For the respondent it was argued that if the appellants' contention prevailed it would cast upon a supplier of materials the task of keeping a specific tally of the quantity of its various materials used in the construction of each separate building and that, under modern conditions, this -- ~task was an impossible one. That may indeed be so, but Jit must be borne in mind that the right to a privilege for material supplied and used in the construction of a building is purely a statutory right and extends only as far as the legislature has seen fit to grant it. Whether a more extensive right should be granted is a matter for the consideration of the legislature but not for the courts.
I would allow the appeal with costs and disallow the respondent's claim.
Solicitors for the appellants: Brosseau & Brosseau. Solicitors for the respondent: Lafleur, MacDougall, Macfarlane & Barclay.
MONTREAL TRAMWAYS COMPANY v. BRILLANT APPEAL by the defendant appellant from the decision of the Court of King's Bench, appeal side, province of Quebec (1), reversing the judgment of the Superior Court, Duclos J., and ordering a new trial.
The plaintiff (respondent), the widow of one Charles Quirion, claimed compensation for the death of her husband, caused, as she alleged, by the defendant (,appellant) company's negligence. He was struck by one of the company's tram cars while attempting to cross its tracks in Montreal, and thereby received injuries from which he died soon after. At the trial, which took place before Duclos J. and a special jury, the plaintiff presented her case, and the defendant then moved that the case be withdrawn from the jury and that the action be dismissed, upon the ground that the plaintiff had introduced no evidence upon which the jury could find a verdict.
The Court granted this motion. The plaintiff appealed to the Court of King's
Bench, which was unanimous in the view that there was evidence to go to the jury. But the order for a new trial, as framed by the appellate court, directed
A. Vallie K.C. for the appellant.
J. P. Lanctot for the respondent.
The Supreme Court of Canada upheld the view of the judges of the appellate court that the trial judge erred in withdrawing the case from the jury and in dismissing the action, and that there was evidence which he should have submitted for the jury's consideration; and the appeal was dismissed with costs. But the court added that " a question arose at the argument as to the form of the order " for a new trial as made by the appellate court, and " attention was directed to the difficulty of continuing the proceedings before the tribunal of first instance in the state in which
(they were) when the defendant company launched its motion. In order to comply (with such order), it would seem necessary to resume the proceedings before the judge, and with the special jury, who functioned on the former occasion, and it would be inconvenient, or perhaps impossible, to satisfy these requirements, the judgment at the trial having been given more than a year ago."
This Court therefore varied the judgment appealed from
" by substituting for the clause (above) quoted a direction to the effect that a new trial shall be had between the parties."
Appeal dismissed with costs.