Majority
Smith J. (Cannon J. concurring) held that the trial judge's finding as to the kind of ploughs intended by the parties was justified by the evidence; that evidence was admissible to shew the meaning that both parties attached to the description of the article appearing in the written orders; and that the outfits delivered were entirely different from the outfits described, according to the understanding of both parties as to the meaning of that description at the time it was used.
lant.
G. F. Henderson K.C. and D. K. MacTavish for the respondents.
OVERN v. STRAND
APPEAL from the decision of the Court of Appeal for British Columbia (1), reversing the judgment of the trial judge, Morrison C.J.S.C., on a verdict of a jury in favour of the plaintiff appellant.
In this action the plaintiff appellant, Mrs. Overn, claimed damages for loss suffered by reason of the wrongful sale of her goods and chattels. She claimed against the defendants respondents, Wilson & Wilson, a firm of solicitors at Prince George, British Columbia, because, purporting to act as her solicitors, they consented, on her behalf without authority from her, to have an action which was brought in the Supreme Court of British Columbia tried by a judge of the County Court of Cariboo.
She claimed against the defendant Strand, who was plaintiff in the tion on what purported to be a judgment made by the judge of the County Court of Cariboo, which judgment she alleged was a nullity, and also because he caused her goods to be seized and sold to satisfy an execution which he had against one John Weisner. She claimed against the defendant respondent Peters, because, as sheriff of the county of Cariboo, he wrongfully seized and sold her goods and chattels; and she claimed against the Hudson's Bay Company, also respondent, because, having received her goods from the sheriff, they converted them to their own use. relevant facts are: In the spring of 1908 one John Weisner, who for many years had been trading with the Indians in northern British Columbia, decided to give up business and to sell his river outfit. On April 9, 1928, he entered into the following agreement with Mrs. Overn:- Mrs. Overn states that she paid the $1,000 in cash and there is no evidence to the contrary. She also states that she received no goods whatever from Weisner except those specifically mentioned above. After purchasing his river outfit Mrs. Overn employed Weisner to run the boats for her. In May, 1928, she took the boats to Prince George. While there Weisner introduced her to his solicitors, Wilson & Wilson, whom she consulted as to necessity of having the document of April 9th registered as, on the way out, Weisner had been served with a writ of summons at the instance of one Strand who claimed that Weisner owed him $2,286. On May 20th Mr. J. 0. Wilson drew up a new bill of sale from Weisner to Mrs. Overn which was registered, and also an agreement in which Weisner authorized her to use his name in her business. She then purchased from the wholesale houses in Prince George and Edmonton goods to the amount of some six or seven thousand dollars for trading purposes.
These she assembled in Prince George during the first half of June and placed them on board the boats. Shortly afterwards she started north. Some days later she and Weisner were served with writs of summons in an action by Strand to set aside the bill of sale. On June 29, Weisner, who could not read and who could only write sufficiently to sign.his name, had Mrs. Overn draft a letter for him to his solicitors, Wilson & Wilson, asking them to act for him in the action. On the same day Mrs. Overn wrote a letter to the same solicitors in which she said:- Mrs. Overn then went to the Post on White Water River, arriving there on July 15. The goods which she brought up she put in new buildings which she had erected for the purpose. On July 26, Wilson & Wilson wrote to Weisner, as follows:- This letter Mrs. Overn admits reading but says she did not consent to have Wilson & Wilson act for her. Weisner then went to Prince George and, according to Mr. Wilson, told him that Mrs. Overn wanted his firm to act for her as well as for himself. Wilson, however, because of Mrs. Overn's former letter, would not take the responsibility of acting on her behalf without something from her. Weisner then brought in Charles Overn, husband of Mrs. Overn, who, according to Mr. Wilson, told him his wife desired he should act on her behalf. Believing this, Mr. Wilson, on August 21, signed the following consent:- The trial took place the following day with the result that the bill of sale from Weisner to Mrs. Overn was set aside as fraudulent. The formal judgment, after declaring S the sale set aside, contained the following paragraph:- On September 14th Strand issued execution against the goods of Weisner for $2,705.63 and the following day he issued execution against the goods of Mrs. Overn and of Weisner for $497.25 being the costs taxed against them in the action setting aside the bill of sale-costs of execution and poundage. These writs were handed to the sheriff who forwarded them to J. D. McIntosh, his agent, who, on September 28, against the protests of Mrs. Overn, seized not only the river outfit but all the stock-in-trade which she, two months before, had brought to the Post and which, she says, were there worth $12,000. Next morning she left for Prince George.
On October 4th McIntosh sold all the goods to the Hudson's Bay Company by -private sale for $4,850. Some days later Mrs. Overn reached Prince George and called upon the defendants, Wilson & Wilson, and asked them for the papers in connection with the action, and a copy of the evidence. At this time these defendants knew she was on her way to Vancouver to consult her solicitors in reference to the matter. Next morning she went to Vancouver, consulted solicitors, and, on their advice, brought an appeal from the judgment of Judge Robertson. The Court of Appeal held that the appeal did not lie. Mrs. Overn then brought this action. It was tried before Chief Justice Morrison and a jury. The jury brought in a general verdict for the plaintiff giving her $10,000 for loss of stock-in-trade, and $1,000 general damages. Judgment was accordingly entered for her for $11,000. The defendants appealed and the Court of Appeal allowed the appeal and set aside the judgment below as to all defendants, except the defendant Strand, who did not appear to prosecute his The Supreme Court of Canada, after hearing counsel for the appellant and counsel for the respondents, reserved judgment; and, later on, rendered judgment allowing the appeal with costs and restoring the judgment of the trial judge, with the following variations: judgment against the respondents Wilson & Wilson to be restricted to the sum of $497.25 and the judgment against the other respondents, the sheriff Peters and the Hudson's Bay Company, for the balance of the sum of $11,000, and the amount for which judgment will be entered against the two last mentioned respondents to be settled by the Registrar if the parties differ as to same.
Anglin C.J.C., in his reasons for judgment, stated that, on the evidence, it appeared that the plaintiff appellant " never knowingly consented to any adjudication by the County Court of Cariboo, or by His Honour Judge Robertson, upon the validity of the Bill of Sale given to her by Weisner, and that she never knowingly or willingly quiesced in, or ratified, the course taken by Messrs. Wilson & Wilson, who purported to represent her. The implied findings to that effect of the jury before which this action was tried, based, as they were, on a fair charge, to which the respondents took no exception at the trial, and of which they cannot now complain, are conclusive on this aspect of the case, the questions of original authority and ratification, primarily questions of fact, having been properly submitted for its determination; and, in so far as ratification may involve a question of law, in my opinion it has been satisfactorily dealt with by Lamont J. That being so, it follows that the judgment of Robertson Co.J., was pronounced without jurisdiction."
Lamont J., after having given his opinion on the questions of facts in this case, added the following remarks: " The main defence of Wilson & Wilson, however, was that the appellant had, after full knowledge of what had been done in her name, ratified their acts.
" To constitute a binding adoption or ratification of an act done without previous authority in the name of a supposed principal, it must be established that the principal unequivocally adopted the act after full knowledge of all essential facts relating to the transaction, unless the circumstances warrant the clear inference that the principal was assuming all risks from the acts of the agent. The onus of proving such ratification rests upon the person alleging it who must also prove full knowledge on the part of the principal. Wall v. Cockeril (1).
Ratification of an act may be express or implied. It will be implied whenever the conduct of the person on whose behalf the act was done is such as to shew that he intends to adopt or recognize the Lamont J. unauthorized act. Bowstead on Agency, 7th ed., 59. Ratification must be intentional. By it the principal is bound because he intends to be bound. If that intention cannot be shewn to exist no ratification can be held to have been established. In most cases the intention of the principal is. to be gathered from his conduct and statements rather than from any express declaration of ratification.
There are, however, certain classes of cases in which the courts have held that the conduct of the principal raised, in point of law, a conclusive presumption of his intention. Where goods have been wrongfully taken and sold the owner may either treat the taker as a tortfeasor and sue him for damages for wrongful conversion, or he may treat him as his agent to make the sale and sue him for the purchase price as money had and received.
" If he adopts this latter course and the taker pays over the purchase money received by him, the courts hold the owner to have elected conclusively to waive the tort and to treat the taker as his agent, and he cannot afterwards treat him as a wrongdoer. In Smith v. Baker (2), Bovill C.J. said:- The law is clear that a person who is entitled to complain of a conversion of his property, but who prefers to waive the tort, may do so and bring his action for money had and received for the proceeds of goods wrongfully sold.
But if an action for money had and received is so brought that is in point of law a conclusive election to waive the tort; and so the commencement of an action of trespass or trover is a conclusive election the other way.
The principles which govern the subject are very well illustrated in the case of Buckland v. Johnson (3), where it is held that the plaintiff having sued one of two joint tortfeasors in tort could not afterwards sue the other for money had and received. There may be other instances where an act may amount to a conclusive election in point of law to waive the tort. But there is another class of cases in which an act is of an ambiguous character, and may or may not be done with the intention of adopting and affirming the wrongful act.
In such cases the question whether the tort has been waived becomes rather a matter of fact than of law.
(1) [1863] 10 HL.C. 243.
(2) (1873) L.R. 8 C.P. 350, at 355. (3) (1854)
C.B. 145.
" With this statement of the law A. L. Smith L.J. in Rice v. Reed (1), said he entirely agreed.
" In the case at Bar the respondents rely on two acts of the appellant as conclusively establishing ratification. They are:
(1) That when she came out to Prince George in the early part of October, after the seizure of her goods, and obtained the papers relating to the action from Wilson & Wilson, she did not repudiate the acts done in her name or .intimate that she did not consent thereto, and
(2) That she took an appeal from Judge Robertson's order without setting up any want of authority on the part of Wilson & Wilson.
" As to the failure of the appellant to disavow the solicitor's acts on the ground of want of authority, it is, on the evidence, in my opinion, very doubtful if she had any clear comprehension of what had been done or of how the seizure of her goods had come about. Further, it has not been established that she had the necessary information to enable her to form any just conception of her rights. She had been in the wilderness, four hundred miles north of Prince George among the Indians, where there was not even a justice of the peace and where mail was delivered only once in every two or three months. She says that when her husband and Weisner came to White Water River, after the trial, they told her the case had been dismissed. She evidently learned that her husband had employed Wilson & Wilson but the respondents knew before she came down that she repudiated her husband's right to do this and also knew that when she did arrive she was on her way to consult solicitors in Vancouver as to her position and to ascertain by what right her goods had been taken. Wilson & Wilson were not under any impression that she was approving of what they had done; nor were they in any way misled.
" In support of their contention on this point counsel for the respondents referred to the language by Blackburn J. in Reynolds v. Howell (2), where, at page 400, that learned judge said:- " This rule, without doubt, is applicable to cases where, in the absence of repudiation, the solicitor and the other parties to the action would assume that authority had been given and that it was being continued, but it is not applicable, in my opinion, to cases where the work which the J. solicitor undertook, without authority, to do has been completed without the knowledge or consent of the principal. In De Bussche v. Alt (1), Thesiger L.J., said:- " The appellant's failure to disavow the acts of Wilson & Wilson in signing the consent of August 21, cannot, in my opinion, as a matter of law be said to indicate an intention on her part to adopt as her own an act against which she has always protested as the cause of her trouble. " Then can it be said that we are obliged upon any rule of law to hold that, by appealing to the Court of Appeal against the order of Judge Robertson, without setting up a want of authority on the part of Wilson & Wilson, the appellant has conclusively elected to ratify the consent given in her name?
" As already pointed out there are cases in which the taking of judicial proceedings by a principal, after knowledge of the unauthorized act of a person purporting to act as his agent, is conclusive of an election to ratify the act of such agent. The principle upon which these cases have been decided, as I read the authorities is that the principal by his judicial proceedings is held to have ratified the agent's act because the rights claimed by the principal in these proceedings can only be predicated upon the existence of the relationship of principal and agent, and could not be justified upon any other hypothesis. There are other cases, however, in which the taking of judicial proceedings, do not necessarily imply an intention to ratify the act of the agent. In these cases the question of intention is dealt with rather as a question of fact for the jury than as a question of law for the court.
"In Morris v. Robinson (1), a cargo of indigo had been improperly sold under an order of the Vice Admiralty Court and the proceeds paid into court. The owner of the cargo through his agent applied to have the money paid out to him. It was held that the application for payment out did not in law bar the owner from bringing an action in trover against the purchaser of the indigo. In his judgment Bayley J. pointed out that the application had not been successful and the owners were, therefore, in the same position as if no application had been made to the court.
" In Rice v. Reed (2), the plaintiff's servant had wrongfully sold the goods of his master to the defendant who knew that the servant was improperly dealing with them. The servant paid the proceeds of the sale into his account at his bank. The owner brought an action against the servant and the bank, claiming, as against the servant, damages for the conversion of the goods and in the alternative for money had and received; and, as against the bank, an injunction to restrain them respectively from drawing out the sum of £1,500 then standing to the servant's credit at the bank. The plaintiff applied for and obtained an interim injunction but no further steps in the action were taken.
An agreement was arrived at between the owner and the servant that £1,125, out of the £1,500 in the bank, should be paid over to the owner in full settlement of all his claims against the servant, but without prejudice to his claim against the defendant. The owner then brought an action against the defendant for conversion.
It was held that the owner had not by obtaining an interim injunction in the former action and by his dealing with the servant elected to affirm the sale and to waive the tort, and the action against the defendant was maintainable. In his judgment Lord Russel C.J., at page 64, said:- In Ewing v. Dominion Bank (1), Lord Davey said:- " In the circumstances of the case at Bar the taking of the appeal does not, in my opinion, necessarily imply an intention to ratify the unauthorized acts of Wilson & Wilson. The order appealed from contained a clause which, taken by itself, would amount to a holding that all the stock-in-trade in possession of the appellant no matter how or from whom obtained, was the property of Weisner. And it may well be that the appellant's advisers thought that until the order was set aside on appeal that clause would be a bar to any action brought to recover the value of her goods. As this construction of the clause received support in the court below and was urged upon us, it is not unreasonable to say that the appeal may have been brought to set aside the order without any intention of ratifying the consent given by Wilson & Wilson. Ratification, not being necessarily implied from the taking of the appeal, the question of the appellant's intention was a question of fact for the jury and they negatived any such intention. The defence of Wilson & Wilson therefore fails, and they must be held liable for the loss suffered by the appellant by reason of their act. This loss, it is contended, was only the damage caused by the issue of the execution directing a levy on her goods for $497.25, and that the liability of these respondents should be limited to that item. In my opinion this contention is right.
Marsh v. Joseph (3); Jones v. Woodhouse (4).
" The defence of the sheriff is:- "(1) That in seizing and selling the property in question he was merely carrying out the direction of the court, "(2) That in any event all the goods seized and sold were the goods of Weisner.
"The sheriff seized under two writs of execution, one commanding him to make out of the goods of Elizabeth p.
19] 2 Ch.
Overn and John H. Weisner the sum of $497.25; and the other to make out of the goods of John H. Weisner the sum of $2,705.63.
Both writs were issued out of the Supreme Court Registry.
Lamont J.
" It has long been established law that where a sheriff seizes and sells property under a writ of execution which is regular on its face and was issued out of a court of competent jurisdiction, he is protected by the writ unless the goods are not in fact the goods of the execution debtor. This protection he enjoys even although the order in which the writ is founded may, subsequently, be set aside for irregularity or is in fact a nullity.
" In Barker v. Braham (1), the Lord Chief Justice stated the rule as follows:- A sheriff, or his officers, or any acting under his or their authority, may justify themselves by pleading the writ only, because that is sufficient for their excuse, although there be no judgment or record to support or warrant such writ; but if a stranger interposes and sets the sheriff to do an execution, he must take care to find a record that warrants the writ, and must plead it; so must the party himself at whose suit an execution is made.
"Whether the judgment or order justifies the issuing of the writ is in each case a question to be determined by the court issuing it, and not by the sheriff.
" In Ramanathan Chetty v. Meera Saibo Mariker (2), the Privy Council said:- A distinction must be drawn between the acts done without judicial sanction and acts done under judicial sanction improperly obtained. If goods are seized under a writ or warrant which authorized the seizure, the seizure is lawful, and no action will lie in respect of the seizure, unless the person complaining can establish a remedy by some such action as for malicious prosecution. If, however, the writ or warrant did not authorize the seizure of the goods seized, an action would lie for damages occasioned by the wrongful seizure without proof of malice.
" The writ against the appellant's goods for $497.25 was regular on its face and the Supreme Court of British Columbia was competent to issue it. The sheriff was, therefore, justified in realizing out of her goods the amount called for by that writ. In doing so he was acting with judicial sanction and no action lies against him therefor. He, however, proceeded to sell the balance of the appellant's goods under an execution directing him to levy on the goods of John H. Weisner. The goods sold to satisfy this execution were the stock-in-trade of the appellant, pur- (1) (1773) 95E.R. 110.
(2) [1931] A.C. 82, chased with her own money and situate in her own buildings. These goods could not in any way be said to be the goods of Weisner. In this statement of claim the sheriff V -N. seeks to justify the sale of these goods on the ground that in the order of Judge Robertson of August 22, all goods in the possession of the appellant had been declared to be the property of Weisner and, therefore, when he seized and sold them he was selling Weisner's goods.
" I find it difficult to believe that Judge Robertson intended to hold that all the stock-in-trade in the appellant's possession, no matter by whom it was in fact owned, was the property of Weisner. To reach that conclusion the judge would have to be satisfied that the business she was carrying on was the business of Weisner, or that the money with which she purchased the stock-in-trade was Weisner's money. The appellant has explained that she obtained the money to make payments on the stock-in-trade she purchased in 1928, by taking over, in 1927, trading supplies which Weisner had brought to Ingenika but which, through illness, he was unable to trade with the Indians. These supplies she took to the White Water Post under an agreement in writing with Weisner and traded them through the fall of 1927 and the winter of 1927-8, making a profit thereon. Neither in this action nor in the action before Judge Robertson has anyone challenged the bona fides of that transaction, or alleged that the profit which she obtained from such trading was not rightfully her money. In the case before Judge Robertson all the allegations in the statement of claim and all the evidence given at the trial (Exhibits in the present case), were directed against the bill of sale, and, in the examination of Weisner for discovery put in evidence by counsel for Strand, the questions impliedly admit that the goods taken north in 1928 were the property of the appellant. For example:- " The only statement before Judge Robertson which is apparently not consistent with the evidence that the money with which the goods were bought was the appellant's money, is that of Weisner who thought she made the original purchase in 1927 for her husband's business, which was that of trapping. The husband, however, said that " Practically Mrs. Overn owns the business." In view of the allegations and the evidence it is, to my mind, hardly conceivable that Judge Robertson intended to make the sweeping declaration contained in the clause in question in his order, although no doubt the language used, if taken by itself apart from the context, is sufficiently wide to carry the construction sought to be put upon it. The clause to my mind should be construed in accordance with the well known maxim that general words may be aptly restrained to the subject matter with which the speaker or writer is dealing. Broom's Legal Maxims, page 415; Wiles J., in Chorlton v. Lings (1); Moore v. Rawlins (2). Construing it thus the declaration would apply only to the contents of the bill of sale. If, however, the language of the clause be given its broad and literal meaning it still affords no protection to the sheriff for the declaration, as well as the rest of the order in which it is found, is, as I have already pointed out, a nullity having been made without jurisdiction and, as such, cannot support or justify anything purporting to be done under it. It is from the writ of execution and not from the judgment or order on which it is founded that the sheriff derives his protection.
Moreover there is no evidence that the sheriff had any knowledge of the existence of the order. What he had was a letter from Strand asking him to instruct his deputy to seize all the goods and chattels of Weisner and the appellant, including the goods in the appellant's store. There was nothing in the writ of execution indicating that the goods in the possession of the appellant belonged to Weisner, so that in carrying out the instructions in Strand's letter the sheriff was not following the directions in the writ, but was acting as Strand's agent. The goods sold not being the property of Weisner he sheriff is equally liable with Srand for their conversion.
" It was also argued that as the sheriff was entitled to seize and sell the appellant's goods under the execution against her, the sale of all her goods was valid even if excessive because no.claim had been expressly made for excessive seizure. The claim that he had no right to seize or sell any of the appellant's goods is, in my opinion, sufficient to cover a claim for excessive seizure. The sheriff's dity was to sell sufficient of the appellant's goods to satisfy the execution against her. When he had done that she was entitled to immediate possession of the remainder.
" In Batchelor v. Vyse (1), it was held that:
To the same effect is the case of Stead et al v. Gascoigne (2), where Dallas C.J., with whom the other members of the court concurred, said:- " In the present case there was no occasion to sell the appellant's goods in bulk-they consisted of groceries, dry goods, hardware and tobacco, and were, therefore, saleable in small packages.
" The defence of the respondents, the Hudson Bay Company, is that they were bona fide purchasers for value from the sheriff of goods sold by him under execution.
''A sale by a sheriff is not a sale in market overt and the purchaser acquires thereby only the interest in the goods which the sheriff has the right to sell. Unless, therefore, the goods sold are the goods of the execution debtor, the sheriff does not, by his writ, acquire any right to sell them and cannot transfer any right to a purchaser as against the real owner.
"The rights of a purchaser at a sale under execution were discussed by the Privy Council in Rewa Mahton v. Ram Kishen Singh (3), and it was pointed out that if the court issuing the execution had jurisdiction, a purchaser was not bound to inquire into the correctness of the order or judgment upon which the execution issued. A purchaser, therefore, at a sale under execution is under no obligation to go behind the writ, but, in order to make sure that he will acquire title to the goods he buys, he must see that the court issuing the writ had jurisdiction to do so; that the writ is regular on its face, and that the goods sold by the sheriff are the goods of the execution debtor.
" The writ for $497.25 against the appellant's goods, as I have already pointed out, fulfilled these requirements. The title to the goods sold to satisfy that writ, therefore, passed to these respondents and no action lies against them for their conversion. They, however, unfortunately for themselves, did not see that the remainder of the goods which they purchased were the goods of the execution debtor mentioned in the writ under which they were sold. And as they were not his goods these respondents obtained no title whatever to them and, having taken possession of them, must account to the appellant for their value. I am, therefore, of opinion that the respondents are liable for the loss suffered by the appellant, but I do not think each of the respondents is liable for the whole loss.
" For the reasons I have given, the respondents, Wilson & Wilson are responsible for the loss caused by the sale of the appellant's goods to satisfy the writ for $497.25; the other respondents are liable for the balance. The total damage suffered was $11,000; the amount of the two writs was $3,202.88.
The liability of each respondent is, therefore, a matter of calculation. If the parties do not agree as to the amounts the matter may be referred to the Registrar for computation.
" The appeal will therefore be allowed as to all the respondents; the judgment below set aside, and the judgment of the trial judge restored but modified in the way I have indicated as to the amount for which each respondent is liable. The appellant is entitled to her costs throughout against all the defendants."
Appeal allowed with costs. J. A. MacInnes for the appellant.
J. W. de B. Farris K.C. for the respondents Wilson et al. D. H. Laird K.C. and D. N. Hossie for the respondent The Hudson Bay Co.
E. Pepler for the respondent Peters.
Uncorroborated evidence of -Charge to jury-Misdirection.]
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See CRIMINAL LAW
ACTION - Promissory notes - Letter threatening action if payment not made by time specified in letter-Action after maturity of notes but before time specified in letter.] On September 3, 1929, the appellant sued the respondent corporation on four promissory notes overdue and the defence set up was that the action was premature because, on August 28, 1929, the appellant had written a letter to the secretary of the corporation stating inter alia that unless payment was made within fifteen days he would take proceedings; but he brought his action before the expiry of that time.-Held, reversing the judgment appealed from (Q.R. 49
K.B. 172) that the appellant was entitled to judgment.
On the letter, the most the respondent might have hoped for was that on payment before pleading the court would relieve it of the costs up to payment.
LACATLLE......................
AGENCY-Sale of land-Introduction of purchaser-Commission.]
V. &
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ALIEN ENEMIES
Exchequer
Court Act, R.S.C., 1927, c. 34, s. 82- "Actual amount in controversy"-Value of right involved-Proof by affidavit-Insufficiency of facts sworn to.] Appellant sued in the Exchequer Court to expunge respondent's trade-mark from the register.
No amount was claimed for damages.
The action was dismissed.
appealed to this Court (without obtaining leave under s. 83 of the Exchequer Court
Respondent moved to quash the appeal for want of jurisdiction, on the ground that there was no "actual amount in controversy" in the action. Appellant replied by affidavit that the registration of the trade-mark had "aggrieved" appellant
"in an amount exceeding 8500."-Held:
Assuming, but not deciding, that the words "actual amount in controversy" in s. 82 of the Exchequer Court Act, do not imply that there must be a sum of money exceeding $500 actually in dispute, but that a claim for property or rights of which the value exceeds $500, if actually involved in the action, suffices to give this
Court jurisdiction to entertain the appeal under 82, and that such value may proved by affidavit, yet appellant's davit was insufficient for the purpose, because, while appellant might have sustained the amount of damages sworn to as the result of registration of the trade-mark, it did not follow that the value of its right to have the trade-mark expunged exceeded $500, and that was what required proof, to bring this case (on the assumption aforesaid) within s. 82. CLOCK Co. ..............
2--Criminal Law-Appeal to Supreme Court of Canada-Jurisdiction-Cr. C s. 1023-"Question of law."] An appeal from the judgment of the Appellate Division, Ont.
(40 Ont. W.N. affirming (two judges dissenting) the appellant's conviction, by Ross, Co. C.J., for stealing an automobile, was dismissed, on the ground that there was no to hear the appeal, the questions raised, and on which there was dissent in the Appellate Division, being all questions of fact, in regard to which there was no right of appeal to this Court under s. 1023, Cr. C.-Assuming that the question whether there was any evidence to support a conviction should be deemed a question of law, yet the question whether the proper inference has been drawn by the trial judge from facts established in evidence, is not a question of law but one of fact.
v. THE 416 3--Criminal law-Appeal to Supreme Court of Canada-Jurisdiction-Cr. Code, s. 1023-"Question of law"-Trial judge's charge to jury.] The general appellate jurisdiction of the Supreme Court of Canada is confined to civil matters; to found an appeal to the Court in any criminal matter, resort must be had to some special statutory provision enacted by the Dominion Parliament. Save for the special case provided for by s. 1025, Cr. the only right of appeal to the Court in any criminal cause is that conferred by s. 1023, Cr. C. For an appeal to come within s. 1023, the conviction must have been affirmed by the court below and there must have been dissent by some member thereof on a question of law.-The present appeal was from the [1931] O.R. 222, affirming appellant's conviction for murder, two judges dissenting on what the order of the court declared (apparently in accordance with former subs. 5 of s. 1013, Cr. C., but which subsection had been repealed by s. 28 of c. 1930) to be questions of law. In the opinion of some of the members of this Court, this Court lacked jurisdiction to hear the appeal because in their view, the grounds of dissent below were not on any question of law, but only on matters which it was competent for the jury to pass upon and which depended entirely upon an appreciation of the weight of evidence in regard to the points discussed.
But the ground taken (unanimously) for dismissal of the appeal was that it failed on the merits, as the reasons for dissent below did not on examination of the matters dealt with therein and of the trial judge's charge as a whole, shew justification for setting aside the conviction.
TuE KING...
4 - Municipal by-law authorizing works-Action by ratepayer-Annulment- Contractors mis-en-cause in trial court- Not joined in the proceedings before appellate court-Judgment in appeal annulling contract-Nullity-Res judicata.1 respondent, a ratepayer brought an action against the appellant municipal corporation for the annulment of a by-law and contracts authorizing the construction of three bridges; and he joined in the case the contractors to whom were awarded the contracts.
trial judge having dismissed the action, the respondent appealed from that judgment but only against the municipal corporation.
appellate court declared the by-law valid, but annulled the contracts.-Held that an appellate court, the same as the trial judge, cannot pronounce the nullity of a contract when all the contracting parties have not been called before the court; that in this case the contractors were not made parties in the proceedings before the appellate court; that it is now impossible to order that they should be joined in proceedings before this court or the appellate court as the decision of the trial judge has acquired the authority of res judicata as to them.
Therefore, the appellate court could not validly render a judgment annulling the contracts, and the judgment appealed from must be reversed.
GOULET..........................
5--Bankruptcy-Application to judge of to appeal-Time for application-Extension of time-Jurisdiction-Bankruptcy
Act, R.S.C., 1927, c. 11, es. 174, 163 (5),
2 152; Bankruptcy Rules 72, 68.]
Supreme Court of Nova Scotia en bane cannot, nor can a judge of the Supreme
Court of Canada, extend the time fixed by Bankruptcy Rule 72 for an application to be made to a judge of the Supreme
Court of Canada for special leave to appeal to this Court.-By its decision made on February 7, 1931, and order dated February 28, 1931, the Supreme Court of Nova Scotia en banc dismissed an appeal from an order of Chisholm J., sitting in bankruptcy, setting aside an order of the Official Receiver for the sale to appellant of certain of the bankrupt's stock in trade. On March 10, 1931, said Court en banc made an order extending the time for application to a judge of the Supreme Court of Canada for leave to appeal, to 60 days from February 7, The application came before Cannon J. on April 2, 1931, who dismissed it, holding that he had no jurisdiction, as the application was not made within the period (30 days from pronouncement of the decision complained of) fixed by Rule 72, and the order extending the time was made without jurisdiction.-Bankruptcy Act, R. S C
1927, c. 11, ss. 174, 163 (5), 2 152; Bankruptcy Rules 72, 68, considered. In re Gilbert, [1925] Can. S.C.R. 275, at 278, 277; Eastern Trust Co. v. Lloyd Mfg. Co., 3 C.B.R. 710, at 713-714, referred to. IN 6- Right of appeal-Order "made with the consent of parties" (Judicature Act, Ont., R.S.O., 1927, c. 88, a. 23)-Exclusion of evidence at trial-New trial.] In the course of a trial (and after the trial judge had ruled out certain evidence which plaintiff was offering) plaintiff's counsel expressed a wish to have the record withdrawn on plaintiff undertaking to pay costs. In the course of the discussion which followed, defendant's counsel remarked "I cannot consent to anything but the dismissal with costs" (which was all defendant could get if successful in the action), but his attitude throughout was against defendant being a party to any settlement, his insistence being on dismissal with costs as a matter of right. The trial judge endorsed the record: "This action is dismissed with costs," and added, as requested by plaintiff's counsel, "by consent of the plaintiff." Defendant's counsel then asked for and got permission to take out his exhibits. The formal judgment recited: "and the plaintiff by his counsel consenting," but was silent as to consent by defendant.- Held (Anglin C.J.C. and Cannon J. dissenting): The judgment was not an order "made with the consent of parties," within the meaning of s. 23 of the Ontario Judicature Act, R.S.O., 1927, c. 88, and plaintiff was not precluded by that section from appealing from the judgment. Judgment of the Appellate Division, Ont., on this point (65 Ont. L.R. 53) sustained.-A judgment by consent within s. 23 is a judgment determining an issue between parties to the litigation with the consent of the parties to the issue so determined.
It is only when the "parties" consent that the right of appeal is taken away. It is not for the court to extend the scope of the section so as to deprive a litigant of a right to appeal unless he comes within the express language of the
Act.-Per Anglin C.J.C. and Cannon J.
(dissenting): The judgment was a consent
Defendant's counsel must be taken to have consented to it, having regard to its effect, and to what took place in the discussion at the trial.
The authority of counsel to consent may be assumed; it would not have been competent for the Appellate Division
(nor for this Court) to pass upon that question; the fact that the judgment of the trial court had been formally completed distinguishes this case from Shepherd v. Robinson, [1919] 1 K.B. 474, and
Neale v. Gordon Lennox, [19021 A.C. 465, and similar cases; once a final judgment by consent has been formally drawn up, signed, sealed and entered, as here, unless by agreement of the parties, it may be set aside only in a fresh action brought for that purpose; especially must that be so where such an issue as consent or no consent must be decided on controversial
(Harrison v. Rumsey, 2 Vesey
Sr. 488; Ainsworth v. Wilding, [1896] 1
Ch. 673; Firm of R.M. K. R.M. v. Firm of
M.R.M. V.L., A.C. 761, at 771;
Kemp-Welch v.
Kemp-Welch et al.,
[1912] P. 82; Kinch v. Walcott, [1929]
A.C. -482, cited).
The fact that the judgment does not show on its face the explicit consent of the defendant (who got by it all he could get in the action), or the fact that his consent was not formally given, does not prevent its being a consent
(Hadida v. Fordham, 10
T.L.R. 139; Holt v. Jesse, 3 Ch. D. 177, and other cases referred to).
The statement, as to what constitutes consent, in
Daniell's Chancery Practice, 8th Ed., p.
1110, discussed and explained in the light of the cases there cited (Davis v. Chanter,
2 Phillips, 545; Aldam v. Brown, [1890]
W.N. 116; Hadida v. Fordham, supra);
Annual Practice
(1929) at p.
2141,
(1930) at p. 2139, (1931) at p. 2139, also referred to and discussed in this connection.-Held further
(unanimously)
that, on the merits (which were argued, subject to determination of the other question), there should be a new trial, as one of the grounds on which the trial judge ruled out certain evidence was clearly wrong and would have the effect of preventing the plaintiff (who had other witnesses yet to be called) from offering further evidence on matters on which he was entitled to adduce evidence; under all the circumstances, plaintiff should be given an opportunity to place all his evidence before the court. Judgment of the Appellate Division, Ont., on this question (38 Ont. W.N. 122) reversed. V. WALKER................... 7- Jurisdiction-Petition in revocation of judgment (requete civile)-Judgment maintaining it-Whether it is a "final judgment" or a judgment "directing a new trial"-Supreme Court Act, s. 2 (e) and 8. 36 (a) and (b)-Arts. 1177 et seq. C.C.P.]
A judgment of the Court of King's Bench, maintaining the "rescindant" conclusions of a petition in revocation of judgment (requgle civile) and annulling the judgment of the Superior Court, so as to place the parties in the same position as they were before that judgment and continue the suit, is not a "final judgment" within section 36 (a) and 2 (e) of the Supreme Court Act nor a "a judgment
*
*
* directing a new trial" within section 36 (b).
TREMBLAY........................ 8- Jurisdiction-Matter in controversy (sole question, one as to jurisdiction of Ontario Railway and Municipal Board)- Title to land-Future rights-Supreme Court Act R.S.C., 1927, c. 35, s. 41. Crrr SAUNDERs..... 9- Bankruptcy-Application to judge of to appeal-Power of bankruptcy judge to extend time for application - Bankruptcy Act, R.S.C., 1927, c. 8s. 163 (5), 174; Bankruptcy Rule 72-Appeal to the Court from decision of judge in chambers on application for leave to appeal.] The judge sitting in bankruptey from whose decision an appeal was taken to the Appeal Court under s. 174 of the Bankruptcy Act has power under s 163 (5) of the Act, to extend the time limited by Bankruptcy Rule 72 for applying to a judge of the Supreme Court of Canada for special leave to appeal to this court (under a. 174 (2) ) from the Appeal Court's decision. Judgment of Cannon J., ante, p. 503, reversed.-The rule established by Williams v. Grand Trunk Ry. Co. (36 Can. S.C.R. 321) and other cases, that a decision by a judge of this court in chambers granting or refusing, on the merits, an application for leave to appeal is not appealable to the Court, does not extend to a case where the judge has granted leave to appeal in disregard of some essential statutory condition of the right of the applicant to have his application for leave heard and passed upon, or to a case where the judge, owing to a misunderstanding touching the effect of a statute, decides that an applicant for leave to appeal is not entitled to have his application heard, although in truth he has complied with all the statutory and other prerequisites of such an application. APPEAL-Concluded
10-Married woman, authorized generally to maintain or defend action, appearing as respondent before appellate court without new authorization................ 293
11-Effect, as authority, on Supreme
Court of Canada, of a judgment of that
Court affirming on equal division the judgment below.................
See TAX
12-See
ARBITRATION
ASSEMBLY, UNLAWFUL
ASSESSMENT
AND TAXATION - Assessment for "special franchise" - Town Act, Sask., 1927, c. 24, s. 413 (6).]
Appellant had a special franchise for supply of electric light and power to respondent town.
It had only a distribution system within the town, its generating plant being elsewhere.
town assessed the pole line and distribution system at $3,000 and the franchise at $7,000.
Appellant contended that, as it had no property in the town except that assessed at $3,000 as aforesaid, the
$7,000 assessment on the franchise was illegal, being contrary to s. 413 (6) of the Town Act, Sask., 1927, c. 24.-Held
(Newcombe J. dubitante): The assessment did not violate s. 413 (6).
Assessment must be made of the land and, "in addition," of the special franchise according to the method of determination laid down. Any argument that might otherwise be based on "double assessment"
was met by the express statutory provision.
There was nothing to shew that the assessment at $7,000 for the franchise was not correct or that the assessment had been made on a wrong basis.
2-Company's incorporating Act (1926, c. 45, N.B.) exempting (s. 23 (1) ) "the company and its property" pertaining to certain power development, from taxation- Construction-Assessment for income tax.]
The respondent company was incorporated by c. 45, 1926, N.B., with power to generate and sell electric power.
S. 23 (1)
provided that for a certain period "the company and its property in New Brunswick pertaining to the development of power on the Saint John River shall be exempt from all municipal and other
ASSESSMENT AND TAXATIONtaxation and assessment" (other than a fixed school tax not in question). The question before this Court was whether or not the company was liable to be assessed in the town of Grand Falls, N.B., (where its head office was) upon or with respect to income derived by it from or by virtue of the sale of power generated at its plant in Grand Falls from the use of the waters of said river.- Held: The company was not liable to be so assessed.
The exemption extended, not only to property, but also to the company itself, and included income. The mention of its "property" in said s. 23 (1) did not create an inference of intention that property only should be exempt. The plain language of the exempting provision left no room for operation of any rule for strict construction against the company invoked on grounds that its incorporating Act was in the nature of a private Act and that it was claiming exemption from taxation. The Interpretation Act, R.S.N.B
1927, c. 1, s. 6; Foley v. Fletcher, 3.
H. & N. 769, at 780-781; City of Halifax v. Nova Scotia Car Works, Ltd., f1914] A.C. 992, cited. Further, the omission of mention of the company itself in s. 23 (2) exempting "the company's property" pertaining to transmission of power, was significant. ....... 3-Provincial income tax-"Income" in B.C. Taxation Act-" Use and Occupancy Insurance" policy-Moneys paid for loss of profits not earned-Taxation Act, R.S.B.C. 1924, c. 254, s. 2.]
Insurance moneys received under a policy commonly known as "use and occupancy insurance" and paid by way of indemnity for profits not earned, but irretrievably lost, are not taxable income nor subject to taxation under the British Columbia Taxation Act, R.S.B.C., 1924, c. 254, s. 2. B.C. CO. 435 4 - Income tax-Income War Tax Act, 1917 (Dom.), as amended-"Income"- Royalty reserved to vendor of land, of percentage of oil, etc., produced by purchaser . ................................ 5--Income tax (Dom.)-Income War Tax Act, 1917, c. 28 (as amended)- Income "accumulating in trust for the benefit of unascertained persons, or of persons with contingent interests" (s. 3 (6), as enacted 1920, c. 49, s. 4)-Probable beneficiaries residing out of Canada - Effect, as authority, on this Court, of judgment of this Court affirming on equal division the judgment below.......... 6- See SALES TAX.
ASSOCIATION - Application for shares in, class of shares etc ...............
ATTORNEY-GENERAL - Company - Incorporated under federal authority- Petition the Attorney-General of a province for its dissolution-Allegations that the company was violating the law and defrauding the public-Right take proceedings-Exception the form-Arts.
978 and foll. C.C.P.................
AUTOMATIC VENDING MACHINE
BANKRUPTCY-Application to judge to appeal-Time for application-Extension of time-Jurisdiction-Bankruptcy Act,
R.S.C., 1927, ss. (1),
152; Bankruptcy Rules 72,
Supreme Court of Nova Scotia en banc cannot, nor can a judge of the Supreme
Court of Canada, extend the time fixed by Bankruptcy Rule 72 for an application to be made to a judge of the Supreme
Court of Canada for special leave to appeal to this Court.-By its decision made on February 7, 1931, and order dated February 28, 1931, the Supreme
Court of Nova Scotia en banc dismissed an appeal from an order of Chisholm J., sitting in bankruptcy, setting aside an order of the Official Receiver for the sale to appellant of certain of the bankrupt's stock in trade.
On March 10, 1931, said
Court en banc made an order extending the time for application to a judge of the
Supreme Court of Canada for leave to appeal, to 60 days from February 7,
The application came before Cannon J. on April 2, 1931, who dismissed it, holding that he had no jurisdiction, as the application was not made within the period (30 days from pronouncement of the decision complained of) fixed by Rule
72, and the order extending the time was made without jurisdiction.-Bankruptcy
Act, R.S.C., 1927, c. ss. 174, 163 (5)
2 152; Bankruptcy Rules 72, 68, considered. In re Gilbert, [19251 Can. S.C.R.
275, at 278, 277; Eastern Trust Co. v.
Lloyd Mfg. Co., 3 C.B.R. 710, at 713-714, referred to. IN V.
BACON.......................
2- Appeal-Application judge to appeal-Power of bankruptcy judge to extend time for application-Bankruptcy
BANKRUPTCY-Concluded
Act, R.S.C., 1927, ss. 174; Bankruptcy Rule 72-Appeal to the Court from decision of judge in chambers on application for leave to appeal.] The judge sitting in bankruptcy from whose decision an appeal was taken to the Appeal Court under s. 174 of the Bankruptcy Act has power, under s. 163 (5) of the Act, to extend the time limited by Bankruptcy Rule 72 for applying to a judge of the Supreme Court of Canada for special leave to appeal to this court (under s. 174 (2)) from the Appeal Court's decision. Judgment of Cannon J., ante, p. 503, reversed.-The rule established by Williams v. Grand Trunk Ry. Co. (36 Can. S.C.R. 321)
and other cases, that a decision by a judge this court chambers granting or refusing, on the merits, an application for leave to appeal is not appealable to the Court, does not extend to a case where the judge has granted leave to appeal in disregard of some essential statutory condition of right of the applicant to have his application for leave heard and passed upon or to a case where the judge, owing to a misunderstanding touching the effect of a statute, decides that an applicant for leave to appeal is not entitled to have his application heard, although in truth he has complied with all the statutory and other prerequisites of such an application.
Co... 652 3-Stock broker-Orders on New York exchange Canadian broker-Certificates of stock-Endorsement in blank-Recovery from trustee in bankruptcy-Right follow proceeds of sale- Not existing in Quebec-Arts. 1017,
1705, 1709, 1713, 1723, 1730, 1735, 1976, 1985, 1994, 2005a BARRISTERS AND SOLICITORS BAWDY HOUSE
BOARD
OF RAILWAY
COMMIS- SIONERS
BOND - Condition of obligation -Burden proof of fulfilment.-Shipping - Exportation-Inland Revenue Act, R.S.C., The respondent's action was upon a bond executed by the appellants in favour the respondent, under the provisions the Inland Revenue Act BOND-Concluded and its Regulations, wherein the appellants bound themselves to the respondent in the sum of $15,048.50.
The condition of the obligation was such, that if certain packages of alcohol entered for export, ex-warehouse, by the appellant corporation at Belleville, Ontario, for St. John's
Newfoundland, should be duly shipped and exported and entered for consumption or warehouse at St. John's, and if proof of such exportation and entry was made in accordance with the requirements of the
Warehousing Regulations in that behalf within ninety days from the date of the bond, to the satisfaction of the Collector of Inland Revenue for the division of
Belleville, Ontario, or if the Consolidated
Distilleries Limited, one of the appellants, should account for the said goods to the satisfaction of the said Collector then the obligation was to be void, otherwise to be and remain in full force and effect.- Held that the burden of proving the fulfilment of the entire condition of the bond was upon the applleants.
CONv. THE
BROKER
BY-LAW
CARRIERS
CIVIL CODE-Art.
8 (Law of what country to govern in construction of deeds
..............
.................
2-Art.
94 (Provisional possession of heirs of absentees)..................
3- Art. 159 (Marriage)........... 713
4--Arts. 176, 178, 181, 183 (Rights and duties of husband and wife) .........
See WIFE
5-Art.
306 (Administration of Tutors)
........ ....... .................
6--Art. 358 (Rights of corporations)
7-Arts. 857, 858 (Probate and proof of wills)............................
8- Art. 944 (Substitutions)........
CIVIL CODE-Continued
9- Art. 981a (Trusts) ............. Art. 1017 (Interpretation of contracts)........................
11-Art. 1024 (Obligation of a contract) ........... 12-Art. 1053 (Of offences and quasioffences).............
............ 13-Art. 1054 (Responsibility of masters and employers).................... 14-Art. 1056 (Of offences and quasi offences).......................... Art. 1120 (Of debtors jointly and severally obliged) ................... 16-Art. 1177 (Novation)........ 293 See WIFE 2. 17-Arts. 1200 et seq. (Performance of obligation becoming impossible) ....... 636 18- Arts. 1222, 1223 (Private writings) ...................
... ...... See WILL 1.
19-Arts. 1265, 1301 (Marriage covenants)..........................
20-Art. 1301 (Marriage covenants) 293 See WIFE 2. 21-Art. 1570 (Sale of debts and rights of action)..................... 22-Arts. 1582 et seq. (Of the sale of litigious rights).................... 23- Art. 1705 (Mandate)......... 24-Arts. 1709, 1713 (Obligations of mandatary)....................... 25--Arts. 1723, 1730 (Obligations of mandator)....................... 26-Art. 1735 (Broker).......... 27- Art. 1966 (Pledge)........... 74()
ES.C.R. CIVIL CODE-Concluded
28-Art. 1967 (Pledge of immoveables)
29-Arts. 1968,
1969,
1970,
(Pawning)........................
30- Art. 1976 (Pledge)...........
31- Art. 1983 (Privilege).........
32- Art. 1985 (Privileged claims).. 102
33-Arts. 1994, 2005a (Privileges upon moveable property) ...............
Arts. 2016, 2022 (Hypothecs).
35-Art. 2037 (Conventional hypothec)
.. ... .
...
. .. .. .
See COMPANIES
36-Art. 2053 (Privileges and hypothecs)
..
.......... .......
37-Arts.
2268 (Prescription)
..................
CODE OF CIVIL PROCEDURE - Art. 50 (Supreme Court powers) ......
2- Art. 50 (Supreme Court powers) 460
3- Art. 79 (Parties to actions) .....
4-Art.
176 (Irregularities in writ, etc., waived by appearance, etc.) ..........
5--Arts. 978 and foll. (Proceedings affecting corporations or public offices) 452
6- Art. 1003 (Prohibition) ........
7-Arts. 1177 et seq. (Petitions in revocation of judgment) ................
8-Art. 1185
(Oppositions by third parties)...........................
COLLISION
See 2, 3.
See 2, 3, 4, 7. COMMON BETTING HOUSE COMMON GAMING HOUSE -Joint stock company-Debentures-Trust deed-Hypothec-Pledge-Transfer of property-Whether absolute or as warranty- Bankruptcy - Ownership - Difference tween civil and common laws as to "trust" -Joint Stock Companies Act, R S Q 1909 s. 6119a; R.S.Q., 1925, c. 2231hpeciai Corporate Powers Act, R.S.Q., 1925, c. 227, 10, 12, 13-4 Geo. V., c. 51, s. 1- 10 Geo. V., c. 72, s. 1-14 Geo. V., c. 63, 8. 1 -Bankruptcy Act, s. 45 (3); rule 173- Arts. 94, 358, 944, 981a, 1966, 1967, 1968, 1969, 1970, 1972, 2016, 2022, 2037, 2053 C.C.-Art. 1185 C.C.P.] The words contained in a trust deed, to the effect that the debtor "chde, transporte et donne en gage" (cedes, transfers and gives pledge) a certain property to the trustee, not constitute an absolute transfer but indicate that the intention of the parties was to hypothecate the property as security for the bonds.
The words "en gage" modify not only the word "donne," but also the words "chde" and "transporte", so that the instrument should be read as if "en gage" were after each word.
Smith J. (dissenting)
.-The words "to cede and transfer", in s. 13 of the Special Corporate Powers Act, R.S.Q., 1925, 227, do not imply an absolute transfer, but merely a transfer in warranty, in view of the addition of the words "for the same purposes", thus referring to the "purposes therein set forth" immediately preceding, which purposes are to secure any bonds, etc. Anglin C.J.C. and Smith J. contra.-Per Duff, Newcombe, and Rinfret JJ.-The modification effected in the existing civil law as to hypothec and pledge, by 4 Geo. V, 51 when it inserted articles 6119a, 6119b and 6119c into the Joint Stock Companies Act of 1909, has been merely to extend the principle of conventional hypothec to moveables and future property and to make future property susceptible of being pledged- but the main change was to enact that "the mortgagor or pledgor (will) be permitted by the trustee to remain in the possession and use of the property so mortgaged or pledged" (art. 6119b)-The translation of the words "nantir" and "nantissement" by "mortgage" and "mortgaging", in the English version of the statute, not appropriate and may be misleading; there is no connection between the "nantissement" of the civil law and the "mortgaging" of the English common law.
Therefore that statute should not be interpreted according to the rules governing "mortgage" of the English common law; and the power given to the debtor by the statute to hypothecate and pledge his property as security for the payment of the bonds does not constitute a "trust" within the meaning of the equity jurisprudence, the idea of "trust" never having found place in the civil law in Quebec.-Per Duff,
Newcombe and Rinfret JJ.-The system of civil law in Quebec does not admit the notion of the English common law as to beneficial ownership residing in one person and legal title in another.
In Quebec, both are invariably united upon the same head, the right of ownership being indivisible.-Per Smith J. (dissenting).-The words "cede and transfer" imply the passing of the ownership to the transferee, with power to take possession and sell, according to the ordinary meaning of the words. These words in Art. 6119a must be given the same interpretation; otherwise they do not add anything to the
"hypothecate, mortgage pledge" which immediately precede them.
of the Court of King's Bench
Q.R. 48 K.B. 390) aff., Smith J. dissenting.
2 - Ownership of shares or stock-State war-War legislation-Canada and United
States allied Powers-Seipure Alien
Property Custodian of United States certificates of shares or stock, physically situate in
United States, but issued
Canadian companies or corporations, and beneficially owned alien enemies-Vesting orders obtained in Canada Canadian
Custodian-Conflicting claims between Canadian Custodian and United States Custodian-Consolidated Orders respecting
Trading with the Enemy, (Can.)- Treaty of Peace (Germany) Order, 1920
(Can.)-The United States Alien Property
Custodian, under powers conferred by Act of Congress, seized, between March 27,
1918, and April 27, 1919, certain share or stock certificates, then physically situate in New York, but issued by Canadian companies or corporations. The securities were, at the seizure dates, beneficially owned by alien enemies. The said certificates were:
(1) share certificates and special investment note certificates issued by C.P.R. Co., the securities being registered in its branch registry office in New
York and transferable there only;
bearer share warrants issued by I. Co.
and transferable by delivery without anything further having to be done to perfect title; (3) certificates for City of Montreal debenture stock, transferable only on the
City's books by the registered holder or by attorney duly constituted; (the certificate stated that it "shall not constitute the title to the stock, which title shall consist exclusively in registry in the Debenture Stock Register of the City") (4) certificates for debenture stock issued by T. Co. and transferable on its books either in London (Eng.) or in Canada; the stock in question was on the Toronto register.
All said certificates (except the bearer share warrants) were transferable by assignment in writing in common form, and the registered owner had executed the usual assignment and power of attorney, in most cases in blank.
The securities were listed and dealt in on recognized stock exchanges. The said Custodian had the assigned certificates presented to the issuing companies and himself or his nominee registered as owner; as to the T. Co. securities, this was not done until a time later than the vesting orders hereinafter mentioned.
The Canadian Custodian, in October,
1919, under the authority of s. 28 of the Consolidated Orders respecting
Trading with Enemy, 1916 (put into force under the War Measures Act, 1914, Can.) obtained Canadian court orders (except as to the City of Montreal stock) purporting to vest in himself the shares and stock in question. He brought the present actions in 1926, and the question in issue was, which of the two custodians was entitled to the securities.-Held (affirming judgment of Maclean J., President of the Exchequer Court of Canada, Ex. C.R. 75), that the United States Custodian was entitled to the securities.- Per Rinfret, Lamont and Smith JJ.: The Canadian Consolidated Orders, 1916, did not intend or effect prevention of an allied Power from validly seizing shares of Canadian companies the certificates for which were physically situate in the allied country.
The seizures by the United States Custodian (having regard to the terms of the authorizing U.S. law) vested in him, as against the enemy nationals, not only the possession of the paper certificates, but every property right and interest to which the beneficial owners thereof would have been entitled had a state of war not existed.
Both by Canadian and by United States law, share certificates endorsed in blank by the registered owner give the right to the lawful holder thereof to be registered as owner (Colonial Bank v. Cady, App. Cas., 267, at 277; Disconto-Gesellschaft v U.S. Steel Corp., 267 U.S. 22, affirming 300 Fed., 751); and this right existed in the United States Custodian (Disconto case, supra) and was, prior to and at the time of the Canadian court vesting orders, a "property, right or interest" in him, to the exclusion of any such in an enemy, in respect of the securities in question. (The C.P.R. Co. shares and notes, registered in the company's New York office in the name of his nominee, and the I. Co.
bearer share warrants, were also property in the United States; Quaere as to the other securities in this regard). His right to have himself or his nominee registered as the owner of the securities was subject to any assertion by Canada of her paramount legislative power over the companies which had issued the certificates. Canada did assert this power when the shares were vested in the Canadian Custodian by the courts under the Consolidated Orders, but she relinquishes her claim to all vested property which was not enemy property at the time of the vesting (Canadian Consolidated Orders, 1916, ss. 28, 33, 36 (1), and Treaty of Peace (Germany) Order,
Newcombe JJ.: The Canadian Consolidated Orders, 1916, had no intention or effect of nullifying in Canada proceedings taken by an allied Power to reduce into possession such securities so situated as those in question. The principle of the
Disconto case (supra) applied, and the proceedings taken by the American Custodian had the effect of investing him with the rights of a transferee of the securities, including the right to demand registration.
Therefore Order 28, which authorized only the vesting of property
"belonging to or held or managed for or on behalf of an enemy," had no application to any of the properties in question. Ss. 33 and 34 of the Treaty of Peace (Germany)
Order, 1920, which Order was passed pursuant to the Treaties of Peace Act,
1919, and was for the purpose of carrying out the Treaty of Peace and giving effect to its provisions, must be read in the light, and within the limitations, of that purpose;
the Treaty, while ratifying the administrative orders of Canada acting within her proper sphere, also contemplated ratification of the administrative orders of the United States acting within her proper sphere; and said s. 34 could not be read as giving such an effect to a vesting order purporting to have been made under the Consolidated Orders as would interfere with the operation of an administrative act by the United States properly done within her sphere.
As to the T. Co. securities, assuming that the bare legal title of the enemy owner had not been completely extinguished at the time the Canadian court vesting order was made, yet that bare legal title, vested under the vesting order in the Canadian
Custodian, was subject to be devested by the exercise of the rights which the American Custodian had acquired under his proceedings; the effect of the Treaty was that the rights so acquired became properly exercisable notwithstanding the existence of the vesting order. AIEN 3---Company incorporated under federal authority-Petition the Attorney-General of a province for its dissolution-Allegations that the company was violating the law and defrauding the public-Right to take proceedings-exception the form- Arts. 978 and foll. C.C.P.] The Attorney- General for Quebec instituted proceedings under articles 978 and following C.C.P., invoking irregularities and illegalities in the management of the appellant company, incorporated under the Companies Act of the Dominion, also alleging violations of the law or of the Acts by which the appellant was governed with the object of defrauding the public and of endangering public welfare further asserting that the proceedings were taken to abate these alleged violations and were instituted and carried out in the general public interest of the people of the province of Quebec in particular.
Consequently, the Attorney- General for Quebec asked that the letters patent the appellant company be forfeited and that the company itself be dissolved.
The appellant, by way of an exception to the form, moved for the dismissal of the action on the ground, inter alia, that the Attorney-General of Quebec had neither the quality nor the capacity to institute these proceedings against a company holding its powers from the federal authority.-Held that the Attorney-General for Quebec was qualified to institute the proceedings and that the exception to the form has been rightly dismissed by the court appealed from. The Crown, as parens patriae, represents the interests of His Majesty's subjects, and the Attorney-General for a province, acting as the officer of the Crown, empowered to go before the courts to prevent the violation of the rights of the public of that provinces even if the perpetrator of the deeds complained of be a creature the federal authority.' other words, the Attorney-General of a province has not only the right, but the duty, to suppress the civil offences committed within the limits of the province.- No opinion is expressed as to the question whether the courts may, at the instance of the Attorney-General of a province, direct the dissolution or winding up of a company incorporated by Act of the Parliament of Canada or by letters patent issued under its authority. Such a question can arise only on the merits of the case and exception to the form is not the proper procedure for that purpose nor is it the appropriate way of raising it.- Held, also, that, by enacting art. 978
C.C.P., the legislature of Quebec intended to confer the power of prosecuting violations of the law therein stated on the
Attorney-General of the province. Whereever the words "Attorney-General" are used without qualification in a code or in a statute of Quebec, they have reference to the Attorney-General for Quebec.
But the Attorney-General for Canada may also avail himself of the benefit of the enactment provided by art. 978
C.C.P. (Dominion Salvage & Wrecking Co.
v. The Attorney-General of Canada (21
Can. S.C.R. 72) ref.)-To the extent above indicated, the following judgments are approved: The Attorney-General v.
The Niagara Falls International Bridge
Company (20 Grant's Ch. R. 34); The
Attorney-General v.
The International
Bridge Company (27 Grant 37); Loranger v. Montreal Telegraph Company (5 L.N.
429); Turcotte v. Compagnie de chemin de fer Atlantique (17 R.L. 398); Casgrain v.
Dominion Burglary Guarantee Company
(Q.R. 6 S.C. 382); Guimond v. National
Real Estate (16 Q.P.R. 328).-Judgment of the Court of King's Bench (Q.R. 48
K.B. aff.
4--See WIFE
COMPENSATION
CONSENT JUDGMENT
CONSOLIDATED ORDERS RE- - SPECTING TRADING WITH THE
ENEMY, 1916 (CAN.)
Rights as between Dominion of Canada and Province of Saskatchewan, as to lands vested in the
Crown at time of admission into Canada of
Rupert's Land and North-Western Territory and now within boundaries of Saskatchewan-B. N.A. Acts, 1867, 1871; Rupetr's Land Act, 1868; The Queen's Order in
Council of June 23, 1870; Saskatchewan
Act (Can., 1905, c. 42).]
Upon Rupert's
Land and the North-Western Territory being admitted into and becoming a part of the Dominion of Canada under the
Queen's Order in Council of June 23,
1870, all lands ("lands" including lands, mines, minerals and royalties incident thereto) then vested in the Crown and now lying within the boundaries of the province of Saskatchewan were vested in the Crown in the right of the Dominion of
Canada; and not in the right of, or to be administered for, any province or provinces to be established within such area; nor to be administered for the benefit of the inhabitants from time to time of such area (otherwise than as sharing in any benefit which might accrue to them under the dispositions of Parliament); and the Dominion is under no obligation to account to the Province of Saskatchewan for any lands within its boundaries alienated by the Dominion prior to 1st September, 1905 (when the Saskatchewan Act, Dom., 1905, c. 42, came into force).- The B. N.A. Act, 1867 (especially ss. 146, 109, 91); Rupert's Land Act, 1868, c. 105 (Imp.); Phe Queen's Order in Council of June 23, 1870 (and the Addresses from the Houses of the Parliament of Canada therefor); the B. N.A. Act,
1871; the Saskatchewan Act
(supra), and other statutes considered.
The Queen v. Burah, 3 App. Cas. 889, at 904-5; Hodge v. The Queen, 9 App. Cas. 117, at 132;Liquidators of the MaritimeBank of Canada v. Receiver- General of New Brunswick, [1892] A.C. 437, at 441-3; Riel v. Regina, 10 App. Cas. 675 at 678-9; Att.-Gen. for Alberta v. Att. -Gen. for Canada, [1928] A.C. 475, at 484-6, and Ont. Mining Co. v. Seybold, [1903] A.C. 73, at 79, cited.
...... 2-Produce Marketing Act of B.C.- Ultra vire--Legislation within Dominion power-Trade and Commerce-Levy imposed by s. 10 (k)-Whether levy a tax- Direct or indirect taxation-Licence- B.N.A. Act, ss. 91 (2), 92 (2), 92 (9)- Produce Marketing Act, B.C., 1926-27, c. 54, ss. 2, 3, 10 (1), 10 (k), 15, 16, 20- Amending Act, (1928) B.C., c. 39.] section 3 of the Produce Marketing Act of British Columbia (1926-27), c. 54 a "Committee of Direction" was constituted, "with the exclusive power to control and regulate (under the Act) the marketing of all tree fruits and vegetables *
*
*, being products grown or produced in that portion of the province contained within"
boundaries therein specified.
By section 10 (1), it was provided that, "for the purpose of controlling and regulating, under this Act, the marketing of any product within its authority (the) Committee shall, so far as the legislative authority of the proat what time and in what quantity, and from and to what places, and at what price the product may be marketed, and to make orders and regulations in relation to such matters."
By section 10 (k), the committee was also given the power "for the purpose of defraying the expenses of duct marketed."
By subsection section 16, as enacted by the Amendment
Act of 1928, c. 39, it was provided that
"the committee may fix licence fees to be p aid by shippers."-Held that this legislation is ultra vires of the provincial legislature.-Per Duff, Newcombe, Rinfret and Lamont JJ.-Such legislation is referable to the exclusive
Dominion power to regulate trade and commerce.
(Section 91 (2) B.N.A. Act.)-Newcombe
J. however is careful expressly to reserve the position that the legislation would also be ultra vires of the province even if not within any of the Dominion enumerated powers.-Per Duff, Rinfret and
Lamont JJ.-The provisions of the statute, which authorize the committee to impose levies and to fix licence fees are ultra vires, the levy not being within section 92 (2) and the licence not being within section 92 (9) of the B.N.A. Act.- Per Cannon J.-The levy is an export tax falling within the category of duties of customs and excise and, as such, as well as by reason of its inherent nature as an indirect tax, could not competently be imposed by the provincial legislature.
FRUIT
- Revenue - Customs
Act, R.S.C., 1927, c. 42 (as amended, 1928 c. 16), ss. 151, 207-Enactments with respect to vessels hovering within 12 marine miles of coast of Canada-Constitutional validity.] S. 151 (7) of the Customs Act,
R.S.C., 1927, c. 42, as amended, 1928, c. 16, in so far as it enacts that "territorial waters of Canada" shall for the purposes of ss. 151 and 207 of the Act as so amended
Canada) include, in the case of any vessel registered in Canada, the waters within
12 marine miles of Canada, is ultra vires.- Judgment of the Supreme Court of Nova
Scotia en banc, 2 M.P.R. 350, affirming judgment of Paton J. (ibid) upholding the legislation, reversed.-Newcombe
Cannon JJ. dissented, holding that the legislation was intra vires, in its application to the facts of the present case, and having regard to the purpose for which such legislation was invoked, namely, prevention of use of such vessels as depots for supply of intoxicating liquors to boats engaged in smuggling liquor into Canada.
CROFT.................
4 - Radio communication-Dominion and provincial jurisdiction-B. N.A. Act,
1867, s.
91, 92, 132.]
In the existing state of radio science and in the light of the knowledge and use of the art as actually understood and worked, radio communication is subject to the legislative jurisdiction of the Dominion Parliament.
Rinfret and Lamont JJ. (dissenting)
.-Per Rinfret and Lamont JJ. dissenting.- The Dominion Parliament has not jurisdiction to legislate on the subject of radio communication in every respect. This subject falls within the primary legislative jurisdiction of the provinces either under no. 13 (property and civil rights) or under no. 10 (local works and undertakings) of section 92 of the B.N.A. Act except in cases where the Dominion Prliament has superseding jurisdiction under some of the heads of section 91 and under section 132 (relating to treaties) of the B.N.A. 5 - Company - Incorporated under federal authority-Petition by the Attorney- General of a province for its dissolution- Allegations that the company was violating the law and defrauding the public-Right to take proceedings-Exception to the form- Arts. 978 and foll. C.C.P............ 6-Montreal City Charter - By-law (passed under authority of City Charter) against canvassing without licence-Constitutional validity ................. CONTRACT - Action to recover on mortgage covenants-Defence that moneys were advanced mortgagee for illegal purpose-Evidenc--Onus of proof- No connection shewn between claims sued upon and alleged illegal transaction- Refusal to answer questions on discovery as ground for dismissal of action at trial. 2-Purchase of land for re-sale-Joint adventure- Non-disclosure of facts - Withdrawal of co-adventurers-Right to share in profits. v. V. SMITH............... 3--Consensus ad idem-Application for shares in association operating under Savings and Loan Associations Act, B.C., 1926-1927, c. 62-Issue of certificate for shares-Class of shares-Representations to applicant as to shareholder's rights-Materiality - Inducement - Onus of proof.] The defendant association, under the Savings and Loan Associations Act, B.C., could issue four classes of shares, including "instalment shares" and "savings shares." Its agent, C., obtained from plaintiff an application, on defendant's printed form, for an "instalment savings certificate," and defendant issued to plaintiff a certificate for "instalment shares."
It had no power to issue an "instalment savings certificate."
Plaintiff, after ascertaining his rights and obligations under the certificate issued to him, sued for cancel- CONTRACT-Continued lation of the application and certificate and for return of moneys paid, on the grounds, (1) that the application was a nullity; (2) that it was for a savings certificate, and, in view of the kind of certificate issued, was not accepted; and
(3) misrepresentation by C.-Held: The application should be declared null and void unless it was clearly established that by "instalment savings certificate" both plaintiff and C. meant a certificate for a certain specific kind of share which defendant could issue; and the onus of establishing that their minds were ad idem as to this rested on defendant.
evidence established that the contract offered by C. to plaintiff was one allowing plaintiff to mature his shares in five years, and, according to the defendant association's rules, he would have such right only as a holder of savings shares; the class of shares, therefore, which plaintiff and C.
had in mind when the application was signed was savings shares. There was no consent by defendant's directors to a right in plaintiff to mature his shares in five years.
The right was important; and, although plaintiff had not complained with respect to it before bringing action, his immediate quarrel being with respect to other privileges alleged to have been represented, this did not justify the inference that such right was not one of the causes inducing him to sign the application or that he did not rely upon it; the onus of showing that the representation was not relied on rested on defendant; and there was no evidence that it was not relied on or was waived.
Defendant had failed to establish that plaintiff intended to subscribe for instalment shares, and, as defendant had no intention of accepting, and did not accept, an application for savin s shares, their minds were never ad idem, there was no contract, and plaintiff was entitled to recover his
4- Agreement for sale of shares-Findings against alleged abandonment pur- 5-Sale of shares in company-Offer and acceptance-Whether contract established
6- Agreement for sub-lease of oil and natural gas rights-Right to rescission- Head lease made part of sub-lease-Misrepresentation - Finding of trial judge.
7-Lease of services-Employment as manager-Claim for bonus under contract.
Art. C.C.
CONTRACT-Concluded
8 - Lease - Interpretation - Conduct of premises by lessee-Closing of part of hotel premises in winter-Whether breach of agreement by lessee.
Q.R.S. 708 9-Evidence failing to establish. v. Ry. Co .. .... 10-Franchise to electric light company from city-Fifty-year term subject to right of city take over-Arbitration as value-Profits of unexpired term included in award-" Undertaking, property rights and privileges"-Meaning of.
11-Sale of goods-Goods rejected by purchaser as not being the kind orderedto shew meaning intended the parties description in written orders-Whether 12-Schools-Termination board school trustees of teacher's employment- Alleged wrongful termination-Terms agreement-Teacher's remedy-School Act, Alta., R.S.A.,
See SCHooLs.
4; CONVENTION
OF OCTOBER 20, 1818, BETWEEN GREAT BRITAIN UNITED
...........................
374, 387 CONVERSION
CORPORATIONS
COSTS
COUNSEL-Authority of to consent to judgment........................597
2- CRIMINAL LAW-Charge of robbery with violence-Sufficiency of evidence justify conviction-Alleged misdirection in charge jury.
2---Charge of murder-Accused's drunkenness as defence-Degree of incapacity- Murder or manslaughter-Directions to CRIMINAL LAW-Continued jury-New trial.] The accused appealed from the judgment of the Supreme Court of Nova Scotia (55 Can. Crim. Cas. 51)
affirming (by majority) his conviction for murder. It had been contended in his defence that at the time of his act his condition from drink was such that the act could not be murder; and he alleged misdirection by the trial judge to the jury on this question, which involved the law as to what state of incapacity resulting from drink will reduce a crime from murder to manslaughter.- Held: In the circumstances of the case, an essential question for the jury was: Given the existence of some degree of capacity in the accused, and assuming the facts deposed to by Crown witnesses (if credited) in describing the accused's act in striking the fatal blow and his conduct and expressions before and after that act, whether or not he was so affected by drink as to be incapable of having the intent to kill or of having the intent (in reckless disregard of the consequences)
to cause some bodily injury, "known" to him to be "likely to cause death" (Cr.
Code, S. 259 (a) (b) ). That question was one upon which the jury must pass in order to enable them to determine the existence or non-existence of the intent in fact.
(Beard's case, [1920] A.C. 479, at
501-502, referred to),
And as the trial judge, while properly directing the jury's attention to the defence as put forward by accused's counsel (that accused was in such a state that his mind was not functioning, that his "mind was gone," that he was incapable of a degree of "thought"
enabling him to be aware of the nature of his physical acts), did not direct them to the question above defined, there should be a new trial.
MAcASKILL v. THE
.
...................
3- Appeal to Supreme Court of Canada
-Jurisdiction-Cr. C., a. 1023-"Question of law"]. An appeal from the judgment of the Appellate Division, Ont. (40 Ont.
W.N. 129) affirming (two judges dissenting) the appellant's conviction, by Ross,
Co. C.J., for stealing an automobile, was dismissed, on the ground that there was no jurisdiction to hear the appeal, the questions raised, and on which there was dissent in the Appellate Division, being all questions of fact, in regard to which there was no right of appeal to this Court under s. 1023, Cr. C.-Assuming that the question whether there was any evidence to support a conviction should be deemed a question of law, yet the question whether the proper inference has been drawn by the trial judge from facts established in evidence, is not a question of law but one of fact.
v. THE KING....
CRIMINAL LAW-Continued 4- Keeping common gaming house- Automatic vending machine-Cr. Code, as. 226, 229, 986 (2), 986 (4) (as amended, 1930, c. s. 27)].
Accused had on his premises an automatic vending machine in which customers placed a five cent coin, pulled a lever, and received from the machine a package of candy, with or without "slugs"
(varying in number) which had no commercial or exchangeable value but might be used to operate the machine to shew printed legends for amusement only (no candy being emitted). The candy package emitted for the coin deposited was such as that sold over the counter for five cents, and on the sale of the candy emitted the accused made a profit.-Held (reversing judgment of the Court of Appeal for Manitoba): Accused was not guilty, under the Criminal Code, of keeping a common gaming house. Cr. Code, ss. 226, 229, 986 (2), 986 (4) (as amended, 1930, c. 11, s. 27), considered. Rex v. Freedman, 39 Man. R. 407, overruled. Rex v. Wilkes, 66 Ont. L.R. 319, approved.
5-Appeal to Supreme Court of Canada -Jurisdiction--Cr. Code, s. 1023-"Question of law"-Trial judge's charge to jury.] The general appellate jurisdiction of the Supreme Court of Canada is confined to civil matters; to found an appeal to the Court in any criminal matter, resort must be had to some special statutory provision enacted by the Dominion Parliament. Save for the special case provided for by s. 1025, Cr. C., the only right of appeal to the Court in any criminal cause is that conferred by s. 1023, Cr. C. For an appeal to come within s. 1023, the conviction must have been affirmed by the court below and there must have been dissent by some member thereof on a question of law.-The present appeal was from the [1931] O.R. 222, affirming a pellant's conviction for murder, two judges dissenting on what the order of the court declared (apparently in accordance with former subs. 5 of s. 1013, Cr. C., but which subsection had been repealed by s. 28 of c. 1930) to be questions of law. In the opinion of some of the members of this Court, this Court lacked jurisdiction to hear the appeal because, in their view, the grounds of dissent below were not on any question of law, but only on matters which it was competent for the jury to pass upon and which depended entirely upon an appreciation of the weight of evidence in regard to the points discussed. But the ground taken (unanimously) for dismissal of the appeal was that it failed on the merits, as the reasons for dissent below did not, on examination of the matters dealt with therein and of the CRIMINAL LAW-Continued trial judge's charge as a whole, shew justification for setting aside the conviction.
v. ...
Unlawful distribution of drugs- Indictment charging two separate sales-- Whether constituting two offences, contrary to 8. 853 (3) Cr. C.-Meaning of the word
"distribute" as used in s. 4 (f) of c. 144,
R.S.C., 1927, Opium and Narcotic Drugs
An appeal from the judgment of the Court of Appeal for British Columbia affirming (Macdonald C.J. dissenting) the appellants' conviction of having unlawfully distributed morphine and cocaine, on the ground that the indictment, charging two separate sales, therefore charged two offences contrary to the provisions of s. 853 (3) Cr.
as used in s. 4 (f) of the Opium and Narcotic
Drugs Act covered the facts in the case.- Held, affirming the appellants' conviction, that, upon the evidence, the appellants had the drugs in question for distribution and that they did in fact "distribute"
them.
The appellants cannot contend that, because two separate sales were proved in evidence, two offences were actually charged, as there could be no distribution unless more than one sale was proved.
MAINo Yirr v.
7-Keeping of common bawdy house-- Evidence of general reputation-Suffency of evidence-Prima facie evidence under s. 986
(1) Cr. C.] Evidence of the general reputation of a house is admissible to show that it is a bawdy house.-Held that, in view of such rule, it was sufficient, in order to affirm the appellant's conviction, that the evidence made it clear that the house was being maintained for the purpose of prostitution without direct proof of the act itself and that such proof may be made, not only by bringing evidence of general reputation but also of such facts, circumstances and conditions as would warrant the inference and belief that the house was being so maintained.
More particularly it is clear that, under s. 986
(1) Cr. C., the delay that occurred in opening the premises on the demand of the police officers was prima facie evidence of guilt.
v. THE KINo. 478
8--Common betting house-Means or contrivances for betting-Sufficiency of evidence of-Prima facie evidence-Ss. 229 and 986 (2) Cr. C.]
An appeal from the judgment of the Appellate Division, Alta.
(25 Alta. L.R. 273) affirming (Lunney
J.A. dissenting), the appellant's conviction for unlawfully keeping a common betting house (s. 229 Cr. C.)-The chief evidence consisted in the finding of
CRIMINAL LAW-Continued certain cards marked in duplicate and similar to those used for checking hats at a hotel, but also suitable for the purpose of betting, which might constitute "means or contrivances for betting" within the meaning of s. 986 (2) Cr. C.- Held that, in the absence of any suggestion in the evidence as to the possibility of the duplicate cards having been used by the appellant for any other purpose than that of betting, there was prima facie evidence of guilt. MILLER v. THE ..... 9--Charge of shop breaking by night with intent to assault-Cr. s. 461-Omission in charge of essential allegation to constitute the crime-Power of amendment (Cr. C., 8. 889(2) )-Evidence-Conviction quashed.] Appellants were convicted, in the County Court Judge's Criminal Court, on a charge of breaking and entering by night the shop of C. P. "with intent to commit an indictable offence, to wit, to assault one C. P. contrary to the form of statute in that behalf made and provided". trial judge's finding against each appellant was "[appellant] tried this day on a charge of shop breaking by night with intent. Found guilty." On appeal it was objected that in the charge the word "therein" was omitted (after the word "offence") and therefore the charge as laid did not come within s. 461 Cr. Code, and constituted no offence in law. The Crown contended that the objection was not open, as an amendment could have been made under s. 889(2), and, under s. 898, every objection to any indictment for any defect apparent on the face thereof must be taken by demurrer or motion to quash the indictment, before pleading.-Held: S. 889(2), by its terms, provides for amendment only where
"the matter omitted is proved by the evidence"; and there was no evidence to indicate that appellants broke or entered with any intent to assault C. P., "therein" or elsewhere, although there was evidence possibly justifying an inference of breaking in with intent to assault her son A. P. The charge, intended to be of an offence under s. 461, lacked an allegation essential to constitute the crime namely, that the intent was to commit the assault (that is, on C. P., as charged) in the shop that was broken into; and there was no evidence that supplied this omission, so as to give foundation for an amendment under s. 889(2) that would make it in reality a charge under s. 461.
Without amendment, and without proof of the crime intended to be described, there was a finding of guilty of the charge, as set out, which did not describe any crime. conviction must therefore be quashed. McNEILU v. TE KING.............. CRIMINAL LAW-Concluded
Habeas corpus - Common law ofences-Section 57 of the Supreme Court
Act-Construction-Jurisdiction of
Supreme Court of Canada.] The jurisdiction of the Supreme Court of Canada in respect of habeas corpus extends only to cases of commitment following upon charges of offences which are criminal by virtue of statutes enacted by the Parliament of Canada; it does not extend to cases of commitment for offences at common law or under statutes enacted prior to Confederation which are still in force, even if these last offences have also been declared to be criminal by a federal statute. In re Charles Dean (48 Can.
S.C.R. 235) approved, Lamont J. dissenting.
v. THE KING;
v. THE KING......................
-Broker
- Conversion - Theft - Witness - Accomplice - Charge - Misdirection-Proper course by trial judge as to warning.] Conviction of appellant for conversion affirmed, the court holding that the jury could not, on the evidence, have reached another conclusion.
Though the majority of the court found misdirection in a material matter (Cannon J. dissenting as to this finding, on his interpretation of the trial judge's charge), it was held that it did not result in a miscarriage of justice or wrong to the accused.
(Cr. C s. 1014 (2).)-Per
Anglin C.J.C. and Newcombe, Lamont and Smith JJ.-The misdirection by the trial judge to the jury was that, although he warned the jury properly of the danger of convicting on the uncorroborated evidence of an accomplice, he further instructed them, in effect, that if they believed his evidence, although not corroborated, it was their duty to convict the accused.
This was a departure by the trial judge from the direction given by this court in Vigeant v. The King ([1930]
Can. S.C.R. 396, at 399, 400) as to the proper course to be taken in regard to warning of the danger of convicting without corroborative evidence.
The law as very carefully considered and laid down in that case should be strictly followed by trial judges and any substantial departure from it must always be attended with peril. The rule requiring warning applies equally whether there be or be not in fact corroborative evidence of the testimony of an accomplice.
Bouu- CROWN-Indian lands-Lease to private person from Indian chiefs-Action by
Crown for possession, against occupant claiming under lessee's title-Invalidity of lease-Claim by occupant to compensation for improvements-Claim by Crown to payment for occupation after demand for possession.] By a document dated March
CROWN-Continued
10, 1821, "the British Indian Chiefs of St. Regis," "for themselves and on behalf of their tribe (whom they represent)" purported to lease to C., his heirs and assigns, certain land (part of Crown land reserved for the Indians and not ceded or surrendered to the Crown by the Indians) on Cornwall Island in the river St. Lawrence, for 99 years, "and at the expiration thereof for another and further like period of 99 years and so on until the full end and term of 999 years shall be fully ended and completed."
The Chiefs covenanted "that they are the representatives of the said tribe of St. Regis as well as trustees of their estate and as such that they have a perfect right" to make the lease. The consideration was $100 cash and a yearly rent of $10.
C. entered into possession on March 10, 1821, and possession was continued in successive assignees, and it was admitted in this action that defendant was in possession as assignee of whatever rights C. had under the lease.
The rent was paid yearly to March 10, 1920, when the Crown refused to accept further rents.
From about 1875 the rent was paid to the Department of Indian Affairs, for the benefit of the Indians. The lease was registered at the Department of Indian Affairs in 1875.
There was in evidence a letter of February 26, 1875, from an official of the Department to one B., an Indian, (in reply to a letter from B., not produced) in terms apparently recognizing rights of C. under the lease. The Crown notified defendant to give up possession at the expiration (March 10, 1920) of the term of 99 years; and, defendant not complying, it took proceedings to recover possession of the land, as ungranted Crown lands reserved for the Indians.-Held (1) The Crown was entitled to possession.
The lease was invalid in law; the chiefs had no power to make it (St. Catherines Milling & Lumber Co. v. The Queen, 14 App. Cas. 46); and the taking of it violated the Proclamation of 1763 respecting Indians and Indian lands, and subsequent enactments (Reference to Order in Council of Lieutenant- Governor of Upper Canada of November 10, 1802, in evidence; to C.S.U.C., 1859, c. 81, ss. 21 et seq.; and to the Indian Act, R.S.C., 1886, c. 43 as. 38-41, and subsequent revisions).
The receipt of rent at the Department could not serve to validate the lease; nor had anything done created any obligation on the Crown to recognize the right to ossession claimed by defendant.-(2) The defendant was not entitled to compensation for improvements. There was no statutory liability on the Crown; and defendant had not established any act or representation for which the Crown was responsible whereby he was misled to believe that he had a title which could be vindicated in competition CROWN-Concluded with that of the Crown, or whereby the
Crown had incurred any equitable obligation to recognize a right to compensation; defendant and his predecessors knew that there had been no surrender, and that they had no grant from the
Crown; and all the circumstances justified the conclusion that they were not, at any time, in ignorance of the infirmity of their title. (Ramsden v. Dyson, L.R. 1 E. & I.
Ap., 129, at 168, cited).-(3) The finding in the Exchequer Court that the Crown should recover $400 per annum for defendant's use and occupation from
March 10, 1920, should, on the evidence as to value, be sustained.-Judgment of the Exchequer Court (Audette J.), [1929]
Ex. C.R. 28, affirmed.
2---Constitutional law-Rights as between
Dominion of Canada and Province of
Saskatcheawn, as to lands vested in the
Crown at time of admission into Canada of
Rupert's Land and North-Western Territory and now within boundaries of Saskatchewan-B. N.A. Acts, 1867, 1871; Rupert's Land Act, 1868; The Queen's Order in
Council of June 23, 1870; Saskatchewan
Act (Can., 1905, c. 42)..............
CUSTODIAN-Conflicting claims between
Canadian custodian and United States
Custodian of Alien Property, as to securities beneficially owned by alien enemies 170
CUSTOM OR USAGE
1, 2.
DAMAGES-Alleged wrongful seizure of goods and chattels-Conversion-Execution
-- Liability of sheriff and purchaser - Solicitors-Authority to act-Ratiflcation- Supreme Court action tried consent in county court-Validity ofjudgment-Effect of as award. .....
2-Right of father or mother to maintain action for damages occasioned by death of illegitimate child-Art. 1056 C.C .....
3- Division of...................
DEBENTURES
DEDICATION
DEED OF WARRANTY
DEFAMATION
DISCOVERY-Refusal to answer questions on discovery as ground for dismissal of action at trial...................... DRAINAGE-Flooding of land-Repairs -Duty of municipality-Effect of section 740 Municipal Act-Right of action for damage-The Municipal Act, R.S.M., 1913, c. 133, ss. 471, 472, 624, 625, 740.........................
EVIDENCE-Contract-Action to recover on mortgage covenants-Defence that the moneys were advanced by mortgagee for illegal purpose-Evidence-Onus of proof- No connection shewn between claims sued upon and alleged illegal transactions- Refusal to answer questions on discovery as ground for dismissal of action at trial. 2-Criminal law-Keeping of common bawdy house-Evidence of general reputation-Sufficiency ofevidence-Primafacie evidence under s. 986 (1) Cr. C.] Evidence of the general reputation of a house is admissible to show that it is a bawdy house.- Held that, in view of such rule, it was sufficient, in order to affirm the appellant's conviction, that the evidence made it clear that the house was being maintained for the purpose of prostitution without direct proof of the act itself and that such proof may be made, not only by bringing evidence of general reputation but also of such facts, circumstances and conditions as would warrant the inference and belief that the house was being so maintained. More particularly it is clear that, under s. 986 (1) Cr. C., the delay that occurred in opening the premises on the demand of the police officers was prima facie evidence of guilt. THEIR- 3-Criminal law--Common betting house -Means or contrivances for betting- Sufficiency of evidence of-Prima facie evidence-Ss. 229 and 986 (2) Cr. C.] An appeal from the judgment of the Appellate Division, Alta. (25 Alta. L.R. 273) affirming (Lunney J.A. dissenting), the appellant's conviction for unlawfully keeping a common betting house (s. 229 Cr. C.)- The chief evidence consisted in the finding of certain cards marked in duplicate and similar to those used for checking hats at a hotel, but also suitable for the purpose of betting, which might constitute "means EVIDENCE-Continued or contrivances for betting" within the meaning of s. 986 (2) Cr. C.-Held that, in the absence of any suggestion in the evidence as to the possibility of the duplicate cards having been used by the appellant for any other purpose than that of betting, there was prima facie evidence guilt.
4-Action by husband for damages for injury to wife-Proof of marriage-Art.
159 C.C.-Damages. v. PoN- 5-Sale of goods-Goods rejected by purchaser as not being the kind orderedto shew meaning intended by the parties of description in written orders-Whether
6- Trespass-Highways-Alleged existence of public right of way-Sufficiency of evidence to justify finding of dedication- Inference from circumstances-Admssibility in evadence of ancient book .....
7-Will-Probate-Prima facie evidence
-Authentic deed-Validity-Presumption juris tantum-Onus probandi-Action in contestation-Prescription-Arts. 857, 858,
1222, 1223, 2251, 2268 C.C..........
8 - Exchequer Court Act, R.S.C., 1927, c. 34, s. 82- "Actual amount in controversy"-Value of right involved-Proof by affidavit-Insufficiency of fads sworn to..............
9- Negligence-Res ipsa loquitur- Burden of proof-Obligation as to particularizing negligence alleged-Boy injured by falling on live electric wire on sidewalk- Interpretation of jury's finding ......
10-Motor vehicles-Negligence-Injury caused by motor vehicle-Motor Vehicle
Act, Man., C.A. 1924, c. 131, s. 62-Onus of proof as to negligence-Operation of the statutory presumption-Efficiency of brakes
(s. 15)-Inspection-Evidence-Jury'sfindings-Particularizing of alleged negligence
-Pleadings-Rule 334, c. 46, R.S.M.
1913.............................
11-Ruling out at trial-New trial. 597
12 - Uncorroborated evidence of accomplice-Charge to jury-Misdirection. . 621
EVIDENCE-Concluded
- Slander - Publication spoken by defendant to plaintiff overheard by third person-Liabzlity-Matters to be considered-Onus of proof-Negligence- Questions for jury...............
14--Onus of proof-Evidence to warrant jury's findings..................... Expert..
......... 16-See 9.
EXCHEQUER COURT
EXECUTION
EXPROPRIATION - Indemnity - Part of land taken-Damage to remaining land- Aviation field-Transmission line.] An owner of land is entitled to compensation, not only for the land actually taken, but also for the damage caused to his remaining land in respect of the use to which the land taken from him is to be put, in addition to that caused merely by the construction of the undertaking.
Halsbury, Laws of England, v. 6, p. 41, ref.-Jurisprudence the English courts is applicable to expropriation cases in the province of Quebec, whenever its legislation is similar to that of England.-Judgment of the Court of King's Bench (Q.R. 50 K.B. 381) aff.
2-Tunnel construction - Power to expropriate part of subsoil - Expropriating company's incorporating Act, 17 Geo. V, c. 83 (Dom.); Railway Act, 1919, c. 68 (Dom.) - Quantum compensation awarded.] The respondent company was empowered by its incorporating Act, 17 Geo. V, c. 83 (Dom.), to construct a tunnel under the Detroit river, and for that purpose proceeded to expropriate a "parallelopipedon"
core of earth running through and forming part of appellants' land, of a uniform depth or thickness of 331 feet and at depths from ground surface to top of portion taken of about 38 to 34 feet. The said Act provided that "the Company may expropriate and take any lands actually required for * may expropriate and take an easement in, over, under or through such lands without the necessity of acquiring a title in fee simple thereto
*
*
* and all the provisions of The Railway Act, 1919, applicable to such taking and acquisition shall apply as if they were included in this Act
* *
* The Railway Act, EXPROPRIATION-Concluded
1919, shall, so far as is not inconsistent with the special provisions of this Act, unless the context otherwise requires, apply to the Company and to its works and undertakings and wherever in The
Railway Act, 1919, the word "railway"
occurs, it shall, for the purposes of the
Company, mean the subways and tunnels authorized by this Act."
The present appeal was from the judgment of the
Appellate Division, Ont., 65 Ont. L.R.
398, dismissing the appellants' appeal from the award of compensation to them, made by Coughlin, Co. C. J as arbitrator.-Held: (1) Respondent had power to expropriate (as it purported to do) a part only of the subsoil, without also expropriating all the soil and the building above it. The said incorporating Act, also the Railway Act, ss. 2(15), 215 (par. a);
Hill v. Midland Ry. Co., 21 Ch. D. 143;
Metropolitan Ry. Co. v. Fowler, [1893]
A.C. 416, at 425, referred to. No rule to a contrary effect, based upon the dictum in Farmer v. Waterloo & City Ry. Co.,
[1895] 1 Ch. 527, at 531, was applicable in this case.-(2) Upon the evidence, the amount awarded to appellants by the arbitrator should not be disturbed.- (supra) affirmed.
v. DETROIT
FIREARMS, USE OF
FISHERIES-Foreign fishing vessel enter ing Canadian territorial waters-Customs and Fisheries Protection Act, R.S.C., 1927, c. 43, s. 10-"Stress of weather" or other
"unavoidable cause" (Customs Act, R.S.C.,
1927, c. 42, s. 183)-Convention of October
20, 1818, between Great Britain and the
United States.] To justify (as against incurrence of penalty under the Customs and Fisheries Protection Act, R S.C., 1927, c. 43, s. 10) an entry by a foreign fishing vessel into Canadian territorial waters on the ground of "stress of weather" (Customs
Act, R.S.C., 1927, c. 42, s. 183), the weather must be such as to produce in the mind of a reasonably competent and skilful master, possessing courage and firmness, a well grounded bona fide apprehension that if he remains outside such waters he will put in jeopardy his vessel and cargo (The Eleanor, Edwards,
135, at 159, 160, 161; The Diana, 7 Wallace 354, at 360-361; The New York, 3
Wheaton 59, at 68; Phelps, James & Co.
v. Hill, [1891] 1 Q.B. 605, at 614, cited).
In each case the questions whether the master fairly and honestly on reasonable ground believed it necessary to take shelter, and whether he exercised reasonable skill, competence and courage in the circumstances, are questions of fact for the tribunal whose duty it is to find the
FISHERIES-Continued facts.-In the present case, on the evidence, the finding at trial that defendant ship was within such waters when seized, and was not justified on the ground of "stress of weather" in entering them, was affirmed.-A contention that necessity to repair the engine was an "unavoidable cause"
(Customs Act, a. 183, justifying such entry, was rejected, as, on the evidence, the repair in question was not an immediate necessity, the defect not affecting the sailing of the vessel or making it more dangerous; moreover, failure to have the vessel in seasonable repair on going to sea could not be deemed an "unavoidable cause."-The Convention of October 20, 1818, between Great Britain and the United States (respecting fisheries and boundary lines) did not apply to the Pacific waters so far as fisheries were concerned, and therefore could not be available as justification for the entry in question.
THE SiP "MAY" 2-Foreign fishing vessel entering Canadian territorial waters-Customs and Fisheries Protection Act, R.S.C., 1927, c. 43, 10-"Stress of weather" (Customs Act, R.S.C., 1927, c. 42, s. 183)-Class of vessel -Weaknesses in vessel-Convention of October 20, 1818, between Great Britain and the United States.] To justify (as against incurrence of penalty under the Customs and Fisheries Protection Act, R.S.C., 1927, c. 43, s. 10) a foreign fishing vessel entering Canadian territorial waters on the ground of "stress of weather" (Customs Act, R.S.C., 1927, c. 42, s. 183), there must be such a condition of atmosphere and sea as would produce in the mind of a reasonably competent and skilful master, possessing courage and firmness, a well grounded bona fide apprehension that if he remains outside such waters he will put in jeopardy his vessel and cargo (The May v. The King, ante, p. 374, and authorities there cited).-In the present case, held, that the evidence amply supported the finding at trial that there was no stress of weather or other sufficient cause to justify the entry of defendant vessels into such waters, and that the judgment at trial declaring them forfeited under s. 10 of the Customs and Fisheries Protection Act should be affirmed.-Remarks as to suspicion against bona fides, if a foreign fishing vessel entered Canadian waters for shelter because it was of such a class of construction that it could not with safety remain outside against weather that was known to prevail on its fishing grounds. A want of bona fides would abrogate any right or privilege to shelter given by the statute. Further, weaknesses in a vessel may be such (as instanced in certain respects in the present case, as, e.g., glass of inadequate thickness in pilot house windows a FISHERIES-Concluded small height from the sea, constituting a special danger from waves) that any distress arising from them should be deemed a distress created by the owner or master himself (The Eleanor, Edwards,
135, at 161), and not due to "stress of weather or other unavoidable cause"
(Customs Act, s. 183).-The Convention of October 20, 1818, between Great Britain and the United States (respecting fisheries and boundary lines) has no application to
Canadian territorial waters on the Pacific
Coast, so far as fisheries are concerned
(The May v. The King, ante, p. 374).
Even if it had, the defendant vessels could claim no privilege under it, as the only permission to take shelter in Canadian waters given by the proviso to article 1 thereof (or by 59 Geo. III c 38, Imp., passed to sanction the Convention) is permission to enter "bays or harbours,"
and the place where they were seized was not shewn to be a bay or harbour. THE
CITY"
M." v. THE KING; THE v.
FLOODING OF LAND
FRANCHISE-Contract granting franchise from city to electric light company-Fiftyyear term subject to right of city to take over
-Arbitration as to value-Profits of unexpired term included in award-" Undertaking, property rights and privileges"meaning of.
CO... 717
2-Special franchise-Assessment for 72
FRAUDS, STATUTE OF
HABEAS
CORPUS-Criminal law - Common law offences-Section 57 of the
Supreme Court Act-Construction-Jurisdiction of the Supreme Court of Canada.]
The jurisdiction of the Supreme Court of
Canada in respect of habeas corpus extends only to cases of commitment following upon charges of offences which are criminal by virtue of statutes enacted by the Parliament of Canada; it does not extend to cases of commitment for offences at common law or under statutes enacted prior to Confederation which are still in force, even if these last offences have also been declared to be criminal by a federal statute. In re Charles Dean (48
Can. S.C.R. 235) approved, Lamont J.
dissenting.
HARTER ACT (U.S.A.,
8821--41
HIGHWAYS-Trespass--Alleged existence of public right of way-Sufficiency of evidence to justify finding of dedication- Inference from circumstances-Admissibility in evidence of ancient book.] In an action of trespass, defendant alleged a public right of way across plaintiffs' land. -Held, that the evidence as to uninterrupted public user of the alleged road for a period coextensive with the memory of witnesses, along with other circumstances in evidence, justified a finding of dedication (Folkestone Corporation v. Brockman, [1914] A.C. 338, at 368, cited); and that the judgment of the Supreme Court of Nova Scotia en banc, 1 M.P.R. 556, holding (by a majority, reversing judgment of Paton J., ibid) that the alleged public road exists, and dismissing plaintiffs' action for trespass, should be affirmed.- Anglin C.J.C. and Lamont J. dissented, holding that there was not sufficient evidence of dedication of the alleged highway (the only ground relied on at bar) to prove that fact; that the locus of the highway claimed to have been dedicated was left quite uncertain; and that the acts of user were wholly consistent with there having been merely a private right of way, or personal understandings for use of a way, and, while circumstances may warrant an inference of dedication, just as they may prove any other fact, that inference must be the only one that can reasonably be drawn from them.-The admissibility in evidence of an ancient book, being a record of meetings of the proprietors under the original settlers' grant from the Crown, was discussed, but not decided; the majority basing their judgment on evidence apart from it, and the dissenting judges, while much inclined in opinion against its admissibility, yet assuming its admissibility in dealing with 2;
2, 3, 4, 5, 7.
HOMICIDE, JUSTIFIABLE
HUSBAND AND WIFE-Life insurance policy-Wife as beneficiary-Transfer by husband and wife as security for debts of husband-Validity-Arts. 1265, 1301 C.C. -Act respecting life insurance by husbands and parents, R.S.Q.,
1909, Art. 7405; R.S.Q., 1925, c. 244, s. 30.] The transfer of an insurance policy, issued on the life of the husband for the benefit of his wife at his death but also payable to him if living at a certain specified date, which transfer was made jointly by the husband and the wife to secure reimbursement of advances made to the husband by a bank, is illegal and void, as to the wife, such transfer being in contravention of the provisions of article 1301 C.C.-The HUSBAND AND WIFE-Continued legislature, in enacting article 7405, R.S.Q.,
1909, now article 30 of R.S.Q. 1925, c. 244
(An Act respecting life insurance by husbands and parents), although authorizing in general terms the transfer of a life insurance policy by the insured and the beneficiaries, did not intend to make any change as to the provisions of the Civil
Code which deal with personal incapacities and contraventions of public order, and notably as to the prohibition contained in article 1301 C.C.-Lframboise v. Vallibres
S.C.R. 193),
Klock v.
Chamberlin (15 Can. S.C.R. 325) and
Rodrigue v. Dostie ([1927] S.C.R. 563)
discussed.-Judgment of the Court of
King's Bench (Q.R. 47 K.B. 104) affirmed part.
NA- CARETTE...............
2-Husband and wife both shareholders of company-Deed signed by both as security for debts of company-Validity- Good faith of creditor-Burden of proof- Authorization of the wife-When new authorization necessary in case of an appeal-Arts. 176
178, 181, 183, 306,
1301, 1120, 1177 C.C.-(Q.) 4 Ed. VII, c.
42, S.
A married woman, when authorized generally to maintain defend an action, can appear as respondent before an appellate court without having obtained a new authorization, when she is seeking the confirmation of a judgment rendered in her favour.
(Q.R. 48 K.B.
572 aff.)-A deed of warranty signed by the husband and his wife separate as to property, both being shareholders of an incorporated company, in order to secure reimbursement of advances made or to be made by a bank to the company, the evidence disclosing no benefit derived by the wife from the transaction, is a deed where the wife joins her husband in an obligation which affects interests common to both. As such, it is illegal and void, so far as concerns the wife, as being in contravention of the provisions of article
1301 C.C.]-The mere fact, however, that the obligation assumed by the wife with her husband is joint and several is not in itself sufficient to bring it within the article
C.C.).--ince amendment to art. 1301 C.C., enacted by
4 Ed. VII, c. 42, s. 1 (1904), ignorance on the part of the obligee (cr6ancier) that the money was borrowed for the husband's purposes will protect the rights of the obligee, provided the money was handed over to the wife herself and the obligee had no reason whatever to suspect that it would be used in any way for the husband's benefit; and if subsequently the wife invokes the nullity of her obligation, the burden is upon her to prove that the money was for the husband's benefit to the knowledge of the obligee.-Per Anglin
C.J.C.-Upon the evidence, the wife had
HUSBAND AND WIFE-Concluded no personal interest to serve in becoming the guarantor for the company and, when she signed such guarantee, she must have done so with the idea of helping her husband rather than of serving her own interests.-No opinion is expressed upon the validity of a guarantee given by a wife which, although it cannot be said to have been given "pour son mari" is given by her "avec son mari."-Judgment of the Court of King's Bench (Q.R. 49 K.B. 67) aff.
AUDET..................... 3- Action by husband for damages for injury to wife---Proof of marriage-Art. 159 C.C.-Damages. Acr.
HYPOTHEC
ILLEGITIMATE CHILD - Right of father or mother to maintain action for damages occasioned by his death-Art. 1056 C.C.]
The father or the mother of an illegitimate child is not within the entitled art. 1056 C.C. to maintain an action for "damages occasioned by (the) death" of the child.-Judgment of the Court of King's Bench (Q.R. 48 K.B. 456) rev. IMPROVED ROAD
INCOME TAX - Company's incorporating Act (1926, c. 45, N.B.) exempting (s. 23 "the company and its property" pertaining to certain power development, from taxation - Assessment for income tax.] The respondent company was incorporated by c 1926, N.B., with power to generate and sell electric power.
S. 23 (1) provided that for a certain period "the company and its property in New Brunswick pertaining to the development of power on the Saint John River shall be exempt from all municipal and other taxation and assessment" (other than a fixed school tax not in question).
The question before this Court was whether or not the company was liable to be assessed in the town of Grand Falls, N.B., (where its head office was) upon or with respect to income derived by it from or by virtue of the sale of power generated at its plant in Grand Falls from the use of the waters of said river.-Held: The company was not liable to be so assessed. The exemption extended, not only to property, but also to the company itself, and included income. The mention of its "property" INCOME TAX-Continued in said s. 23 (1) did not create an inference of intention that property only should be exempt.
The plain language of the exempting provision left no room for operation of any rule for strict construction against the company invoked on grounds that its incorporating Act was in the nature of a private Act and that it was claiming exemption from taxation.
The Interpretation Act, R.S.N.B., 1927, c. 1, s. 6; Foley v. Fletcher, 3. H. & N.
769, at 780-781; City of Halifax v. Nova
Scotia Car Works, Ltd., [1914] A.C. 992, cited. Further, the omission of mention of the company itself in s. 23 (2) exempting
"the company's property" pertaining to transmission of power was significant.
KELLY V. SAINT POWER CO.
..................
2-Income War Tax Act, 1917 (Dom.), as amended-"Incom'e"-Royalty reserved to vendor of land, of percentage of oil, etc., produced by purchaser.] Appellant sold to a company land, including minerals, for a cash sum , shares in the company, and a royalty (so called) reserved of 10 % of all oil, etc., produced and saved from the land free of cost to appellant on the premises.
The company covenanted to commence and continue drilling operations, and, on discovery of oil, to instal machinery for pumping it, etc. It struck oil, sold all the oil produced in 1927, and paid to appellant, as being the royalty under the agreement, one-tenth of the gross proceeds thereof. The question now in issue was whether or not appellant, in respect of the amount so received by her as royalty, was assessable by the
Crown for income tax under the Income
War Tax Act, 1917 (Dom.) as amended.
Appellant was not a dealer in or in the business of buying and selling oil lands or leases.-Held:
Appellant was not so assessable.
The amount in question was not income to her within the meaning of the Act. Jones v. Commissioners of
Inland Revenue, [1920] 1 K.B. 711, distinguished, having regard to the subject matter and statutes involved. Judgment of the Exchequer Court (Audette J.)
[1930] Ex. C.R. 229, reversed.
V. MINISTER REVENUE 399
3-Provincial income tax-"Income" in
B.C. Taxation Act-" Use and Occupancy
Insurance" policy-Moneys paid for loss of profits not earned-Taxation Act, R.S.B.C.,
1924, c. 254, s. 2.]
Insurance moneys received under a policy commonly known as "use and occupancy insurance " and paid by way of indemnity for profits not earned, but irretrievably lost, are not taxable income nor subject to taxation under the British Columbia Taxation Act,
R.S.B.C., 1924, c. 254, s. 2. B.C. Fm
Co. THE 435
INCOME TAX-Concluded
4-Income War Tax Act (Dom.), 1917, c. 28 (as amended)-Income "accumulating in trust for the benefil of unascertained persons, or of persons with contingent interests" (s. 3 (6), as enacted 1920, c. 49, s. 4)-Probable beneficiaries residing out of Canada-Effect, as authority, on this Court, of judgment of this Court affirming on equal division the judgment below.] J., resident in the United States, by deed executed in the province of Quebec, gave to respondent, a company incorporated under the laws of Quebec and carrying on business in Canada, in trust, as a donation inter vivos and irrevocable, certain Canadian securities, to be held, together with all accumulations and additions thereto, upon trust for the benefit of J.'s surviving children until five years after J.'s death, "when the entire trust estate is to be equally divided amongst his surviving children, and in the event of any or all of his said children predeceasing or being unable to take, the division shall be made to the survivor or survivors, and the issue of such predeceased child or children as representing their parent, per stirpes.' The Crown claimed from respondent an income tax under the Dominion Income War Tax Act, 1917, c. 28 (as amended), on the income received by respondent, as trustee under the said deed, for the year 1927. J. and his wife were alive, and had eight children living, all minors and residing with J. in the United States. The trust fund was invested in Canadian stocks and bonds held by respondent in Montreal, Canada, where the income was accumulating and being invested in Canadian stocks and bonds.-Held (reversing judgment of Audette J. in the Exchequer Court, [1930] Ex. C.R. 172): The income was "accumulating in trust for the benefit of unascertained persons, or of persons with contingent interests," and taxable in respondent's hands, under s. 3 (6) of said Act (as enacted 1920, c. 49, s. 4).
Such income accumulating in trust is distinctly a subject of taxation under s. 3 (6), regardless of the residence, if ascertainable, of probable beneficiaries, whose interest is contingent during the taxation period.-The above holding accords with the decision of this Court in McLeod v. Minister of Customs and Excise, [1926] Can. S.C.R. 457, which, having affirmed the judgment below on an equal division of opinion may not be binding as an authority on this Court (Stanstead Election case, 20 Can. S.C.R. 12), but is entitled to great respect. INDIAN LANDS-Lease to private person from Indian chiefs-Action by Crown for possession, against occupant claiming under lessee's title-Invalidity of lease- INDIAN LANDS-Concluded
Claim by occupant to compensation for improvements-Claim by Crown to payment for occupation after demand for possession
............
INSURANCE (LIFE) - Husband and wife-Wife as beneficiary-Transfer of policy by husband and wife as security for debts of husband-Validity-Arts. 1265,
1301 C.C.-Act respecting life insurance by husbands and parents, R.S.Q., 1909, Art.
7405; R.S.Q., 1925, c. 244, s. 30 ......
INTERNATIONAL LAW - Bill of lading-Law of United States-Art.
8 C.C ............................
INTERVENTION - Revendication - Petition to recover goods-Judgment granting it-Intervention by third party claiming ownership or lien-Goods destroyed by fire before judgment dismissing intervention- Right of owner to claim value of goods from third party-Allegation of petition-Whether it constitutes an admission or "aveu"
-Litigious rights-Arts. 1200, 1570, 1582 et *eq. C.C ........................
JOINT ADVENTURE-Purchase of land for re-sale-Non-disclosure of facts-Withdrawal of co-adventurers-Right to share in profits.
Smrrn.....................
JUDGMENT-Effect, as authority, on
Supreme Court of Canada, of a judgment of that Court, affirming on equal division the judgment below.................
JUDGMENT BY CONSENT
See LAw.
See LAw 3, 5, 10.
JURY-Findings-Evidence to support- Restoration of judgment at trial ......
2----Charge to-Findings of.........
See NEGLIGENCE 6.
3-See also 1, 5;
VEHICLES 1, 3; LAw 1, 2,5, 11
JUSTIFIABLE HOMICIDE
See PEACE OFFICER.
DEX
LABOUR UNION
- Unincorporated association - Legal entity - Whether auable-Point raised at trial-Law of foreign country-Arts. 79, 176 C.C.P.] The respondent, Amalgamated Clothin Workers of America, having its principal place of business in the city of New York, was described in the proceedings as "an unincorporated association;" the other respondents were also described as unincorporated bodies having their head offices and principal place of business in the city of Montreal.
They filed an appearance by counsel aid pleaded to the merits of an action in damages. At the trial, counsel for the respondents raised orally for the first time the point that, not being legal entities, they were not suable.-Held that the respondents could not be legally sued.-Per Anglin C.J.C., Newcombe, Rinfret and Cannon JJ.- An unincorporated labour union has no legal existence and cannot be considered in law an entity distinct from its individual members and is not suable in the common name.-Per Duff and Rinfret JJ.-The question whether the respondent the Amalgamated Clothing Workers of America, is or is not a "person" in the judicial sense, i.e., whether or not the members of the collectivity described as such constitute a judicial person distinct from the personality of the individuals, is a question to be decided by the law of New York; and, according to that law, the above unincorporated labour union is not a judicial person in the pertinent sense.-Per Anglin C.J.C. and Newcombe and Cannon JJ.-There is nothing in the record to show that the respondents are "foreign corporations or persons duly authorized to appear in judicial proceedings under any foreign law." 79 C.C.P.).-Per Anglin C.J.C. Newcombe, Rinfret and Cannon JJ.- The point that a defendant is not a suable legal entity can be raised at any stage of the proceedings. Art. C.C.P. does not apply to the incapacity of a defendant where it appears throughout on the face of the proceedings. courts should proprio motu take notice that an aggregate voluntary body, though having a name, cannot appear in court as a corporation, when in reality not incorporated.-Per Rinfret J.-This case is distinguishable from the case of Payette v. United Brotherhood of Maintenance of the Way employees (25 Q.P.R. 78).-Judgment of the Court of King's Bench (QR. 48 K.B. 14) aff. SOCIETY LACHES
LANDLORD AND TENANT-Lease- Interpretation-Conduct of premises by lessee-Closing of part of hotel premises in LANDLORD AND TENANT-Concluded
MINES AND MINERALS-Concluded winter-Whether breach of agreement by lessee.
Q.R.S.
2-Indian lands-Lease to private person from Indian chiefs-Action by Crown for possession, against occupant claiming under lessee's title-Invalidity of lease-Claim by occupant to compensation for improvements
-Claim by Crown to payment for occupation after demand for possession..........
LEASE
LEAVE TO APPEAL
See 5, 9.
MARRIAGE-Proof of............
MASTER AND SERVANT
6;
MINES AND
MINERALS-Group of claims-Oral agreement between free miner and two prospectors-Two miners to do assessment work and look after claims for a two-thirds' interest-Subsequent relocation of ground and new claims added to group- Trusteeship as to proceeds of sale-Statute of frauds-Laches--An Act for preventing
Fraud and Periuries (Statute of Frauds)
R.S.B.C. (1924) c. 95-Mineral Act, R.S.
B.C. (1924) c. 167, s. 19.] An oral agreement between a free miner and two prospectors whereby the latter were to do, on a certain mining claim, whatever work was necessary to keep up all assessments, record the same, manage and look after the claim, place it under Crown grant, handle, option and sell it, is no mere contract for work and labour, but makes the prospectors agents of the free miner in what they are to do and establishes a fiduciary relationship whereby the prospectors must in equity be held to have become trustees for the miner and they or their representatives must account to him for all sums of money received thereunder.-Under such arrangement, an action by the free miner for a share of the proceeds received and a declaration of trusteeship in respect to the moneys paid to the prospectors is not "asserting an interest in a mineral claim which has been located and recorded by another free miner" and sect. 19 of the Mineral Act
(R.S.B.C. 1924, c. 167) does not apply.- Nor is the action barred by the Statute of
Frauds (R.S.B.C., 1924, c. 95), the agreement, being one only for the division of the proceeds of the sale of land, does not come within the 4th section of the statute.
-Discussion of the doctrine of laches.
When the action is not barred by any statute of limitations, mere lapse of time is not sufficient to deprive one of his equitable rights. In order to decide whether the remedy should be granted or withheld, the courts must examine the nature of the acts done in the interval, the degree of change which has occurred, how far they have affected the parties, and where lies the balance of justice and injustice.- Under an agreement for a division of the proceeds of a sale, the claimant can wait until the sale is completed by the payment of the price before starting his action for an account and for his share of the proceeds.-Judgment of the Court of Appeal (42 B.C. Rep. 276) reversed. LINDEBORG.............. MISREPRESENTATION
MONTREAL CITY CHARTER -Bylaw against canvassing without licence- Constitutional validity-Company holding licence-Canvass by unlicensed employee of company-Complaint in Recorder's Court- Jurisdiction-Petition for prohibition. 460 MORTGAGE - Transfer-Applicability of sections 101, 102 and 103 of The Land Titles Act, Alta., R.S.A., 1922, c. 133.] Sections 101, 102 and 103 of the Alberta Land Titles Act, relative to transfer of mortgages, have no application where the mortgagor's interest in the land has disappeared before transfer there remains nothing but the personal responsibility of the mortgagor arising under covenant otherwise.
2- Actin to recover on mortgage covenants-Defence that the moneys were advanced by mortgagee for illegal purpose ...... MOTOR VEHICLES - Plaintiff struck by automobile which had collided with street car-Jury finding Evidence to support jury's finding. ........ 2- Negligence-Driver of motor car swerving off pavement to avoid collision threatened through negligence of driver of another car, and on regaining pavement colliding with other cars-Question as to which driver was responsible for injuries caused by
EDwARDS......................... MOTOR VEHICLES-Continued
3-Negligence-Injury caused by motor vehicle-Motor Vehicle Act, Man., C.A.
1924, c. 131 s. 62-Onue of proof as to negligence-Operation of the statutory presumption-Eficiency of brakes (s.
Inspection-Evidence -Jury's findings- Particularizing of alleged negligence- Pleadings-Rule 334, c. 46, R.S.M. 1913.]
Plaintiff, while in a motor car, was injured by defendant's motor bus striking the car, by reason, apparently, of the giving way of a small bolt or pin in the bus's braking appliances, rendering its brake ineffective.
Defendant claimed that there had been proper inspection of the bus and equipment and that the collapse of the brake mechanism was owing to a latent defect in the pin not discoverable by careful inspection. The jury found negligence in defendant, causing the injury, and, asked in what particulars, as alleged by plaintiff, the negligence consisted, answered "In not keeping brakes and braking equipment in proper repair, and insufficient inspection of said brakes."
Judgment at trial for damages to plaintiff was upheld by the
Court of Appeal, Man., on a divided court (39 Man. R. 18).
Defendant appealed.-Held: In view of the evidence, and the provisions of the Motor Vehicle
Act, Man. (C.A. 1924, c. 131), the jury's verdict should not be set aside.-Per Duff and Lamont JJ.: S. 62 of said Act created against defendant a rebuttal presumption of negligence.
Under its operation, the onus of disproving negligence remains throughout.
If the evidence, when concluded, is too meagre or too evenly balanced to enable the tribunal to determine this issue, as a question of fact, then, by force of the statute, the plaintif is entitled to succeed. This does not mean that defendant must "demonstrate its case"; it must give reasonable evidence in rebuttal of the legal presumption against it, and the evidence must be such as to satisfy the judicial conscience of the tribunal of fact. Nor does it mean that necessarily, in all cases, defendant must shew precisely how, through the agency of its vehicle, the injury was brought about (the onus in this aspect discussed).
As to the form of the verdict in the present case, the jury's answer to the first question
(as to negligence in defendant, causing the injury) was really conclusive; its answer to the second question (as to particulars)
could only be regarded as material if it tended (as, held it did not) to shew that in answering the first question, it had been misled into error. It was not necessary to require the jury to specify defendant's negligence, nor for plaintiff to have given particulars of negligence and established it as particularized.
In fact, it is not incumbent on plaintiff, proceeding under the statute, to charge negligence in terms; for the law presumes negligence
MOTOR VEHICLES-Concluded in his favour, and it is for defendant to rebut the presumption (Rule 334, c. 46, R.S.M. 1913).-Per Rinfret, Cannon and Maclean (ad hoc) JJ.: In view of s. 15 of the Act (requiring adequate brakes, sufficient to control at all times), and of s. 62 (as to onus), and on the evidence (as to sufficiency of brakes and of inspection), the jury had warrant for its findings, which should not be disturbed. ELECTRIC Co, GEEL.... 4 - Accident - Liability - Vehicles and Highway Traffic Act, 1924, Alta., c. 31, ss. 66 (1) 40-Failure to discharge onus of proof-buty as to sounding horn.
V. ...... - Contributory negligence - " Ultimate" negligence - Motor truck striking pedestrian-Restricted viston of driver by reason of car in front-Duty of driver in such case.................. MUNICIPAL
CODE
(QUEBEC) - Arts. 107, 122, 359................ MUNICIPAL CORPORATION law-Council-Majority of votes of members present-One member present but not voting-Notice of motion-Details-Action to annul by-law- Ultra vires-Effect of by-law, incorporating contract being passed at second meeting necessitated by refusal of mayor to sign at first meeting-Art. 50 C.C.P.-Arts. 107, 122, 359 M.C.] provision of Art. 122 of the Municipal Code, enacting that "every disputed question is decided by a majority of the votes of the members present" ("toute question contest6e est d6cid6e par la majorit6 des membres pr6sents"), means the majority of the votes cast at a meeting duly called.
Therefore, a by-law passed by a meeting, presided over by the mayor, and at which all six councillors were present, will be held to be regularly adopted if carried by a vote of three in favour and two against, one councillor refusing to vote.-The notice of motion required by Art. 359 of the Municipal Code for the passing of a by-law, which merely mentions the object of the by-law without giving in detail its provisions and conditions, is good within the requirements of that article.-The allegation, that a by-law has not been adopted by a majority vote as required by the Municipal Code, raises a question of ultra ;ires sufficient to justify the party attacking it proceeding by action before the Superior Court under the provisions of Art. 50 C.C.P.-When a by-law and a contract are approved a second time by a municipal council, under art. 107 M.C., because the head of the council refused to sign them, they are, as a result of the second vote, legal and valid ipso facto as if they had been signed.
Therefore, the fact that a notarial deed based on the by-law and incorporating the contract is closed immediately after the second meeting of the council and without awaiting fifteen days after the publication of the by-law, is immaterial and does not affect the validity of the contract.-Judgment of the Court of King's Bench (Q.R. 48 K.B.
549) rev.
..........
2-Improved road-Department of roads- Maintenance and repaire-Levy of costs- By-law-Owners of boundary properties- R.S.Q.,
1925, c. 91, a. 69.] When a municipal corporation has passed a resolution placing under the control of the Minister of Roads (Q. 12 Geo. V, c.
42) the maintenance and repairs of an improved road, the costs incurred by the corporation are levied only on the properties whose owners are bound to maintain the road, if there is a by-law then in force to that effect, notwithstanding the facts that the resolution of the corporation was adopted years after the enactment of the by-law and that the cost of improvements made under the authority of the Minister was higher than anticipated by the ratepayers, when they petitioned for an improved road, and by the by-law describing the work and imposing the expense on certain interested landowners.-Judgment of the Court of
King's Bench (Q.R. 48 K.B. 145) aff.
LA
CONSTANT.......................
3 - Drainage - Flooding of land - Repairs-Duty of municipality-Effect of section 740 Municipal Act-Right of action for damage-The Municipal Act,
R.S.M., 1913, c. 133, as. 471, 472, 624,
625, 740.]
The appellant .brought an action for damage by flooding of his lands caused by the non-repair and obstruction of a drain or ditch situated within the territorial limits of the respondent municipality and partially built with the aid of the government of the province.
Section 740 of the Municipal Act provides that "it shall be the duty of each municipality through which, or through any part of which, any drain, constructed wholly or partially by or at the expense of the Government of Manitoba, runs to keep such drain, or that portion of such drain, within its boundaries, properly cleaned out in repair."- Held, affirming the judgment of the Court of
Appeal (39 Man. R. 132), Newcombe and
Cannon J.. dissenting, that section 740 was intended merely to make it clear that, as between the government of the province and the municipality, the duty was
MUNICIPAL CORPORATIONon the latter to keep such drains in repair, and that it was not intended to make the municipality liable to an action for damage caused to the owner of adjacent land by the municipality's failure to perform that duty. The improvement or protection against flooding of adjacent land was not a purpose of the construction of the ditch, but the sole object of such construction was to facilitate the maintenance and use by travellers of the roadway.
Thus the appellant, as owner, was not a person for whose benefit the duty of maintaining the ditch in repair was imposed on the municipality by section 740, and he cannot therefore maintain an action for damages against the municipality based solely upon its nonfeasance or neglect to perform a duty imposed by that section. City of Vancouver v. McPhelan, 45 Can. S.C.R. 194, at 209, applied.-Per Newcombe J. dissenting.-Prima facie, a proprietor, whose lands are flooded by reason of the neglect of the municipality to discharge its statutory duty to clear the drain, is entitled, in the absence of any expression or necessary implication of the statute to the contrary, to recover from the municipality the consequential damages.
burden is upon the respondent to displace the ordinary and natural interpretation effect section 740; and no provision of the statute has been cited to justify the conclusion that section 740 was meant only to relieve the province of a possible liability against which it was desirous to protect itself.-Per Cannon J. dissenting: -Section
471 of the Municipal Act provides that "the council shall not permit the damming up, obstruction of any ditch in or upon any road or elsewhere in the municipality"; and section 472 gives a recourse for damage alleged to have been done to a property in consequence of a violation of section Therefore was entitled to recover damages to his property in consequence of a violation by the respondent of the provisions of section 471 and also of section 740 of the Municipal Act.
That statute, expressly or by implication, does not exclude the right of action presently exercised by the appellant under these sections, section 472 merely creating an additional recourse. PIERCE
OP WINCHESTER..
................ 4-By-law authorizing works-Action by ratepayer misen-cause in trial court-Not joined in the proceedings before appellate court-Judgment in appeal annulling contract- Nullity - Res judicata..................... 5--Montreal city charter-By-law (passed under authority of city charter) against canvassing without licence-Constitutional validity-Company holding licence--Canvass by unlicensed employee of company-Complaint in Recorder's Court-Jurisdiction- Petition for prohibition.............
See PRnmIoN.
6- Negligence-Councillor of municipality injured while operating municipality's fire extinguisher-Responsibility for injury-Degree of care-Duty of municipality-Duty of councillor operating the machine-Liability-Volenti non fit injuria-Doctrine of Rylands v. Fletcherexpert evidence-Charge to jury-Jury's findings..
.................
7-See
2;
Negligence-Contributory negligence-" Ultimate" negligence- Motor vehicles-Motor truck striking pedestrian-Restricted vision of driver reason of car in front-Duty of driver in such case.]
Plaintiff, a pedestrian, who had started to cross a street intersection diagonally, was struck by defendant's truck, which was making a left turn behtnd a sedan car.
The trial judge found that the accident was caused by the truck driver's negligence and gave judgment to plaintiff for damages. This was reversed by the Court of
Appeal, Sask., which held that, under all the circumstances, the accident was not attributable to negligence of the truck driver (24 Sask. L.R. 137).
Plaintiff appealed.- Held (Anglin C.J.C. and Smith
J. dissenting): The judgment at trial should be restored. An important finding by the trial judge, which had support in the evidence and should be accepted, was that plaintiff did not move from the moment he stood still to permit cars ahead of the truck to pass him to the moment he was struck. It was therefore obvious that the truck, in making the turn, did not follow the sedan's track but turned further to the right, that is, made a wider curve (towards the plaintiff); in doing so, the truck driver was driving over a portion of the street not shewn by the passing of the sedan to be clear of traffic, and (as he kept his truck only
6 or 8 feet behind the sedan) without having in view the portion of the street where plaintiff stood. There was a duty upon the truck driver not to drive over a portion of the street of which he had, by reason of keeping so close to the sedan, only a restricted vision, and on which he knew pedestrians were in the habit of crossing, except at a rate of speed which permitted him to stop within the limits of his restricted vision; and that duty he failed to observe. The trial judge's finding that plaintiff was not guilty of contributory negligence could not, on the evidence, be said to be wrong; and, even if his failure to look out for the truck's approach was negligence, it did not contribute to the accident except in the sense that it was a sine qua non; the real cause of the accident was the subsequent and severable negligence of the truck driver (Admiralty Commissioners v. S.S. Volute, 1 A.C.
129, referred to).-Per Anglin C.J.C. (with whose conclusion Smith J. concurred) (dissenting): The evidence in support of the trial judge's findings, that defendant's negligence was the sole cause of plaintiff's injuries and that plaintiff was not guilty of contributory negligence, leaves their accuracy doubtful, to say the least. His finding that, even if plaintiff was guilty of negligence, the defendant might, by the exercise of reasonable care, have avoided the consequences thereof (Tuff v. Warmen, 5 C.B.N.S., 573) was not warranted by the evidence.
It appeared from the judgment of the trial judge that, while he took into account "ultimate" negligence of defendant is so far as defendant might actually have avoided the consequence of any contributory negligence of plaintiff, his mind had not been directed to an important aspect of the case, namely, that class of "ultimate" negligence considered in B.C. Electric Ry. Co. v. Loach, (1916] 1 A.C. 719, i.e., disabling negligence anterior in fact to plaintiff's contributory negligence, but of such a character that its effects endured and became operative after such contributory negligence had intervened. The Court of Appeal, while finding, on evidence which could not be said to be insufficient to justify it, that plaintiff was guilty of contributory negligence, did not consider or pass upon the question of "ultimate" negligence. A new trial was necessary in order that all the issues in the action might be fully considered and determined.
2-Plaintiff struck by automobile which had collided with street car-Jury finding to support jury's finding. ATRoNAs
Ry. 3-Motor vehicles-Driver of motor car swerving off pavement to avoid collision threatened through negligence of driver of another car, and on regaining pavement colliding with other cars--Question as to which driver was responsible for injuries caused by
EDWAnRDS..........................
4 - Railway -Level crossing - Speed - Thickly peopled place-Railway Act,R.S.C.,
1927, 170. 8. 309.
RYs.
5--Res ipsa loquitur-Burden of proof- Obligation as to particularizing negligence alleged-Boy injured by falling on live electric wire on sidewalk-Interpretation of jury's finding.] The infant plaintiff was injured by falling, on the sidewalk, on a loose end of a live electric wire of defendant company, which wire had broken loose during a storm, by reason, apparently, of a swaying tree branch bringing two wires together and causing a short circuit. It was in evidence that, at the place of the accident, there was a line of trees which overhung the sidewalk.
The jury found negligence by defendant, causing the injury, which negligence they stated thus:
"We consider the wire was defective, wires running close to trees should have more thorough inspection."- Held (1)
The evidence of the wire being on the sidewalk was sufficient to attribute negligence to defendant, in the absence of any other apparent cause or explanation excluding negligence to the satisfaction of the jury (Scott v. London & St. Katherine
Docks Co., 3 H. of C. 596, at 601, cited).
Plaintiffs thus adduced reasonable evidence upon which the jury might find a verdict.-(2) When plaintiffs' counsel, being asked at the opening of the trial (in accordance with a previous application for particulars which had stood over) to specify the negligence upon which he relied, specified, as his main ground, the leaving of a live wire lying on the highway, he was not bound to explain or particularize the facts or negligence which caused or contributed to that, since these were more in the knowledge of defendant;
and the case thus appeared to be one in which the occurrence of such an accident in itself justified calling on defendant to prove that it happened without negligence on its part.-(3) The jury's intention was obviously to find defendant's negligence in the defective location of the wire and the inadequacy of the inspection, which permitted the danger incident to contact with the tree branch to remain undiscovered, until advertised by the accident itself. - Appellate
Division, Ont. (66 Ont. L.R. 409), sustaining judgment of Kelly J. (ibid) for damages to plaintiffs
(on the jury's findings), affirmed.
ELcETRIc
Co. v.
CREPIN......................
6-Municipal corporations-Councillor of municipality injured while operating municipality's fire extinguisher-Responsibility for injury-Degree of care-Duty of municipality-Duty of councillor operating the machine--Liability-Volenti non fit injuria-Doctrine of Rylands v. Fletcher -Expert evidence-Charge to jury-Jury's findings.] Plaintiff, as a councillor of defendant village, acting under authority of a village by-law, took charge of operation of its chemical fire extinguisher at a fire, turned the crank which broke the sulphuric acid bottle (to generate pressure) and was severely injured by an explosion, which occured because the bolt holding in place the covering of the sulphuric acid chamber was not screwed down.
The extinguisher had been kept in a pool room. The village council had appointed the village constable as "fire chief," and required him to keep the extinguisher "in proper working shape." Plaintiff sued the village for damages. The jury found that plaintiff's injury was caused by defendant's negligence in "not having their fire extinguisher properly inspected and kept in perfect working order"; that plaintiff was guilty of contributory negligence "only to the fact that he was a councillor on the date of the fire, but not negligent in the operation of the fire extinguisher at the time of the fire."
The Court of Appeal for Saskatchewan (25 Sask. LR. 65) reversing judgment of Taylor J. (24 Sask. L.R. 198), gave judgment to plaintiff for damages. Defendant appealed.-Held (Duff and Newcombe JJ. dissenting) that the appeal should be dismissed.-Per Rinfret, Lamont and Cannon JJ.: It was for the jury, on all the evidence, to say whether the proper inference to be drawn was that the acid chamber covering was loose because the fire chief had failed to tighten the bolt when he had last recharged the extinguisher or to inspect it properly afterwards, or that some third person had unscrewed the bolt (as to interference by a third person, the onus was on defendant to establish it, or at least to shew such probability that the jury would infer it: Dominion Natural Gas Co. v. Collins, [1909] A.C. 640).
Also the question of plaintiff's negligence was one of fact for the jury; it was for them to say whether or not, in his operation of the extinguisher, he had failed to exercise the-care which a reasonably prudent and careful man would have exercised in like circumstances. Unless plaintiff had reason to suspect that the fire chief had not done his duty as to inspection, the jury was entitled to find plaintiff not guilty of negligence assuming that he had. There was evidence from which the jury might find that plaintiff's injuries were caused by negligence of 'defendant, and also that plaintiff's conduct in operation of the extinguisher was free from want of care. The maxim volenti not fit injuria did not apply; plaintiff, who was unaware that the covering was not properly fastened, neither appreciated the danger he was running nor voluntarily incurred the risk (C.P.R. v.
Frchette, [1915] A.C. 871, at 880, cited).
The first part of the jury's finding as to contributory negligence, viewed in the light of the circumstances and the judge's charge, meant that the only negligence of which they found plaintiff guilty was that he shared with his fellow councillors in their representative capacity in not seeing to it that the extinguisher was duly inspected and kept fit for immediate use.
As to this, it has long been established law that a person is not liable in his individual capacity for a tort committed in his corporate capacity (Mill v. Hawker,
L.R. 9 Ex. 309, at 321, and other cases cited).
The objections by defendant to the judge's charge to the jury were not maintainable.
Taken as a whole, it did not direct that there was an absolute duty on defendant to keep its extinguisher from doing harm (Doctrine of Rylands v.
Fletcher, L.R. 3 H.L. 330, discussed, and held not to apply, the extinguisher having been brought to the village for common protection of the corporation and its citizens as individuals;
Rickards v.
Lothian, [19131 A.C. 263, at 280; Hess v.
Greenway, 48 D.L.R. 630, cited), but impressed upon them that the only basis on which defendant could be charged with liability was negligence; his direction that the care to be observed by defendant must be commensurate with the danger of harm involved, was a proper one. His direction to disregard the evidence of one
F., an inspector for the fire commissioner of the province, to the effect that one operating the extinguisher should see that the covering was tight before breaking the acid bottle, was unobjectionable, as the elements did not exist to justify its admission as expert evidence, and the jury were as capable as the witness of forming a correct judgment as to plaintiff's acts.
-Per Duff and Newcombe JJ. (dissenting): The risk of escape of the liquid to the injury of persons in proximity was one which it was the absolute duty, in point of law, of any person working the machine, to avoid, if reasonably possible.
Plaintiff knew of the danger if the covering were not tight, and to ascertain and correct the condition was a simple and quick operation. It was the duty of the municipality, at the time of actual operation, not to release the acid without first seeing that the covering was securely fastened.
The acts of plaintif in his operation of the machine were the acts of the municipality, and its said duty was equally his duty; he owed a duty to it to see that the responsibility resting upon it, in respect of the precautions to be observed in working the machine, were,
NEGLIGENCE-Concluded so far as reasonably possible, discharged. He was not entitled to assume that, because of instructions given to the "fire chief," the covering was tight, in view of the facts (known to plaintiff) that the machine had been exposed in a place open to the public, that it could be made unsafe very easily, that, by reason of the fire chief's other duties, a periodical inspection was the utmost that could be expected, and in view of possibility of neglect by the fire chief, the simple nature of the precaution required at the moment of operation, and the magnitude of the danger. The direct and proximate cause of plaintiff's injuries was his own neglect. Further, there were errors in the charge to the jury, as to the extent of defendant's duty, and in withdrawing from the jury F.'s evidence as to the proper, known and recognized method of working the machine; which errors in the charge, were the action not to be dismissed, would be ground for a new trial. 7- Motor vehicle-Accident-Liability- The Vehicles and Highway Traffic Act, 1924, Alta., c. 31,8s. 66 40-Failure to discharge onus of proof-Duty as to sounding horn. 8-Master and servant-Accident-Liability-Inadequate lighting-Art 1053 C.C. -Division of damages-Costs. TRusT 9- High tension transmission line- Right of way through land-Trespasser on right of way connecting with wire through steel fishing pole - Injury -Liability - Co. 712 Railway-Passenger falling off platform-Platforms enclosed by vestibules- Vestibule door left open-Railway Act, R.S.C., 1927, c. 170, s. 390 ......... 11--Motor vehicles-Injury caused by motor vehicle-Motor Vehicle Act, Man., C.A. 1924, c. 131, s. 62-Onus of proof as to negligence-Operation of the statutory presumption-Efficiency of brakes (s. 15)- Inspection -Evidence -Jury's findings - Particularizing of alleged negligence- Pleadings-Rule 334, c. 46, R.S.M. 1913. ...... 12--See
PARENT AND CHILD-Right of father or mother to maintain action for damages occasioned by death of illegitimate child- Art. 1056 C.C..................... See CHILD. 2-See FAMILY PATENT-Action for alleged infringement- Utility of plaintif's device-Lack of the improvement alleged to have been achieved - Anticipation.
GRIsSINGER
CAN.
PEACE OFFICER-Riotous crowd- Unlawful assembly-Assault on officer- Use of firearms-Liability in damages-Justifiable homicide.]
The necessity of dispersing a riotous crowd, which would become dangerous unless dispersed, and which threatens serious injury to persons and property, justifies a peace officer in using firearms to prevent violent and felonious outrage to persons and property.
A ringleader who, under such conditions and while assaulting a peace officer, is shot dead, dies by justifiable homicide;
and the peace officer who fired is free from any liability in damages.
v. M A rI ........................
PETITION-Allegation in, as an admission or "aveu"............ : ..........
PLEADINGS-Allegation in petition, as an admission or "aveu" ............
PLEDGE
POWER
PRINCIPAL AND AGENT
PROBATE
PROHIBITION-Writ of-Montreal City
Charter-Recorder's Court-Jurisdiction- Canvassers -Licence -By-law - Constitutional validity-Company having licence- Employee canvassing without licence-Arts.
50, 1003 C.C.P.]
The appellant was employed by the Fuller Brush Company, of Hamilton, Ontario, to canvass in the city of Montreal for orders for his employer's goods. Section 29 of by-law 432 of the city of Montreal provides that "no person, corporation or firm shall do business * * * as
* * * canvasser
*
*
* without having previously obtained a licence
*
*
*," such by-law having been passed under authority of the city's charter enacted by the provincial legislature.
The appellant was brought before the Recorder's Court on a complaint that- he was "unlawfully doing usiness * * * as a canvasser * * * without having previously obtained a licence
*
*
The company itself had obtained from the city authorities a
PROHIBITION-Concluded licence to canvass for the sale of its goods and that licence was in full force at the time proceedings were taken against the Upon judgment having been given against him and as no right of appeal existed by statute, the appellant petitioned the Superior Court for a writ of prohibition commanding the Recorder's Court and the city to discontinue all proceedings against him in the matter, on the grounds that the appellant did not come within section 29 of the by-law as he was merely an instrument by means of which the company was carrying on business under its licence and that the by-law was, moreover, illegal and ultra vires a being indirect taxation.- Held that the appellant was not entitled to the issue of a writ of prohibition, inasmuch as, the action before the Recorder's Court being for the enforcement of a by-law, that court had jurisdiction under article 484 of the city charter to determine the law involved, as well as the facts, in order to decide whether or not the appellant had committed a breach of such by-law. A writ of prohibition does not lie to review an erroneous judgment of a judge of an inferior court from which no right of appeal has been given by statute. The functions of the Superior Court, on an application for such a writ under article 1003 C.C.P. are not those of a court of appeal; the Superior Court has nothing to do with the merits of the dispute between the parties but is concerned only to see that the inferior court does not transgress the limits of its jurisdiction.-Held, also, that the by-law and the enabling statute were not ultra vires. Section 92 (9) of the B.N.A. Act gives the provincial legislature exclusive power to make laws in relation to "shop * * and other licences in order to the raising of a revenue for provincial, local or municipal purposes," and the effect of the by-law was to provide additional revenue for the city of Montreal.- Held, also, per Duff, Newcombe, Rinfret and Lamont JJ., that the appellant was not doing business as canvasser within the meaning of the by-law and was under no obligation to take out a licence. Anglin C.J.C.
expressed no formal opinion, although being disposed to concur with the majority of the court, if it had been proper to determine that matter.-Judgment of the Court of King's Bench (Q.R. 46 K.B. 375) aff. V. OF PROMISSORY NOTE-Promise to pay sum of money-Provision for discharge of obligation in part or in full by credit for "any land sales commissions"-Not unconditional promise-Document not promissory note.] If under the terms of a written promise to pay a sum of money the obligation may be discharged in part or in full PROMISSORY NOTE-Concluded by "allowing credit (to the debtor) for any land sales commissions", such promise is not an unconditional one to pay a sum certain; and, therefore, the document is not a promissory note.
2-Letter threatening action if notes not paid by time specified in letter-Action after maturity of notes but before time specified..........................
PUBLICATION
RADIO COMMUNICATION
RAILWAYS - Passenger falling off platform-Platforms enclosed by vestibules-Vestibule door left open-Railway Act, R.S.C., 1927, c. 170, 390.]
The appellant, when nine years old, in
1919, was crossing the continent as an immigrant, with his mother, in one of the respondent's vestibuled trains. While the train was approaching Piapot station, in
Alberta, the appellant went to the rear end of the car in which he was riding and, just as he was stepping from the passage to the platform, and while his hand was on the door, there came a sudden jerk of the car, in consequence of which the boy was thrown to the platform and, the vestibule door being open, down the steps to the ground, where his legs came under the wheels and it was found necessary, by reason of his injuries, to amputate his right leg above the knee and his left foot above the ankle. The appellant, in 1928, nine years after the accident, brought an action to recover damages.
The jury found that the respondent railway was negligent in that the "exits of the train
(were) not properly safeguarded," that the appellant was not "guilty of negligence" and that the "proximate cause of the accident" was the appellant's "falling off the train," and the jury gave a verdict for $10,000.
After the conclusion of the evidence, the respondent's counsel moved to dismiss the action; and the trial judge, after the verdict of the jury, dismissed the appellant's action on the grounds that there was no negligence in law established by the evidence or found by the jury and that the action was barred by section 282 of the Railway Act, 1906. Two of the four judges sitting in the Court of Appeal held that the appellant had failed to satisfy the onus of proof which rested upon him of shewing negligence or want of care on the part of the respondent, a third one held there had been a mistrial and the fourth would have rendered judgment according to the verdict; the judgment of the trial judge was therefore affirmed.- RAILWAYS-Continued
Held, reversing the judgment of the Court of Appeal (42 B.C. Rep. 30), that judgment should have been rendered in favour of the appellant pursuant to the findings of the jury and that the appellant was thus entitled to recover the $10,000 damages awarded to him by the verdict.- Skelton v. London and North Western Ry. Co. ( (1867) L.R. 2 C.P. 631) distinguished;
in that case, the plaintiff failed by reason of his contributory DOBOE V. PAc. RY. Co. ..... 2-Negligence-Level crossing-Speed- Thickly peopled place-Railway Act,R.S.C., 1927, 170, s. 309.
Rys. v. .......... 3-Power of Board of Railway Commissioners for Canada-Wharfage charges -Railway Act, R S C
1927, c. 170, ss. 2 (32), 358.] The Board of Railway Commissioners for Canada has no power, under the Railway Act, R.S.C., 1927, c. 170, to regulate (no question as to discrimination being involved) as to absorption by a railway company of wharfage charges in respect of transpacific freight, at the point where the goods are transferred from rail to ship for ocean carriage to the transpacific country.-The function of the Board as to tolls and charges is (excepting as to powers conferred by s. 358 of the Act) limited to regulating charges for carriage and for those other services which are incidental to carriage, as railway services, within the meaning of the Act. The wharfage service in question is not such a service. This would appear to be so independently of, but is put beyond doubt by, s. 358. The definition of "toll" (s. 2 (32) ) cannot properly be construed as declaring that any wharfage service is a railway service in the above -- Rates on grain and flour-Order of Board of Railway Commissioners for Canada, No. 448, of August 26, 1927- Question whether rates complied with Order -Board's right to allow the rates complained of-Railway Act, 1919 (as amended, 1925, c. 52), s. 325, subs. 5, 6.] The Board of Railway Commissioners for Canada, by its General Order No. 448, dated August 26, 1927, ordered (inter alia) "that the rates on grain and flour from all points on Canadian Pacific branch lines west of Fort William to Fort William * * * be equalized to the present Canadian Pacific main line basis of rates of equivalent mileage groupings
(the rates governed by the Crow's Nest Pass agreement not to be exceeded)" and "that all other railway companies adjust their RAILWAYS-Concluded rates" on grain and flour to the Canadian
Pacific rates.
The present appeal was by the Government of Alberta from the
Board's acceptance, as being in compliance with its order, of the rates publshed by the Canadian National Rys.;
the appellant asserting that certain of those rates contravened the order, and that, in any case, under s. 325 of the
Railway Act, they could not be sanctioned or charged.-Held (1) What was required of the Canadian National Rys. under
Order 448 was to adjust its rates in such a way that in territory competitive as between it and the Canadian Pacific Ry.
Co. grain shippers in such territory would be placed on as equal a rate basis as possible, all things considered; and the
Canadian National Rys., in adopting the mileage grouping in effect from the nearest point, parallel or contiguous, main or branch line station, on the Canadian
Pacific, had complied with the order.- (2): The Board's order (construed as above) and the Board's allowance of the rates in question (fixed on above basis)
were within its powers.
As rightly interpreted by the Board, the effect of subs. 5 and 6 of s. 325 of the Railway Act,
1919 (as amended, 1925, c. 52) was, not that in applying the Crow's Nest Pass agreement rates on grain and flour to all railways in the territory the proper standard was of a per mileage basis (the Crow's
Nest Pass agreement, and c. 5 of 1897, pursuant to which it was.made, discussed and explained in this connection), but, in the given territory, to establish a relationship between the rates on the Canadian
Pacific governed by the Crow's Nest Pass
Act and agreement and the rates on other railways, which would put on an equal footing all persons and localities situated under substantially similar circumstances;
in attempting to secure a fair and reasonable rate structure, account should be taken of the equivalent or competitive points as between the railways. GovT.
or Rys.
PAc. Ry. Co...................
RATES
RECORDER'S COURT (QUEBEC)
RES IPSA LOQUITUR
See 5.
RES JUDICATA
REVENDICATION - Petition to recover goods - Judgment granting it-Intervention by third party claiming ownership or lien-Goode destroyed by fire before judgment dismissing intervention-Right of
REVENDICATION-Concluded owner to claim value of goods from third party-Allegation of petition-Whether it constitutes an admission or "aveu"- Litigious rights---Arts. 1200, 1570, 1582 et seq. C.C.]
One who, upon legal proceedings being brought against the liquidators of an insolvent estate to recover possession of certain machines, by filing an intervention in the proceedings prevents the owner of the machines from getting immediate possession (to which the liquidators consent), is liable to the owner for the value of the machines if pending contestation, they are destroyed by fire and the intervention is subsequently dismissed. Per Rinfret Lamont JJ.: In such a case, the intervenant is not penalized for having had recourse to the courts in an attempt to exercise his rights; but, under 1200 C.C. and foll., he is condemned to fulfill the obligation incurred by reason of the wrongful detention of the property of another, after having been duly put en demeure to deliver it.-The allegation in the respondent's petition brought against the liquidators for the recovery of the machines, that the goods were in the liquidators' possession, did not constitute an admission or "aveu" of such a fact; but it was simply an averment of fact, in the nature of an argument, which the liquidators were at liberty to admit or deny. Per Duff, Newcombe and Cannon JJ.-Even if such an allegation could be construed as an admission or "aveu," it cannot be invoked as such by the appellant and cannot affect the question as to the possession of the goods at the time of the fire, which occurred long after such allegation, inasmuch as it had been made in proceedings taken, not against the appellant, but against the liquidators.- The provisions of the Code relating to retrait litigieux (C.C. 1582 & foll.) do not apply to the sale of debts and rights of action of an insolvent estate made, after judicial authorization, by the liquidator of the estate.
V. . 636 REVENUE - Constitutional law-Shipping-Customs Act, R.S.C., 1927, c. 42 (as amended, 1928, c. 16), ss. 151, 207- Enactments with respect to vessels hovering within 12 marine miles of coast of Canada- Constitutional validity ............... SALES ROAD (IMPROVED)
ROYALTY
19311
SALE OF GOODS-Goods rejected by purchaser as not being the kind orderedto shew meaning intended by the parties of description in written orders-Whether
PAPER CO.
SALE OF LAND-Principal and agent- Introduction of purchaser---Commission- BELL-IRVING
2-Agreement of-Condition as to clear titles-Drains and water supply system existing on the property-Servitude--Action for annulment.] The respondent corporation entered into an agreement with the appellant by which the latter agreed to transfer to the respondent all her rights to part of a certain property, under a promise of sale from the owner of the land, in consideration of a stipulated purchase price which the respondent agreed to pay on condition that the titles to the property should be found to be perfect, the condition of the respondent's acceptance being thus expressed: "A condition que les titres des immeubles susdits soient parfaits et libres de toute charge on hypothbque,
*
*
* le tout A la satisfaction de la corporation susdite."
Subsequently the representatives of the respondent corporation became aware of the existence on the property of drains and a water supply system which were absolutely necessary for the part of the property not sold to the respondent.
The owner of the property then declared that he would not sign any deed of sale without a clause being inserted that the drains and water supply system would remain on the land.
The respondent thereupon refused to carry out the agreement and sued the appellant asking for its annulment and for damages.-Held that the "charges"
complained of by the respondent corporation as existing on the property were within the scope of the condition expressed in the agreement and that the respondent was entitled to a judgment annulling the agreement.
MA- 3-See 2.
SALES TAX-Special War Revenue Act,
R.S.C., 1927, c. 179, ss. 86, 87--Goods manufactured for sale, but consumed by the manufacturer.] Respondent was a manufacturer of lumber for sale, and consumed a portion in construction and building operations, carried on over a period of years, the lumber so consumed having been taken from stock in its yards, produced and manufactured in the ordinary course of its business of manufacturing for sale, and not produced or manufactured especially for the purpose for which it was
SALES TAX-Concluded used.-Held
(Cannon J. dissenting): Respondent was liable under the Special War Revenue Act, R. .C., 1927, c. 179, ss. 86, 87, for sales tax on the lumber so consumed.
The intention of the Act was to levy the tax on the sale price of all goods produced or manufactured anada, whether they be sold by the manufacturer or consumed by himself for his own purposes. Respondent could not avoid liability by invoking the wording of s. 87 (d) of the Act.-Judgment of the Exchequer Court
[1931] Ex. C.R. 16, reversed.
2-Special War Revenue Act, R.S.C., 1927, c. 179, ss. 86 87-" Use" by manufacturer (s. 87d)-oods distributed as free samples-Statement in special case-Effect of admission as to payment-Double taxation.] Defendant, in the course of its business as a manufacturer of pharmaceutical preparations, put up in special small packages and distributed free amongst physicians and druggists samples of its products, to acquaint them with their character and quality. The question in issue was whether or not defendant was liable for the consumption or sales tax in respect of the samples, under as. 86 (a) and 87 (d) of the Special War Revenue Act, R.S.C., 1927, c. 179.
Clause 4 of the special case agreed on stated that "the cost of producing such samples was paid by [defendant] as a necessary expense of business, and [defendant] in its books treated such expense as a necessary cost of production of articles manufactured and sold, in respect of which last mentioned articles [defendant] has paid sales tax."-Held: The "use" by the manufacturer or producer of goods not sold, dealt with in s. 87 (d), includes any use whatever that he may make of such goods, and is wide enough to cover their "use" for advertising purposes by their distribution as free samples, and would have covered their use in the present case, and the samples would have been subject to the tax, but for said clause 4 of the special case, which must be taken as an admission that the sales tax had already been paid upon the cost of producing the samples for free distribution, in which case to hold them now subject to the tax would involve double taxation, which the legislature should not be taken to have intended.
Therefore the judgment of the Exchequer Court (Maclean J.), [1931] Ex. C.R. 7, holding defendant not liable for the tax claimed, was affirmed in the result, but not for the reasons therein given.
Newcombe J. dissented as to the effect of said clause 4, and would have allowed the Crown's appeal.
K. Co. LTD... 494 SCHOOLS-Termination board of school trustees of teacher's employment- Alleged wrongful termination-Terms agreement-Teacher's remedy-School Act,
Alta., R.S.A., (as amended
1923, 35), 196, 199 (2), (1)
The defendant board of school trustees employed plaintiff as teacher. Under the agreement of employment, either party might terminate it by giving 30 days' written notice, "provided that no such notice shall be given by the board until the teacher has been given the privilege of attending a meeting of the board (of which five clear days' notice in writing shall be given to the teacher) to hear and to discuss its reasons for proposing to terminate the agreement."
In terminating plaintiff's employment, said proviso was not observed, nor, as found by this
Court on the evidence, was there any effective waiver by plaintiff of his privilege thereunder. Plaintiff sued for damages for wrongful termination.-Held (1): S.
196 of the School Act (R.S.A., 1922, c. 51, as amended 1923, c. 35, s. 8), which provided for an a ppeal to the Minister by
"any teacher who has been suspended or dismissed by the board," had no application to deprive plaintiff of his right of action.
S. 196 should be read as relating to a suspension or dismissal under s. 137
(1) (o), and not to a decision to terminate an agreement under s. 199 (2).
Further, moreover, s. 196 contemplated a re-hearing on the merits by the Minister of the matter on which the board's decision was given; and, whether in the case of a dismissal or suspension under s. 137 (1) (a), or in the case of termination under a provision such as that in the agreement in question (if s. 196 applied in such case), there was contemplated, before appeal to the Minister, a consideration of the matter by the board after giving the teacher a full opportunity to be heard;
and where no such opportunity was given, the board's right to dismiss or suspend under s. 137 (1) (o), or to terminate under such a provision in the agreement, did not come into operation; and s.
196 did not contemplate the supersession of the ordinary jurisdiction of the courts where the sole question was whether or not the board had taken the necessary steps to put itself in the position to give an effective decision, and did not concern the merits of the decision itself.-Murray v. Ponoka School District, 24 Alta. L.R.
205, in effect overruled.-(2): In all the circumstances, the failure by the board to observe the terms of the agreement was a technical breach only; had they been followed, there was no doubt the agreement would have been terminated conformably thereto; plaintiff was entitled to recover as damages the wages to which he would have been entitled during the period required to make effective the stipulated proceedings for its termination
SCHOOLS-Concluded
(less amount earned during that period elsewhere).
(He was not entitled to expenses incurred in moving: French v. Brookes, 6 Bing. 354).
...... SHERIFF
Bill of lading - Law United States-International law-Art. 8 The appellant company contracted with the respondent ship for the carriage of a cargo of wheat from Buffalo to The bills of lading were signed in the United States of America, both the shipper and the shipowner being American subjects.
respondent alleged that the bill of lading was issued subject to the Harter Act passed by the Congress of the United States in 1893, although no special reference was made to the exemptions mentioned in that Act, while the appellant alleged that that Act did not apply as it was not referred to or made part of the contract.- Held that the obligations of the parties under the contract were governed by the laws of the United States, the law of the flag in this case being the same as the lex loci contractus. Lloyd v. Guibert (L.R. Q.B. 115) foll.-Per Anglin C.J.C. and Lamont, Smith and Cannon JJ.-The intention of the parties, unless it is clearly shown that they intended to apply the law of Canada, must be taken as accepting, to all intents and purposes, the law of the United States, to which they were both subject as American citizens when they contracted for the carriage of an American cargo, in an American ship, from an American port, especially since the loading, transhipment at Buffalo and most of the navigation was to take place in American territory. If a contract of carriage were to be governed by the law of the country of destination because the last act of the contract, the delivery, is to be performed there, then the contract of carriage would have to be governed by the laws of different countries when goods shipped together would have several destinations in such countries, which case is inconceivable.-Held, also, that the act of the oiler in removing by mistake the cover or bonnet of the sea-cock instead of the plates on the air-pump, thus causing damage to the cargo by water, was a fault in the "management" of the ship.-Per Duff J.-The rule governing the case is that enunciated by Willes J. in Lloyd v. Guibert cited above that, where the contract of affreightment does not provide otherwise, the law applicable is the law of the flag.-Judgment of the Exchequer Court of Canada ([1929] Ex. C.R. 196) aff.
SoNs SHIPPING-Continued
2 - Collision - Speed - Fog - Regulations for Preventing Collisions at Sea,
The P. A., a passenger steamer, left Vancouver, bound for Victoria in a dense fog.
After passing the first narrows, she was running at a rate of twelve knots, on a course of S.W.
J S., which course she kept till the collision was imminent.
She stopped her engines about a minute before the collision, upon hearing a signal from a tug to port, and one from a ship to starboard, the H., and which she first saw emerging from the fog at a distance of about 300 feet, and between two and three points on her starboard.
The P. A.
then attempted to clear the H. by putting her helm hard astarboard with full speed ahead, but without success, the stem of the H. cutting into the P. A. on her starboard side, a little ahead of amidships; she was swinging with a speed of about eleven knots. The H., inward bound, passed Point Atkinson at 10.05 a.m. on a course of E. by N. and at a speed of four knots, but seeing the density of the fog decided not to enter the narrows, but to proceed cautiously,
"slow ahead" and "stop" alternatively, to a southerly part of English Bay, and altered her course at 10.25 to E.N.E.
Later, at 10.50, hearing signals of other vessels, she changed her course E.S.E.
giving proper signals. From 10 o'clock to 11.12 she was proceeding by "slow ahead" and "stop" at close intervals.
At 11.12 the H. heard the signal from the
P. A. about 5 or 6 points on her port bow.
She stopped her engine, blew the whistle, to which the P. A. replied.
There followed another exchange of whistles, and while the P. A. was whistling for the third time, she emerged from the fog, heading for the H. The H. then reversed her engine full speed and put her helm hard aport, but too late to avert collision.
When they first saw each other the P. A.
was running at ten knots, and the H. at one and a half knots.
occurred about half a minute after the two steamships first saw each other.- Held (affirming the judgment of the
Exchequer Court ([1930] Ex. C.R. 10) )
that, on the facts, the navigation of the
H. was free from blame.
In the circumstances of the case, neither by the cases referred to nor by the practice of seamanship was the H. required to reverse before the P. A. became visible, as she could have come to a standstill within 30 feet.
Upon the assumption that the P. A. was proceeding at moderate speed and obeying the injunctions of the pertinent collision regulations, the H., while the vessels were out of sight of each other in the fog, had no occasion to reverse the mere steerageway which she carried, while, on the other hand, it was a matter of pru- SHIPPING-Continued dence and good practice that the ship should not be put out of command, the advantages of maintaining steerageway having frequently been recognized by the courts. The cause, which brought about was the excessive and reckless speed of the P. A. in proceeding in the dense fog which prevailed, and in a harbour where ships were so likely to be met, at the immoderate rate of twelve knots, when the visibility was only about 300 feet, and persisting in the maintenance of that speed, when she was aware that a steamship was approaching on her starboard bow, so as to involve risk of collision.
"PRINcEss
FRED & Co................. 3-Collision-Canal navigation-Right of way-Liability-Cause of the damage.] A collision occurred between the K., which was ascending the Lachine Canal at its western exit and the 0. which had just begun her descent from Lake St. Louis, about 3.30 a.m., on 5th June, The K., being light, had moored previously to the south revetment wall of the canal near the place of collision on account of wind and rain, the night being also dark. When the 0., approaching the entrance to the canal, came into relation with the K., the weather had cleared so far as to enable the K. safely, in the judgment of her master and pilot, to proceed upon her voyage; and, accordingly, her master gave the order to cast off.
The K. then gave two blasts of her whistle, signalling her desire to pass on the starboard side of the 0., a signal which the latter promptly answered in like manner, the two ships thus agreeing that they should pass green to green. The K. was shouldering her way along the canal wall and the 0. was coming down on the opposite side, when suddenly the 0. gave an alarm or danger signal of five or six blasts and reversed her engine at full speed astern.
There was then, according to the findings, ample room, in canal -navigation, between the starboard side of the K. and the blocks marking the northern side of the channel for the 0. to pass. The result of the manoeuvre of the 0. was that her stern struck the K's. starboard bow, forcing the K. against the south wall, where her stern struck. Both ships sustained damage and there was an action and a cross-action, which were tried together. The Local Judge in Admiralty at Montreal found the 0. solely to blame.
This judgment was reversed by the Exchequer Court of Canada, Audette J., who held that the K. was "at fault for a collision which would not have happened had she lain fast at her berth and delayed casting off but a few minutes,
*
*
* with the knowledge (she had) of a downbound SHIPPING-Concluded vessel coming in at the time with the current, having thereby the right of way."-Held (reversing the judgment of the Exchequer Court of Canada, [1930]
Ex. C.R. 1) that the judgment of the
Local Judge in Admiralty, holding the
0. solely to blame, should be restored.
Upon the facts, the Local Judge rightly held that the collision, having taken place on the south side of the canal, resulted from the faulty navigation of the 0., by an abrupt and inconsistent manoeuvre, after exchange of the passing signals, a manoeuvre intervening between the time when the K. got under way and the collision; and, therefore, it was not the untimely casting off of the K. to which the collision can be attributed.-Although the action of those in charge of the K's.
navigation was inconsiderate, in leaving her moorings and proceeding outward in the face of the incoming the K. should not be held responsible for such an error because it was not the cause of the damage which ensued.
Tuff v. Warman (2
C.B.n.s. 740) and Radley v. London and
Northwestern Ry. Co. (1 App. Cas. 754)
followed.
LiNEs
SS. "OxFono"... 288
4-Foreign fishing vessel entering Canadian territoial waters-Customs and Fisheries Protection Act, R.S.C., 1927, c. 43, s.
10-"Stress of weather" or other 'unavoidable cause" (Customs Act, R.S.C., 1927, c. 42, s. 183)-Convention of October 20,
1818, between Great Britain and the
United States .....................
See FIsHERIEs 1.
5--Foreign fishing vessel entering Canadian territorial waters-Customs and Fisheries Protection Act, R.S.C., 1927, c. 43, s.
10-"Stress of weather" (Customs Act,
R.S.C., 1927, c. 42, s. 183)-Class of vessel-Weaknesses in vessel-Convention of October 20, 1818, between Great Britain and the United States...............
6 - Customs Act,
R.S.C., 1927, c. 42 (as amended, 1928, c. 16), s. 151,207-Enactments with respect to vessels hovering within 12 marine miles of coast of Canada-Constitutional validity
...... ... .......
... .. ......
SLANDER-Publication-Words spoken by defendant to plaintiff overheard by third person-Liability-Matters to be considered
-Onus of proof- Negligence-Questionsfor jury.] In an interview between defendant and plaintiff in the dispensary of plaintiff's drug store, defendant, in a loud angry tone
(according to evidence given), used words which, plaintiff alleged, slandered her.
SLANDER-Continued
The conversation was overheard by W. (an employee of plaintiff) who was in an adjoining dressing room and was able t hear because of a small hole (covered over) which firemen had cut in the wall. Neither defendant nor plaintiff knew that W. was in the dressing room or that a person there could overhear what was said in the dispensary.
At the trial of the action (for slander) on motion at close of plaintiff's case, Adamson J. held that there was no evidence of publication, withdrew the case from the jury, and dismissed the action.
The Court of Appeal for Manitoba (39 Man. R. 442) ordered a new trial. Defendant appealed. -Held, affirming judgment of the Court of Appeal, that there should be a new trial.-What may amount to actionable publication, proof thereof, matters to be considered and onus of proof with regard to them, discussed at length and authorities reviewed.-Per Anglin C.J.C., Rinfret and Cannon JJ.: Assuming, but not deciding, that a defendant is not liable for a purely accidental communication to a third person who hears him utter a slander, the defendant not knowing, nor having any reason to suppose, that any person other than the plaintiff is within earshot, and being free from any fault leading to the communication to the third person;
yet, in this case, there was explicit affirmative evidence of negligence of defendant, which was proper for submission to the jury, in the fact that defendant, being angry, raised his voice; and it must be for the jury to say whether, under all the circumstances of time and place, etc., such raising of his voice amounted to fault on his part so as to make him responsible for W. overhearing what he said.-Per Duff J.: When the defamatory matter is intended only for the plaintiff but is unintentionally communicated to another person, the responsibility must, generally speaking, depend upon whether communication to that other person, or to somebody in a similar situation, ought to have been anticipated.
Where the communication is the direct result of the defendant's act, the burden is upon him to show that the communication was not the result of his As regards proof of publication, the law recognizes no distinction between cases in which express malice in uttering the defamatory words is proved and those in which it is not.-Per Lamont J.: Defendant must be taken to have intended the natural and probable consequence of his utterance, which was that all persons of normal hearing who were within the carrying distance of his voice would hear what he said. When, therefore, it was established that W. did hear what he said, a prima facie case of publication was made out, and, to displace that 769' SLANDER-Concluded prima facie case, the onus was on defendant to satisfy the jury, not only that he did not intend that anyone other than plaintiff should hear him, but also that he did not know and had no reason to expect that any of the staff or any other person might be within hearing distance, and that he was not guilty of any want of care in not foreseeing the probability of the presence of someone within hearing range of the speaking tones which he use.
v. 696
SMUGGLING
SOLICITORS-Authority to act-Ratification-Supreme Court action tried by consent in county court-Validity of judgment.
2- STARE DECISIS-Effect, as authority, on
Supreme Court of Canada, of a judgment of that Court, affirming on equal division the judgment below....................
STATUTE OF FRAUDS
STATUTES - Double taxation -Legislature not to be taken to have intended.. 494
2-(Imp.)B.N.A. Act 263, 357, 541, 460
4;
3- (Imp.) Rupert's Land Act, 1868,
105............................
4- (Imp.) 59 Geo. III, c. 38 (passed to sanction the Convention of October 20, 1818, between Great Britain and the United
....................
5-R.S.C.[1886]
c. 43, sa. 38-41, and subsequent revisions (Indian Act)....
6- R.S.C. c. 37, s. 282 (Railway
7-R.S.C. [1906] c. 51 (Inland Revenue
. ....
8-R.S.C. [1927] c. 11, s. 45 (3) (Bankruptcy A ct).......................
STATUTES-Continued
R.S.C. [1927] c. as. 163(5), 174 (Bankruptcy Act).................. 11-R.S.C. [1927] c. 27 (Companies 12-R.S.C. [1927] c. 34, s. 82 (Exchequer Court Act)........................ 13-R.S.C. 35, 36(a), 36(b) (Supreme Court Act) .......... 14- R.S.C. [1927] c. 35, s. 41 (Supreme Court Act)........................ R.S.C. c. 35, e. 57 (Supreme Court Act)........................ 16- R.S.C. [1927] c. 36 (Criminal Code) 17-R.S.C. [1927] c. 42 (as amended 1928, c. 16) 151, 207 (Customs Act) 531 18-R.S.C. [1927] c. 42, s. 183 (Customs A ct)..........................374, 19-R.S.C. [1927] c. 43, s. 10 (Customs and Fisheries Protection Act) ..... 374, 387 20-R.S.C. [1927] c. 144, e. 4(b) (Opium and Narcotic Drugs act) ............ 21-R.S.C. 390 (Railway 22-R.S.C. [1927] c. 170, s. 309 (Railway 23-R.S.C. [1927] c. 170, as. 2(32), 358 (Railway Act)..................... 24- R.S.C. [1927] c. 179, ss. 86, 87 (Special War Revenue Act) ....... 490, 494 25-(D.) 60-61 Vic., c. 5 (An Act to authorize a Subsidy for a Railway through the Crow's Nest Pass) .............. 9- R S.C. [1927] c. 11, ss. 174, 163(5),
26-(D.) 4-5 Edward VII, c. 42 (Saskat- 2(l), 152 (Bankruptcy Act) .........
chewan Act)...................263 STATUTES-Continued
27-(D.) 5 Geo. V, c. 2 (War Measures
A ct, 1914)........................
28-(D.) 7-8 Geo. V, c. 28 (as amended)
(Income War Tax Act, 1917) .....
399, 485
See TAx 2, 4.
29-(D.) 9-10 Geo V, c. 68 (as amended
1925 c. 52) 325, subs. 5, 6 (Railway Act,
1919)...........................
30-(D.) 9-10 Geo. V, c. 68 (Railway
Act, 1919)........................
31-(D.) 10 Geo. V, c. 30 (Treaties of
Peace Act, 1919)...................
32-(D.) 10-11 Geo. V, c. 49, s. 4 (An
Act to Amend The Income War Tax Act,
1917)............................ 485
33-(D.) 15-16 Geo. V, c. 52 (An Act to amend The Railway Act, 1919) ......
(D.) 17 Geo. V c 83 (incorporating
Detroit and Windsor Subway Co.)....
35- (D.) 20-21 Geo. V, c. a. 27 (An
Act to amend the Criminal Code) .....
36-(D.) 20-21 Geo. V, c. s. 28 (An
Act to amend the Criminal Code) .. *... 421
37---C.S. U.C., 1859, c. 81, 8s. 21 et seq.
(Act to prevent trespasses to Public and
Indian Lands)....................
38-R.S.O. [1927] c. 88, s. 23 (Judicature
..
39-R.S.O. [1927] c. 150, s. 25 (Trustee
....
40-R.S.Q. [1909] s. 6119a, 6119b, 6119c
(Joint Stock Companies Act) .........
41-R.S.Q. [1909]
Respecting Life Insurance by Husbands and Parents)......................
42-R.S.Q. [1925] c. 91, e. 69 (Roads
.........................
See CORPORATION
STATUTES-Continued
c. 247, s. 4, 9 (Workmen's Compensation Act) ...... R.S.Q. [1925] c. 274, s. 6 (Workmen's Compensation Act) ............ 48-(Que.) 4Ed. VII, c. 42, s. 1 (amending Art. 1301 Civil Code).......... (Que.) 4Geo. V, c. 51, s. 1 (amending Joint Stock Companies Act) .......... 50- (Que.) 10 Geo. V, c. 72, s. 1 (The Quebec Companies' Act, 1920)........ 51-(Que.) 12 Geo. V, c. 42 (An Act respecting the maintenance and repair of roads and to amend various Acts concerning roads)............................ 52-(Que.) 14 Geo. V, c. 63, s. 1 (Act respecting the powers of certain companies to issue and re-issue bonds, etc.)...... 53-R.S.A. [1922] c. 51 (as amended 1923, c. 35), s. 196, 199(2), 137(1) (o) (School Act)....................... 54-R.S.A. [1922] c. 133, ss. 101, 102, 103 (Land Titles Act) ............... 55- (Alta.) 13 Geo. V, c. 35 (School Act Amendment Act 1923).............. 56- (Alta.) 14 Geo. V, c. 31 ss. 66(1), 40 (The Vehicles and Highway Traffic Act, 1924)........................... 57-R.S.B.C. [1924] c. 95 (Statute of Frauds)........................... 58- R.S.B.C.
167, s. 19 (M ineral Act)..................... 10311
STATUTES-Concluded
59-R.S.B.C. [1924] c. 254, s. 2 (Taxation Act)........................ 435
See TAX 3.
60-R.S.B.C. [19241 c. 256, s. 3 (Testator's Family Maintenance Act) ......
61-(B.C.) 17 Geo V, c. 54 (Produce
M arketing Act)....................
62-(B.C.) 17 Geo. V, c. 62 (Savings and
Loan Associations Act) ............ ..
63- (B.C.) 18 Geo. V, c. 39 (Produce
Marketing Act Amending Act 1928).. 357
LAw 2.
64- R.S.M. [1913] c. 46, Rule 334 (The
King's Bench Act).................
65--R.S.M. c. 133, 471, 472,
624, 625, 740 (Municipal Act) .......
66---C.A., Man. [1924] c. 131, 62, 15
(Motor Vehicle Act) ................
67-R.S. N.B. [1927] c. 1, 8. 6 (Interpretation Act)....................
68-(N.B.) 16 Geo. V, c. 45 (Act to incorporate Saint John River Power Co.)
.................
69- (Sask.), 17 Geo. V, c. 24, s. 413 (6)
(Town Act, 1927)..................
70-(
U.S.A.) Harter Act,
STOCK BROKER-Orders on New York exchange to Canadian broker-Certificates of stock-Endorsement in blank-Recovery from trustee in bankruptcy-Right to follow proceeds of sale- Not existing in Quebec- Arts. 1017, 1705, 1709, 1713, 1723, 1730,
1735, 1976,
1985,
1994, 2005a C.C.]
Orders to sell or to buy shares negotiated on the New York stock exchange, given to a Canadian broker who has no seat on that taken have been given upon the assumption that the Canadian broker would deal with those shares through New York brokers; and it is an implied condition of the orders that the transactions will be of the New York Stock Exchange.-The endorsement in blank by the customer of
STOCK BROKER-Continued the certificates of stock is sufficient to confer to the stock broker an apparent authorization to make use of the certificates for all purposes
1730).- A customer who, upon giving such orders to a Canadian broker, delivered to the latter his certificates of stock endorsed in blank, has no right to revendicate them from the trustee in bankruptcy, after the Canadian broker became bankrupt, unless the certificates can still be identified in the hands of the trustee; and then, only upon paying the trustee all sums due and disbursed on behalf of the customer.- More particularly has the customer no right to revendicate the certificates when it is shown that they were merged in a credit and debit account between the Canadian broker and the New York stock brokers, in which all transactions on behalf of the Canadian broker's customers were dealt with in the sole name of the Canadian broker.-Under those circumstances, the customer's stock became security for the whole of the New York brokers' account; and, upon that account being liquidated, if there should remain a surplus standing to the credit of the bankrupt Canadian broker, no individual customer may claim, out of this surplus, an amount alleged to represent his stock; but such surplus must be distributed between the customers of the Canadian broker pro rata and according to bankruptcy rules.-In Quebec, there exists no right to follow (droit de suivre) the proceeds of the sale of a thing, except under art. 2005a C.C., which deals with a special case.
LEFAIVRE......................... 2-Delivery of shares to broker to sell at certain price - Agreement to return same certificate-Right of customer-Custom and usage-Tender by broker of another certificate-Converston.] The respondent, a customer of a broker, delivered to the latter a certificate for 500 shares of a mining company registered in his name with instructions to sell the shares at not less than a certain price and, if not so sold, to return to him the same certificate.
The broker, having received from another customer 1,000 shares of the same company represented by two certificates of 500 shares each, sold 1,000 shares for the account of the latter and, in making delivery, used one of the certificates belonging to him and the certificate belonging to the respondent. When the respondent demanded his certificate the broker tendered him another certificate of the same company for the same number of shares in accordance with the custom of the stock exchanges.
The respondent refused to accept it and sued for conversion.- Held, affirming the judgment of the Court of [SC. STOCK BROKER-Concluded
Appeal (43 B.C. Rep. 265), that the respondent was entitled to judgment;
custom and usage of the stock brokerage business cannot override the obligations of an actual contract between the parties contrary to that custom and usage.
MAcINNEs........................
3-Sale of customer's shares after order to sell cancelled-Action for damages- &
SUNDERLAND......................
STOCK EXCHANGE
STREET RAILWAYS - Plaintiff struck by automobile which had collided with street car-Jury finding
Evidence to support jury's finding.
A- ELECTRIC Ry. Co. 139
SUPERIOR
COURT
(QUEBEC)functions of, on application for writ of prohibition under art. 1003, C.C.P....
TAXATION
TERRITORIAL WATERS OF
CANADA
TESTATOR'S FAMILY MAINTEN- ANCE ACT (B.C.)-Will-Whole estate bequeathed to widow-Petition by marrzed daughter-Interpretation of Act-R.S.B.C.
1294, c. 256, s. 3.]
Under the Testator's
Family Maintenance Act (R.S.B.C. 1924, c. 256), the provision, which the court is authorized to make in the circumstances stated in section 3, is "such provision as the court thinks adequate, just and equitable."
The conditions upon which this authority rests are that the person whose estate is in question has died leaving a will, and has not made, by that will, in the opinion of the judge, adequate provision for the "proper maintenance and support" of the wife, husband or children, as the case may be, on whose behalf the application is made. What constitutes
"proper maintenance and support" is a question to be determined with reference to a variety of circumstances. It cannot be limited to the bare necessities of existence.
For the purpose of arriving at a conclusion, the court, on whom devolves tha isponsibility of giving effedt. to the
TESTATOR'S FAMILY MAINTEN- ANCE ACT (B.C.)-Concluded statute, would naturally proceed from the point of view of the judicious father of a family seeking to discharge both his marital and his parental duty; and would of course (looking at the matter from that point of view) consider the situation of the child, wife or husband, and the standard, of living to which, having regard to this and the other circumstances, reference ought to be had. If the court comes to the decision that adequate provision has not been made, then the court must consider what provision would be not only adequate, but just and equitable also; and in exercising its judgment upon this, the pecuniary magnitude of the estate, and the situation of others having claims upon the testator, must be taken into account.
Applying these principles to the circumstances of this case, where the only daughter of the deceased brought an application under the Act for an order directed against his second wife, sole beneficiary under the will, held that the trial judge was right in deciding that the widow should be called upon to forego part of her annual income in order to make some provision for the applicant.
Rinfret J. (dissenting)
.-Per Rinfret J. (dissenting).-Although the Testators' Family Maintenance Act leaves to "the judge before whom the application is made" a wide discretion to pronounce both upon the adequacy of the provision for "proper maintenance and support" already existing at the time of the application and upon the "adequate, just and equitable order" which ought to be made under the circumstances, such discretion, although- perhaps elastic, must be exercised judicially and according to legal rules.
The "opinion of the judge before whom the application is made" is not in every respect to be held final and conclusive.
There are cases when a court of appeal may and should intervene.
Failure on the part of the judge of first instance to take the proper view of the scope and application of the Act would be one of those cases.-Upon the circumstances of this case, the appellant has failed to make out a case for the application of the Act, the purview or intent of which is that the husband, the wife or the children should not be left without "proper maintenance and support," while the testator disposes of an estate sufficient to provide for it.-Judgment of the Court of Appeal (42 B.C. Rep. 184) rev.
McDERMoTr ............ TORT-Liability of individual in his individual capacity for tort committed in his corporate capacity.................. TRADE NAME-Action first user in territory to restrain use by business competitor in that territory-Extensive prior use in similar business by another in other territories-Equitable principles.] The action was to restrain defendants from using a certain trade name in connection with motor passenger transportation business in Alberta; the plaintiff claiming, as first user in the territory, an exclusive right to the name in that business in that territory.-Held (Cannon J. dissenting), that the judgment of the Appellate
Division, Alta.,
24 Alta. L.R. 486, which (by a majority, reversing judgment of Ives J.) dismissed the action, should be affirmed, on the ground that, in view of the existing prior extensive use of the name by a certain company and its affiliated corporations in the tourist transportation business in other territories, the use by plaintiff of that name in a like business was not proper, being a use that would mislead the tourist public, and therefore plaintiff had not shown a right to the use entitling it to claim the protection of a court of equity (McAndrew v.
Bassett, 4 De G. J. & 8. 380, at 384; In re
Heaton's Trade-Mark, 27 Ch. D. 570).
TREATY OF PEACE (GERMANY)
ORDER, 1920 (Can.)
TRESPASS
- Highways - Alleged existence of public right of way-Sufficiency of evidence to justify finding of dedication- Inference from circumstances-Admissibility in evidence of ancient book ......
TRUST DEED
TRUSTS AND TRUSTEES - Disposition of mining claims held in trust for sale-Trustee acting upon decision of majority of interests-Objection by minority interests-Conditions of trust agreement.
.....
4;
UNLAWFUL ASSEMBLY
USAGE
VOLENTI NON FIT INJURIA
WAR LEGISLATION
WHARFAGE CHARGES
WILL - Probate - Prima facie evidence -Authentic deed-Validity-Presumption juris tantum-Onus probandi-Action in contestation-Prescription-Arts. 857, 858, 1222, 1223, 2251, 2268 C.C.]
The judgment ordering the probate of a holograph will constitutes prima facie evidence of the validity of the will. If the heirs or legal representatives against whom it is set up do not "declare under oath that they do not know" the writing or signature of the testator, the will must be presumed to be acknowledged. Such a presumption is juris tantum and the burden of proving that the writing or the signature was forged is then upon the party repudiating the will.-Dugas v. Amiot ([1929] S.C.R. 600) discussed: in that case, probate was granted upon an affidavit which was held to be irregular. VALIUE............... 2 - Vesting - Power to divide and apportion-Capacity of survivor of donees of power to execute it-Equal division among beneficiaries.] The testatrix' will gave all her estate "in the manner following," and then directed that the estate be held in trust by her executors, that her son John be maintained from it so long as he lived and whatever portion was not used for him was, at his death, "to be divided among my remaining sons and daughter as follows," and then directed that, after her sons Thomas and William each received $1,000, the entire balance of the estate was to be divided among the remaining two sons Martin and George and her daughter Mary "as in the judgment of my son Thomas and my daughter Mary deem wise, fit and proper to divide and apportion the estate." One H., Thomas and Mary were appointed executors.
The testatrix died in 1923, Martin in 1926, Mary in 1928, and John in 1929.-Held: (1) Upon the testatrix' death, Martin, George and Mary took vested interests (subject to the prior gifts and to the power of apportionment) in whatever portion of the estate was not used for John.
The gift to them in remainder vested at once on the testatrix' death, although the division was postponed until John's death.-(2) The power to Thomas and Mary to divide and apportion was a discretion only, which might or might not be exercised; the children took under the will, even if the power was not executed; they took through the executors who, under the will, held as trustees for them and not through the named donees of the power; the gift was not subordinate to the exercise of the power; the power was not in the nature of a trust; it was a bare power given to two persons by name (and not annexed to the office of executorship), a WILL-Concluded
"joint confidence," and so could not be executed by the survivor (Farwell on
Powers, 3rd ed., p. 514, referred to);
therefore Thomas, the surviving donee of the power, could not exercise it.
S. 25 of The Trustee Act R.S.O., 1927, c. 150, did not apply.-(3) The result was that, on John's death, and after payment of the legacies to Thomas and William, the residue of the estate belonged to George, the estate of Martin, and the estate of
Mary, in equal shares.
ROACH..................
3-Validity - Testator's knowledge and approval of contents-Costs. LIDSTONE V.
MCWILLIAMS.....................
WORDS AND PHRASES-"Accumulating in trust for the benefit of unascertained persons, or of persons with contingent interests" (Income War Tax Act, 1917,
Dom., c. 28, 3 (6), as enacted 1920, c. 49, 4).......................
2-Actual amount in controversy"
(Exchequer Court Act, R.S.C., 1927, c. 34,
8. 82)............................
3-"Asserting an interest in a mineral claim which has been located and recorded by another free miner" (Mineral Act,
R.S.B.C., 1924, c. 167, s. 19 .........
4-"At the time of the accident" (Workmen's Compensation Act, R.S.Q., 1925, c.
274,8. 4).........................
5--"Attorney-General"
(where used without qualification in a code or statute of Quebec)........................
6- "Aveu" by allegation in petition 636
7-"Cede and transfer" (Special Corporate Powers Act, R.S.Q., 1925, c. 227, s.13)..........................
8-"Cde, transporte et donne en gage"
(in trust deed)....................
9- "Company and its property," the
(exemption from taxation of; N.B., 1926, c. 45 s. 23 (1))....................
WORDS AND PHRASES-Continued "Distribute" (Opium and Narcotic Drugs Act, R.S.C. 1927, c. 144, s. 4 (f) 482 11-"Final judgment" (Supreme Court Act, R.S.C., 1927, c. 35, as. 2 (e), 36 (a)............................... 12-"Foreign corporations or persons duly authorized to appear in judicial proceedings under any foreign law" (Art. 79, C.C.P .)........................... 13-"Income" (Income War Tax Acts 1917 [Dom.] as amended) ......... 399 14- "Income accumulating in trust for the benefit of unascertained persons, or of persons with contingent interests" (Income War Tax Act, 1917, Dom, c. 28 s. 3 (6), as enacted 1920, c. 49, s. 4) .S........ 485 15-"Inexcusable fault"
(Workmen's Compensation Act, R.S.Q., 1925, c. 274, 16-"Judgment directing a new trial" (Supreme Court Act, R.S.C., 1927, c. 35, s. 36 (b)).................. 17- "Managemenf" of ship, fault in (Harter Act, U.S.A., 1893).......... 18- "Means or contrivances for betting" (Cr. Code, s. 986(2)) .............. 19-"
Nantir" (Joint Stock Companies Act, Quebec)...................... 20-"
Nantissement" (Joint Stock Companies Act, Quebec)............... 21-"No person, corporation or firm shall do business *
*
* as * * * canvasser" without licence (City by-law) ........ 22-"
Not continuous" (Workmen's Compensation Act, R.S.Q. 1925, c. 274).. 23-Order "made with the consent of parties" (Judicature Act, Ont., R.S.O., 1927, c. 88, s. 23).................. 24--"Person"................ 321 WORDS AND PHRASES-Concluded
25- "Principal support" (Workmen's
Compensation Act, R.S.Q., 1925, c. 274)
...
.. ...
26- "Proper maintenance and support"
(Testator's Family Maintenance Act, R.S.
B.C., 1924, c. 256).................
27-"Propery" (N.B.,
1926, c. 45, s. 23(1)).........................
28-"Question of law" (Cr. Code, s. 1023)
...............
416, 421
29-"Stress of weather" (Customs Act,
R.S.C., 1927, c. 42, s. 183)......374, 387
30- "Stress of weather or other unavoidable cause" (Customs Act, R.S.C., 1927, c. 42, s. 183)...................374,
31-"Territorial waters of Canada"
(Customs Act, R.S.C., 1927, c. 42, as amended 1928, c. 16), s. 151(7).....
32-"
Unavoidable cause" (Customs Act,
R.S.C., 1927, c. 42, s. 183) .....
374, 387
Undertaking, property rights and privileges" (in franchise contract-arbitration as to valuation on taking over electric light plant) ................
Use" by manufacturer or producer (Special War Revenue Act, R.S.C.,
1927, c. 179, s. 87(d) ) ............
35--" Use and occupancy insurance"
policy.......................
-" Yearly wages" (Workmen's Compensation Act, R.S.Q., 1925, c. 274,s. 4)
WORKMEN'S COMPENSATION- Workmen's Compensation Act-Accident- Indemnity-Ascendant-Principal support
Workmen's Compensation Act
(R.S.Q.,
1925, c. 274, s. 4), the courts are not bound to take into amount any fixd
WORKMEN'S COMPENSATIONperiod of time. The Act itself specifies the period to be considered "at the time of the accident". These words do not imply that a purely accidental or temporary situation of the victim, at that time, should alone be considered.
While the courts should take into account an apparent character of permanency in the employment of the victim, on the other hand an arbitrary and artificial rule should not be adopted in determining indemnity claimed under the Act, such as a period of twelve months before the accident.
Every case should be determined according to its peculiar circumstances; the courts must weigh them, ana with regard to same the law does not prescribe any speciai period of time.- Under the Workmen's Compensation Act (R.S.Q., 1925, c. 274, s. 4), "when the accident causes death, the compensation shall consist of a sum equal to four times the average yearly wages of the deceased at the time of the accident."
The phrase "yearly wages" in this section has the same meaning as "the wages upon which the rent is based" in section 9. In the case of a workman not "engaged in the business during the twelve months next before the accident," whose kind of work was necessarily limited to the summer time, and where therefore there were no workmen of the same class engaged during the time necessary to complete the twelve months, the work of the deceased must be held to have been "not continuous"; and his yearly wages shall be calculated both according to the remuneration received while he worked for the employer and according to his earnings elsewhere during rest of tle year.
PULP G LANGEVIN........... 2-Workmen's Compensation Act-Inexcusable fault-Ordinary meaning-Liability of master and employer-Work with risk of injury-Duty of the employer-Art. 1054, C.C. - Workmen's Compensation, R.S.Q., 1925, c. 274, s. 6.] When a workman is employed at work which subjects him to risk of injury, it is the imperative duty of the employer to impart instruction to him as to the proper preventive measures to be taken, and as to the best means of seeking medical aid immediately after the accident.
The failure of the employer to do so is a fault, and a fault without excuse.-In the statutory phrase "inexcusable fault" contained in section 6 of the Quebec Workmen's Compensation Act, the word "inexcusable" is not a juridical term of art or a word to which attach.
its common usage, in light, of course, of the context in which it Yedurs, and of the subject matter of the statute. It is no part of the function of the courts to restrict or fix its meaning by paraphrases derived from text writers or other sources.
"Each case must be judged from its own facts." Montreal Tramways Co. v. Savignac
([1920] A.C. 408).-The general rule as to the employer's responsibility, laid down by article 1054 C.C., governs the applica- WORKMEN'S COMPENSATIONtion of section 6: the "inexcusable fault" of a servant or workman, "in the performance of the work in which he is employed," within the meaning of article 1054, is imputable to the employer.
Tramways Co. v. Savignac ([1920 A.C. 408) foll.
v. MoiN......................
Cases cited
- A.C. 82 A.C. 82
- O.R. 222 O.R. 222
- Hadida v. Fordham Hadida v. Fordham, supra
- Disconto Disconto case, supra
- Liquidators of the MaritimeBank of Canada v. Receiver- General of New Brunswick A.C. 437 441-3
- Att.-Gen. for Alberta v. Att. -Gen. for Canada A.C. 475 484-6
- Ont. Mining Co. v. Seybold A.C. 73 79
- A.C. 479 A.C. 479
- Folkestone Corporation v. Brockman A.C. 338 368
- Rodrigue v. Dostie scr-1927-563
- A.C. 992 A.C. 992
- Dominion Natural Gas Co. v. Collins A.C. 640
- A.C. 871 A.C. 871 880
- Dugas v. Amiot scr-1929-600
- A.C. 408 A.C. 408
Statutes and regulations cited
-
- ss. 174
- s. 413
- s. 174
- ss. 146
- 207
- ss. 196
- 199
- ss. 226
- 229
- 986
- s. 27
- s. 853
- s. 986
- s. 229
- s. 461
- s. 889(2)
- s. 898
- section 740
- ss. 471
- 472
- 624
- 625
- 740
- 215
- section 472
- section 471
- s. 390
- s. 309
- s. 358
- s. 325
- s. 199
- s. 196
- s. 740
- s. 282
- s. 183
- s. 10
- 163(5)
- s. 25
- ss. 10
- 12
- 13
- 9
- 199(2)
- 137(1)
- ss. 101
- 102
- 103
- ss. 66(1)
- 40
- section 9
-
- s. 41
- Section 57
- s. 1014
- ss. 21
- s. 36
- s. 986(2)
- s. 23(1)
-
- section 132
- s. 183
- s. 30
- s. 151(7)
- s. 87(d)
-
Unresolved citations
- s. 82
- s. 23 of the Ontario Judicature Act
- s. 174 of the Bankruptcy Act
- ss. (1)
- s. 13 of the Special Corporate Powers Act
- art. 6119b)
- section 3 of the Produce Marketing Act
- s. 10 of the Customs and Fisheries Protection Act
- sections 101
- 102
- 103 of The Land Titles Act
- Sections 101
- 103 of the Alberta Land Titles Act
- Section 740 of the Municipal Act
- section 740 of the Municipal Act
- section 282 of the Railway Act, 1906
- s. 325 of the Railway Act
- section 6 of the Quebec Workmen's Compensation Act