v. Laliberte (Q.R. 29 s.c. 183) rev........... See Goons 7. Johnson v. Laflamme (54 Can. S.C.R. 495) exp........................
See SALE GOODs 6. Karavias v. Callinicos ([1917] W.N. 323) ref.......................... "L'Autorite" Ltee v. Ibbotson (57 Can. S.C.R. 340) foll................... Mc Kay v. Toronto ([1920] A.C. 208) Mercer v. Dunne ([1904] 2 Ch. 534) disc.. .8........ .
.......... See GRANTr.
CASES-Continued
Montreal, City of v. Atty. Gen. for Canada
([1923] A.C. 136 ) ref .......... 155-350
See CRown
ConsrrrlToNAL LAw 3.
Montreal L., H. & P. Com. v. Westmount
([1926] S.C.R. 515) foil............
Nightingale v. Union Colliery Co. (35
Can. S.C.R. 65) ref...............
Oakes v. Turquand (L.R. 2 H.L. 325)
ref. ............................
Peruvian Railways Co., Crawley's Case
(L.R. 4, Ch. A p. 332) dist .........
Pittsburg Coal Co. v. S.S. Belchers ([1926]
Ex. C.R. 24) dist.................. 680
Railway Time Tables Publishing Co., In re; Ex parte Sandys (42 Ch.
.................................
Rex. v. Earl (10 Man. R. 303) ref ....
Rex v. Battista (21 Can. Cr. C. 1) ref. 481 v. Beebe (41 T.L.R. 635) fol... 539
See 5.
Saragossa, The ([1892] 7 Asp. M.C. 289)
foil................. ...........
Sawyer v. Pringle (18 Ont. A.R. 218)
dist.............................. 486
See GOOns
Similingis v. Provincial Fire Ins. Co. of
Canada (23 R.L. N.S. 323) rev ......
See 7.
Smith v. Goldie (9 Can. S.C.R. 46) disc..
-v.
Hughes (L.R. 6 Q.B. 597) app. 693 v. Vermilion Hills ([1916] 2 A.C.
569) foll..........................
Tranquil v. Gagnon (26 R.L. N.S. 56)
rev..............................
See GOODS
Vancouver v. Hounsome (49 Can. S.C.R.)
430 ref...........................
Wallis v. Pratt ([1911] A.C. 394) ref. 209
CASES-Concluded
Welton v. Saffery
A.C. 299) exp.............................. White v. Tyndall (13 App. Cas. 263) foil..........
................
Wolverhampton & Walsall Ry. Co. v. London & N.W. Ry. Co. (L.R. 16 Ef 433) ref.......................... 320 CHEQUE........................ CIVIL CODE-Art.
(Interpretation)............................ 2- Arts. 376, 380 (Immoveables).. 515 3- Art. 384 (Moveables).......... 4- Art. 551 (Servitude)........... 5--Art. 918 (Testamentary executors) 598 6- Art. 992 (Error).............. 554 See GoODs 7. 7- Art. 993 (Fraud)............. 551 See 7. 8-Art.
1019 (Interpretation of contract)............................. See GRAT.
9-Art.
1080 (Conditional obligations) .......... ........... 6601 10-Arts. 1171, 1173, 1174 (movation) .......... ........... 2138 11-Arts. 1487,
1488,
1489, See Goons 2. Arts. 1546, 1548, 1549, 1550 (Right of redemption)................... 13- Art. 1576 (Sale of debt) ........ See SAE 1.
Arts. 1582, 1583, 1584 (Sale of litigious rights)................... 8 See SHE 1.
Art. 1598 (Exchange)......... 558 Art. 1756 (Mandate)......... 17- Art. 1983 (Privileges) ........ 655 See ST
CIVIL CODE-Concluded
18-Arts. 2009, 2014 (Privileges upon immoveables)...................
19--Art. 2016 (Hypothecs) .......
20- Art. 2116a (Registration of servitude)...........
.............
21-Art. 2121 (Registration of judgm ents)............................
See CoNsrriroNAL 1.
22- Art. 2175 (Cadastral plan) ....
23- Art. 2268 (Prescription) .....
See Goons 2.
CODE OF CIVIL PROCEDURE
Art. 638 (Execution upon moveables)..
Art. 648 (Opposition)...............
See GRar.
COLLISION
See ADmIALTY
COMPANY-Sale of Shares Act, Man.- Non-compliance therewith-Effect-Sale of shares void-Repudiation by purchaser after winding-up order-Company incorporated by special Act-Application of
Sale of Shares Act.]
If a company, to which the Manitoba Sale of Shares Act
(R.S.M., 1913, c. 175, and amendments)
applies, sells its shares without having complied with that Act, the sale, and all steps taken to carry it out, such as an allotment of shares are void, and not merely voidable; and where the purchaser of the shares has not dealt with them or done anything from which an independent agreement to keep and pay for them can be implied, although his name has been placed on the register of shareholders, he can, even after a winding-up order has been made against the company, repudiate the purchase and successfully resist being placed on the list of contributories, where it appears that he only became aware, after the winding-up order was made that the Sale of Shares Act was not compied with. Oakes v. Turquand, L.R.
2 H.L. 325; In re Railway Time-Tables
Publishing Co.; Ex parte Sandys, 42 Ch.
D. 98, and In re Peruvian Railways Co.;
Crawley's Case, L.R. 4 Ch. App. 322, distinguished.
Welton & Saffery [1897] A.C.
299, at 321-322, explained.-The company in question was incorporated by special
Act which contained no reference to The
Sale of Shares Act. It contained many provisions, one of which, s. 26, provided that "every person who makes applica-, tion in writing for an allotment of shares to whom any share or shares is or are
COMPANY-Concluded allotted in pursuance of such application, shall be deemed conclusively to have agreed to become a shareholder of the company in respect of the shares so allotted."-Held, that the Sale of Shares Act applied as to the matters in question, and s. 26 did not affect its operation or prevent the purchaser from disputing his liability as a shareholder.-Judgment of the Court of Appeal reversed, and its judgment in In re Northwestern Trust Co) in re Moreau et al (34 Man. R. 449. 11924] 3 W.W.R. 625) (which reversed the judgment of Dysart J. (34 Man. R. 342; 1924] 2 W.W.R. 1145) )
overruled. Idington J. dissenting.
TEm Co.... 412 CONDITIONAL SALE-Default in payment-Repossession and resale-Seller realiting an excess on resale-Buyer's right to excess-B.C. Conditional Sales Act, R.S. B.C., 1924, c. 44................... See GOODs 5. CONSTITUTIONAL
LAW - Bankruptcy-Dominion Act-Civil law-Judgment-Registration-Judicial hypothec- Realization and distributionof assets-Bankruptcy Act, D. [1920], c. 34, s. 6, enacting as.s. and of s. The Royal Bank of having recovered against Belanger for $14,036 caused it to be registered and with it a notice describing real estate of the debtor. Twenty months afterwards the debtor made an assignment under the Bankruptcy Act and the appellants were appointed trustees. The bank filed its claim with the trustees for the amount of the judgment, asserting a rivilege in the nature of a judicial hyothec under the terms of art. 2121 . which enacts that "the judgments and judicial acts of the civil courts confer hypothecs when they are registered *"
Subsequently trustees, acting under s. 53 of the Bankruptcy Act, disallowed the bank's claim in so far as it set up a privilege or hypothec upon the immovables, saving however the costs of registration, on the ground that the assignment took precedence of the bank's claim under subs. 10 of a. 11 of the Bankruptcy Act. That subsection provides that, from and after registration, a receiving order or authorized assignment in bankruptcy "shall have precedence of all certificates of judgment, judgments operating as hypothecs * * "-Held, Rinfret J. dissenting, that the disallowance of the bank's claim by the trustees was valid. When the Dominion Parliament enacted in terms, by subs. 10 of a. that an order or assignment in bankruptcy should have precedence of all certificates of judgment and judgments as hypothees, that priority attached for all purposes, including distribution as well as realization of CONSTITUTIONAL LAW-Continued the assets.-Held, also, Rinfret J. dissenting, that the words "certificates of
Eudgment,"
"judgments
D othecs" contained in subs. 10 of s. 11 include judgments and judicial acts of the civil courts confer hypothecs under art. 2121 C.C.-Held, also, Rinfret
J. dissenting, that subss. 1 and 10 of s. 11 of the Bankruptcy Act, belong and have strict relation to the subject of bankruptcy and insolvency and are within the powers of the Dominion Parliament.
2 - Quebec educational system-Rights of persons professing Jewish religion- Common and dissentient schools-"Protestante"-Education Act as to Jews (Q)
1903, 3 Edw. VII, c. 16- Ultra Vires- Reference-Jurisdiction - Education- Appeals Act, (Q) 1925, 15 Geo. V, c. 19- Public Education Act, Cons. S. of L.C.,
1861, 24 Vict., c. 15-B.N.A. Act, 1867, ss. 93 (1), 93 (2)-Supreme Court Act,
R.S.C. (1906), c. 139, s. 42a.] The Quebec Legislature in 1903 (3 Edw. VII, c. 16) passed "an Act to amend the law concerning education, with respect to persons professing the Jewish religion."
Section 1 provides that "in all the cipalities province,
* persons professing the Jewish religion shall, for school purposes, be treated in the same manner as Protestants, and for the said purposes shall be subject to the same obligations and shall enjoy the same rights and privileges as the latter."
Sections 2, 3, 4 and 5 deal with school revenues and taxation and, speaking generally, provide that such taxation payable by persons professing the Jewish religion and revenue for school purposes derived from them, or from their properties, shall go to the support of the Protestant schools, where they exist. Section 6, so far as is material reads as follows:
"*
*
* children of persons professing the Jewish faith shall have the same right to be educated in the public schools of the province as Protestant children, and shall be treated in the same manner as Protestants for all school purposes."- Held that, inasmuch as, c. 19 of 1925
(Q), providing for the right of appeal presently exercised, is within the hteral terms of s. 42a of the supreme Court
Act, jurisdiction to entertain this appeal should not be declined; but semble that,
Parliament in enacting s. 42a did not contemplate enabling a provincial legislature to single out a particular reference and to make the opinion already pronounced upon it by the provincial court appealable to this court.-Held, also, that provincial legislation repugnant to subs. 2 of s. 93 of the B.N.A. Act, equally with legislation in conflict with subs. 1 is "absolutely void and inoperative" and is not appealable under subs. 3 to the
CONSTITUTIONAL LAW-Continued Governor
Council.-Held, further, that in the Public Education Act of 1861 the term "Protestants" is not synonymous with non-Catholics in that it excludes non-Christians;
of Christians includes only such as accept what are generally regarded as the principles and doctrines of the Reformation of the sixteenth century.-Held, also, that, at Confederation, the entire population of the province of Quebec was, for purposes of legislation upon educational matters, divided into two great religious denominations-the one Roman Catholic and the other Protestant-and non-Catholics and non-Protestants were ignored; that all the schools of the cities of Montreal and Quebec, although denominational (Roman Catholic and Protestant respectively), were "common schools," any one of which every child in each of those cities was entitled to attend; that "dissentient schools" of a religious minority existed only in "rural" municipalities and that the privilege of excluding therefrom adherents of another religious faith (then enjoyed by the Roman Catholic minority in Ontario in regard to their separate schools), was extended by s. 93 (2) of the B.N.A. Act to such "dissentient schools"
Quebec. "rural" municipalities Jewish children could attend as of right only the common denominational schools of the religious majority.-Held also, that although, ex facie, a. 1 of the Act of 1903 (c. 16) standing alone would confer upon adherents of the Jewish religion all rights regarding educational matters possessed by Protestants, including the establishment of separate schools controlled by Jewish commissioners or trustees, its intent, when taken with the context, is that whatever rights it confers should be enjoyed in connection with the Protestant schools; and that, while legislation infringing the right of Protestants to exclusive control of their schools would be ultra vires the Act of 1903 (c. 16) merely declares the right of Jewish children to education as Protestants, making consequent equitable provisions as to taxation and revenue.-Held further, that, except in so far as it would confer the right of attendance at dissentient schools upon persons of a religious faith different from that of the dissentient minority, the Act of 1903 is ultra vires.-Held, further, that, legislation providing for the apointment of Jews to the Protestant Committee of Public Instruction would be competent and that legislation providing for the establishment of separate schools for persons who are neither Roman Catholics nor Protestants, if so framed as not to affect prejudicially any right or privilege with regard to education enjoyed by either Roman Catholics or Protestants si.. CONSTITUTIONAL LAW-Continued at Confederation, might validly enacted.
BOARD
CoMMissioNERs. ........
3 - Municipal taxation leased to Dominion Government for railway ticket offices-Business tax-Statute making owner liable where lessee exempt- Indirect taxation- Ultra vires-B. N.A.
Act, sa. 92 (2), 125. The Halifax city charter provided for the levying of a
"business tax," which should be "payable by every occupier of any real property for the purposes of any trade, profession or other calling carried on for purposes of gain, except such as is exempt
*
* and shall be payable by the occupier whether as owner, tenant or otherwise, and whether assessed as owner of such property for real property tax or not."
The tax was based on the value of the occupied.
S.
394 provided:
"Except as is herein otherwise provided, if any property is let to the Crown or to any person, corporation or association exempt from taxation, such property shall be deemed to be in the occupation of the owner thereof for business or residential purposes as the case may be, and he shall be assessed and rated for household tax or business tax according to the purpose for which it is occupied."- The appelant estate leased to His Majesty the King, represented by the Minister of
Railways and Canals of Canada, premises for a ticket office of the Canadian National Railways.
The lessee was to pay
"the business taxes, if any."
The city assessed the appellant estate for business tax.-Held, Duff J. dissenting, reversing the decisions of the Supreme Court of
Nova Scotia in banco (57 N.S.R. 461),
(which divided equally) and of Rogers J., that the appellant estate was not liable for the tax; that the tax made payable by the owner by force of s. 394 of the city charter was an indirect tax and not within provincial powers given by s.
92 (2) of the B.N.A. Act.-A tax is indirect which is imposed upon a person in contemplation that another will pay it; the intention or expectation that the burden will be shifted may be shown by the form in which the tax is imposed, or may be ascertained by the general tendencies of the tax and the common understanding of men as to those tendencies; in the present case it could not be supposed that the legislature expected that the person upon whom the tax was imposed would ultimately bear it; the landlord was put in the position of the tenant because the tenant was exempt, and made responsible for the taxes levied for the use of the premises by the tenant for the business purposes for which they were leased, from which it must be anticipated that the taxes would be passed
CONSTITUTIONAL LAW-Concluded on to the tenant as part of the rent; the ordinary and natural course of business and the substantial character of the tax, based as it was upon the value of the premises occupied and having relation only to the tenant's occupation, showed that the ultimate burden would not rest with the landlord. City of Montreal v. Attorney-General for Canada ([1923] A.C. 136), disc. and dist.-Per Duff J. (dissenting):
The question of the incidence of local rates levied on occupiers and owners of real property respectively is one so complex and obscure, depending so often upon the appreciation of variable factors, that it must be presumed that the legislation creating the tax contemplated only the person called upon to pay it as the person of incidence, and such legislation cannot be treated by the courts as ultra vires unless it is affirmatively established to be so. The present case is in principle governed by City of Montreal v. Attorney-General for Canada ([1923] A.C. 136).
V. CITY HALIFAX......................... 4 - Taxation - Ontario Assessment Act, RS.O. 1914, c. 195, e. 13 (3), as enacted by 1922, c. 78, s. 12-Assessment of trustee in respect of income not wholly distributed annually-Indirect tax- Ultra vires.-B.N.A. Act, s. 92 (2). A municipal tax sought to be imposed on a trustee on assessment under the Ontario Assessment Act, R.S.O., c. 195, s. 13 (3), as enacted by 1922 c. 78 s. 12, in respect of income "not wholly distributed annually," is an indirect tax and ultra vires of the province.-Section 13 (3) does not restrict the liability of the trustee to property of the estate in his hands so as to make the tax direct within s. 92 (2) of the B.N.A. Act. The liability of the trustee assessed is personal, as for a debt due to the municipality, and therefore unrestricted, and his right of re-imbursement out of the trust property or by the beneficiaries make the tax indirect.- Judgment of the Appellate Division of the Supreme Court of Ontario (57 Ont. L.R.
MCLEOD.......................... 5 - Crown lands - Licencee - Assess- 6 - Railway - Crown lands-Expropriation........................... CONTRACT-Sale of goods-Bailment- Warehouseman-Storage of grain shipped to warehouse by lake vessel-Instructions from shippers to ship grain by rail to purchasers-Delivery to one purchaser without production of lake bills of lading-Failure of purchaser to pay for grain-Action CONTRACT-Continued against warehouseman to recover damage for los.] The appellant, a grain merchant
Manitoba, shipped by a lake vessel 70,000 bushels of gram to the respondent, an elevator company in Ontario for storage, and advised the respondent that the gram would be shipped out by rail from the elevator to various purchasers from the appellant. According to the documents produced in the case, it was agreed for the protection of all parties that the rail shipping bills were to be held as against the lake shipping bills and delivered to the purchaser only on delivery of or endorsement upon the lake bills and payment of the drafts attached.
letter of the 29th of May
1923, the respondent company advised the appellant company that some 40,000 bushels of seed oats had been unloaded by the ss.
Martian on the 24th and asked for advice as to where the rail bills were to be sent "for endorsation from the lake documents."
The respondent company received no reply other than a letter of
June 1 advising it that the appellant company had carefully noted its request.
In the meantime, on the day before
May 31, the appellant company wrote to the respondent confirming "wire instructions
*
*
* to accept orders from the
P. Co., covering 10,000 feeds ex ss.
Martian *
*
*," adding:
"We are forwarding to them (The P. Co.) the lake shipping bills covering this quantity and trust that our instructions will be found entirely in order with you."
Another lot of 10,000 bushels were sold in a similar way.
These 20,000 bushels were shipped to the order of the P. Co., the railway shipping bills being forwarded by the respondent company to the local freight agent of the C.N.R. at Woodstock.
The appellant company had forwarded the lake bills, with drafts attached, to its bank at Woodstock with instructions to hand over the bills on payment of the drafts, according to the usual course of business. The P. Co. obtained delivery of the 20,000 bushels without the production of the lake bills, but took up only one of the drafts, leaving the drafts for the residue of the two shipments,
15,000 bushels, unpaid. The appellant company, on learning the facts, immediately advised the respondent company that it would be held responsible.
P. Co. having become insolvent, this action was brought by the appellant company to recover from the respondent company the value of the grain. The appellant company contended that it was the owner of this grain, which the respondent company held as its bailee and which, without authority from it, had been delivered to a person who had no title to receive it. The respondent company's defence was that the letter of
CONTRACT-Continued
May 31 was in effect a direction to ship to the P. Co. direct and to deliver the rail bills to the latter regardless of payment or of the whereabouts of the lake bills.-Held, that the respondent company was liable. The statement contained in the letter of 31st May that the appellant company was forwarding the shipping bill to its customer, should only be read as meaning that it was forwarding them in the ordinary course, through its bank or other agent, with the drafts for the price of the grain attached, and there was nothing in the letter justifying a departure from understanding expressed respondent company's letter to the effect that the rail bills were to be held against the delivery or the endorsation of the lake bills.-Judgment of the Appellate Division (57 Ont. L.R. 1) reversed.
THE NORTHv. THE GODERICH ELE- 2 - Repairs -Barge -Sale- Notice to contractors-Novation - Arts. 1171-1173, 1174 C.C.]
D., being the owner of a barge, gave instructions to the respondents to have some repairs done upon it. After some repairs had been made, D. entered into a conditional promise of sale of the barge to the R. Co., which, apparently, undertook to pay for the repairs. D. wrote to the respondents that he had "sold" his barge to the R. Co. "who will take immediate possession.
The R. Co. will arrange with you about payment of repairs which have been done thereon." The R. Co. became insolvent and D. retook possession of the barge, the purchase money being unpaid.
The respondents sue both D. and the R. Co. to recover the whole costs of repairing the barge.- Held, Duff J. dissenting, that D. was liable for all the repairs done to the barge. While, as directed by D., the respondents appear to have rendered their account for repairs to the R. Co. and to have made some arrangement with it for payment, the evidence does not establish intent on their part to discharge D. as their debtor-an intent essential to novation (Art. 1173 C.C.) and never to be presumed (Art. 1171 C.C.).
In the absence of this "evident intention" the notification given by D. is to be deemed to be a simple indication by him of a person who was to pay in his place, which does not suffice to effect novation.
(Art. 1174 C.C.).-Per Duff J. dissenting. The letter of notification by D. to the respondents was an unmistakable intimation of his intention not to be responsible for any repairs done after its date and, as the possession of the barge then passed to the R. Co., the respondents had no authority to proceed with the repairs except with the latter's consent. Upon the evidence, the inference is justified that both the respondents 119261
IND
CONTRACT-Continued and the R. Co. understood that the repairs were to be charged to the latter only.
3 - Sale of goods-Sum paid to satisfy claim under lien agreements - Securities handed over-Alleged failure of consideration-Suit to recover sum paid-Interpretation of contract-Interpretation of "dragnet" clause in lien agreement-Appropriation of payments-Appropriation by creditor, after debtor's bankruptcy, of payments not previously appropriated.] Defendant sold machinery to C. Co. under four lien agreements, duly registered.
made an assignment in bankruptcy.
Defendant filed a claim for $771.44 as the balance then due on the machinery covered by said agreements.
It subsequently notified the trustee in bankruptcy of its intention to remove said machinery.
Subsequently the plaintiffs, who had taken a temporary lease, from the trustee and inspectors, of C. Co.'s premises and plant, etc. (from which lease was excepted such plant, machinery, etc., as was subject to liens) and were in possession, desired purchase property, but their proposals to the inspectors were rejected, and it was decided to advertise for tenders.
Oct. 13, 1921, plaintiffs wrote defendant:
"We have taken over the plant of [C.
We understand that you hold a lien on part of the machinery of this plant. This amount, we understand which is due, is in the vicinity of $800.
In order that you realize this amount it might be necessary for you to remove considerable machinery at a cost which would not mean anything to you and which would naturally depreciate this plant.
We feel sure that we can come to some terms with you. Will you kindly let us have a reply at once so that we may know what machinery is held by you and what your demands are."
Defendant replied on Oct. 17, referring plaintiffs to its solicitors and stating its requirement of immediate payment to avoid its repossessing the machinery under its lien. On Oct. 26 plaintiffs telegraphed defendant: "Your letter October 17th, make sight draft against Bill of Sale receipted.
Wire amount so that we can arrange finances."
Further correspondence ensued and defendant's solicitors made a sight draft on plaintiffs for
$1,003.09, to which were attached the four lien agreements receipted.
Plaintiffs paid the draft and obtained the documents. Plaintiffs removed the machinery covered by the lien agreements to another site. This machinery was however recovered from the plaintiffs by the trustee in bankruptcy in a replevin action in which it was held that, on a proper appropriation of the payments made by C. Co. to
CONTRACT-Continued defendant, the lien agreements had been paid by C. Co., and that the present plaintiffs could not claim as under an assignment of the lien agreements there had been no notice or filing of the assignment. Plaintiffs then sued defendant for, among other things, return of the $1,003.09 which they had paid to it, claiming that there had been a total failure of consideration for such payment.-Held: There had been no failure of consideration and plaintiffs could not recover.
The correspondence must be interpreted in the light of the facts and circumstances as known to and affecting the parties at the time. The "bill of sale" mentioned in plaintiffs' telegram of Oct. 26 must be taken to mean the lien agreements.
Plaintiffs had got what they stipulated for, namely, the four lien agreements receipted.
There had been no representation, concealment or warranty as to defendant's claim or security or right of payment.
Defendant had its claim which it was endeavouring to recover and which it considered exigible and adequately secured. No question had then been raised as to the validity of the claim or the security for it. The principles laid down in Smith v. Hughes (L.R. 6 Q.B. 597 at 606-607), Haigh v. Brooks (10 A. & E. 309 et 320), and other cases, were applicable.-While deciding the case on the above ground, the Court considered the interpretation and effect of the "drag-net" clause in the lien agreements, providing that "the title in the said machinery and goods, and all other machinery and goods, included in former orders, and orders whicli may hereafter be given
*
*
* shall not pass * * * till all moneys payable and notes given under this order and such other orders, and all judgments obtained therefor have been paid and satisfied," expressed the view that the word "orders" must have been intended to apply only to conditional orders, and that machinery unconditionally sold and delivered after the time of the agreements in question was not within the application of the clause.
Re Canadian Optical Co., A. R. Williams Company's claim (2 Ont. L.R. 677), dist.-Quaere as to the question whether defendant, after bankruptcy of C. Co., could appropriate payments not previously appropriated.-Judgment the Supreme Court of Nova Scotia in banco 2 D.L.R. 1009) reversed. A. R.
MACHINERY MOORE...................... 4- Sale of goods-Breach.......... See GooDs 5 - Cement - Delivery-Price.
Co. CO ......... CONTRACT-Concluded
6 - Conditions - Agreement to keep secret formula of patent-Art. 1080 C.C.
SAmsoN
CRIMINAL LAW - Murder - Misdirection - Similar acts - Admissibility - Corroboration - Accomplices.] The appellants were convicted of the murder of the captain of the boat
Beryl G. containing a cargo of liquor intended to be illegally delivered in the
United States.
The appellants, with two others, set forth in a boat called Denman
II and left for Sidney Island with the intention of taking from the Beryl G. her cargo of liquor. According to the story of one of the appellants and an accomplice the Beryl G. was towed from Sidney
Island by the Denman II, and the bow anchor, having been detached was sunk with the bodies of the captain and of his son, which had been fastened together by a pair of handcuffs.
It had been proven that Baker had bought a yachtman's cap with a white top and ornamented profusely with gold braid in order to give himself the appearance of a revenue officer, and that this cap, together with two revolvers and handcuffs and a flashlight had been brought by Baker on board the Denman II.
The case against
Baker, as exhibited in the evidence on behalf of the Crown, was that in concert with the others he attacked the crew of the Beryl under the pretence that he and his associates were officers of the law, one of them being disguised in such a way as to present the appearance of a revenue officer, and the party being equipped with and displaying such arms and implements as such officers might be expected to use in dealing with the possessors of a contraband cargo of
Liquor.
Evidence was offered by the
Crown in rebuttal, of the fact that Baker on one occasion recently, and on another at a considerably earlier date, had employed similar equipment and precisely this ruse for the purpose of deceiving and disarming the opposition of bootleggers while he took over their illegal possessions.-Held that, as bearing upon the issue thus raised (as to design) it was relevant to shew a similar use of such implements by Baker on a recent occasion
-within a month; and, such evidence being given, evidence of the use of similar implements in a similar way on an earlier occasion, several years before, would be admissible as tending to establish a practice.-Quaere whether the admission of such evidence could be supported on the ground that it tended to corroborate the evidence of the accomplices.-Held also, that the criticism against the triai judge's charge to the jury-that he insufficiently warned the jury as to the risk of finding a verdict against the accused on the uncorroborated testimony
CRIMINAL LAW-Continued of an accomplice-possessed little or no importance when considered in light of the undisputed and indisputable facts proven or admitted by the accused. 2 - Conviction for manslaughter quashed by court of appeal- Leave to appeal to Supreme Court of Canada-Sections 1013, 1021, 1011, 1024A Cr. Code-Appeal to court of appeal on objection as to qualiflcation of juror not raised at trial-Right of appeal to court of appeal without leave-Court of appeal judgment conflicting with judgment of another court of appeal in like case.] The Court of Appeal for British Columbia quashed a conviction for manslaughter on the ground of disqualification of a juror by deafness, which disqualification that court found to be established by evidence taken subsequent to the trial. The defendant had not before the verdict raised objection as to the juror's qualification. The Court of Appeal held that the question as to the deafness of the juror and its effect in respect to the trial and conviction was a question of law only, and under a. 1013 (1) (a) of the Criminal Code an appeal to it lay without leave, and it therefore refused leave to being unnecessary. Attorney-General for British Columbia moved for leave to appeal to the Supreme Court of Canada.-Held, that having regard to clauses (b) and (c) oi s. 1013 (1), and to s. 1011, of the Criminal Code, the motion should be favourably considered if the pre-requisite of jurisdiction to entertain the projected appeal, viz., conflict between the judgment from which it was sought to appeal and that of any other court of appeal in a like case (Criminal Code, s. 1024A) existed; that decisions prior to the enactment of s. 1013 in 1923 on some of the matters covered by that section might properly be regarded as having been rendered in like cases; that such conflict as aforesaid existed by reason of the cases of Reg. v. Earl (10 Man. R. 303), and Rex v. Battista (21 Can. Cr. Cases 1); and the motion should be granted.
BoAx........................ 3 -Evidence
- Homicide - Admission of dying declaration-Admissibility upheld by court of appeal-Motion for leave to appeal to Supreme Court of Canada under S. 1024A Cr. Code-Alleged conflict with decision in Allen v. The King, 44 Can. S.C.R., 331].
A person suffering from a wound from which she later died made a signed declaration that the wound was inflicted by a knife in the hand of the accused.
At that time she had not that settled hopeless expectation of death requisite to the admissibility of a dying CRIMINAL LAW-Continued declaration. Shortly before her death her said statement was read to her (she being first told that the statement about to be read was the one she had made previously)
and she assented to its correctness and signed it by her mark. This latter declaration and evidence thereof was admitted at the accused's trial, and its admissibility was upheld unanimously by the Court of Appeal for British Columbia.
Application was made on behalf accused for leave to appeal to the Supreme
Court of Canada under s. 1024A of the
Criminal Code, on the ground that the judgment of the Court of Appeal conflicted with the judgment of the Supreme
Court of Canada in Allen v. The King,
44 Can. S.C.R., 331.-Held, that the judgment of the Court of Appeal did not conflict with the judgment in the Allen
Case, and the application was dismissed.
4 -Strike
- Picketing - Besetting and watching "wrongfully and without lawful authority"-Section 501 (f) Cr.
By s.
501 (f) of the Criminal Code everyone is guilty of an offence who "wrongfully and without lawful authority, with a view to compel any other person to abstain from doing anything which he has a lawful right to do, or to do anything from which he has a lawful right to abstain
*
* * besets or watches the house or other place where such other person resides or works or carries on business or happens to be."- The conviction of defendant thereunder for conduct in the "picketing" of coal mining premises in the course of a strike by certain mine workers, which conviction was affirmed by the Appellate
Division of the Supreme Court of Alberta
(Clarke J.A. dissenting), was affirmed by the Supreme Court of Canada, which held that there was evidence at the trial that the besetting and watching in which defendant was engaged was "wrongful and without lawful authority" within the meaning of the section.-Defendant's acts were wrongful and unlawful if the besetting and watching in which he, in common with his comrades or associates, was engaged, amounted to a nuisance or a trespass, or if the men who were besetting and watching constituted an unlawful assembly, and the conduct in question
(discussed in the judgments) afforded evidence of each of these particulars.-While apparently the hill occupied by the party to which the defendant belonged was somewhat outside the mining property, the hills surrounding the mine in other directions belonged to the mine owners and the groups stationed there were trespassers, and since the picketing was carried on in pursuance of a common design or project to which all the strikers including defendant were parties, he must be held responsible for the trespasses
CRIMINAL LAW-Continued equally with those who actually occupied the mine owners' property.-Per Idington J.: The section clearly forbids anyone from besetting another's house or place of business with a view to compel him to abstain from doing anything which he has a lawful right to do.
Such an act, which at common law might be the basis of a civil action, was always at common law wrongful, and is in itself "wrongful and without lawful authority"
witnin the meaning of the section unless some lawful authority (e.g., as often there might be with a sheriff, etc.) exists.
RENERs v. TE
5 -Evidence
- Accomplice-Corroboration-Warning to jury-Duty of judge- Appeal-Jurisdiction-Dissenting opinion -Sections 1002, 1013 (5) and 1024 Cr. C.] An entry in the formal judgment of an appellate court, signed by its president, that two judges dissented from the judgment for the reasons in law stated in their respective notes, is sufficient to found jurisdiction for appeal to the Supreme Court of Canada upon these questions of law under sections 1013 (5) and 1024 Cr. C. Idington J. dubitante.- When the evidence against a prisoner is the uncorroborated evidence of an accomplice, it is wrong for the judge to tell the jury that, if they are quite certain that the accomplice is telling the truth, they have not only the right to convict the prisoner but that it is their duty to do so. Rex v. Beebe (41 T.L.R. 635; 19 Cr. App. Cas. 22) foll.
Idington J. (dissenting)
.-Per Anglin
C.J.C.
and Duff,
Mignault, Newcombe and Rinfret JJ. In such a case, the judge should follow the rule laid down in Baskervilie's Case (12 Cr. App. Cas. 81): the judge should warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice and, in his discretion, may advise them not to convict upon such evidence; but he should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence.
GouiN KING........ - Alien - Conviction under Opium and Narcotic Drug Act, 1923 (D.), c. 22, 8. 4 (d)-Accused held for deportation un s. 25-Immigration Act (D.) 1910, c. 27- Habeas corpus proceedings-Appeal to Supreme Court of Canada-jurisdiction- Supreme Court Act, R.S.C., 1906 c 139, s. 36; as enacted 1920, c. 32.] Where an alien has been convicted, after his entry into Canada, of an offence under para. (d) of s. 4 of The Opium and Narcotic Drug Act, 1923, (D), c. 22, and, after expiry or determination of the period of imprisonment imposed upon him on such conviction, he is held in custody awaiting deportation, under a warrant showing on its face that he is so held as a consequence CRIMINAL LAW-Concluded of such conviction, under the authority of s. 25 of said Act, any "proceedings for or upon a writ of habeas corpus" directed to bring him before the court in order that the legality of his detention under such warrant may be enquired into, are necessarily proceedings "arising out of a criminal charge," and come within the exception to the jurisdiction
Supreme Court of Canada under s. 36 of The Supreme Court Act.
CROWN LANDS-Licencee-Assessment
-Over-valuation-Municipal District Act,
R.S.A. [1922] c.
The appellants, licencees of timber berth No. 2335, of which
3,884 acres are situated within the territory of the respondent municipality, were assessed in 1920 by the respondents at a total sum of $35,000, subsequently reduced by the Assessment Equalization
Board to $32,882.40.
The land subject to the licence is the property of the Crown in right of the Dominion and under s. 125 of the B.N.A. Act is not liable to taxation.
The assessment was made for a five-year period beginning in 1921.
Notice of assessment was sent to the appellants and later tax notices based on it were also sent in that year and in following years.
The appellant did not appeal to the
Court of Revision against the assessment but upon being sued for taxes based thereon together with statutory penalties contended that the assessment was null and void, alleging fraud on the part of the respondent in making the assessment.
The assessment was based upon the value of the land, upon which the timber stood, as farm lands, whereas the appellant's interest is in the timber only.-Held, that the legislature of a province may authorize the assessment of the interest of an individual in property belonging to the
Crown in right of the Dominion and that such assessment is not obnoxious to sec.
125 of the B.N.A. Act. Smith v. Council of Rural Municipality of Vermilion Hills
2 A.C. 569) City of Montreal v.
Attorney General for Canada ([1923] A.C.
136), followed.-Held, a case of overvaluation of the timber berth.
appellant should have availed itself of its right of appeal under the Municipal
Districts Act, R.S.A., c. 110.
Co. Dis- No. 580.......
2 - Railway -Expropriation .... 163
CROWN PROPERTY............
DECLARATION OF TRUST.....
DIVORCE.....................
EDUCATIONAL SYSTEM - Quebec province...................... See CoNsvrrUTIoNAL 2. Onus - Partnership - Firm of atockbrokers-Retirement of one member of firm - Notice - Continuance business with firm-Action against former partner - Partnership Act, (Ont.) 10-11 Geo. V, c. 41, s. 37.]
R., who was a member of the firm of B. & Co., stockbrokers, retired from the firm in May, 1920. The business was continued by B. alone, under the same firm name. The p laintiff became a customer of the firm in arch, 1920 and continued to deal with the firm untd it became bankrupt in 1924. The plaintiff filed a claim under the Bankruptcy Act against the insolvent estate of B. & Co.; but, so far as appeared, received no dividend upon his claim. this action he sought to recover from R. the amount of his claim agit the firm, alleging that at the time ls claim arose R. was "a known partner of B. & Co. without notice of his retirement as a partner of the firm."-Held, that in the absence of notice to the plaintiff of his retirement, R. would be liable; that the onus did not rest on the plaintiff of establishing that he was unaware of R's retirement from the firm of B. & Co., but that it rested upon R. to prove either direct notice thereof or, at least, facts and circumstances from which knowledge of such retirement might fairly be inferred. of the Appellate Division (57 Ont. L.R. 329) reversed and new trial ordered.
HuFFAN v. Ross......... Murder - Similar acts -Accomplices-Corroboration................ 92 3-Findings of trial judge-Duty o Appellate Court.................... 4 - Onus - Insurance - Life -Premium-Payment.................... See LIFE, 2. - Onus - Representations - Sober habits. .......................... 6- Homicide-Admissibility of dying declaration.................... 7- -Onus probandi................ - Accomplice - Corroboration - Warning to jury-Duty of judge ..... See CRImINAL 5. 9--Marriage.................... Exchange of properties-Simultaneous deeds of sale-Alleged misrepresentations by one owner-Action to set aside one deed-Resiliation of the whole agreement-Remedies-Art. 1598 C.
After an exchange of one property for another, one of the parties to the exchange cannot, upon the ground of false representations or fear of eviction, demand that the other party be compelled to take back his property and pay instead its alleged value in money.- The exchange may not thus be rescinded in part, but the whole exchange must be resiliated and the parties put back in the position in which they were before.-In either of these cases, the remedy is limited to the recovery of the property given in exchange.
A condemnation for the payment of a value in money can only be obtained as a sanction, in case the property itself can no longer be returned.-Where a party is evicted from the thing he has received in exchange, he has the option of demanding damages
(Art.
1598 C.C.).-Judgment
Court of King's Bench (Q.R. 41 K.B. 375)
v. GouiN ..........
EXCHEQUER COURT -Jurisdiction- Expropriation-Railway ............ 239
EXECUTION - Homestead - Transfer of by execution debtor to wife-Wife carrying on farm-Whether crop exigible under execution against husband.
TRUSTS Co. v. BRIGGs ............
EXPROPRIATION - Canadian National Railways-Expropriation Act,R.S.C., c. 143, s. 21-Jurisdiction of the Exchequer
Court-Railway Act, 1919, c. 68-Special incorporating Canadian National
Railway Company (1919), c. 31, as. 13,
Expropriation proceedings by The Canadian National Railway Company to obtain possession of land are governed by the provisions of the Expropriation Act and not by those of the Railway Act.-A judge of the Exchequer Court of Canada has jurisdiction to issue a warrant for possession under s. 21 of the Expropriation
Act and may exercise it before the commencement of proceedings to fix compensation.-Judgment of the Exchequer
Court of Canada ([1925] Ex. C.R. 173)
reversed.
RY.
Co. v. BOLAND....................
2 - Crown - Public work - Payment of mortgage on part of land as full compensation - New trial - Expropriation Act,
The Federaf Government expropriated in 1923 five parcels of land, being lots
149, 9011, 9565, 9565a, and 9566 in
Kootenay district, B.C., belonging to the appellant, for the purpose of a public park. A mortgage in favour of M. upon 1
EXECUTION-Concluded the four last mentioned lots had been discharged by the Crown in 1922 by the payment to M. of the sum of $22,000. It was alleged by the Crown in its information exhibited in the Exchequer Court that it was willing to pay as compensation for the five lots "the sum of $22,000, including thereon the said sum of $22,000,' paid to M. in advance and without reference to the appellant.- Held, that the payment to M. of the mortgage, although satisfying any claim in respect of the four lots covered by the mortgage, could not be applied towards compensation for lot 149, and that the case should be remitted to the Exchequer Court to determine the amount of compensation for that lot.
v. THE 284 3- College property.............. FARM IMPLEMENT ACT, SASK. 397 GRANT - Description- "A lake" - Expanse of water-Construction - Maps- Reliability as evidence-Proof of reputation-Sheriff's sale-Description of the property-Knowledge of buyer as to contents-Art. 1019 CC.-Arts. 638, 648 C.P.C.]
A grant was made in 1693 by Frontenac, Intendant of New France, and confirmed in 1694 by royal warrant of Louis XIV, King of France, upon the request of Augustin Rouer, for and in the name of Louis Rouer, his son, for the concession of a lake or one lake ("d'un lac") called Mitis, which discharged itself into a river of the same name, with one league of land all about the lake. grant was and still is commonly known under the name of the seigniory of Lake Metis. According to the topography, it is not a single body of water which is to be found at the source of the River Metis, but three bodies of water, two of them being approximately of the same altitude above sea level and the third being of an altitude approximately eight feet above the other two;
all three discharged naturally, from one to another by channels of flowing water which form no part of the lake expanse.
At the time of the grant, these bodies of water were situated in a remote locality and uninhabited unless by Indians.
After various changes of ownership, the respondent became the proprietor of the seigniory in 1922 and it then instituted a petition of right for the purpose of determining the extent of the property. It alleged that, at the time of, the grant, it was not known that there was any difference of level between the three bodies of water and that what are now shown in the modern maps and known generally as three lake sections with connecting channels were, by the grant, considered and described as a GRANT-Continued single lake; and it concluded by asking for a declaration that the three bodies of water should be considered as "a lake"
within the meaning of that term in the grant. In 1875, the seigniory had been sold under a sheriff's warrant to one B., the respondent's predecessor and the sheriff's deed described the property as follows: "all that tract of land forming and known under the name of seigniory of
Lake Metis
*
*
* with one league of land all around the said lake
*
*
*"
Prior to the sheriff's sale, from November,
1868, the provincial government had granted to the respondent's predecessors timber licences on two limits which, according to their description, included all the and which would be comprised within the boundaries of the seigniory if they were those as claimed now by the respondent to have been fixed by the grant of 1693; and the respondent's predecessors exercised their rights of cutting timber within these limits. At the trial, the respondent produced a number of maps which were admitted in its behalf;
they cam originally from various sources but were mostly selected from the collection of maps at the Dominion Archives.
earliest are of the date of 1765 and in all these maps down to 1863, there is a single lake shown at the head of the
River Metis.-Held, Duff J. dissenting, that the area of the grant must be limited to one lake, the upper lake, with the surrounding league, as, upon the evidence, the grant cannot be given an interpretation or construction of wider import than the restricted literal meaning of the language used carries with it.-Per Duff
The preponderance of evidence favours the view that, at the beginning
19th century previously as far as known, the expanse of water, consisting of the upper, middle and lower with connecting stretches, from the southern extremity of the upper section to the point where the river proper debouches from the lower section, bore the designation of
Lake Metis, the whole expanse being treated as a unum quid.-Held, also, that maps generally, are of little or no value to prove the facts which they depict or represent, geographers often laying them down upon incorrect surveys or information and copying the mistakes of one another; but they may be useful as admissions against the party who produces them.
Idington J. expressed no opinion. Duff J. held that although they may not be conclusive for the purpose of construing the grant of 1693, they are at least very cogent evidence in support of the contention advanced by a report of a surveyor in favour of the respondent as to the denotation of the
GRANT-Concluded name Lake Metis according to the contemporary usage of persons familiar with the locality.-Per Anglin C.J.C. and Mignault and Newcombe JJ. Maps, when they have no conventional or statutory significance, should be regarded merely as representing the opinions of the persons who constructed them; they furnish at best no adequate proof, and none when it appears that they are founded upon misleading or unreliable information or upon reasons which do not go to establish the theory or opinion represented, and when they have not the qualifications requisite to found proof of reputation.-Per Anglin C.J.C. and Mignault and Newcombe JJ. A map prepared by a private person, although filed with a provincial government, is not admissible as a public document against the Crown; it merely illustrates and the proof must come from sources outside the maps. Mercer v. Denne ([1904] 2 Ch. 534) disc.-Per Rinfret J. At the time of the seizure and sale, the sheriff cannot have meant, nor could he have intended the public to understand that he had seized and was selling other than the only lake which then was known by the name Lake Metis, that is the body of water furthest from the St. Lawrence. The buyer B., who was perfectly aware of the whole situation, cannot have imagined that his sheriff's deed granted him rights over the other two lakes; and the respondent's predecessors, when they bought from B. in 1876, cannot have intended, in view of the licences held by them since 1868, that they were getting more than the land around the upper lake, not already covered by their Crown licences.-Per Anglin C.J.C. and Mignault and Newcombe JJ. The report of a surveyor employed by one of the parties to a dispute affecting the title to land to survey that land, when made post litem motam, is not admissible as evidence, either of reputation or of fact; it serves only as notice of the claim.
PRICE .....................
GUARANTEE.................532-551 See BAurercy 1.
HABEAS CORPUS............... See CRnINAL 6.
HOTEL PROPRIE*TOR - Dangerous Liability - Grantee or licensee.....
............
HUSBAND
WIFE-Evidence marriage-Insurance-Claim under Returned Soldiers' Insurance Act, D., 1920, 10-11 Geo. V., c. 54.]
Respondent, as widow of a deceased, claimed to recover from the Crown under a policy of insur- HUSBAND AND WIFE-Concluded ance taken out by deceased under The
1920, 10-11 Geo. V, c. 54.
Against her claim it was urged that satisfactory evidence of marriage had not been produced.[Held, that as she had lived with deceased openly as his wife, was evidently regarded by deceased as his wife, had children by him acknowledged by him to be legitimate, and was accepted by people of repute as his wife, a prima facie case arose in her favour; and the findings of the trial judge, who had accepted her statement of the fact of a marriage ceremony, should be affirmed, under all the circumstances, notwithstanding her failure to recollect details of such ceremony.- Judgment of the Exchequer Court ([1926]
Ex. C. R. 1) aft.
THE KING V. PROUD
..................
INCOME TAX-Dominion Income War
Tax Act, 1917, and amendments-S. (6) as enacted 1920, 49, 4-Income accumulating in trust for the benefit of "unascertained persons or persons with contingent interests"-Construction of will-Vested contingent interests-Right to deduct income from Dominion tax-free bonds from income accumulating in trust.] C, who died
1912, domiciled in Ontario, by his will directed that his estate be converted into money and invested and, after payment of debts, etc., and certain legacies and annuities, the surplus income be invested and accumulated during 21 years from his death and at the expiration of that period the whole residuary trust fund be divided into three parts and conveyed to his three children and that "in case any of my children shall have died in the meantime, that the one-third share of each or any of my children that shall die before the expiration of said 21 years, shall vest in my trustees to divide the same amongst my grandchildren, if any, as they may think best."
One of the testator's children died in 1920, leaving no children, another is married and has three children, and the other is unmarried and lives in New York State.
A dispute arose between the Dominion taxing authorities and the sole surviving trustee
(the appellant) as to the return of income for 1921 under The Income War Tax Act,
1917, and amendments, the former contending (as was sustained by the Exchequer Court) that the income accumulating in trust for the benefit of those who will be entitled to receive it at the expiration of the 21 years is taxable in the hands of the trustee as "income accumulating in trust for the benefit of unascertained persons or of persons with contingent interests"
INCOME TAX-Continued of the subsection as income accruing to the credit of the different beneficiaries though not received by the beneficiary during the taxation period. It agreed that any income to which the child living in the State of New York was entitled or which was vested in her was not taxable.]-Per Anglin C.J.C., Idington and Mignault JJ. On the construction of the will, the vesting of the shares in the testator's children took place at the testator's death; and on the death of any of them before the expiration of the 21 years his share was divested and became vested in the trustees for distribution among the grandchildren at the time of the division of the estate as the trustees might think best. Thewords "contingent interests" in the Act should be given their legal meaning and do not include the case of a share vested subject to be divested. The share of each of the living children in the accumulating fund was not taxable against the trustee as "income accumulating in trust for the benefit of unascertained persons or persons with contingent interests," but (in the case of the child living in Canada) was taxable against the child herself. But the grandchildren were "unascertained persons" and the share of the fund which would have gone to the deceased child had he lived was taxable against the appellant as trustee.-Per Duff, Newcombe and Rinfret JJ. (sustaining in the result, on equal division of the court, the judgment of the Exchequer Court.)- Whether or not there are interests vested subject to be divested, the persons who are to enjoy the income are nevertheless, throughout the period of years, uncertain and unknown, and therefore "unascertained" within the meaning of the Act.
The Act, having regard to the time when the right to possession or enjoyment shall arrive, intends that the trustees shall pay the tax so long as it is uncertain who the persons may be who will then be entitled to receive the accumulated fund.-The trustee in his return claimed as a deduction a sum included in the net revenue, being the interest on Dominion of Canada tax-free bonds, and also claimed as a deduction from income subject to the normal tax a sum received as dividends from Canadian companies liable to income tax. The question arose whether (as between the trustee and the Crown) the income accumulating in trust should be deemed to contain the whole of the tax-free bond income or only a proportionate part thereof, a proportionate part being passed on for each of the annuitants in respect of the annuities paid from the income of the estate. It was agreed that what was decided as to the income received from the tax-free bonds applied to the divi- INCOME TAX-Concluded dends received from Canadian companies liable to income tax.-Held, that the trustee was entitled to deduct the income derived from the tax-free bonds from the net amount of income in respect of which he was taxable.
McLEOD v. MIN- .....
INSURANCE, LIFE - Designation of preferred beneficiary in policy-Subsequent will-Right to recover under policy without furnishing letters probate-Life Insurance
Act, Alta., 1924, c. 13-Ontario Insurance
Act, 1924, c. 50-Appeal to Supreme Court of Canada-Supreme Court Act, s. 2e.- Final judgment-Order in
"exercise of judicial discretion"-Quashing appeal as being manifestly devoid of merit.] S. 28 of The Life Insurance Act of Alberta
(1924, c. 13), or s. 139 of The Ontario
Insurance Act, 1924 (c. 50), in expressly creating a trust of the insurance moneys in favour of the beneficiary (or beneficiaries) in the preferred class, not only takes the moneys out of the estate of the insured, but makes clear the status of the designated preferred beneficiary to recover the same from the insurer, without intervention of the insured's personal representatives, as a trust fund m the hands of the insurer of which such beneficiary is the owner in equity.-If, where either of said statutes apply, a wife is named as sole beneficiary in a policy of insurance on her husband's life, and it appears that subsequent to the date of the policy he made a will, produced and sworn to by her as his last will, which declares her to be the sole beneficiary of his life insurance, and no reason is shown for believing that any alteration in the designation of beneficiary has been made, the insurer is not entitled to require the production of letters probate as a condition precedent to payment to such beneficiary.
A requirement of the policy that the "title of the person claiming shall be duly proven" is satisfied by the production of the policy naming the claimant as sole beneficiary.
Letters probate of the deceased's will form no part of her chain of title.-If an ap peal, though within the jurisdiction of the court, be manifestly entirely devoid of merit or substance, the court will entertain favourably a motion to quash it.-The plaintiff sued to recover the amount of a policy of insurance and interest thereon, having begun action by a specially endorsed writ, moved before a judge in chambers for speedy judgment under Order XIV, r. 1 of the Rules of the Supreme Court of
British Columbia, and it was ordered that judgment be entered for the plaintiff for the sum mentioned in the policy and that the action should proceed as to the demandfor interest. The order was
INSURANCE, LIFE-Continued affirmed by the Court of Appeal for British Columbia.-Held, the order for judgment was a "final judgment" as now defined in s. 2 (e) of te Supreme Court Act (R.S.C., 1906, c. 139, as amended); also it was not an order amounting merely to an exercise of judicial discretion within the purview of s. 38 of said Act; and grounds urged under those against the defendant's right of appeal to the Supreme Court of Canada were not maintainable; but the court, applying the principles stated in the first part of this head-note, quashed the appeal on the ground that it was manifestly devoid of merit.
LIFE V. MCCOUBREY ..... - Premium - Payment-Receipt for premium on agent's life signed by agent- Prima facie proof of payment-Onus.] A receipt for an insurance premium on the life of a district agent of the insuring company countersigned by the district agent himself and found among his papers after his death, admitted in evidence in an action on the policy, did not in the circumstances constitute prima facie proof of the payment of the premium.-The onus of proof of the issue as to payment of the premium was not, by the production of the receipt, shifted to the defendant company but rested upon the plaintiff uninterruptedly from the beginning to the end of the case.-The production of the receipt should have been treated by the trial judge merely as one fact in the case, i.e., as a part or incident of the whole body of the evidence.-The evidence adduced in this case by the company held sufficient to show that the premium had not in fact been paid.- Judgment of the Court of Appeal (19 Sask. L.R.
571) rev.
ONTARIO LIFE AccIDENT Co. BAKER......................... - Representations - Answer assured-Sober and temperate habits-Onus.] The respondent bank, as assignee, sued the appellant company for the amount of an insurance policy on the life of M.
The company resisted the claim on the ground that the assured had answered falsely to the question whether he was, at the time of the issue of the policy and for some years before, of sober and temperate habits. The policy contained a clause to the effect that the declarations made by the assured were in the absence of fraud to be considered as representations, and not as warranties.-Held that, according to the law of Quebec, the onus rests upon the insurer to establish misrepresentation of a fact of a nature "to diminish the appreciation of the risk or to change the object of it" and further, that he was induced to enter into the contract by such misrepresenta- IND
INSURANCE, LIFE-Continued tion.- Held, also, that the appellant company had not sufficiently discharged the onus of establishing that the assured was not of sober and temperate habits.- Judgment of the Court of King's Bench
(Q.R. 38, K.B.
LiFE, AssuRANCE SocrnEr LIr.
v. LA
4 - Life and accident - Medical treatment since examination-Accident after issue and before delivery of policy-Premium-Payment by note-Delivery of policy.
Provisions in the application form for a policy of life and accident insurance stipulated that "the insurance thereby applied for shall not take effect unless and until the policy is delivered to and received by the applicant" and that the insurance applied for should take effect
"only if the applicant has not consulted or been treated by any physician since his medical examination.'
The policy however, stated that "this policy takes effect as of date policy is written (twentysixth day of June, 1924)."
The accident the plaintiff and his consequent medical attendance took place on the
4th of July and the policy was handed to his father for the insured about 12th
July, having been in possession of the local agent for some time before the insured was injured.-Held, that the policy must be considered as in force at the time of the accident.
The provision that the applicant shall not have consulted or been treated by a physician must be limited to the period between the medical examination pertaining to the application and the date stipulated by the contract for the coming into force of the policy.-Held, also, that the policy had been effectively delivered to the applicant although the agent who handed it over to the applicant had delivered it notwithstanding the instructions of the company not to deliver the policy unless the agent "first satisfies himself that the applicant has not consulted or been treated any physician
*
*
*."
The company cannot, consistently with its obligations, impose conditions upon the delivery of the policy which were not provided for by the contract; and moreover the company's agent, exercising as such his own judgment upon the questions of fact involved in the instructions, must be deemed to have acted on behalf of the company in delivering the policy.- Held, further, that the premium must be regarded as paid at the time of the accident, inasmuch as on the 30th of
June the company's agent had received through discount from the bank, without recourse, the proceeds of a promissory note which was given by the father of the insured in payment of the premium.- Judgment of the Appellate Division
INSURANCE, LIFE-Concluded Supreme
Court of Alberta ([1925] 3 W.W.R. 386) aff.
NEw YORK LiFE INs. Co. v. DUBuc............ 5 - Returned Soldiers' Insurance Act ................................. See HusBAND WIFE. IRRIGATION - Seepage-Flooding of land in vicinity-Liability of irrigation district board-Irrigation Districts Act, Alta. (R.S.A., 1922, c. 114)-Irrigation Act (R.S.C. 1906, c. 61)-Railway Act (D. 1919, c. 68; R.S.C. 1906, c. 37).] Defendant, a body corporate by virtue of The Irrigation Districts Act, Alta. (R. S.A. 1922, c. 114), and administering an irrigation district formed under that Act applied under The Irrigation Act (R.A.C., 1906, c. 61, and amendments) for the water required and for authority to construct the necessary works for utilization thereof, and, having obtained this authority, constructed and maintained a main irrigation canal. At some point of the canal, not discovered, a seepage occurred, and by underground channels the water found its way to and flooded plaintiffs' ranch (which was not contiguous to the canal).
Plaintiffs sued for damages.- Held, having regard to the provisions of The Irrigation Act, and of The Railway Act thereby made applicable, the defendant could not justify its flooding of plaintiffs' lands without compensation by claiming to have merely exercised its statutory rights without negligence; by the flooding the defendant had interfered with plaintiffs' rights over their lands, had exercised in respect thereof a veritable easement, which, as well as the right of interference, it could acquire only by following the course prescribed under The Railway Act, viz., a notice to treat and expropriation proceedings with the payment of proper compensation; no notice to treat having been given the defendant was in the position of a trespasser; the principle relied on in Hanley v. Toronto, Hamilton & Buffalo Ry. Co. (11 Ont. L.R. 91), should be applied, and plaintiffs were entitled to recover damages m an action at law; they were not restricted to having the damages determined by arbitration under The Railway Act; it was for defendant to initiate proceedings thereunder. The damages awarded were restricted to those accrued at the date of the trial, reserving the right to claim subsequent damages if seepage continued.-Idington J., dissenting, held that, defendant having acted under statutory powers, its duty as water supplier having become imperative, and not being guilty of negligence, it was under no duty to do more than it did, and was not liable to plaintiffs; further grounds against plaintiffs' right to recover were: their failure to pursue the course provided by s. 41 of The Irrigation Act; IRRIGATION-Concluded their rejection of defendant's engineer's suggestion of drainage of their land, which would have mitigated the damage;
and doubt, on the evidence, whether the water which damaged plaintiffs' land was from the canal.-Judgment of the Appellate Division of the Supreme Court of
Alberta (21 Alta. L.R. 449) aff., Idington
NoRTHERN
JEWS - Quebec educational system. . 246
See LAw 2.
Registration - Judicial hypothec-Bankruptcy.............. 218
LITIGIOUS RIGHT.............
LOGS...........................
MANDAMUS................
...
MAPS - Reliability as evidence - Proof of reputation......................
See GRANT.
MARRIAGE -Evidence of....... 599
MASTER AND SERVANT - Negligence - Employer and contractor - Accident-Damages....................
MUNICIPAL CORPORATION -Statute-Amount imposed for inspection of abattoirs-Tax.] A statute enabling a municipal corporation to "exact and recover from any person operating abattoirs order to pay the salary of the health officers appointed
*
* inspect the cattle and other animals slaughtered a sum, etc.
provides for the imposition of a tax, and not merely for a right to recover compensation for services when performed.-So far as taxation is concerned, there is no vested right to the continuance of a particular tax or particular apportionment of taxes.
ABATrorrs v.
Crrr MoNrREAL................
2 - Annexation - Condition struction of aqueduct
Discretion
Mandamus.] Byan Act of the leIslature (7 Geo. 7 85), the municipality of Notre Dame de la Victoire was annexed to the city of Levis; and it was stipulated that the city, within two years from the date of the annexation should provide systems of aqueduct and drainage for the annexed mumcipality.
The city of Levis introduced these systems into the populated part of the annexed territory, but did not extend them as far as the appellant's property, which was the most distant lot built upon and was situated at a considerable distance from the nearest house. The appellant, by way of mandamus, prayed for an order from the court to compel the city respondent to supply his house with the water and drainage systems.-Held that this special Act did not impose upon the city of Levis the obligation to establish systems of aqueduct and drainage indiscriminately throughout the whole annexed territory, and had not deprived the council of the city of its discretion in exceptional cases. The respondent could not compel it to supply him by way of mandamus; the city of Levis, in refusing to do so, having exercised, in good faith and without discrimination, the discretion conferred upon it by the general law as contained in the Cities and Towns Act and by its own charter.-Judgment of the Court of King's Bench (Q.R. 39 K.B. 545) reversed. CITE 3 -Land of college taken for city street- Statutory exemption from expropriation- Possession taken under supposed agreement and street constructed-Compensation to be determined by arbitration-Dispute as to terms of agreement for compensation- Basis of compensation-Equitable considerations.] The defendant city, desiring, for purposes of a street extension, certain land of the plaintiff college, proposed to expropriate. The college, claimig, under s. 15 of the University Act, R.S.O., 1914, c. 279, that the city had no right to expropriate, sued to restrain it. Negotiations took place, resulting, as the parties believed, in a settlement, the action begun by the college was dismissed by consent and the city took possession and constructed the street which became an important thoroughfare.
A board of arbitrators was appointed, as had been agreed, to fix the amount of compensation to the college, but the parties, on appearing before it, were unable to agree as to the principle upon which compensation was to be assessed under the settlement agreement and in the result the college brought t6us action, asking for specific performance of the agreement as it conceived and alleged it to be, and alternatively a judgment setting aside the consent order dismissing its former action on the ground that the order was founded upon a supposed agreement which had never, in fact been concluded. At trial Riddell J. held the agreement had been made on the terms asserted by the college and was binding on the city. The Appelate Division varied holding that, as the parties had differently understood what the terms of the agreement were, they were never ad idem, there had, therefore, been no agreement, and as, under the circumstances, the parties could not be restored to their former position, what had been done should stand and the city should compensate the college on certain-bases laid down and directed a reference to the Master.
The college appealed to the Supreme
Court of Canada.-Held, that although there were disputes in certain respects as to the terms of the agreement, both parties understood that the college was to be fairly compensated; if there was no agreement the college must be compensated on equitable terms; so in the practical result it mattered hittle whether the right to compensation was considered as springing out of a specific agreement or resting upon equitable considerations;
fair compensation would include payment of the value of the lands taken, not necessarily limited to the market value, but the value to the college in view of the purposes for which the land was used, and to which it had been dedicated; also compensation for any loss in respect of the diminution in value to the college of the remaining property in view of the purposes for which the property was in use or had been dedicated, whether caused by the construction or maintenance of the street or the severance of the lands taken; also indemnity for any loss consequent upon changes necessitated by the severance of the lands taken such, for example, as the destruction and re-erection of buildings, in so far as this head of compensation was not included under the next preceding head; the value of the lands taken and the diminution in value of the property retained should be ascertained as of the date when the city took possession, and interest should be allowed from that date.-The judgment also provided for the closing of a certain street under certain conditions, and of a lane, and conveyance to the college, as had been agreed; for certain allowances to the city; and for assessment of compensation by the board of arbitrators which had been already constituted. It not having been explicitly agreed that the city should bear the expense of providing additional lands for the site of an Arts College, the question whether the cost of re-instatement in that sense would be a proper measure, in whole or in part, of the loss caused by the construction and maintenance of the street opened by the city must be one for the arbitrators.-The difficulties usually attending an action to compel specific performance of an agreement to refer to arbitration did not arise. The action was strictly an action founded upon the equity vested in the college, in consequence of the acceptance of possession by the city and its subsequent acts, to have the terms upon which possession was given carried into effect. In such a case, absence of statutory formalities touching the evidence of those terms is not an answer, as it would be in a common law action-for services, for example, as in McKay v. Toronto ([1920] A.C. 208)and the court will not hesitate to exert its powers as far as possible to see that the agreement is carried out, even though some of its terms should not be susceptible of enforcement by process in personam. Wilverhampton & Walsall Ry. Co. v. London & N.W. Ry. Co. (L.R. 16, Eq. In view of the fact that the board of arbitrators had been constituted it was a proper case for a declaratory juagment. V. CITY TORONTO..................... 4 - Assessment - Valuation roll - Pipes, poles, wires and transformers- Meters - Immovable or movable-"Immovable," "real estate," "real property"- Terms similar for purposes of taxation- Action for taxes--Defence - Non-assessable - Cities and Towns Act, art. 5730, R.S.Q. 1909-Art. 2731, R.S.Q. 1909-Arts. 376, 380, 384 C.C.] The respondent brought an action to recover from the appellant company $8,626.86 for municipal taxes and $4,831.05 for school taxes as assignee of the Board of Schools Commissioners, for the years 1920-21, 1921-22 and 1922-23.
The subjects of the taxation were gas mains or pipes located in the public streets, a system of electric poles and wires, almost entirely upon the public streets, and meters placed in the houses of the consumers in the municipality.
In the valuation roll for the years 1920-21 and 1921-22 all the electric property of the appellant company, including the meters, which were of substantial value, was embraced in a single gross valuation and was the subject of but one assessment. In the exercise of their powers of taxation, instead of using the term "immovable" as found in art. 5730, R.S.Q. 1909, the municipal corporation substituted in its by-laws the term "taxable real estate" and the Board of School Commissioners in its resolutions the term "taxable real property."-Held that the pipes, poles, wires and transformers are immovables within the meaning of that term as used in art. 5730 of the Cities and Towns Act, R.S.Q., 1909, and are subject to taxation as such. Belair v. Ste. Rose (63 Can. S.C.R. 526) foll.-Held, also, that the meters, being movables within art. 384 C.C. do not lose that character by reason of the mode or purpose of their being placed by the company upon immovables not belonging to it, to which they are, when in use, temporarily affixed; and they are not therefore taxable immovables. Idington J. dissenting.- Held, also, that the assessments of the electric system for the years
1920-21 and
1921-22 invalidated in toto as being, to an extent not apportionable, made upon movables, i.e., electric meters; and no part of the taxes sued in respect of them are recoverable. Idington J. dissenting.- Held, also, that, although the words "immovable"
and "real estate" and "real property"
are not in practice interchangeable, the terms "real estate" and "real property"
should be taken, for the purposes of the taxation by-laws and resolutions, include property which is held to be
"immovable' by nature as the pipes, poles, wires and transformers.- Held, further, that a defence to a claim for taxes that the taxed property is nonassessable, if otherwise maintainable, is not precluded by the failure of the assessed party to invoke any special machinery afforded for appeals from assessments or any summary proceedings available to have valuation rolls annulled for irregularity. Donohue v. St. Etienne de la Malbaie ([1924] S.C.R. 511) foll.
Idington J. (dissenting)
.-Judgment the Court of King's Bench (Q.R 38,
K.B. 406) rev. in part, Idington J. dis- L. & P. COM.
5- Taxation-Business tax
. ...
NAVIGATION
NEGLIGENCE - Employer and contractor-Person damaged contractor's negligence-Liability of employer- Work necessarily attended with danger-Duty employer-Duty of owner of land to prevent use thereof causing a nuisance-Servant independent contractor-Contract reserving powers of control to employer-"Casual collateral" negligence.] The defendant city employed M. as a contractor to deepen a stream within the city. In the contract and specifications wide powers of interference and control were reserved to the city, but there was no evidence of actual interference.
The work involved rock excavation.
Near the work M. built a shack on or partly on land included in a street limit but not used as part of the roadway, and in this shack he placed tools and appliances for the work, including a forge and also a box of dynamite.
An explosion occurred, damaging plaintiff's house. At trial the jury found that the explosion was caused by the negligence of M. or his servants, the negligence consisting in the storing of the dynamite in a shed used as a storehouse for tools, instead of being locked up in a separate structure used for explosives only. No question was put to the jury involving the city's liability, which was dealt with by the trial judge on considerations of
NEGLIGENCE-Continued law upon the contract and as upon undisputed facts.-Held, affirming the judgment of the Supreme Court of New Brunswick
Division, and of Crockett . at the trial, that the city was liable.-Per Anglin C.J.C. and Rinfret J.: The principle applicable was that where work is necessarily attended with risk, the person causing it to be done has the duty of seeing that effectual precautions are taken; and he cannot escape from the responsibility attaching on him of seeing that duty performed, by delegating it to a contractor. The city, in ordering work involving storage of dynamite near a highway and neighbouring houses was, at its peril, bound to see that the duty of taking preventive precautions against its manifest danger producing injurious consequences was performed; the most obvious of such precautions was to provide the safest storage possible; not only was there no proper stipulation or instructions as to storing of explosives, but the city's duty to see that proper storage was provided would not be satisfied by merely stipulating or giving instructions for it failure to see that the duty was performed entailed liability on it as employer to those injured as a result of its nonperformance.
The improper storage of the dynamite could not be regarded as casual or collateral negligence on M's part; it was negligence in the performance of an essential part of the work; it was not such an act of negligence as could not have been anticipated and guarded against; and carelessness in the storage and handling of explosives is not something so unusual that no sane contractor might be expected to be guilty of it.- Dealing with the other grounds argued, Anglin C.J.C. and Rinfret J. held that, although the evidence should warrant an inference that the shack was on premises owned or controlled by the city, it did not satisfactorily appear that the city had, or should be deemed to have had, such notice that dynamite was stored therein as might entail liability on the ground taken by Newcombe J.; also, that the relation between the city and M. was that of employer and independent contractor, not of master and servant; the mere existence of wide powers of interference and control reserved to the city (but which were not exercised), did not suffice to make the contractor and his workmen servants of the city.-Per Duff J.: The storing of the dynamite at or near the site of the operations in progress and in the vicinity of dwelling houses and public streets was an act incidental to the carrying out of these operations by the city in virtue of powers vested in it as the municipal authority, through the instrumentality of the contractor.
The nature NEGLIGENCE-Continuec of the work itself obviously dictated the duty of taking suitable precautions.
This duty rested upon the city primarily as the donee of the powers in pursuance of which the work was being executed, and this duty it could not discharge by delegating it to a contractor.
Hardaker v. Idle (1896), 1 Q.B. 335; Vancouver v.
Hounsome, 49 Can. S.C.R. 430.-Per
Mignault J.: The duty was imposed on the city to supervise the storage of explosives, which duty it could not discharge by delegating it to the contractor.-Per Newcombe J.: Where a person is in possession of fixed property, he must take care that it is so used that other persons are not injured. This duty exists, though the property is in use by a contractor permitted, for purposes of his contract, on the premises. Such injuries are in the nature of nuisances.
shack was on land which, although included in the street appropriation, could not in its existing condition be used for street purposes, and was vacant unimproved land, as to which the city was under the obligation of an individual proprietor to see that it was not used in a manner to cause a nuisance.
It may be assumed that the shack was not built without the city's knowledge and approval and that it was a consequence not improbable of the location and building of the shack, which the city should have realized, that the explosives for the work would be kept there; and the city could not escape liability for the user which, for purposes of the work, the contractor made of the shack, amounting to a public nuisance upon the city's
2 - Automobile collision - Injury to gratuitious passengers-Responsibility of driver
Care "reasonable under all the circumstances"- Supreme
Court of Canada- Jurisdiction - Value of matter in controversy-Alleged cause of action of a plaintiff (respondent) distinct from that of co-plaintiff-Requirement for right of appeal de plano.] Plaintiffs were gratuitous passengers m an automobile owned and driven by A.
It collided with a taxicab driven by W. Plaintiffs sued A.
W. At trial Meredith
C.J.C.P.
on the evidence held W. alone to blame.
The Appellate Divisional Court, Ont., apparently without intending to disturb his findings of fact, took the view that on those findings, as they understood them,
A. had also been guilty of negligence which contributed to the collision and should be held jointly liable with W.
On appeal by A. to the Supreme Court of
Canada.-Held, the Appellate Divisional
Court appeared to have misapprehended the findings at the trial in certain important particulars; the evidence supported
NEGLIGENCE-Continued the trial judge's findings, and did not disclose negligence in A.'s conduct. It might be that in an emergency he did not exercise the best possible judgment, but even that was doubtful; if there was any error on his part, it amounted, at the most, to an excusable mistake in judgment and did not involve any breach of duty owing to his passengers such as would predicate a failure to take that care which would have been
"reasonable under all the circumstances,"
which is the test of the responsibility of one who undertakes the carriage of another gratuitously
(Karavias v. Callinicos [19171 W.N. 323; Harris v. Perry & Co. [19031 2 K.B. 219; the contention for some lower standard, argued as being implied in Nightingale v. Union Colliery Co., 35 Can. S.C.R. 65, rejected);
and A.'s appeal should be allowed.
Idington J. dissented, holding that the established such negligence in A.'s conduct as made him jointly liable with W. for the damages suffered by plaintiffs.- On the question of this court's jurisdiction to entertain the appeal as against one of the plaintiffs (respondents), it was held that, if he had a cause of action it would be complete in itself and entirely distinct from that of his co-plaintiff; and in such a case the value of the matter in controversy on the appeal to this court, with regard to each individual respondent, must exceed the sum of $2,000 in order to give a right of appeal against him de plano. ("L'Autorite' Limitee v. Ibbotson, 57 Can. S.C.R. 340).
CARR ...... 3 - Dangerous premises - Invitee - Licensee-Duty of hotel proprietor to. person attending banquet-Jury trial- Verdict.] In an action under The Fatal Accidents Act, 1922, c. 196, by the widow of a person who had been in attendanceat a banquet given by an association in the defendant's hotel and, after theconclusion thereof, met his death by falling into a private service elevator shaft, a general verdict was rendered by a jury in favour of the plaintiff, upon which judgment was entered for $40,000 damages.
Upon appeal to the Appellate Division, judgment was reversed and the action was dismissed.- Held, affirming the judgment of the Appellate Division (22 Alta. L.R. 237), that, upon the undisputed facts disclosed at the trial, the deceased was not at the time and place of the accident, entitled to be treated as an invitee, and, as the defendant's liability must be determined in view of its duty to a mere licensee, there was no failure of duty to the deceased on the part of the defendant company.
Beyond the material facts in proof and their fair implication, everything was left to conjecture; and, although the courts must. 735& NEGLIGENCE-Concluded
'be careful to distinguish between the oeparate functions of judge and jury and to avoid the disposition of a case upon inferences inconsistent with findings which there is evidence to sustain, there was no evidence in this case to support the finding implied in the general verdict that the deceased was invited, or was justified to believe that he was invited, by the defendant company to enter or to use the private passage, or to meddle with the door of the service elevator.
v. Dpv. Co .....
4 - Escape of gas during making of gas connections - Explosion and fire - Destruction of buildings-Responsibility- Inference from facts in evidence - Onus as to explanation of accident. CONSmERS
Co. oF v. THE ...
NOVATION...................
See CONTRAcT 2.
PATENT - Practice-Action to impeach
-Abandonment of grounds of-Interest- Status-Exchequer Court Act R S C. (1906)
c. 140, s. 23 and rule 16.]
'he appellant, to whom a Canadian patent upon an apparatus for electric heating had been granted in the interval between the commencement of his action and its coming on for trial, sought to impeach certain patents of the respondent company alleged to cover similar devices. At the trial, the appellant, in order to avoid an adjournment applied for by the respondent, offered to refrain from giving evidence in respect of certain foreign patents, and on these terms the trial proceeded.
At the conclusion of the argument, the respondent for the first time raised the
-question of the appellant's status to maintain the action. The trial judge held that the appellant had adduced no evidence showing that he was a "person interested" within the meaning of rule
16 of the Exchequer Court Act and had no Ilocus standi; and he accordingly dismissed the action.-Held that effect ought not to have been given to the respondent's objection without first giving the appellant an opportunity of producing the foreign patents as evidence to meet it.
-Held, also, that, in the circumstances of this case, the appellant possessed a sufficient "interest" within the meaning of rule 16, to qualify him to maintain the action.-Judgment the Exchequer
Court of Canada ([1925] Ex. C.R. 160)
reversed and new trial ordered.
v. DE
2 - Infringement - Railroad rails- Anti-creeping devices-Claim and specifications - Construction - Defence - Want definitiveness-Anticipation.]
appellants (plaintiffs) had a patent for an
PATENT-Continued anti-creeping rail device, which, as they alleged, had been infringed by the respondents (defendants), who had, subsequently to the appellants' patent, manufactured and used, in Canada, a rail anchor which, it was urged, embodied the principle appellants' patent. Before the appellants' patent, various contrivances had been devised and used for the prevention of creeping, usually in the form of a stay or brace between the rail and the sleeper.
A favourite method of applying this mode of resistance, and which had been tried in different forms and under various patents, was by means of a cross bolt or yoke, underlying the rail, bent at either end to engage on each side with the base of the rail and kept in position by a wedge inserted on one side between the yoke and the rail, a part of the contrivance extending downwards perpendicularly to form an abutment designed to press against the contiguous sleeper and thus to overcome the creeping.
The invention which was the subject of the appellants' patent consisted of a steel yoke or cross-bar in principle and not unlike those which were known and had been tried before, but, instead of a wedge for securing the apparatus to the rail, it made use of a locking device which was worked by means of torsion of the steel yoke. The device manufactured and used by the respondents, which was alleged to infringe, was of the wedge variety, the wedge being so formed that when driven into place the yoke was sprung into holding position.
contended by the appellants that the respondents' device depended for its efficiency upon the torsion spring or recoil of the steel yoke and tiit it therefore constituted an infringement.- Held, that the appellants' invention was one of mechanical detail, that the characteristic of the steel bar when sprung or twisted to resume its normal position was not the discovery the appellants' patentees, who merely made use of a well known quality of the metal for bringing about the particular result in the specified manner; that while, if a new principle be discovered, the court will regard jealously any other method embodying that principle, yet where, as in this case, the invention consists in a particular new method of applying a well known principle, the use of other methods is not contemplated by the patentee, and that these do not fall within the ambit of the claim.-Judgment of the Exchequer Court of Canada ([1925] Ex. C.R. 47) affirmed. P. & M. Co. v. ............ 3 - Infringement - Validity of patent- User in foreign country before invention- The Patent Act, R.S.C. 1906, c. 69, s. 7- PATENT-Concluded
Patent dated after assent to, but before the coming into force of, The Patent Act,
1923, c. 23.]- Held, in a. 7 of The Patent
Act, R.S.C. 1906, c. 69, the words "which was not known or used by any other person before his invention thereof"
meant just what they expressed, and the words "not known or used by any other person" were not to be qualified by the words "in Canada."
The fact of user by another person, though in a forein country, previous to the invention made by the applicant for patent, disentitles the latter to maintain an action for infringement of the patent granted to him under the said Act. Smith v. Goldie
(9 Can. S.C.R. 46) disc.-The patent in question was dated 26th June, 1923.
The Patent Act, 1923, c. 23, was assented to 13th June, 1923, but came into force, by proclamation,
1st September,
1923.-Held, the rights of the patentee were governed by the former Act, and there was nothing in the new Act which had the effect of sustaining his patent against the objection raised against it, viz., user in the United States by another person before the patentee's invention.
& v. BRAKE
PARTNERSHIP -Firm of stockbrokers- Retirement of one member offirm-Notice- Continuance of business with firm-Action against former partner-Evidence-Onus- Partnership Act, Ont.; 10-11 Geo. V, c.
41, s. 37].
R., who was a member of the firm of B. & Co., stockbrokers, retired from the firm in May 1920.
The business was continued by B3. alone, under the same firm name. The plaintiff became a customer of the firm in March, 1920, and continued to deal with the firm until it became bankrupt in 1924. The plaintiff filed a claim under the Bankruptcy Act against the insolvent estate of B. & Co.;
but, so far as appeared, received no dividend upon his claim.
In this action he sought to recover from R. the amount of his claim against the firm, alleging that at the time his claim arose R. was
"a known partner of B. & Co. without notice of his retirement as a partner of the firm."-Held, that in the absence of notice to the plaintiff of his retirement, R.
would be liable; that the onus did not rest on the plaintiff of establishing that he was unaware of R's retirement from the firm of B. & Co., but that it rested upon
R. to prove either direct notice thereof or, at least, facts and circumstances from knowledge of such retirement might fairly be inferred.-Judgment of the Appellate Division (57 Ont. L.R.
329) reversed and new trial ordered.
BurmAN v. Ross.................
2 - Co-purchasers - Covenant to pay- Joint or several....................
See SAlm or
PICKETING-Strike............ See CnnNA 4.
PRACTICE AND PROCEDURE-Stay of proceedings-Leave to appeal to Privy Council - Proceedings in execution - Suspension - Application for stay after leave to appeal obtained-Supreme Court Act, R.S.C. [1906] c. 139, 8. 37, rule 136]. An application for special leave to appeal to the Privy Council, and even the granting of such leave, do not, as a matter of law or by the rules of this court, ipso facto operate as a suspension of proceedings in execution of the judgment rendered by the Supreme
Court of Canada.-Pursuant to rule
136, the practice of this court has been to make orders for stay of execution of its judgments pending the time necessary for applying to the Privy Council for leave to appeal. But, except for very special reasons, this court will be slow to exercise the wider discretion which the rule authorizes.-As a general rule, it is desirable, where leave to appeal to the Privy Council is granted, that the conditions attached to such leave and the terms upon which it is allowed should be left to the Judicial Committee.
STEVENsoN FLORA=T................... 2 - Patent - Action to impeach - Inter eat-Statues................... PRINCIPAL AND AGENT
PRIVY COUNCIL-Appeal........ RAILWAY - Crown Lands - Expropriation-B. N.A Act, as. 91, 92]. Section 189 of the Railway Act, 1919, c. 68, which enables railway companies with the consent of the Governor in Council to take possession of Crown Lands applies to Provincial Crown Lands and is within the competence of the Parliament of Canada to enact.-It is within the discretion of the Governor in Council to grant or refuse the consent required by said section.
condition requires consent imports no more than incidental power regulation. 189, ACT ...... 2--Crossing of tracks by two railways- Order of the Board of Railway Commissioners-Signalman paid by one company- Re-imbursement of half by other company- Injury to signalman-Joint liability.] The appellant company obtained leave from the Board of Railway Commissioners to cross the tracks of the respondent company and the Order of the Board provided that the respondent
"shall employ and pay the signalmen necessary to operate the interlocking plant, at the joint expense" of both companies.-Held RAILWAY-Concluded that the compensation under the Workmen's Compensation Act granted to a signalman injured while lifting a semaphore lever was an expenditure within the terms of the order.
Ry. L.
& P. Co. v. RY. Co .......
3 - Agreement between railways-Interpretation-Public interest...........
See 8.
4- Expropriation................
REGISTRATION.................
RETRAIT...................
Litigious rights - Retrait - Absolute tender-Conditional tender void- Arts. 1576, 1582, 1583, 1584 C.C.]
debtor wishing to exercise the retrait of litigious rights must make an unconditional tender of the amount owed to the buyer in payment of "the price and incidental expenses of the sale with interest, etc."
(Art. 1582
C.C.).-A tender of that amount by the debtor to the buyer so made that it would be paid to him upon his signing a deed of sale of the property acquired, is not valid within the terms of Art. 1582 C.C.-The sole effect of the retrait is that the debtor assumes the bargain (le marchd) of the buyer of the litigious right, so that the debtor is merely substituted for and subrogated to the buyer; therefore, the buyer is not bound to sign a deed of sale, as, in doing so, he would subject himself to legal warranty of the rights sold
(Art. 1576 C.C.).
InvIn........................
2--Fraud-Instrument containing release of existing liability-Signed with no intention to give release-Action for specific performance-Onus probandi.] Under an agreement between the respondent and the appellant company for the sale of the respondent's brick plant, the appellant undertook to incorporate a new company to take over the business and also agreed to assume and pay the amount due from the respondent to one
B. on a chattel mortgage.
Some months later, the respondent signed another instrument transferring the brick property to the new company which assumed liability for the payment of the mortgage, but the instrument expressly released the appellant company from its obligation to pay off the mortgage.
In an action for specific performance of the first agreement.-Held, that the basic fact on which the respondent's case must rest is that he executed the instrument containing the release clause in ignorance of its presence and effect and the burden of
SALE-Concluded proving such ignorance rested on him; and that his evidence, which alone was offered to substantiate it, did not discharge that onus.-Judgment of the Court of Appeal ([1925] 2 W.W.R. 267) reversed.
3 - Electric lighting system-Immovable or movable-Vendor's lien-Registration- Public streets-Severance of the plant- Arts. 1983 2009, 2014, 2016 pipes, poles, wires transformers included in an electric lighting system erected in, and on, the pubhc streets of a municipality are immovables.
(Bilair v. Ste. Rose, 63 Can. S.C.R. 526 and Montreal L. H. & P. Cons. v. City of Westmount, [1926] S.C.R. 515, foll.); and the registration upon them of a memorial (bordereau) to preserve a vendor's lien is not illegal nor void.-They do not cease to be immovables because these pipes, poles, wires and transformers have been sold separately from the generators in and on the property of the vendor for the purpose of being connected with other generators belonging to the buyer.-The express stipulation of a vendor's privilege on some of the equipment and machinery sold does not result in the exclusion of the other things sold from the purview of the privilege prescribed by the code.-A vendor's lien is created by law (Arts. 1983, 2009, 2014 C.C.) and it is not essential to reserve it in the conveyance.
The vendor can waive it, but his intention to do so must expressly appear from the deed of sale.- A vendor's lien resulting from the sale of an electric lighting plant can be registered by indicating in the memorial (bordereau) the cadastral numbers of the lots upon which the poles etc., are erected, although the land itself is not hypothecated or. cannot be hypothecated, as for instance in this case where these lots are public streets.-Nothing in the
Civil Code definition of a lien (Art. 1983 C.C.) or of a hypothee (Art. 2016 C.C.) is opposed to its affecting only a structure independently from the soil on which it stands; and it does not matter that the soil is municipal land and, as such, inalienable. ST. CO. v.
MMEUBLE SALE OF GOODS templating building a factory-Preliminary order of bricks-"About a million and a half"-Written order-"All brick required" -Breach contract-Damages.] The defendant, an incorporated contemplating building a sugar factory at Petrolia, wrote to the plaintiff, on September 29, 1922, asking a price on 500,000 brick f.o.b. Petrolia. In answer to this a price of 819 per thousand was quoted. This was met by a counter offer of 818. The plaintiff then suggested a price of SALE OF GOODS-Continued
$18.50.
An interview followed as to which the only evidence is that of the plaintiff. The plaintiff says that Mr.
choen, the defendant's president, stated that he would need about 1,500,000 of brick for the buildings and the plaintiff then agreed to deliver the bricks at $18.
Following this interview and after the delivery had started, a letter was sent by the defendant to the plaintiff to confirm the verbal order given. Enclosed with this letter was an order form in which the goods sold were described as
"all brick" required for the Petrolia
Sugar Factory, to be delivered at such time as ordered by us.
*
* to confirm verbal order given your Mr.
Howlett. Price per thousand."
Some half million bricks were delivered and paid for.
In October, 1923, the defendant wrote to the plaintiff that it had decided not to use brick for the main building and would not be able to take any more. The plaintiff sued for breach of contract, declaring upon the written order.-Held that, although there were several expressions of expectation on the part of the defendant as to the quantity of bricks to be taken, there was no warranty and no fraudulent representations; that the purchase was not of 1,500,- 000 bricks but merely of such brick as the defendant should require and order for the building of the factory, and that there had been no breach of the contract.
v. HowLETT.
2 - Thing lost or stolen - Second-hand automobile - Purchaser - Good faith - Arts. 1487, 1488 1489, 1490, 2268 C.C.]
The purchaser of a thing lost or stolen is in "good faith" within the meaning of art. 1489 C.C., if he honestly believes that the vendor is the owner of the thing lost or stolen.
It is not necessary that his good faith be "une bonne foi &latante,"
or that his error be an invincible one.
v. BARRETT ............
3---Steam engine-Purchaser unable to read English-Farm Implement Act, Sask.,
R.S.S. 1920, c. 128-Requirements of s.
18-Effect of non-compliance with s. 18- Effect of taking, retention, and use, of engine by purchaser.] Section 18 of The
Farm Implement Act, Sask. (R.S.S. 1920, c. 128), implies a prohibition against taking a contract for the purchase of a
"large implement" from any person who cannot read in English, without first having such contract read over and explained to him in a language which he understands. A contract of purchase taken by the vendor without compliance with the section is not enforceable.
the sale of an engine the purchaser, a
Roumanian, could not read English.
The contract was read to him in English and some explanation given to him in
Roumanian of certain clauses which he
SALE OF GOODS-Continued said he was unable to understand when read to him in English.-Held (Duff and Newcombe JJ. dissenting) that, upon the evidence in the case, English was not a language which the purchaser "understood" within the meaning of s. 18; that the vendor's action on the contract could not be maintained; and that, in the circumstances, the vendor could not succeed on an implied contract to take and pay for the engine on a quantum meruit basis. The court did not interfere with the order below enjoining the purchaser, as incident to his obligation, to return the engine and to account for such benefits as had accrued to him from its possession.-Semble, as the purchaser could not understand portions of the contract when read to him in English, the vendor was bound to have the entire contract read and explained to him in some other language (not necessarily his native tongue)
which he understood sufficiently to enable him to appreciate the purport and effect of the contract to the extent to which an Englishspeaking person in his walk of life would be likely to appreciate them upon the contract being read over and explained to him in English.-Per Duff and Newcombe JJ. (dissenting): On the evidence and findings at trial it must be taken that the contract, previous to its being signed, was read over and explained to the purchaser in a language which he understood sufficiently to become aware thereby of the meaning of the contract, which is all the statute requires.-Per Newcombe
If there were any defect in the explanation which the statute contemplates, contract became thereby no worse than voidable at the purchaser's option, and, by his length of possession and extent ofuse of the engine, the purchaser had lost the right of avoidance.
ADvANcE RUMELY THRESHER V. YORJA... 397 4 - Sale by description and sample- Implied warranty that goods are merchantable.] Held, at common law, on a sale by description and by sample of goods (such as "black Italian cloth"), the ordinary use of which goods is well established, and the description being the usual commercial description well known in the trade, although the purpose for which they are bought is not communicated to the vendor, and although the vendor is not the manufacturer of the goods, and does not know of any defect, there is an implied warranty that the goods will answer such description and be merchantable under that description for the ordinary and usual purpose for which they are used.
Neither inspection of the sample nor of the bulk, so far as concerns defects not discoverable reasonable inspection, excludes such 7.C. SALE OF GOODS-Continued implied warranty.-The court, applying above principle, reversed the judgment of the Appellate Division of the Supreme
Court of Ontario (56 Ont. L.R. 418) and restored the judgment of Middleton J.- Held that the appellant, purchaser of goods from the respondent, was entitled to damages for defect in the goods.
JomN
& Co. LTD. v. TE PmINcEss
Co. TD.................
5 - Conditional sale - Default in pay- Repossession and resale-Seller realizing an excess on resale-Buyer's right to excess-B.C. Conditional Sales Act,
R.S.B.C., 1924, c. 44].
On the buyer's default under a conditional sale agreement the seller repossessed and resold the chattel, realizing a sum in excess of the unpaid instalments.-Held that, in view of the terms of the agreement and the wording of its clauses, the relationship of the parties did not differ essentially from that of mortgagor and mortgagee, with an obligation for payment by the former, and therefore the surplus proceeds of the resale belonged to the buyer; that there was nothing m the B.C. Conditional
Sales Act, R.S.B.C., 1924, c. 44, which had the effect of depriving the buyer of his right thereto. Sawyer v. Pringle
Ont. A.R.
218) distinguished.- Judgment of the Court of Appeal for
British Columbia ([1926] 1 W.W.R. 508)
C. C. SALs LTD. v.
...................
6-Right of redemption-Notice to the buyer-Intention to redeem-Tender-Arts.
1546, 1548, 1549, 1550 C.C.]
In order to exercise a stipulated right of redemption, it is not sufficient for the seller to give notice to the buyer within the stipulated term of his intention to exercise that right, but he must also offer at the same time the price of the thing sold.-Johnson v. Laflamme
(54 Can. S.C.R.
explained.-Judgment of the Court of
King's Bench (Q.R. 40 K.B. 113) aff.
- Third party guaranteeing debt of buyer-Signature given by error-Nullity-Fins de nonrecevoir-Arts. 992, 993 C.C.]
The appellant company, before selling its manufactured goods to pedlars, required a contract of guarantee to be signed by two persons who bound themselves to pay all moneys due or to become due by the pedlar.
The respondents signed such a contract for the benefit of one C, who fraudulently represented to them that it was merely a letter of reference.
Later on
C. went into bankruptcy and the appellant sued the respondents for the amount then owing by C. At the trial the respondents testified that C. induced them to sign the documents on these
SALE OF GOODS-Concluded representations and also that they had signed it in error as to the nature of the proved that they signed the contract without reading it.- Held that, error as to the nature of a contract being a cause of nullity (art. 992 C.C.), although the fraud of C. was not a valid defence as to the appellant company which had not participated in it (art. 993 C.C.), the contract was nevertheless void by reason of this error, and in the circumstances of the case no fin de non-recevoir against respondents resulted from the fact that they had signed the contract without reading it.- Fins de non-recevoir discussed. Imperial Life Assurance Co. v. Laliberte (Q.R. 29 S.C. 183), Gosselin v. The Independent Order of Foresters (11 R. de J. 259); Similingis v. Provincial Fire Insurance Co. of Canada (23 R.L.N.S. 323), and Tranquil v. Gagnon (26 R.L.N.S. 56) overruled.-Judgment of the Court of King's Bench (Q.R. 39 K.B. 241) aff. DuoouLIN........... 8 - Bailment - Warehouseman-Storage of grain shipped to warehouse by lake vessel-Instructions from shippers to ship grain by rail to purchasers-Delivery to one purchaser without production of lake bills of lading- Failure of purchaser to pay for grain- Action against warehouseman to recover damage Jor loss.
9 - Barge - Repairs - Notice contractors........................ 10 - Agency - Conditions - Warranty-Renting of goods-Right to repudiate..........................
11-Bulk Sales Act, Alta., 1913, c. 10, as amended 1919 c. 38 (present Act, in different form, R.S.A., 1922, c. 148).. 566 12-Sum paid to satisfy claim under lien agreements-Securities handed over - Alleged failure of consideration-Suit to recover sum paid-Interpretation of contract-Interpretation of "drag-net" clause in lien agreement-Appropriation of payments-Appropriation by creditor, after debtor's bankruptcy, of payments not previously appropriated ............. SALE OF LAND - Agreement-Co-purchasers-Covenant to pay-Joint or several -Intent to re-sale at a profit-Partnership.] K., whose rights have been acquired by P., sold to F. and W.M. a piece land for $10,000 payable $3,000 cash, $5,500 by assuming a mortgage to P. and $1,500 at a later date. The agree- SALE OF LAND-Cpntinued ment for sale contained the following covenant:
"The purchasers covenant with the vendor that they will pay to the vendor the said sum
.' agreement also contained the following clause: "The terms 'vendor' and 'purchasers' in this agreement shall include the executors, administrators and assigns of each of them."
P. sued F. with A. and
W. A. M., W. M's executors, for the balance of the purchase price, alleging that the covenant was a joint and severl covenant, or, alternatively, that F. and
W. M. were partners in the purchase of the land and therefore jointly and severally liable.-Held that the covenant was in form joint and not several and that W.M.'s executors were not liable.
White v. Tyndall (13 App. Cas. 263) foll.
-Held, also, that although the property was bought by F. and W.M. with the intention of turning it over at a profit, there was no evidence from which to infer an agreement in the juridical sense that the property was to be held as partnership property.
STRONG...........................
2 - Purchaser's lien-Priority to registered mortgage-Equitable considerations-Land Titles Act, Alta., (R:S.A.,
1922, c. 133)-Sale of goods-Bulk Sales
Act, Alta., 1913, c. 10, as amended 1919, c. 38 (present Act, in different form, R.S.A.,
1922, c. 148).
T. bought from S. his store premises and stock-in-trade, transferring to as part consideration, T.'s ranch stock, which was to be applied, first on the purchase price of the land sold by S. to T., and then on the price of the merchandise.
S. was to apply the proceeds of T.'s ranch stock transferred to in settlement of the debts of S. pro rata. G. was president of a bank to which S. was indebted.
G. knew of the proposed transaction between S.
and T. and desired it to go through. As found by this court, G. told T. that S. was not indebted to the bank, and concealed from T. certain securities taken to secure the bank, including a mortgage on the store he registered;
G. also procured the proceeds of T.'s ranch stock transferred to S. to be applied on the debt of S. to the bank. The wholesale creditors of
S. seized the stock-in-trade under writs of execution the seizure being based on an alleged violation of the Alberta Bulk Sales Act on the sale from S. to T. T. at first contested the seizure but abandoned the proceedings.
T. recovered a judgment against S. for $5,500, and was declared to have a lien therefor on the store premises purchased from and that lien was given priority over G. s mortgage.
On this latter point a new trial was ordered
Appellate
Division,
SALE OF LAND-Concluded and it was this question of the priority of T.'s lien over G.'s mortgage (and the facts as to G.'s conduct which were in dispute) which ultimately came to be decided by the Supreme Court of Canada. -Held that, even assuming (as was held certain judges of the Appellate Division, but not decided by the Supreme Court of Canada) that the transaction between S. and T. was not a sale "for cash or on credit" within a. 2 of The Bulk Sales Act of Alberta, 1913, c. 10, as amended 1919, c. 38 (as being the Act applicable and not the later Act of 1922) and therefore did not violate that Act, so that T. might successfully have contested the seizure by the creditors of S., yet T.'s abandonment of his contest of the seizure did not afford an answer to his equitable claim agat
G.; G. was estopped from invokmg his mortgage to the prejudice of T.'s lien; and the Alberta Land Titles Act has not denuded the courts of their equitable jurisdiction to compel persons unconscientiously asserting ega rights to do equity.-Judgment of the Appellate Division of the Supreme Court of Alberta (21 Alta. L.R. 408) reversed, and judgment of Boyle J. ([1925] 2 D.L.R. 270), declaring the priority of T.'s lien, restored with a certain modification.
...... 3 - Sheriff's sale-Description of the property- Knowledge of buyer as to contents..........................
SALE OF SHARES ACT, MAN ... 412 SECOND-HAND AUTOMOBILE... 129 See SAIL or GooDs 2. SERVITUDE - Right-of-way - Subdivision plan - "Lane" - "Destination du phre de famille"-Registration-Arts. 17 (12) 551, 2116a, 2175 C.C.]
In 1908, the appellants prepared a subdivision plant of lot 82, situated in the village of Thetford Mines, which plan was deposited, in accordance with article 2175 C.C., in the office of the Commissioner of Crown Lands, with a book of reference, both certified by the appellants. This plan showed, inter alia, two rows of building lots of a uniform width of 50 feet by 90 feet in depth, and between each row there was a narrow strip of land measuring by the plan, 20 feet in width by a depth 900 feet. The book of reference described this strip of land, which bore subdivision number 52-82, as a lane. Subsequently the appellant sold lots abutting on the lane, without in express terms having granted a right-of-way over the lane to the purchasers. The respondent, having purchased subdivisions nos. 86, 87 and 88 of lot 82, claimed the right SERVITUDE-Concluded of passage over this strip of land, and the appellants, who intervened in this case on the demand of the defendant to whom they had sold a portion of the lane, denied the existence of any servitude in favour of the respondent.-Held that a servitude "par destination du pkre de famille" over the strip of land had been created, and that the plan and book of reference were a sufficient specification in writing of the nature, the extent and the situation of the servitude, as required by art. 551 C.C.-Held also that the provisions of article 2116a C.C. with respect to the registration of real, discontinuous and unapparent servitudes constituted by title, do not apply to a servitude created by "destination du pare de famille," such servitude not being a contractual servitude.-Judgment the Court of King's Bench (Q.R. 39
K.B. 374) affirmed.
MARTIN
SHERIFF'S SALE-Description of property-Knowledge of buyer as contents.......
..............
SHIPPING LAW.......
STATUTE - Municipal corporation - Amount imposed for inspection of abbatoirs-Tax.] A statute enabling a municipal corporation "to exact and recover from any person abattoirs to pay the salary of the health officers appointed
*
*
* to inspect the cattle and other animals slaughtered
*
*
* a imposition of a tax, and not merely for a right to recover compensation for services when performed.-So far as taxation is concerned, there is no vested right to the continuance of a particular tax or particular apportionment of taxes.
Mon- REAL............................
STATUTES-(Imp.) B. N.A. Act, 1867, ss. 92.......................
See RAILWAY 1.
2- (Imp.) B.N.A. Act, 1867, a. 92 (2)
.............. 349, 450
3, 4.
3- (Imp.) B. N.A. Act, 1867, es. 93 (1),
93 (2)...........................
4- (Imp.) B. N.A. Act, 1867, a. 125 349
5- R.S.C. [1906] c. 37 (Railway Act)
..................
.............
STATUTE-Continued
6- R.S.C. [1906] c. 61 (Irrigation Act) 7-R.S.C. [1906] c. 69, 8. 7 (Patent ..........
8- R.S.C. [1906] c. 139, s. 2 (e) (Supreme Court Act)....................272, 9- R.S.C. [1906] c. 139, a. 36 (Supreme Court Act)........................ 10- R.S.C. (1906) c. 139, a. 37, rule 136 (Supreme Court Act)............... See PRIVY 11-R.S.C. (1906) c. 139, s. 42 (a) (Supreme Court Act) ............... See CoNsTITUIONAL 2. R.S.C. [1906] c. 139, ss. 69, 71 (Supreme Court Act)............... 13-R.S.C. [1906] c. 140, a. 23, rule 16 (Exchequer Court Act).............. R.S.C. [1906] c. 143, sa. 21, 22, 26, 29, 33 (Expropriation Act)... .. 239, 284 15-(D.) 9-10 Edw. VII, c. 27 (Immigration Act)......................... (D.) 7-8 Geo. V, c. 28 (Income War Tax Act)......................... 17-(D.) 9-10 Geo. V, c 91 13, 15 (Canadian National Railway do. Act) 239 18-(D.) 9-10 Geo. V, c. 36, a. 31 (Bankruptcy Act).................. 19- (D.) 9-10 Geo. V, c. 36, rule 72 (Bankruptcy Act).................. 20- (D.) 9-10 Geo. V, c. 68 (Railwafi 21-(D.) 9-10 Geo. V, c. 68, s. 189 (Railway Act)............. 163, 239 22-(D.) 10-11 Geo. V, c. 32 (Supreme Court Act)........................ 23-(D.) 10-11 Geo. V, c. 32, s. 41 (Supreme Court Act)............... See 9.
STATUTE-Continued
(D.) 10-11 Geo. V., c. 34, s. 6
(Bankruptcy Act) .
25-(D.) 10-11 Geo. V, c. 49, s. 4
(Income War Tax Act) ............
(D.) 10-11 Geo. V, c. 54 (Returned
Soldiers' Insurance Act) ............
See WIFE.
27-(D.) 13-14 Geo. V, c. 22, s. 4 (d),
25 (Opium and Narcotic Drug Act).. 652
28-(D.) 13-14 Geo. V, c. 23 (Patent
See PATENT 3.
29- R.S.O.
[1914] c. 195, s. 13 (3)
(Assessment Act)..................
30- R.S.O. [1914] c. 279, s. 15 (University A ct).......................
31-(O.) 10-11 Geo. V, c. 41, s. 37
(Partnership Act)..................
32-(0.) 12-13 Geo. V, c. 78, s. 12
(Assessment Act)..................
33-(0.) 14 Geo. V, c. 50 (Insurance
34-R.S.Q. [1909] s. 2731 (School Act)
................
See MUNICIPAL 4.
35- R.S.Q. [1909] s. 5730 (Cities and
Towns Act).......................
36- R.S.Q.
[1909] as. 7298, 7302 (a)
(Timber)... .. .W
.
.. ....
37-R.S.Q. [1909] s. 7349 (2) (Damage to property)...................
38-(Q.) 24 Vit., c. 15 (Public Education Act).........................
3 Edw. VII, c. 16 (Education
Act as to Jews)....................
40-(Q.) 4 Geo. V, c. 56 (Floating of timber)........................... 194
41-(Q.) 15 Geo. V, c. 19 (Education
Appeals Act)......................
"ONSTITTIONAL
STATUTE-Concluded
42-R.S.A. [1922] c. 28, s. 6 (Succession Duties Act)....................... 43-R.S.A. c. (Municipal District Act)...................... 44-R.S.A.
c. 114
(Irrigation Districts Act)..................... 45-R.S.A. [1922] c. 133 (Land Titles 46-R.S.A. [1922] c. 148 (Bulk Sales 47-(Alta.) 3-4 Geo. V, c. 10 (Bulk Sales Act)..... .
............
See LAnD
48-(Alta.) 9 Geo. V, c. 38 (Bulk Sales 49- (Alta.) 14 Geo. V, c.
13 (Life Insurance Act).................... 50-R.S.B.C. [1924] s. 44 (Conditional Sales Act)....................
See 5. 51-R.S.M. [1913]
c. 175 (Sale of Shares Act)...................
TENDER......................8, TIMBER - Watercourses - Driving timber - "Damages resulting"-Reparation-Riparian rights-Ownership of logs- Culling-Final delivery-Meaning of art. 7302a R.S.Q.-Arts. 7298 and 7349 (2) R.S.Q. 4Geo. V, c. 56 ........... Declaration of trust-Possession and enjoyment-Succession duties- R.S.A. 28, s.
While in of law the possession of the donor of a trust fund is the possession of the ce8tuis que trustent, such possession is not of the character contemplated by s. 6 of the
Succession Duties Act, R.S.A.
[1922], c. 28.--Section 6 contemplates possession by the beneficiaries as contradistinguished from possession by the donor and not a possession which in fact is that of the donor and is attributable to the beneficiaries in point of law solely by force of the instrument under which the title of the beneficiaries is created.-Judgment
Appellate
Division reversed.
CowAN.......................
WAREHOUSEMAN..............
See CoNTRACr 1.
WATERCOURSES - Driving timber - "Damages resulting" - Reparation - Riparian rights-Ownership of logs-Culling-Final delivery-Meaning of art.
7302a R.S.Q.-Arts. 7298 and 7349 (2)
R.S.Q.-(Q.) 4 Geo. V, c. 56].
The appellant company was owner of a lot comprising land on both sides of the Quyon river, in the county of Pontiac, and of the water power, water rights and hydraulic privileges connected therewith.
It built thereon a flour and grain mill and a concrete dam for the purposes of developing and using the water power.
The Quyon river is neither navigable nor floatable except for single pieces of timber and loose logs. The respondent company made as buyer, a contract with B. & A.
as sefers, "for the purchase and sale of spruce pulpwood and pine logs to be taken out by the sellers and delivered to the Upper Ottawa Improvement
Company, Limited, on the Ottawa river at the mouth of the Quyon river for the buyers
* * *." B. & A. were at liberty to cut the logs and pulpwood wherever they chose and they were to pay all claims for Crown timber dues. The
"drive" was made under the exclusive direction and control of B. & A.
price was made payable partly when the wood should have been cut and skidded, partly when hauled and delivered on the
Quyon river and the balance "when the contract shall have been completely fulfilled."
Under the memorandum of agreement, the logs and pulpwood were to be measured, culled and checked in the bush and before they were hauled for floating down the Quyon river and they were then to be axe marked and hammer stamped with the timber mark of the respondent or about May 20, 1923, pulpwood and logs cut by B. & A., while being floated down the river, reached the mill of the appellant company, which was situated at a point
WATERCOURSES-Concluded above the place of delivery to the respondent company, and piled with great force and pressure against and upon the dam and works of the mill, which they injured and in part destroyed. The appellant company, alleging carelessness and negligence on the part of those handling and driving on behalf of the respondent company, sued the latter for $3,140; and the main defence was a denial of ownership and possession of the logs and pulpwood and of responsibility for the drive.- Held that the respondent company was not liable, as it was not the owner of the logs and pulpwood when the damages to the dam and works of the appellant company occurred since title to these logs and pulpwooa would only pass to the respondent company upon "final delivery" being made on the Ottawa river.-Held, also, that art. 7302a R.S.Q., as enacted in 1914 (4 Geo. V, c. 56) does not apply to a person who, although not the owner, has some interest in logs floated down rivers and streams and it merely embodies interpretation recently given by judicial authority to art. 7298 R.S.Q. as it then stood. Art. 7302a does not extend the responsibility for floating and transmitting timber down rivers and streams beyond that imposed by art. 7349 (2), under which the obligation to make compensation does not rest on persons who neither own the logs, nor control, as mandators or otherwise, the floating operations. MmLiNG Co. v. TE E.
See GRaTr.
3- "All brick required" ........ See OF 4- "Arising out of and in the course of the employmant"................... 5- "Casual or collateral".......... 371 6- "Damages resulting" .......... 7- "Destination du phre de famille". 191 8- "Dragnet clause" .............
See CoNrACr 3.
9- "Ezercise of judicial discretion" 272 B.C.R. WORDS AND PHRASES-Concluded
10-"Good faith"................
11- "Immoeable"............. 515
"Intention" .................
"Protestants"............. 246
"Real estate," "real property".
"Reasonable under all the circum- 17- "Written order".............
"Wrongfully and without lawful authority"... .....................
WORKMEN'S COMPENSATION ACT,
SASKATCHEWAN - Injury to employee
-Interpretation of words "arising out of and in the course of the employment."]
The Workmen's Compensation Act of
Saskatchewan (1910-11, c. 9, s. 4) confers the right of compensation in cases of a
"personal injury by accident arising out
WORKMEN'S COMPENSATION ACT, SASKATCHEWAN-Concluded of and in the course of the employment caused to a workman."
same language is used in the English Workman's Compensation Act, 1906, (6 Edw. VII, c. 58).
The plaintiff in returning home from his labours followed a short cut across the defendant's railway tracks, which the employees were accustomed to take to save time. In so doing, he attempted to climb and pass between two adjoining cars of a train and was injured. Under the English authorities, the plaintiff could not recover, as although the accident arose "in the course of his employment" it did not arise "out of the employment."
The Saskatchewan Act, however, by s. 6 ss. (c) provides that the employer shall be liable to pay compencontributed to or was the sole cause of the injury or death by reason of his own negligence or misconduct."-Held, that s. 6 did not enlarge the right given the plaintiff by section 4, as s. 6 deals solely with the exclusion, in cases within the statute, of what would be matters of defence to a claim for damages in an action at common law. Duff and Newcombe JJ. dissenting.-Per Duff and Newcombe JJ. dissenting.
The accident arose in the course of the plaintiff's employment and he was entitled to recover upon the true interpretation of the Saskatchewan Act.
TEm G.T.P. Ry. Co...............
Cases cited
- 1 W.W.R. 395 1 W.W.R. 395
- 1 W.W.R. 92 1 W.W.R. 92
- Donohue v. Corporation of Parish of St.Etienne de La Malbaie scr-1924-511
- A.C. 208 A.C. 208
- A.C. 136 A.C. 136
- Monteal L.H. & P. Cons. v. City of Westmount scr-1926-515
- A.C. 394 A.C. 394
- 3 W.W.R. 386 3 W.W.R. 386
- 2 W.W.R. 267 2 W.W.R. 267
- 1 W.W.R. 508 1 W.W.R. 508
- 2 D.L.R. 270 2 D.L.R. 270
Statutes and regulations cited
-
- s. 69 of the Supreme Court Act
- s. 71
- s. 139
- s. 2
- Sections 1013
- 1021
- 1011
- s. 1013
- Sections 2
- s. 36
- s. 36 of The Supreme Court Act
- s. 125
- s. 37
- s. 21
- s. 42
- ss. 69
- 71
- s. 15
- s. 2731
- s. 5730
- s. 7349
- s. 44
-
- s. 1013
- s. 1011
- s. 41
- s. 394
- Sections 1013
- 1011
- Section 501
- Sections 1002
- 1013
- sections 1013
- s. 25
- 33.1
-
Bills of Exchange Act
-
- s. 23
-
Unresolved citations
- s. 2
- s. 5
- ss. 69
- 71
- s. 38 of said Act
- s. 31 of the Bankruptcy Act
- s. 53 of the Bankruptcy Act
- s. 11 of the Bankruptcy Act
- para. (d)
- s. 4 of The Opium and Narcotic Drug Act, 1923
- s. 25 of said Act
- s. 41 of The Irrigation Act
- s. 15 of the University Act
- Section 189 of the Railway Act, 1919