The King v. MacKay

hazardous occupation, cannot be said to amount to " engaging in " such more hazardous occupation " either temporarily, casually or permanently ". If the defendant com- & pany had meant so to provide, it easily could, and certainly should, have used terms which would have made that intention unmistakably clear.

If a specific exception to the risk undertaken in an insurance policy be described in the policy itself, as well as in the application therefor (although the latter be incorporated in the former), the assured is, we think, ordinarily justified in insisting, that, as between him and the Insurance Company, the words of the policy shall. if they differ from those of the application, be taken as evidencing, in that particular, the contract by which both are bound. And, where, as here, the terms employed in the policy are reasonably susceptible of a construction which does not include in the exception, stipulated by the Insurance Company in its own interest, the doing of an isolated act of extra hazard, such as we shall assume the evidence here, viewed most favourably for the defendant, might have been found to establish, that construction must prevail. Ontario Metal The appeal fails and must be dismissed with costs. Appeal dismissed with costs. Solicitors for the appellant: Sanford, Harrison & Anglin. Solicitor for the respondent: E. A. Reilly.

HIS MAJESTY THE KING

ADAM B. MACKAY,

Canada (Audette J.) (1), upon a reference under s. 7 of the War Measures Act, 1914 (Dom.), fixing the compensation to be paid by the Crown for the requisition of the respondents' steamship Sarnor; which requisition was made by the Canadian Government on April 25, 1918, pursuant to an Order in Council passed by virtue of the said Act. The judgment appealed from fixed the compensation at $11,000 (as being the value of the ship at the time of requisition) with interest thereon, at the rate of 5% per annum, from April 25, 1918 (the date of requisition) to the date of judgment.

The appeal to the Supreme Court of Canada was limited to the question of said allowance of interest, the Crown contending that interest was not allowable.

W. F. Chipman, K.C., and Christopher C. Robinson, K.C., for the respondents, submitted that the question was whether there was anything to prevent the court from awarding interest as part of the compensation; that the principle which was applied to cases of expropriation land (as to which see Inglewood Pulp & Paper Co. v. New Brunswick Electric Power Commission (4), and Seabord Air Line Ry. Co. v. United States (5) ) is applicable also to a ship; and that the case of goods (as in Swift & Co. v. Board of Trade (6) ), where the only ground for claiming interest is that the claimant has been kept out of his S.C.R.]

money, is not analogous; a ship, like land, is income earn- MNa ing property; the expropriator is both in possession of the ship and in receipt of the earnings, and the former owner is deprived of both; the reasons for awarding interest in the case of land exist equally in the case of a ship, and, since there is no statutory provision to prevent it, the same rule should be applied.

Newcombe J., in the course of the argument, referred to Maine & New Brunswick Electrical Power Co. Ltd. v. Hart (1).

Upon the conclusion of the argument, the judgment of the Court was delivered orally by

C.J.C.-We are all of the opinion that the appeal must succeed.

The allowance for interest will be set aside. Otherwise, of course, the judgment below stands, there being no appeal as to the principal sum.

The right to interest does not depend on the income earning capacity of the property requisitioned. Where interest is allowed, it is on the ground of contract, express or implied, or by virtue of a statute. It is allowed on the purchase money of land which is the subject of a sale; or on the value of land which is the subject of expropriation under certain statutes-but that is upon the ground of implied contract which is deemed to arise on the giving of "notice to treat."

Here there is nothing of the kind.

This is a case of appropriation of personal property. No provision is made for payment of interest. There is no case of implied contract; and the statute under which the requisition was made does not provide for interest.

Interest is really asked for here as damages for detention of th e compensation money pending the ascertainment of what is due. As such, it cannot be recovered.

The appeal is allowed with costs.

Appeal allowed with costs.