Canadian Raybestos Co., Ltd. v. Brake Service Corp., Ltd.

say, moneys which were admittedly such), after allowing for the sum paid by the respondent company, was sufficient to justify the judgment. The point was very fully considered on the argument, and a further examination of the record leaves no doubt in my mind that there is no sufficient ground for doubting the accuracy of the auditor's report.

A further question is raised as regards interest. As respects that question, the answer of the respondent company seems conclusive. The condition provides for the payment of moneys received and for moneys he is " liable to pay

* * * at such periods and in such manner as the judge shall appoint." There has been no order in respect of the payment of interest, and that claim, in consequence, must also be disallowed.

The appeal must be dismissed with costs.

Molson.

CANADIAN RAYBESTOS COMPANY, LIMITED v.

BRAKE SERVICE

CORPORATION, LIMITED, APPEAL by the plaintiff from the judgment of Maclean

J., President of the Exchequer Court of Canada, dismissing the plaintiff's action for infringement of patent on the ground of invalidity of the patent, holding that it had been anticipated by one Cady, and also that it was invalid for lack of invention (1).

The patent had been granted to plaintiff as the assignee of one McBride, and was for an alleged new and useful improvement in brake band lining machines.

The appeal was dismissed with costs. The judgment of the court, delivered by Duff J., said in part as follows: It is not disputed that Cady's machine is the mechanical equivalent of McBride's. The learned trial judge has found as a fact that Cady's machine was completed in 1918, and that McBride's work did not pass beyond the experimental stage until the 1st of July, 1919; in other words, that McBride had not reduced his ideas to definite and practical shape until after Cady's invention was completed."

" There appears to be no satisfactory ground for disagreeing on these points with the learned President of the Exchequer Court, but I have come to the conclusion also that McBride's action must fail on the second ground, namely, that there was no patentable invention. There is nothing new, either in McBride's devices or in the end he sought to attain, except that these devices were applied by him to a new material. Machines had been constructed for boring and countersinking in one operation, and devices were well known for guiding the operation so that the axis of the hole bored in the blind side of the material should correspond with the axis of the existing hole. Then the stop for limiting the depth of the countersink was a perfectly well known device; indeed, the uncontradicted evidence is to the effect that every commercial press operated by power contains that element."

MINNEAPOLIS STEEL & MACHINERY CO. OF CANADA LTD. v. BAXTER BROTHERS APPEAL by the plaintiff from the judgment of the Court of Appeal for Saskatchewan (1) affirming the judgment of Bigelow J., who held that the making of the contract between the plaintiff and defendants was not completed until May 10, 1920; that, therefore, s. 31 of the Farm "" Implement Act, R.S.S., 1920, c. 128, applied, the contract was invalid, and the plaintiff's claim under it must fail. The contract was for the sale of certain farm implements from the plaintiff to the defendants. In certain respects it did not comply with s. 31 of said Act. S. 31, by its terms, applies to contracts made after 31st March, 1920. S. 19 of the Act provides that *

The question was whether a binding contract was completed within s. 19 on or before the 31st March, 1920, so as to avoid the application of s. 31. This depended on the question of fact whether or not the plaintiff, as was contended, actually deposited a copy of the contract in the post office addressed to the defendants, postage prepaid and registered, on or before the 31st March, 1920.

After hearing counsel on behalf of the appellant and the respondents, the Court reserved judgment, and on a subsequent day delivered judgment dismissing the appeal with costs, Newcombe J. dissenting.

BOWMAN v. PANYARD MACHINE AND MANUFACTURING CO.

MOTION by the respondent to quash the appeal by the defendant to this Court from the judgment of the Exchequer Court of Canada (1) on the grounds (1) That the Court had not jurisdiction to hear the appeal; (2) That the appeal was devoid of merit and substance and was taken against good faith; and (3) That the appellant had unduly delayed to prosecute his appeal.

W. D. Herridge for the motion.

M. Powell contra.

At the conclusion of the argument, the judgment of the court was orally delivered by

C.J.C.-We are all of the opinion that the motion should be granted. There is every appearance of bad faith. The action in the Exchequer Court from the first was admittedly allowed to proceed on the erroneous assumption that the defendant was still carrying on the business. The proceedings, except as to the claim for damages, were thus rendered useless. The court was allowed to go through the idle form of granting an injunction in complete ignorance of what the defendant well knew would render it of no avail because he had parted with his interest to the company formed to take it over and of which he is the President. When asked by the Court whether he would consent on behalf of the company to its being added as a party so that it might be bound by the determination of the appeal on the question of infringement, counsel for the defendant-appellant stated that he was without instructions to do so.

Under these circumstances, an appeal is brought to this Court against a judgment entered nearly a year ago, and although several terms have elapsed, that appeal is not yet inscribed. The delay is not satisfactorily explained. Should the appeal be allowed to go on, and fail, the respondent wil then be obliged to proceed against the company, which will not be bound by the result. Such tactics should not be encouraged by the granting of indulgence. The appellant is in grave default.

We are satisfied that the motion should be granted, and the appeal dismissed with costs.

Appeal quashed with costs.