Majority
should be declared invalid and void.
.E
It thus becomes unnecessary to consider the complaint about infringement. The appeal should be allowed and the action should be dismissed, with costs both here and in the Cut
Judgment of the Court
J.-On the 25th day of September, 1925, the appellant, G. E. Duke, entered into a contract with Josephine Promis, Augusta Col, Sophia, Sophia Promis, Mary Gillespie and Oscar Promis for the purchase of certain real estate in the city of Victoria, in the province of British Columbia.
Duxa The contract reads:
Then follows the particular description, the price, $55,000 payable $10,000 cash and a note for $45,000 to be secured by a mortgage on certain property in the city of Berkeley, in California,
There is then the following provision:
All the parties to the contract were, at the time, residents of California, and the survivors and executors of the two vendors, who died shortly after the date of the contract, have continued to be residents of that state.
This contract or another conveyance was placed in the hands of the Alameda County Title Insurance Company, it is claimed in escrow, which company handed over the contract or the other conveyance to the defendant George E. Duke, who registered same and thus became the registered owner of the Victoria property, which he conveyed to his wife, the defendant Margaret E. Duke, who mortgaged it for $30,000.
The vendors brought action in the Superior Court of the state of California in and for the county of Alameda, against the defendants, to rescind and cancel the contract and the mortgage, and to require the defendants to re-convey to the plaintiffs the Victoria property, alleging that George E. Duke obtained possession of the conveyance without the knowledge of the plaintiffs and without complying with the terms of the agreement, and in violation of the escrow agreement, " in this," that he delivered the mortgage stipulated for subject to an encumbrance of $9,605 in addition to the encumbrance of $22,150 mentioned in the agreement. The defence to the complaint about the $9,605 encumbrance, stated shortly, was that the vendors falsely represented to defendant G. E. Duke that the Victoria property was then producing net earnings of $6,775 per year, and that the then tenants were ready and anxious to obtain new leases on the same terms as the existing leases, whereas in fact the net earnings were not greater than $3,903 per year, and the then tenants were unwilling to renew their leases on the same terms, but were preparing to quit unless ext J tensive repairs were made, and that, to retain them, repairs costing $11,525 had to be made, which sum defendant G. E. Duke claimed as damages for false representations inducing him to make the contract, and which he was entitled to set off against the $9,605 encumbrance.
The defence further alleged that the Alameda County Title Insurance Company was authorized by the plaintiff to cause the deed to be recorded, vesting the title to the Victoria property in defendant G.
I take it that this means that such is the proper construction to be put on the terms of the contract.
The learned trial judge in the California court found that defendant G. E. Duke agreed to deliver the $45,000 mortgage free and clear of the $9,605 encumbrance before taking title to the Victoria property, and that there were no false representations, and no set off, as alleged.
He also finds that the defendant G. E. Duke got possession of the deed without paying the $10,000, though there is no such claim in the plaintiff's pleadings, the only noncompliance with the terms of the agreement alleged being that referred to above.
The judgment entered in the Superior Court of California, omitting the style of cause, is as follows:
All and singular these certain parcels or tracts of land and premises situate, lying and being
Lots Three and Four, Block Seventy-five, Victoria City, recorded in DUKE Absolute Fees Book Fol. 22, Vol. 22, (Date of Registration May 10, 1904, 10 a.m.).
Lots Eleven and Twelve Block Seventy-five (75) Map 219, Victoria City; recorded in Absolute Fees Book Fol. 30, Vol. 23. (Date of Registration, February 21, 1906, 10 a.m.).
Together with all improvements thereon.
It is further ORDERED AND ADJUDGED that in the event of the failure or refusal of G. E. Duke and/or Margaret E. Duke, defendants herein, to so convey said "Victoria Property" within said time, George E. Gross, Clerk of this Court, be, and he is hereby, appointed as Commissioner of this Court; and said George E. Gross, as such Commissioner, is hereby ordered and empowered to make, execute and deliver such deed, and cause the same to be so recorded and registered, and to do and perform any and all other acts as may be necessary or proper, to effect and perfect a conveyance of said " Victoria Property " to the plaintiffs herein named, as and for said G. E. Duke and Margaret E. Duke, defendants herein, as their act and deed.
It is further ORDERED, ADJUDGED AND DECREED that that certain instrument in writing designated as " contract of sale " dated the 25th day of September, 1925, and attached to Plaintiffs' complaint herein as Exhibit " A," wherein and whereby Josephine Promis, Augusta Col, Sophia Promis, Mary Gillespie and Oscar Promis, agreed to grant, transfer, sell and convey to G. E. Duke, one of the defendants herein, the said " Victoria Property " for certain considerations therein mentioned, be, and the same is hereby, cancelled and rendered null and void and of no effect whatsoever.
It is further ORDERED, ADJUDGED and DECREED, that the plaintiffs herein named do have and recover of and from the defendants G.
(Sgd.)
J. Judge. The defendants refused to execute a conveyance, as ordered by this judgment, and a conveyance was executed in their name by George E. Gross, County Clerk and Commissioner of the Superior Court, pursuant to the terms of the judgment.
The plaintiffs then brought the present action in the Supreme Court of British Columbia for a declaration that, by virtue of the conveyance referred to, or, alternatively, by virtue of the conveyance and of the judgment referred to, and in the further alternative by virtue of the judgment alone, the plaintiffs are the owners of and entitled to be registered as owners in fee simple of the Victoria property in question, subject to the mortgage of $30,000 and interest, mentioned above.
There is the further claim that the court, in the exercise of its jurisdiction to implement the judgment of the A .
Superior Court of the State of California, do vest the property in the plaintiffs.
Judgment was given, declaring that, by virtue of the judgment of the Superior Court of California and of the conveyance made in pursuance of it, the plaintiffs are the owners of the property in Victoria subject to the $30,000 mortgage and a certain registered lease, and that the property vest in the plaintiffs, subject to these charges.
On appeal, the Court of Appeal of British Columbia, by a majority of three to one, varied this judgment by striking out the first adjudicating paragraph and substituting a paragraph in different language, vesting the property in the plaintiffs.
Mr. Justice McPhillips, dissenting, would have allowed the appeal and dismissed the action.
From this judgment of the majority, the present appeal is taken.
The question involved is whether or not the judgment of the foreign court on the question of title and ownership of this real property situate in British Columbia is to be recognized as final and to be enforced by the courts of British Columbia.
The general rule that the courts of any country have no jurisdiction to adjudicate on the right and title to lands not situate in such country is not disputed.
Considering the operation of foreign law in regard to real and immovable property, Story's Conflict of Laws (8th ed.), p. 591, says:
Then, at page 757, paragraph 543, dealing with the jurisdiction of a nation over a person in its domain, there is the following:
Dicey's Conflict of Laws (4th ed.), p. 393, citing Story and Piggott (3rd ed.), has the following:
Duxn The courts of a foreign country have no jurisdiction-(1) to adjudicate upon the title, or the right to the possession, of any immovable not situate in such country; or (2) (semble) to give any redress for any injury in respect of any immovable not situate in such country.
The undoubted rule, in short, is that, if a court pronounce a judgment affecting land out of the jurisdiction, the courts of the country where it is situated-and, it is presumed, also the courts of any other country-are justified in refusing to be bound by it, or to recognize it; and this even if the judgment proceed on the lex loci rei sitae.
This rule is merely an application of a more general principle that no court ought to give a judgment the enforcement whereof lies beyond the court's power, and especially if it would bring the court into conflict with the admitted authority of a foreign sovereign, or what is the same thing, the jurisdiction of a foreign court.
There is, however, a long line of cases in which it has been held that English courts will enforce rights affecting real estate in foreign countries if such rights are based on contract, fraud or trust, and the defendant resides in England. An early case of this kind is Penn. v. Lord Baltimore (1), where an agreement in reference to lands in Pennsylvania made in England was sought to be enforced, the residence of the parties being in England. It was held that there was jurisdiction. The Lord Chancellor says, p. 447: The conscience of the party was bound by this agreement, and, being within the jurisdiction of this Court, which acts in personam, the court may properly decree it as an agreement, if a foundation for it. See also Deschamps v. Miller (2).
In numerous decisions, however, besides Penn. v. Lord Baltimore (1), it has been pointed out that, in exercising jurisdiction in such cases, the courts act in personam. In the case of Lord Cranstown v. Johnston (3), defendant, being a creditor of the plaintiff, obtained judgment in the Island of St. Christopher, and at the sale under the execution, of which the plaintiff had no notice, purchased the plaintiff's interest in lands of plaintiff there at much less than the value. Both parties residing in England, it was held there was jurisdiction, and the defendant was ordered to reconvey on payment of the amount owing. In Norton v. Florence (4), Jessels, M.R., states that the decision in Lord Cranstown v. Johnston (3) must be understood as limited to jurisdiction in personam.
(1) (1750) 1 Ves. Sr. 443.
(3) (1796) 3 Ves. Jun. 170. (2) [1908] 1 Ch. 856, at 863.
(4) (1877) 7 Ch. Div. 332. InPaget v. Ede (1), it was held than an equity of redemp- DuKE tion is not an estate but merely a right, and that a decree ANDLIR.
of foreclosure, being a decree in personam, could be made in England as the mortgagor and mortgagee resided in Smith
England, though-the lands were not in England.
In Re Pollard, Ex. P. In re Thomas Courtney and George Courtney (2), there is the following passage in the judg- It is true that in this country contracts for sale or (whether expressed or implied) for charging lands, are in certain cases made by the courts of equity to operate in rem; but in contracts respecting lands in countries not within the jurisdiction of these courts, they can only be enforced by proceedings in personam, which courts of equity are constantly in the habit of doing, not thereby in any respect interfering with the lex loci rei sitae.
In Angus v. Angus (3):
To a bill brought for possession of lands in Scotland and for discovery of the rents and profits and of deeds and fraud in obtaining them, it was pleaded that the matter was out of the jurisdiction.
The Lord Chancellor says:
" This court acts upon the person as to the fraud and discovery, therefore the plea must be over-ruled. To have made this a good plea, there ought to have been a further averment, that the defendant was resident in Scotland. This had been a good bill as to fraud and discovery if the land had been in France, if the persons were resident here, for the jurisdiction of the court as to fraud is upon the conscience of the party. " I am in doubt as to parts of the bill for relief; for I cannot give the plaintiff possession any other way than by compulsion on the defendant's person whilst it is within the jurisdiction of the court."
In British South Africa Company v. Companhia de Mogambique (4), it was held by the Queen's Bench Division that the courts in England had no jurisdiction to entertain an action for a declaration of title to lands in South Africa; and by the House of Lords, no jurisdiction to entertain an action for damages in such lands. Lord Herschell, p. 624, says:
No nation can execute its judgments, whether against persons or movables or real property in the country of another. On the other hand, if the courts of a country were to claim, as against a person resident there, jurisdiction to adjudicate upon the title to land in a foreign country, and to enforce its adjudication in personam, it is by no means certain that any rule of international law would be violated
*
* And, at p. 626:
Whilst courts of equity have never claimed to act directly upon land situate abroad, they have purported to act upon the conscience of persons living here.
(1) (1874) L.R. 18 Eq. 118.
(2) (1840) 1 Mont. & C. 239.
West T. Hard. (4) [1893] A.C. 602.
Lord Halsbury, at p. 631, says:
There is a concurrence of opinion of most jurists, if not all, as to the DUK difference between what we call realty and personalty, by whatever words those things are distinguished in the jurisprudence of foreign countries, which affects very materially the right to try. Vattel distinguishes the questions which may properly be tried when defendant has his settled S place of abode, but always subject to this, that, if the matter relates to an estate in land or to a right annexed to such an estate (quoting Vattel) " in such a case, inasmuch as property of the kind is to be held according to the laws of the country where it is situated, and as the right of granting it is vested in the ruler of the country, controversies relating to such property can only be decided in the state in which it depends."
In Henderson v. Bank of Hamilton (1), in this court it is pointed out that courts of equity held that where personal equities existed between parties over whom they had jurisdiction, though such equities might have reference to lands situate without the jurisdiction, they would give relief by a decree operating not directly upon the lands, but strictly in personam, and that such decrees would have been unenforceable in the foreign jurisdiction, and might have brought the courts decreeing them into collision with the former, within whose local jurisdiction the lands were situated. British South Africa Co. v. Companhia de Mogambique, just referred to (2), is cited and relied on.
The title to real property therefore must be determined by the standard of the laws relating to it of the country where it is situated. The grounds upon which, and the circumstances under which a conveyance would be set aside under the law of California may differ from those under which it would be set aside under the law of British Columbia. The conveyance from appellant G. E. Duke to his wife, the appellant Margaret E. Duke, could only be set aside in British Columbia by virtue of the statute law of that province, and the courts of one country are not presumed to know the laws of another country.
In Norris v. Chambres (3), a claim was made for a lien on real property in Prussia. After stating a certain manner in which a lien on land may be acquired in England, the decision proceeds:
Assuming this to be so, this is purely a lex loci which attaches to persons resident in England and dealing in land in England. If this be not the law of Prussia, I cannot make it so, because two out of three parties dealing with the estate are Englishmen, and I have no evidence before me that this is the Prussian law on this subject, and, if it be so, the Prussian courts of justice are the proper tribunals to enforce these rights. (1) (1894) 23 S.C.R. 716.
(2) [1893] A.C. 602.
(3) (1860) 29 Beav. 246.
An adjudication as to title to the lands in question, to have any effect in British Columbia, must be an adjudica- .tion on the basis of British Columbia law relating to real J.property applied to the facts.
t J
The objection to accepting the judgment of a foreign court as conclusive on a question of title to land is shewn by what is laid down by Lord Cottingham, L.C., in Ex Parte Pollard, cited above (1), in the following language: The courts of California therefore must be assumed to have based their judgments on California law, without being influenced by any consideration of the effect on the title, of the contract and of equities arising from it and what followed, according to the law of British Columbia, and without any regard to the statute law of British Columbia bearing on the conveyance from George E. Duke to his wife. It may be that on the facts as found, the courts of British Columbia, in applying the laws of British Columbia, would reach the same conclusion as the California courts, but it is to be remembered that findings of fact may in some cases be based on the particular law to be applied to them. For instance, a finding of fraud depends on what constitutes fraud under the particular law to be applied.
In any event, we must deal with the question as a general proposition, and not merely from the point of view of the facts in this particular case.
The question at issue here has come before the Supreme Court of the United States in a number of cases, but it is to be noted that there is a special clause in the constitution of the United States dealing with the credit to be given by the courts of one state to the judgments of the courts of another. It appears, however, that this clause does not make judgments of the courts of one state dealing with lands in another binding on the courts of the latter. In Carpenter v. Strange (1), the Court of New York State, where the parties resided, decreed that a conveyance of land in Tennessee alleged to be fraudulent was absolutely null and void. The courts of Tennessee refused to recognize this part of the judgment, and were upheld by the Supreme Court. The following is a passage from the judg- Again, in Fall v. Eastin (2), in the judgment of the same court there is the following passage:
Respondents put much reliance on the case of Houlditch v. Donnegal (3).
Upon a bill in chancery in England by creditors a decree was made to execute the trusts of a deed by which lands in Ireland were vested in trustees for payment of debts. A receiver was appointed and an injunction granted, and a bill was filed in the Court of Chancery in Ireland to carry the former decree into execution. The Irish court held that it had no jurisdiction. It was held, reversing this judgment, that there was jurisdiction. The basis of this decision was that a foreign judgment is only prima facie evidence, and the propriety of the English decree might be enquired into in the Irish court.
This doctrine, that a foreign judgment is only prima facie evidence, is now considered erroneous. Dicey's Conflict of Laws, 4th ed., 449, and cases there cited.
Mr. Justice Martin places reliance on the cases of Law v. Hansen (4); Nouvion v. Freeman (5), and, in the House of Lords (6); and a number of others of similar import. The remarks that he quotes from these decisions are the enunciation of the general rule that the judgment of a foreign court of competent jurisdiction having the force of res judicata in the foreign country has the like force in England.
The question here is whether or not the judgment of the foreign court in question, adjudicating on the right and title t real property in British Columbia, is one of the exceptions to this general rule.
J
The numerous decisions referred to above seem to establish beyond question that such a judgment is in personam only, and affects the conscience of the parties within the jurisdiction of the court, and stands on an entirely different footing in the courts of the country where the land is situated from the ordinary judgment coming within the general rule, such as a foreign judgment for debt. In the present case the plaintiffs sue in British Columbia to enforce a judgment of the California courts deciding that the plaintiffs are the owners of the British Columbia land in question, rather than the defendants, one of whom is the registered owner. In California, it must be conceded that that judgment has effect only in personam, but if the courts of British Columbia were obliged to enforce it between the same parties, without question, there would be no practical difference, in effect, between such a judgment and a judgment for a debt, and the distinction so much insisted on in the authorities referred to would be of no real consequence.
In my opinion the rule stated by Dicey quoted above, that the courts of a foreign country have no jurisdiction to adjudicate upon the title or the right to the possession of any immovable not situate in such country, and the statement in the authorities referred to, that controversies in reference to land can only be decided in the state in which it depends, and that judgments of foreign courts purporting to deal with the title and with rights to lands in another country can only be enforced by proceedings in personam, shew that the judgment of the court of California here in question does not, in British Columbia, affect the title to the lands in question, and is not a judgment that should be enforced by the courts of British Columbia as binding there on the parties.
The appeal should be allowed, and the action dismissed, with costs to defendants throughout.
Appeal allowed with costs. Solicitors for the appellants: Crease & Crease.
Solicitors for the respondents: Walsh, Bull, Housser, Tupper & Molson.
Mortgage-Loan on security of mortgage on land-Loan required to pay off prior mortgage-Lender paying proceeds of loan to solicitor for prior mortgagee- Authorization - Misappropriation by solicitor-Forged discharge of prior mortgage-Responsibility for loss-Validity of mortgage to secure the loan, as against the mortgagor and subsequent purchaser of the land.............................
ALIEN
Interlocutory judgment-Exception to the form- Finaljudgment-Supreme Court Act,R.S.C.,
1927, c. 35, as. 2
36. In an action brought by the plaintiffs as testamentary executors or trustees, a judgment dismissing a preliminary exception to the form, alleging that their appointment by judges of the Superior Court was void for want of jurisdiction, is not a "final judgment" within the meaning of sections 2
(e) and 36 of the Supreme Court Act.- Such a judgment is only provisional and has not determined, in whole or in part, any substantive right in controversy, as the decision is still open to revision by the final judgment of the trial court. Willson v. Shawinigan Carbide Company (37 Can.
S.C.R. 355) foll.-Distinction must be made between a judgment rendered upon a preliminary exception to the form and a judgment maintaining demurrers, in whole or in part: if the demurrer be to the whole action and if it be maintained, the action is dismissed and cadit questio; in all other cases, the allegations struck out upon demurrer disappear from the record and no evidence whatever can be adduced in respect thereof at the trial; the trial judge is therefore powerless, and any attempt by him to remedy the situation by the final judgment would be ineffective and inoperative.
Therefore, a judgment on a demurrer, striking out material allegations of pleadings, is a "final judgment."
Dominion Textile Company v. Skaife
((1926] S.C.R. 310) disc.
DAvIs
2 - Action for damages taken from jury at trial and dismissed- New trial ordered by appellate court- Appeal by defendant to Supreme Court of
Canada-Whether any "amount in controversiy in the appeal"-Supreme Court Act, s. 39.]
At the trial of an action (in which plaintiffs claimed $20,000 damages) the judge, at close of plaintiffs' evidence, took the case from the jury and dismissed the
APPEAL-Continued action. On appeal by plaintiffs, the Appellate Division, Alta., ordered a new trial. Defendant appealed to this Court. Plaintiffs contended that, there having been no finding of any amount, there was no "amount in controversy in the appeal" (Supreme Court Act, s. 39) and this Court was without jurisdiction.- Held, that the objection to the jurisdiction was not well taken.-On the merits, defendant's appeal was dismissed.
V. .............
3 - Testamentary capacity Concurrent findings of two courts below on questions of fact.] The appeal was from the judgment of the Court of Appeal for Ontario, affirming judgment of Rose, C.J.H.C., declaring that certain purported testamentary dispositions constituted deceased's will. Appellant contended that no part of the last of the documents in question should be held to form part of the will, as it was not shewn that deceased, at the time of the making and execution of it, was of sufficient mental capacity or of a disposing mind, or understood or appreciated the document, or that it was the expression of his desires.- Held, that, as there was nothing to indicate that the trial judge misdirected himself, or that either he or the Court of Appeal failed to appreciate the facts, and as, in the courts below, there was nothing that could be described as a miscarriage of justice or a violation of any principles of law or procedure, this court should refuse to examine the evidence in order to interfere with the concurrent findings of the two courts below on what was a pure question of fact. (Robins v. National Trust Co., [1927] A.C. 515, at 517-518).-The principle laid down in Perera v. Perera, [1901] A.C. 354 at 361, as to extent of capacity required on executing a will prepared in accordance with instructions previously given, held applicable.
RoGERs v. . 407 4 - Appeal from judgment affirming dismissal of action for alimony-Appeal from judgment affirming the granting of decree nisi in action for divorce - "Final judgment" (Supreme Court Act, R.S.C., 1927, c. 35, s. 2 (b) ).- The appellant appealed from two judgments of the Court of Appeal for Ontario affirming, in each case, the judgment at trial granting a decree nisi against her in her husband's action for divorce, and dismissing her action for alimony.-Held: There was jurisdiction in this Court to entertain the appeal in the alimony action; but not the appeal in the divorce APPEAL-Continued action, as the decree nisi was not a "final judgment" within s. 2 (b) of the Supreme v. HARRIs .......
5 special leave from Appellate Division) from judgment of Appellate Division, Alta., rendered on stated case from magistrate re his order made under s. 26 of Domestic Relations
Act, Alta., 1927, c. 5, as amended 1928, c.
25-Juridiction of Supreme Court of
Canada to hear appeal-Jurisdiction of magistrate to make, and of Appellate
Division to hear, the stated case-Domestic
8. 9-Cr. Code, R.S.C., 1927, c. 36, as. 761,
765, 749-Supreme Court Act, R.S.C.,
1927, c. 35, s. 41.1
A police magistrate made an order against defendant, under s. 26 of the Domestic Relations Act, Alta.,
1927, c. 5, that his wife be no longer bound to cohabit with him and that the legal custody of their children, while under 16 years of age, be committed to her.
Defendant had taken objections to the magistrate's jurisdiction, and the magistrate, at defendant's request, granted a stated case (purporting to be made under s. 761, Cr. Code, and the
Alberta Rules of Court) to the Appellate
Division, Alta. That court declared that s. 26 of the Domestic Relations Act was ultra vires and set aside the magistrate's order. It granted to the Attorney- General for Alberta (intervener) special leave to appeal to this Court.
On the appeal coming on for hearing, this Court raised the question of its jurisdiction, and this was the only question argued.-Held:
This Court had no jurisdiction to hear the appeal.-Per Anglin C.J.C.: Assuming
(notwithstanding the provincial statutory provisions making applicable
Part XV of the Cr. Code) this is a civil case (if a criminal case, there would be no appeal to this Court), to which s. 761,
Cr. Code, applies, and assuming that the
Appellate Division had original jurisdiction to entertain the stated case (if it had not that jurisdiction, it had no jurisdiction to grant leave to appeal to this
Court under s. 41 of the Supreme Court
Act), any appeal from its decision is precluded by s. 765, Cr. Code, which declares an order made on a stated case to "be final and conclusive upon all parties."
As a special provision dealing with a particular subject matter, s. 765, Cr. Code, entirely excludes the jurisdiction which might otherwise have been vested by the general terms of s. 41 of the Supreme
Court Act in the Appellate Division to entertain an application for special leave to appeal to this Court (Generalia specialibus non derogant). Some doubt was expressed of the jurisdiction of the Appellate Division to entertain the stated case
APPEAL-Continued addressed to it; in this connection, the Magistrates and Justices Act, R.S.A., 1922, c. 78, s. 9 and the Domestic Relations Act, s. 30, and the effect of the amendments to as. 30 and 26 of the latter Act by c. 25 of 1928, were discussed.-Per Rinfret, Lamont and Smith JJ.: The magistrate had no jurisdiction to state a case for the Appellate Division, nor had that court jurisdiction pronounce upon it. Proceedings by way of stated case under s. 761, Cr. Code, constitute an appeal; and, being a form of appeal given by Part XV, Cr. Code, stand in exactly the same position as the appeal to the District Court given by s. 749, Cr. Code. S. 30 of the Domestic Relations Act (as amended in 1928, c. 25) makes appliccable the provisions of Part XV, Cr. Code, "save as is otherwise specially provided by this or any other Act"; and s. 26 (3) (as enacted in 1928, c. 25) of the Domestic Relations Act makes special provision for an appeal. The effect is, that any right of appeal which a party might otherwise have, under the provisions of Part XV, Cr. Code, is excluded, and the only right of appeal from the magistrate's order is that to the District Court provided by s. 26 (3) of the Act. There being no jurisdiction in the magistrate or the Appellate Division as above stated, this Court is likewise without jurisdiction to entertain the appeal. The result is that the magistrate's order, not having been appealed against, stands.- Per Cannon J.: S. 765, Cr. Code, applied to the proceedings adopted, and the court to which the case was transmitted was to give an order "final and conclusive upon all parties."
This would exclude an appeal, even by special leave, to this Court. TE
............
6 - Retrospective construction - Statute giving new right of appeal............... 7 - Leave to appeal - Section 1025 Cr. C.-Application should indicate judgments alleged to be in conflict- Rule 54 of this court-Conviction of an insolvent for not having kept books-Whether conflicting decisions were "in a like case" and from an "other court of appeal"- Section 417c Cr. C.-Section 193 Bankruptcy Act.....................
8 - Section 1025 Cr. C.-Appeal to the Supreme Court of Canada - Conflicting decisions - "Judgment of any other court of appeal"-Must be courts within Canada-Cr. C., s. 1012, 1025......................... See CRInINAL 3. APPEAL-Concluded
9 - Appeal from order directing new trial-"Exercise of judicial discretion" (Supreme Court Act, R.S.C.,
1927, c. 35, s. 38).-Promissory note- Consideration - Alleged agreement not to negotiate after maturity-Admissibility of evidence-Questions for jury .........
10 - Evidence-Finding of trial judge on conflicting evidence-Finding set aside by appellate court and restored by Supreme
Court of Canada--Ownership of carload of wheat.
V. HERMAN.......
- Action for rectification of description of land in deed-Conflicting evidence as to real agreement for division of lands-Judgment at trial for rectification reversed on appeal but restored by Supreme
Court of Canada. V.
ASSESSMENT
AND TAXATION - Direct or Indirect tax-B. N.A. Act, s. 92, head 2-Municipal tax, on contractors non residents of the province, computed on basis of percentage of contract price- Ultra vires.] The appellant City was by statute empowered "to pass by-laws imposing a tax on contractors resident outside this province doing business within"
City.
It passed a by-law enacting that all contractors non residents of the province who should engage in the business of a contractor for the performance of any work within the City, under a contract or agreement, should pay to the
City "on every such contract or agreement a direct tax," the tax to be a percentage of the contract price, graduated on a sliding scale according to the amount of the contract.
The City claimed from respondent payment of a tax, in accordance with the by-law, of a percentage on the amount of respondent's contract for the building of an hotel.-Held: The tax was "indirect taxation," and the said by-law imposing it was ultra vires.
(Judgment of the Supreme Court of
Prince Edward Island en banc, 3 M.P.R.
196, affirmed, on this ground.)-"Direct taxation," as defining the sphere of provincial legislation (B.N.A. Act, s. 92 head 2), discussed, and authorities referred to.-Having regard to the form of the tax as imposed, it is nothing else but
"the exaction of a percentage duty on services" and would ordinarily be regarded and should be classified as "indirect taxation" (City of Halifax v. Fairbanks'
Estate, [1928] A.C. 117, at 125).
Such a tax would invariably be an element in the fixing of the price of the contract and, in its normal and general tendency, must be reasonably assumed to pass to the owner, in the ordinary course of the transaction, as enhancement of the cost.
CrrY or v.
MAnrrnME LTD....................
See TAx.
AUTOMOBILE
BANKRUPTCY - Proposal of compromise-False statements in writing-Statements made prior to bankruptcy-Bankruptcy Act, R.S.C., 1927, c. 8s. 16 (2) and 191 (q. & r.)] Paragraphs q. and r. of section 191 of the Bankruptcy Act (referring to false statements in writing) apply to false statements which the debtor may have made after he had been adjudged bankrupt.
Therefore, refusal by the Bankruptcy Court to approve a proposal of compromise, on the ground that the debtor had knowingly made false statements to the respondent bank, but prior to his bankruptcy, was not justified under section 16 (2) of the Act.-Judgment of the Court of King's (Q.R. 52 K.B. 162) reversed.
ELECTRIc MONTREAL............... 2- Criminal law-Leave to appeal- Conviction of an insolvent for not having kept books..................... 3 - Fire insurance-Insurance obtained by liquidator on company's property- Sale of the property by liquidator-Payment to liquidator of purchase price and of unexpired portions of insurance premiums -No conveyance of property nor assignment of insurance policies-Destruction of property by fire-Right of liquidator to recover on policies on behalf of purchasers- Alberta Insurance Act, 1926, c. 31, statutory conditions (schedule B) 4 (a), See FIRE, 2. 4 - Conditional sales conditional sales agreements as against trustee in bankruptcy-Title and possession of the goods at times of agreements- Nature transactions-Whether compliance required with Bills of Sale Act, R.S. N.B., 1927, c. 151.................... BANKS AND BANKING-Petition of right - Succession duties - Bank shares- Owner domiciled in United States-Shares registered outside of Canada-Whether the words "elsewhere" in s. 42, ss. 5 of the Bank Act authorize share registry offices outside Canada-Bank Act, R.S.C., 1927, c. 12.]
The words "or elsewhere," in subsection 5 of section 42 of the Bank Act both under their ordinary meaning and in the light of prior legislation are adequate to provide for the establishment of places for registration and territory, in respect of shares owned by persons not resident in Canada.-Judgment of the Court of King's Bench (Q.R. 51 K.B. 321) aff.
BANKS AND BANKING-Concluded
2- Moneys handed by bank's customer to branch bank manager for investment at latter's discretion, and used by latter for his own purposes--Liability of bank- Authority of the branch manager-Scope of his employment-Scope of business of a bank-Bank Act, R.S.C., 1927, c. 12, s.
75 (1) (c) (d).]
R., a branch manager of defendant bank, suggested to plaintiff that some part of plaintiff's moneys on deposit with the bank should be invested, stating that an investment could be found which would return interest at
8 per cent. For the purpose of such an investment, plaintiff handed to R. two cheques, one payable to cash or bearer, and the other payable to self or bearer and endorsed by plaintiff.
R. used the money for his own purposes. Plaintiff sought to recover the amount from the bank.
This Court found on the evidence: that plaintiff believed, and R.
intended him to believe, that R., in making the proposal, was acting as agent of the bank; that plaintiff believed he was placing his money at the disposal of the bank, and R. was fully aware of this; that unrestricted discretion was committed by plaintiff to R. as to the nature of the investment.-Held: The bank was not liable. In this transaction R. was not doing something of a kind that, as agent of the bank, he was authorized to do, in the sense that such a transaction would fall within the general scope of his employment. It could not be said that an undertaking of the duty to invest a customer's money for him at the bank's discretion falls within the scope of the business of a bank, according to the intendment of the Bank Act.
There was no evidence justifying or even pointing to the conclusion that the business of an investment agent or trustee is one which- "appertains to the business of banking"
British Columbia, 44 B.C.R., 81, reversed.
BANK 488
3--Security under s. 88 of the Bank Act c. 12) on rancher's live stock-Form d used instead of form E- Validity.-Chattel mortgage-Sufficiency of description of chattels-Bills of Sale Act,
Alta., 1929, c. 12, s. 5-Sufficiency of affidavit of bona fides-Mode of adaptation of unsuitable form..................
BAR OF QUEBEC...............
BARRISTERS AND SOLICITORS BILLS OF SALES ACT
BOARD OF RAILWAY COMMIS- SIONERS
BOND - Interest - Excise and Customs Act - Jurisdiction-Exchequer Court Act, section 30-Ontario Judicature Act, section 34............... BROKER
See BROKER.
CHATTEL MORTGAGE-Sufficiency of description of chattels-Bills of Sale Act, Alta., 1929, c. 12, s. 5--Suffictency of affidavit of bona fides-Mode of adaptation of unsuitable form-Banks and banking- Security under s. 88 of the Bank Act (R.S.C., 1927 c. 12) on rancher's live stock-Form d used instead of form E- Validity.] M. mortgaged to defendant bank chattels thus described: "60 Rams; 700 Ewe Lambs (etc., giving the number of sheep in each of different classes); All sheep of whatever age and description belonging to the mortgagor being not less than 3,880 head, branded but not excluding those not so branded. 1 Belgian Stallion; 30 head of Horses." chattels were stated to be now in the possession of the mortgagor and to be situate on certain described land.-Held: The description of the sheep satisfied s. 5 of the Bills of Sale Act, Alta., 1929, c. 12. The clause following the enumeration meant all the sheep belonging to the mortgagor, and its meaning was not changed by the preceding particulars. A description is sufficient when it is apparent that the mortgage covers all the chattels of the specified kind owned by the mortgagor (McCall v. Wolff, 13 Can. S.C.R. 130; Hovey v. Whiting, 14 Can. S.C.R. 515; Thomson v. Quirk, 18 Can. S.C.R. 695).
The mere fact that the mortgage stated a larger number of sheep than the mortgagor owned could not make the mortgage void as to the sheep he did own. The description of the horses was insufficient.-In the affidavit of bona fides, the printed form on the mortgage, which was apparently one in use under a former wording of the Act, was adapted by, after the preliminary part, pasting over the unsuitable part a sheet on which were typewritten the allegations required, the typewritten sheet extending below the part of the printed form so covered over, the jurat of the printed form being used, and the CHATTEL MORTGAGE-Concluded commissioner initialling in the margin the typewritten sheet.-Held: The affidavit
(though the adaptation was a slovenly method) complied with the statutory requirement.
The pasting over was a mode of erasure and substitution, which was authenticated by the commissioner's initialling.
The fact that by holding the document to the light the printed words covered over or part of them might be read, made no difference, the intent to erase or blot out being manifest.-The bank took what purported to be security under s. 88 of the Bank Act (R.S.C.,
1927, c. 12) on livestock of a rancher, but used form C instead of form E.-Held:
The document was in form to the like effect as form E, and constituted a valid security. It sufficiently stated that the advance was made on the security of the live stock mentioned therein; and the statement that the security was given under the provisions of s. 88, instead of that it was given "under the provisions of subs. 12 of s. 88" (as in form E), was sufficient.-Judgment of the Appellate
Division,
Alta.,
Alta. L.R.
281, reversed.
MACKENZIE..........
CHEQUE -Bills and notes -Banking
Irregular payment by a bank-Verification slip-Release signed by authorized agent.
CIVIL CODE-Arts. 13, 17 (24) (Pre liminary Title)....................
2- Art. 1062 (Object of obligations).
3-Art.
1080 (Conditional obligations)
.. ..
..
... ..
4-Arts. 1200, 1201, 1202 (Performance of the obligation becoming impossible).
5- Art. 1301 (Legal Community).. 433 w---Art.
1688 (Work by estimate and contract)........................ I
7-Art.
1725 (Obligations of the mandator)..............................
CLUB - Benevolent
Societies Act, R.S.B.C.,
1911, c. 19- Place "kept for gain"-Common gaming house-Game of cards played-Criminal section 226-The Societies Act,
R.S.B.C., 1914, c. 236...............
CODE OF CIVIL PROCEDURE-Art. 50 (Superior Court) ................ 2- Arts. 466, 467 (Jury).......... 120 3-Ars.
498, 500, 506 (New trials) 120 COMBINE - Conspiracy - Combines Investigation Act, R.S.C., 1927, c. 26-Cr. Code, s. 498 (1) (a) (b) (d)-Suficiency of findings to establish guilt-Findings of participation in original scheme, but not of participation in subsequent overt acts-Misdirection of himself by trial judge-Appeal by Attorney- General from acquittal at trial--Cr. Code, 8. 1013 (4), as enacted in 1930, c. s. 28--"Question of law"-Objection to form of indictment and conviction ......... COMMON GAMING HOUSE .... 626 Promissory note -By-law -Resolutions
- Persons authorized to sign - Absence of signature-Person taking note-What is his duty-Companies Act, R.S.C., 1927, c. 27, s. 37, 100, 106d, 108.............................. 2 - Taxation - Provincial income tax- Real estate company-All shares but two owned by one person-Profits of company- Whether accretions to capital or income 187 3 - Contract-Agreement to buy shares in company-Question whether agreement was for treasury shares or could satisfied by transfer of shares held by individual shareholder-Claims against stock broker for damages for alleged failure to perform agreement as to short sales and for alleged delay in carrying out instructions to transfer accounts....................... 4 - Railways-Dominion and provincial electrical companies-Electric lines along or across railways-Order of the Board making companies wholly liable for damages-Jurisdiction-Whether Order is altering laws in force in provinces-Section 372 of the Railway Act, 1927, R.S.C., c. 170...........................
See FiRE 2. CONDITIONAL SALES - Bankruptcy of conditional sales agreements as against trustee in bankruptcy-Title and possession of the goods at times of agreements- Nature of transactions-Whether compliance required with Bills of Sale Act, R.S.N.B., 1927, c. Appellants CONDITIONAL SALES-Continued the estate in bankruptcy of certain motor car dealers. Registrations were made under the Conditional Sales Act, R.S.N.B.,
1927, c. 152, but not under the Bills of
Sale Act, R.S.N.B., 1927, c. 151.
dealers would order the cars from the manufacturers, who would send the invoice to the dealers, and would send
-the bill of lading, with sight draft on the dealers attached, to a bank. The dealers would then go to one of the appellants with the invoice, a conditional sale agreement covering the cars would be made, and appellant would give the dealers a cheque payable to the dealers for 85 per cent or 90 per cent (and in one case payable to the bank for the whole) of the amount of the draft. The dealers took the cheque to the bank and it was a pplied towards payment of the draft, the dealers supplying the balance. The dealers then obtained the bills of lading and took possession of the cars. The
Supreme Court of New Brunswick,
Appeal Division (4 M.P.R. 39), affirming judgment of Barry C.J. K.B., (ibid), held that the conditional sales agreements were ineffective as against the dealers' trustee in bankruptcy, as appellants, not having been owners of the cars, could not retain ownership property therein under the agreements.- Held (reversing said judgments below,
Lamont and Cannon JJ. (dissenting)
):
The conditional sales agreements were valid and effective.
These agreements, coupled with the cheques and the evidence of what was done, showed that, on each occasion, an agreement was arrived at between the dealers and appellant by which the dealers, in consideration of the cheque, transferred to appellant their right to acquire from the manufacturer ownership and possession of the cars mentioned in the conditional sale agreement, in consideration of this agreement for sale of the cars to them. When the dealers used appellant's cheque towards payment of the sight draft, they were paying the draft to procure title and possession for appellant, in pursuance of their agreement. When the dealers got the bill of lading on payment of the draft and took possession, they were not taking possession to themselves by virtue of their original right, but by virtue of and in pursuance of the terms of the conditional sale agreement.
Sec. 6 of the
Bills of Sale Act did not apply to avoid title to the cars passing to appellant.
That section has reference to a sale of goods and chattels which the seller owns, but the dealers were not selling or transferring to appellant goods and chattels which they owned, but only their right to acquire ownership and possession of the chattels on performance of a condition, namely, payment of the draft. It was a
CONDITIONAL SALES---Concluded contract carried into effect and completed at the moment by payment of the price. Such a completed contract, not coming within the Bills of Sale Act, does not require to be in writing.
Ownership of the cars passed to appellant and never became vested in the dealers.
(Commercial Finance Corp. Ltd. v. Capital Discount Corp., Ltd., [1931] O.R. 22, and Re Grand River Motors Ltd., [1932] O.R. 101, distinguished).
Appellant was in position, as such owner, to make the conditional sale agreement by virtue of which it retained the ownership until paid.-Per Lamont J. (dissenting): Upon the evidence, there was not, nor did the transactions justify an inference of, any agreement or arrangement by which the dealers sold or agreed to sell to appellant the cars which appellant purported to sell back to them under the conditional sale agreement. The intention of the parties was a question of fact on which there are the concurrent findings of the courts below.
Even assuming there was an implied sale by the dealers to appellant prior to execution of the conditional sale agreement, it was invalid, as against the trustee in bankruptcy, for want of compliance with s. 6 of the Bills of Sale Act. Nor, upon the evidence, could it be said that the dealers assigned to appellant their right to acquire from the manufacturers the ownership and possession of the cars. U pon the facts of the case, on payment of the draft the property must be deemed to have passed to the dealers.
The transactions were simply a method of loans to the dealers upon the security of the conditional sales agreements, these agreements, being simply conveyances intended by the parties to operate as mortgages of goods and chattels, and not being in the form or evidenced in the manner required by s. 2 of the Bills of Sale Act, were void as against the trustee in bankruptcy.-Per Cannon J. (dissenting): The evidence did not justify an inference of any ageement or arrangement by which appellant acquired any title to the cars prior to the conditional sale agreement. The transactions were really loans on the security of the conditional sales agreements, and such security was invalid, as against the trustee in bankruptcy, for non-compliance with the Bills of Sale Act. INus- LTD. V. CONFLICT OF LAWS over foreign immoveables--Decrees in rem and in personam-Adions on foreign judgments.] A judgment of a court of the state of California on a question of title and ownership of real property situate in British Columbia cannot be recognized as final and be enforced by the courts of CONFLICT OF LAWS-Concluded that province, in accordance with the general rule that the courts of any country have no jurisdiction to adjudicate on the right and title to lands not situate in such country.
DuKE v.
CONSTABLE
- Killing rioter - Municipal corporation -Liability
....................
CONSTITUTIONAL LAW-Railways- Jurisdiction of Board of Railway Commissioners for Canada..............
See TAXATION.
CONTRACT - Specifications - Municipal sewer system - Quicksand - Trenching - Setting aside - Impossibility of performance-Supervision of city engineer-Arts. 13, 17 (24), 1062, 1080, 1200,
1201, 1202, 1688 C.C.]
A contractor who entered into a contract with a municipality for the construction of a sewer system is bound to do the work necessary to shore up the sides of the trenches when he is met with a condition of the soil generally known as quicksand; and that fact is not a sufficient cause which would justify the court to set aside the contract on the ground that its performance is impossible.
Even if the contract provides that the work will be performed under the supervision of the city engineer, the contractor cannot complain of the fact that the engineers had not given him any instructions or advice as to the way the trenches should be cribbed, as he was at liberty to do such work in his own way without the permission engineer as long as the latter was not making any formal objection.
Cannon
J. contra.-While articles 1200 and 1202
C.C. enact that, when the performance of an obligation to do has become impossible, the obligation is extinguished and both parties are liberated in order that such a rule may be applied, it is not sufficient to establish that the performance would be extremely difficult, but it must be shown that it is absolutely impossible, i.e., that there exists an insurmountable obstacle which could not be foreseen.- Per Cannon J. (dissenting): Articles 1062 and 1080 of the Civil Code apply to this case because the municipality, through its engineer, by electing a defective material and mode imposed conditions that were contrary to law and public order and vitiated the whole contract. The contractor was in duty bound to refuse to erect a defective construction which could certainly not last during the period of guarantee imposed by article 1688 of the Civil
Code, which is "d'ordre public," and no
CONTRACT-Continued one, under article 13 of the same code, can, possibly, by private agreement contravene the laws of public order.- Per Cannon J. dissenting.-The works contracted for were not susceptible of execution, inasmuch as the contractor was obliged by laws of public order to refuse to instal defective material, viz.: the short clay pipes specified in the contract, as long as the municipality did not specify in writing, as provided for in the contract and specifications, through its engineer, the manner of laying suitable foundation for them; consequently the appellant was right in refusing to contmue and complete the works under such conditions that would inevitably endanger the solidity of the construction. Moreover the performance of the contract has been rendered impossible not through any fault of the appellant, but through the act of the municipality in trying to force the appellant to execute the contract in contravention with laws of public order, the altered specifications, substituting short clay pipes to longer iron pipes, not having been approved by the Provincial Board of Health, such previous approbation being required by R.S.Q. 1925, c. 186, s. 57.-Judgment of the Court of King's Bench (Q.R. 48 K.B. 374) aff., Cannon J. dissenting.
....... 2-Agreement to supply service of carchecking and reporting thereon to company financing motor car dealers-Careless reports made by service company's local inspection agent and passed on to financing company-Liability in damages of service company-Construction of contract.] Respondent (plaintiff) carried on a business of financing motor car dealers.
carried on a business of obtaining and giving information as to credit, character, etc and including the checking of cars in dealers' hands and reporting thereon. Appellant made an agreement to supply its service to respondent. Respondent signed an "indemnity agreement, agreeing to treat in confidence the information furnished, to hold appellant harmless on tion or careless handling of reports, and agreeing, "in consideration of receiving this service, and as a condition of its rendition," that neither the appellant nor its employees should be responsible "for any loss that may occur to [respondent] through the use of the information furnished."
Through careless car-checking reports (made without personally checking over the cars) in respect of a dealer, made by a local inspection agent of appellant and passed on to respondent the respondent was misled, to its loss, and CONTRACT-Coninued sued appellant for damages.
claimed that it had not bound itself for more than reasonable care in the selection of its inspection agents, and, further, that, in any case, it was relieved from liability by the concluding clause (above quoted) of the indemnity agreement.- Held, affirming judgment of the Appellate Division, Ont. (66 Ont. L.R. 10), that respondent should recover. The concluding clause the indemnity agreement did not, on proper construction of that agreement, relate to car-checking reports.
(Anglin, C.J.C., held that either this was the proper construction or, if the clause relied on by appellant extended to the entire service to be rendered including the checking of cars, etc., the words "In consideration of receiving this service" must likewise so extend, in which case, the service never having been rendered, the consideration failed and there was nothing to support the indemnity clause).
3---Company-Agreement to buy shares in company-Question whether agreement was for treasury shares or could be satisfied by transfer of shares held by individual shareholder-Claims against stock broker for damages for alleged failure to perform agreement as to short sales and for alleged delay in carrying out instructions to transfer accounts.] An agreement for the sale of treasury shares of a company is not satisfied by the transfer to the purchaser of an individual shareholder's personal stock
(International Casualty Co. v.
Thompson, 48 Can. S.C.R. 167).
held that, on the evidence, the agreement by plaintiff, in question, to purchase shares was an agreement to purchase treasury shares of the defendant company and not shares in that company held by individual plaintiff was entitled to return of the sum taken from his funds in the company's hands to pay for transfer of personal stock from the individual defendant
(Smith v. Hughes, L.R. 6 Q.B. 597, held not applicable).-The judgment of the
Court of Appeal for British Columbia,
44 B.C. Rep. 124, was reversed on the above point, but was affirmed in its disallowance of two other claims against defendant company (viz., for loss sustained because of alleged failure to perform an agreement with regard to short sales of certain mining shares, and for damages for alleged delay in carrying out instructions to transfer plaintiff's accounts to another stock broker.)
4-Sale of land-Crown-fer to the
Crown represented by the Minister of
Railways and Canals for Canada-Whether acceptance made, binding the Crown- CONTRACT-Continued
Order in Council-Communications to offeror-Department of
Railways and Canals Act, R.S.C., 1906, c. 35, s. 15- Alleged part performance by offeror-Whether time made of essence.] F. (the claimant's assignor, and added as party claimant in the proceedings), on July 27, 1925, sent to His Majesty the King, represented by the Minister of Railways and Canals for Canada, an offer to purchase certain land in the city Toronto for $1,250,000 cash, depositing $25,000, and agreeing, upon acceptance of the offer, to pay the balance of the purchase price at such time as possession "be given to (F.) not later than
" September 25,
In the offer F. agreed that upon his obtaining possession, on or before September 25, 1925, he would proceed with the erection of a 26 storey building upon said land and certain adjoining land. The offer provided that His Majesty, represented as aforesaid, should execute a lease of certain floors for 30 years upon terms set out. The offer stated: "This offer of purchase, if accepted by Order * * * in Council, shall constitute a binding contract of purchase and sale," subject to its terms.
On July 29, 1925, an Order in Council was passed, which recited that the Committee had before them a report from the Minister of Railways and Canals representing F.'s offer stating that "the Minister accepted said offer of purchase subject to the approval and authority of Your Excellency in Council," setting out in the main the terms of "the said offer of purchase, accepted as aforesaid," and recommending that authority be given for its acceptance. The Order in Council stated: "The Committee concur in the foregoing recommendation and submit the same for approval."
There was evidence that F. received a certified copy of the Order in Council, but no evidence that any copy of it or the fact of its having been passed was transmitted to F. by the Minister or by anyone authorized to do so. Extensions of time were given to F., signed by the Deputy Minister, and the last one by letter of the Minister, of November 17, 1925, stating: "I have your letter
*
*
* applying for a further extension of time within which to receive possession
*
* and to make payment
*
* and to perform * other details of the contract of purchase under your offer of purchase, dated July 27, 1925, and the acceptance thereof," and granting a further extension, but without waiver of rights, etc "under and as provided for by the said contract should you fail to perform and carry out within the hereby extended period, all the covenants and conditions which on your part, under and as pro- CONTRACT-Concluded vided by the said contract, were to be performed and carried out within the original period thereunder provided."
In the present proceedings damages were claimed against the Crown for not carrying out the contract alleged by the claimant to have been made.-Held: No acceptance on behalf of the Crown communicated to F. by anyone having authority to do so, had been shewn; and therefore, no contract binding on the rown had been established. The Order in Council did not in itself constitute an acceptance.
The acceptance referred to in the Minister's report set out in the Order in
Council, if there was any such acceptance, was not in writing signed in compliance with s. 15 of the Department of
Railways and Canals Act, R.S.C
1906, c. 35, and therefore was not binding on the Crown. The Minister's letter of
November 17, 1925, could not be taken as an acceptance by him of the offer, so as to constitute a contract; he was evidently under the impression that a contract existed, but had no intention by that letter of constituting a contract.- Held, further: The claimants could not succeed on the ground of part performance. Even if the doctrine of part performance could otherwise be invoked in this case, the acts of part performance alleged (the contracting by F. for the purchase of adjoining land to form part of the site of the proposed building, and payments on account thereof; the preparation of plans, etc., for the building, and contracting for its construction) were merely steps taken in order to be in a position to make the offer and to carry it out if accepted, and would not amount to part performance of the alleged contract.-Held further that, when F. made his applications for extension and was given extension in the terms of the letters, time was made, by these extensions, of the essence of the contract, and the purchase not having been completed within the extended period, the claim could not be sustained even if there were a contract.-The judgment of the
Exchequer Court in favour of claimants was reversed, and the claim dismissed.
There being no contract, claimants were held entitled to return of the deposit
(but not as damages).
Tn KING
Domlmow LD.
.......................
COSTS-Allowance of separate bills of costs to respondents-Appellant contending for allowance of only one set of costs.] The appellant's appeal to this court, attacking the validity of a document as forming part of a deceased's will, had been dismissed, "the costs of all parties in this court" to be paid out of the estate.
The Registrar had allowed a separate
COSTS-Concluded bill of costs to each of three groups of respondents.
Each group had been represented by a separate firm of solicitors. Appellant objected to such allowance on the grounds: (1) The interest of all said respondents on the appeal was the same; (2) Only one joint factum was filed by them (only one fee on factum was taxed and only one allowance made on printing of factum, which costs were divided equally among the groups); (3) All said respondents were represented by one Ottawa agent, which agent had presented the three separate bills for taxation.- Held (Rinfret J. in chambers), that there was no ground for interfering with the Registrar's taxation. ROGERS v. DAvis...................... CREDIT
SERVICE
Contract-Agreement to supply service of car-checking and reporting thereon to company financing motor car dealers- Careless reports made by service company's local inspection agent and passed on to financing company-Liability in damages of service company-Construction of contract....... ....
.............
Jurisdiction - Statutes - Retrospective construction-Statute giving new right of appeal-21-22 Geo. V, c. 28, s. 15 (amending 1025, Cr. Code).] Legislation conferring a new jurisdiction on an appellate court to entertain an appeal cannot be construed retrospectively, so as to cover cases arising prior to such legislation, unless there is something making unmistakeable the legislative intention that it should be so construed.
The matter is one of substance and of right.
(Doran v. Jewell, 49 Can. S.C.R. 88; Upper Canada College v. Smith, 61 Can. S.C.R. 413).] In the present case, held, that 21-22 Geo. V, e. 28, s. 15 (amending s. 1025 of the Cr. Code) did not give a right to appeal to the Supreme Court of Canada from the sustaining of the appellant's conviction by a judgment of the Appellate Division, Ont., rendered prior to such legislation. THE KING............... 2-Leave to appeal-Section 1025 Cr. C.-Application should indicate judgments alleged to be in conflict-Rule 54 of this court-Conviction of an insolvent for not having kept books-Whether conflicting decisions were "in a like case" and from an "other court of appeal"--Section 417c Cr. C.--Section 193 Bankruptcy Act.] When application is made under section 1025 Cr. C. for leave to appeal in a criminal case, it is not sufficient to allege that the decision which is intended to be appealed from "conflicts with decisions of different courts of equal jurisdiction"; but the application, in order to comply CRIMINAL LAW-Continued with rule 54 of this court, should indicate specifically the judgments of other courts of appeal alleged to be in conflict with the decision to be appealed from.-The appellant was an insolvent trader and had been convicted under section 417c Cr. C.
for not having kept proper books of account. Application for leave to appeal under s. 1025 Cr. C. was made on the gound that, inasmuch as section 417c
Cr. C. was alleged to have been virtually abrogated by section 193 of the Bankruptcy Act subsequently enacted, the decision of the appellate court in affirming the conviction failed to apply the principle of law that a subsequent statutory enactment has the effect of abrogating an anterior enactment which is inconsistent with it; and, at the hearing, counsel for the applicant cited three judgments which were alleged to be. in conflict with the above decision.-Held that the application for leave to appeal should be dismissed as the judgments cited were not rendered "in a like case" and by an
"other court of appeal" within the provisions of section 1025 Cr. C.; besides, they were not in conflict with the decision intended to be appealed from: the appellate court had clearly admitted the principle of law above cited; but it had held that section 193 of the Bankruptcy
Act was not inconsistent with the provisions of section 417c Cr. C.-Semble that a single judge, although sitting on appeal from a conviction by a magistrate, is not a "court of appeal" within the meaning of section 1025 Cr. C.
3- Section 1025 Cr. C.-Appeal to the
Supreme Court of Canada-Conflicting decisions-"Judgment of any other court of appeal"-Must courts within Canada- Cr. C., s. 1012, 1025.]
The provisions of section 1025 of the Criminal Code, giving right of appeal to the Supreme Court of
Canada, upon leave to appeal being granted, "if the judgment appealed from conflicts with the judgment of any other court of appeal," must be taken to refer to courts within the jurisdiction of the
Dominion Parliament and not to courts outside the Canadian territory. Brunet v. The King ([1928] S.C.R. 161) ref.
KiNG...............
4 - Combine - Conspiracy-Combines
Investigation Act, R.S.C., 1927 c. 26- Cr. Code, s. 498 (1) (a) (b) (d)-uficiency of findings to establish guilt-Findings of participation in original scheme, but not of participation in subsequent overt acts- Misdirection of himself by trial judge- Appeal by Attorney-General from acquittal at trail-Cr. Code, s. 1013 (4), as enacted in 1930, c. s. 28-"Question of law"- Objection to form of indictment and conviction.
Appellants were acquitted by
CRIMINAL LAW-Continued
Wright J., [19311 O.R. 202, on charges of offences against the Combines Investigation Act, R.S.C., 1927, c. 26, and of conspiracy, in violation of s. 498, subs. 1 (a), (b) and (d), of the Cr. Code, but upon appeal by the Attorney-General under s. 1013 (4) of the Cr. Code, as enacted in 1930, c. 11, s. 28, they were convicted by the Appellate Division, [1931] O.R. 699. They appealed.- Held: The appeals should be dismissed.-The trial judge's material findings of fact were fully justified on the evidence and established appellants' guilt.
The trial judge misdirected himself, in that, while finding that appellants had taken an active part in the original scheme-the formation of the organizations in question which, as found, amounted to the formation of an illegal combine, and to a conspiracy within s. 498, Cr. Code-yet he acquitted them on the ground that they were not proved to have taken part in subsequent overt acts. The original scheme constituted the conspiracy which formed the basis for the prosecution; the overt acts were not the conspiracy, though evidence of its existence. not essential to a finding of appellants' guilt, that they be held to have had actual knowledge of, or to have actually participated in, the subsequent overt acts. Once it is established that a combine or conspiracy existed, it is unnecessary, to warrant conviction for the formation of a combine, or of the agreement to conspire, to shew accused's complicity in subsequent illegal acts done by, or with the connivance of, the body against members of which conspiracy or unlawful combine is charged; provided there is sufficient proof of their complicity in the original formation of the combine, or in the agreement charged as conspiracy.- While the Attorney-General's right of appeal, conferred by s. 1013 (4), is confined to "questions of law," this does not exclude the appellate court's right, where a conclusion of mixed law and fact, such as is the accused's guilt or innocence, depends, as in the present case, upon the legal effect of certain findings of fact made, to enquire into the soundness of that conclusion, which must be regarded as a question of law-especially where, as in this case, it is a clear result of misdirection of himself in law by the trial judge.-Held, further, that appellants' objection to the form of the indictment, based on the ground that there were several offences charged in the alternative, and to the form of the convictions (which strictly followed the form of the indictment), should not be sustained; they expressed the offences in the very terms of the statutes.
(Cr. Code, as. 852 (3), 854, 1010 (2), cited).
Tim K ING............................ CRIMINAL LAW-Continued
5-Diqualification of a petit juror- Juror convicted of criminal offence- No objection taken at the trial-Insufficient ground of appeal-Applicability of a. 1011
Cr. C.-Leave to appeal to this court granted by a judge under a. 1025 Cr. C.- Jurisdiction of this court-Existence of conflict must also be found by the court at the hearing of the appeal-Sections 1025,
1011, 1011 Cr. C.-The Jury Act R.S.B.C.,
The conviction of the respondent was set aside by the appellate court on the ground that one of the jurors at the trial was disqualified to act as such for the reason that he had been convicted of an indictable offence within the meaning of section 6c of the
Jury Act (R.S.B.C., 1924, c. 123).-Held that the fact of a defect of that kind in the constitution of the petit jury constituted no ground for an appeal to the appellate court in view of the provisions of section 1011 Cr. C., the more so as no objection to it had been taken at the trial.- Held, also, that the order of a judge of this court granting leave to appeal under the provisions of section
1025 Cr. C. is not conclusive as to the existence of conflict between the judgment to be appealed from and that of some "other court of appeal in a like case"; and upon the hearing of the appeal, the Court must itself be independently satisfied that there is, in fact, such a conflict.
Duff J. expressed no opinion.of the Court of
([1932] 1 W.W.R. 912) reversed.
STEWART..................
6 - Club-Benevolent Societies Act'
R.S.B.C., 1911, c. 19-Place "kept for gain"-Common gaming house-Game of cards played-Criminal Code, section 226- The Societies Act, R.S.B.C., 1914, c. 236.
The appellant was steward of a bona fide club organized pursuant to the Benevolent Societies Act (now the Societies Act)
of British Columbia.
The club had a membership of 1,700 and provided all the regular facilities of a social club, including meals, billiard rooms, reading rooms, various card games, etc.; it also leased and operated a football field.
Members contributed ten cents apiece to the funds of the club for each half hour's play at the poker table, irrespective of whether they were winning or losing. This money was not taken from the stakes or the pot, but was collected by the appellant, as steward, from the players and paid over to the club.
Only members were allowed in the premises, a by-law expressly forbidding the introduction of visitors to any part of the club property. The appellant was convicted, under section 226 of the Criminal
Code, of unlawfully keeping a common gaming house; and the conviction was
CRIMINAL LAW-Concluded affirmed by the appellate court.-Held, reversing the judgment of the Court of Appeal ([1932]
1 W.W.R. 154), that, upon the facts, the club was not "a kept ain" within the meaning of section 226 Cr. C. and that the appellant had been wrongly convicted.-R. v. Riley ([1917] 23 B.C.R. 192 and R. v. Cherry and Long ([1924] 20 Alta. L.R. 400) approved; R. v. Sullivan ([1930] 42 B.C.R. 435) overruled. v. TEE KING............ 7 - Conditional sales-Excise Act, R.S.C., 1927, c. 60-Forfeiture of vehicle under s. 181- Legal owners having no notice or knowledge of illegal use-Penal statutes--Construction...............
.......... 134 CROWN-Appointment to public office- Abolition of office-Claim by appointee against Crown for damages for breach of contract-Federal Appeal Board-Dominion Acts, 1923, c. 62, s. 10; 1925, c. 49; 1926-1927, c. 65; 1930 c 35 (Acts to amend Pension was appointed, by Order in Council and by Commission, as a member of the Federal Appeal Board, under s. 10 of An Act to amend the Pension Act, 1923 (Dom.), c. His appointment was extended (under statutory amendments in 1925, c. 49, and 1927, c. 65), the last extension being for a period of five years from August 17, 1928.
By c. 35 of the statutes of 1930, Parliament in effect abolished the Board and provided for the establishment of new tribunals, and appellant thereby lost his said office. He claimed damages from the Crown for breach of contract.-Held
(affirming judgment of Maclean J., President of the Exchequer Court of Canada, [1932] Ex. C.R. 14), that appellant could not succeed.-Appellant's appointment to his office, even for a definite period, did not deprive the Crown of the right to terminate the appointment at any time; and a fortiori did not deprive Parliament of the power, by abolishing the office, of automatically terminating the appointment.-In an appointment to public office, while there is a contractual element in that the Crown, in effect, promises to pay the salary or other emolument fixed by law for services performed, yet this in no respect affects the Crown's prerogative right, unless restricted by statute, to dismiss the servant at any time without incurring liability for damages or further compensation.
Even if there a contract of service, the Crown's absolute power of dismissal is deemed to be imported into it, and nothing short of a statute can restrict that power. REILLY CROWN-Concluded
2 - Real property-Crown grants of land in Northwest Territories abutting on non-navigable lake-Subsequent recession of waters owing to drainage for construction work--Subsequent acquisition of title by present owners- Claim by present owners, against the Crown, to land to centre of lake-Presumption of grant ad medium filum aquae - Applicability-Rebuttal or exclusion of the presumptive rule by inference from statutes, language of grant or agreement, surrounding circumstances-Dominion Lands
Acts,
R.S.C., 1886, c. 54; 1879, c. 31; Territories
Real Property Act, R.S.C., 1886 c. 51;
North-West Territories Act, R.S.C., 1886, c.50,s.11.....................
3 - Contract-Sale of land-Offer of the
Crown represented by Minister-Whether acceptance made, binding the Crown- Order in
Council--Communications to offeror........................ 511
Settlement Act-Agreement to purchase-Default in payments-Property not kept in good condition- Notice by
Crown to rescind agreement-Action to recover land and chattels-Tenancy at will- Reciprocal rights of parties to agreement- Soldier's Settlement Act, R.S.C., 1927, c.
188, as. 22 and 31...............
DAMAGES
See NEGLIGENCE, 5, 6.
DEFAMATION - Absolute privilege- Words spoken by person while conducting, as commissioner proceedings of enquiry under the Combines Investigation Act,
R.S.C., 1927, c. 26.]
Respondent was sued for damages for alleged defamatory words spoken by him in the course of proceedings which he was conducting as a commissioner appointed by letters patent under the Great Seal of Canada, by the Governor General, under the authority of the
Combines Investigation Act, R.S.C., 1927, c. 26, and of the Enquiries Act, R.S.C.,
1927, c. 99.-Held, that absolute privilege attached to the proceedings conducted by respondent and protected him against the present action.]-Judgment of the Appellate Division, Ont.,
[19311 O.R. 608, affirming judgment of Orde J.A., 65 Ont.
L.R. 407, dismissing the action on motion in weekly court, affirmed.
(Reasons of
Middleton J.A. in the Appellate Division, and of Orde J.A., approved.
Hearts of
Oak Assur. Co. Ltd. v. Attorney-General,
[19311 2 Ch. 370, discussed.) O'CoNwoR
WALDRON...................
DOMESTIC
RELATIONS special leave from Appellate Division) from judgment of Appellate Division, Alta., rendered on stated case from magistrate re his order made under s. 26 of Domestic Relations Act, Alta., 1927, c. 5, as amended 1928, c. 25-Jurisdiction of Supreme Court of Canada to hear appeal-Jurisdiction of magistrate to make, and of Appellate Division to hear, the stated case-Domestic Relations Act (supra), as. 26, 30-Magiatrates and Justices Act, R.S.A., 1922, c. 78, s. 9--Cr. Code, R.S.C., 1927, c. 36, ss. 761, 765, 749-Supreme Court Act, R.S.C., 1927, c. 35, s. 41................... DRAINAGE - Municipal corporations- Liability in damages for failure to keep drainage ditches in repair-Land Drainage Act, Man., R.S.M., 1913, c. 56, ss. 45, 46-Flooding of lands--Cause of damage Gift - Alleged undue influence-Action to set aside gift of bank shares made by person since deceased- Nature of relationship between donor and donee-Presumption--Onue ......... See Girr.
See MOTOR-VEHICLE. EXCHEQUER COURT - Jurisdiction- Nature of claim - Relief - Trade-mark- Copyright.]-Held that although in this action plaintiffs claimed relief (expunging registration of trade-mark, injunction restraining use of trade-mark, damages for infringement of copyright and injunction restraining further infringement, etc.) in the nature of what, ordinarily and in a proper case it would be within the province of the lExchequer Court to grant, yet they had not made out a case in which that court had jurisdiction to interfere.
In support of their claim they relied exclusively an agreement between them and the defendant W. and its alleged effect in preventing W. from entering into similar agreements with other persons for the territory covered; and that agreement (which was interpreted by this Court in Warre v. Bertrand et al., [1929] Can. S.C.R. 303) was one, not in respect of a trade-mark or copyright, but in respect of the sale of goods; any reference therein to a trade-mark or copyright being only accessory and not carrying the meaning alleged by plaintiffs. There was nothing in the agreement to take away from W. the right to register any acceptable trade-mark for distinguishing his products, nor did plaintiffs allege or sow anything of a nature to establish that, by force of any provision of the Trade Mark and Design the registration complained of should EXCHEQUER COURT-Concluded have been refused or should now be expunged, nor did anything in the record support their alternative claim for expunging any entries relating to assignment of the trade-mark.
As to copyright: plaintiffs were, at best, W's grantees of an interest in a copyright; their grant had not been registered; their action was one for infringement under the Copyright Act;
and under that Act (now R.S.C. 1927, c. 32, s. 40 (3) ), their grant not having been registered, they were precluded from maintaining the action (Canadian
Performing Right Soc. Ltd. v. Famous
Players Canadian Corp. Ltd., [1929] A.C.
Plaintiffs' action was rightly dismissed by the Exchequer Court; their claim being one for the provincial courts.
EXPROPRIATION - Market value - Title - Vale to the owner - Servitudes.
FACTUM - Practice and procedure
Motion to strike paragraphs from factum- Jurisdiction of a judge in chambers or the registrar.] The rules of this court concerning the contents of the factum and the form and manner in which they shall be printed must be followed before the registrar will receive them; but, otherwise, it is not within the province of the registrar, or a judge in chambers, to control the manner and form in which the allegations of fact or the arguments of law are presented by counsel in their factum.
FLOODING OF LAND
FOREIGN JUDGMENT-Conflict laws-Jurisdiction over foreign immoveables-Decrees in rem and in personam- Actions on foreign judgments.] A judgment of a court of the state of California on a question of title and ownership of real property situate in British Columbia cannot be recognized as final and be enforced by the courts of that province, in accordance with the general rule that the courts of any country have no jurisdiction to adjudicate on the right and title to lands not situate in such country.
GARNISHMENT - Motor vehicles--Automobile liability insurance policy imdemnifying against loss from legal liability to pay damages to others- Recovery of judgment against insured by person damaged by collision with insured's automobile - Garnishment proceedings against insurance company-R. 590 of
Ontario Rules of Court-Whether the insurance company was a "person within
Ontario" and "indebted to the judgment
GARNISHMENT-Continued debtor"-Terms of policy-Whether alleged debt attachable in Ontario.] Appellant, in May, 1928, issued in the United States an insurance policy to F., an American subject, by which it agreed to indemnify F. against loss by reason of her legal liability to pay damages to others arising out of the ownership, operation or use of her automobile within the United States or Canada. In October,
1928, near Kingston, Ontario, F.'s automobile collided with that of respondent, who sued F. in the Ontario courts and, on November 26, 1929, recovered judgment against her for damages and costs.
A writ of execution was returned nulla bona, and December obtained an order attaching al debts owing or accruing due from appellant to F. under the policy, which was still in force.
Subsequently a trial of an issue was directed to settle what amount, if any, appellant must pay to respondent on account of the judgment against F. At the trial, respondent put in evidence the policy, his judgment against F., F.'s deposition admitting the collision, the action against her, her presence at the trial, that judgment had been given against her for $8,000 and costs, that no part of the judgment had been paid, and that, at the time of the accident, she carried liability insurance on the automobile with appellant.
testified that the judgment was in respect of $829 damage to his car, and the balance in respect of his personal injuries, as the result of the collision.
also adduced evidence that on March 23, 1929, appellant was licensed to carry on the business of automobile and other insurance in Ontario, and shewing its head office for the province, and its assets in Ontario (moneys in bank) and its assets deposited with the Receiver General of Canada for the protection of Canadian policy holders, as shewn by its annual statement filed as required by law.
A clause (F) in the policy read: "No recovery against the Company by the Assured shall be had hereunder until the amount of loss or expense shall have been finally determined either by judgment against the Assured after actual trial or by written agreement
* * *." -Held:
(1) Appellant was "a person within Ontario' and was "indebted to the judgment debtor," within the meaning of R. 590 of the Ontario Rules of Court. By above quoted clause (F), appellant impliedly agreed that the insured would be entitled to recover on the policy when the legal liability against which she had been insured was determined as to amount by a judgment against her after trial. The amount of her loss in this case having been determined by judgment, the right of the insured to recover that GARNISHMENT-Concluded amount under the policy could no longer be disputed by appellant. Appellant was, therefore, under obligation to pay a fixed and definite sum to the insured at the time the attaching order was made.- (2) The fact that the policy was not issued in Ontario or received by the insured in
Ontario was immaterial, in view of the fact that the agreement to indemnify was expressly made to cover loss incurred by the insured when operating her automobile in Canada.-(3)
The debt was attachable in Ontario.-(4) Appellant's contention that the evidence put in did not, as against it, amount to proof of legal liability on F.'s part for the damage caused by the accident, in that the judgment recovered was not evidence that the damage was caused by her negligence
(Continental Casualty Co. v. Yorke, [1930]
Can. S.C.R. 180), was not open on this appeal, as it had not been raised in the courts below.-Judgment of the Appellate
Division, Ont., [1931] O.R. 342, holding respondent entitled to recover against appellant, affirmed, subject to a slight variation as to amount.
GIFT - Alleged undue influence-Action to set aside gift of bank shares made by person since deceased-Nature of relationship between donor and donee-Presumption
-Onus.]
residuary legatee testamentary executors of G., deceased, sued to set aside a transfer of bank shares made by G., by way of gift, to defendant, about 8 months before G.'s death. At the time of the gift, G. was a man of 85, and defendant a woman of about 50, years of age. For some years they had been very friendly and intimate, and G. had several times proposed marriage to her. They had undertaken together the purchase of some property.
About a month after the gift in question,
G. gave her a general power of attorney and signed blank cheques, but these were never used. About 9 days before his death G. made his last will, the defendant not being present which made no mention of the shares.
There was no finding of any fraudulent or wrongful act or any deliberate exercise of undue influence on defendant's part; and the questions for determination were: whether there existed between them a relation of such a nature as would raise the presumption that defendant bad influence over G. of such a kind that the court, acting on such presumption, would set aside the gift unless defendant established that in fact the gift was G.'s spontaneous act, in circumstances which enabled him to exercise an independent will, and which justified the court in holding that the gift was the result of a free exercise of his will; and, if there
GIFT-Continued was such a relation as would raise the presumption, whether the presumption had been rebutted.
The trial judge, Ewing J. (25 Alta. L.R. 562), set aside the gift. His judgment was reversed (two judges dissenting) by the Appellate Division, Alta. (ibid). On appeal to this Court:- Held (Duff J. and Lamont JJ. dissenting), that the judgment of the Appellate Division in defendant's favour should be affirmed.-The nature of the relationships giving rise to the presumption against a donee; the discharging of the orius of rebutting the presumption; governing considerations; materiality, weight and effect of certain circumstances; acquiescence or ratification by subsequent conduct of the donor; laches, etc., discussed.-Per Rinfret and Smith JJ.: It is not the law that any relation of confidence between a donor and a donee is sufficient to raise the presumption. The presumption does not extend to cases of relationship resulting from pure friendship, even though the friendship were of such a character that the donor reposed confidence and trust in the donee.
In the present case, the only relationship established was one of deep affection and of the high regard in which G. held defendant. This affection in itself afforded a satisfactory explanation of the motive which prompted the gift But, assuming that the relationship was such as to raise the presumption, it was rebutted by the facts and circumstances in evidence.-Per Cannon J.: While the relationship, which was one implying special confidence, was such as to raise the presumption, it had been rebutted. Moreover, the lapse of time during which G., when free from any influence of allowed the transaction to stand, and the other circumstances in the case, proved his determination to abide by what he had done.-Per Duff J. (dissenting): The relationship was such that by reason thereof, it must be inferred from the facts in evidence that, in transactions with defendant, G. was not under the control of his own judgment; and the onus rested on defendant to shew that, in the matter of the gift in question, G. was entirely free from this influence, and that onus was not discharged. There was not adequate evidence to warrant a finding that G., after he became free (if he was ever wholly free) from defendant's influence, deliberately and spontaneously confirmed the gift.-Per Lamont J. (dissenting): The facts in evidence shewed the existence of such a relationship as raised the presumption.
The onus was on defendant to establish that the transfer was made to her for her own benefit and was the spontaneous act of G.'s independent will; and this onus was not discharged.
Without entirely disregard- GIFT-Concluded ing defendant's testimony, effect should not be given to it unless it was corroborated by independent evidence.
The evidence was not sufficient to establish, by
G.'s subsequent conduct, any deliberate and intentional affirmance of the transfer.
CRITTENDEN...........
HIGHWAYS - Obstruction on-Muni cipal corporation-Injury to unlicensed driver-Liability of municipality-Motorvehicle Act, R.S.B.C., 1924, c. 177, a. 7, as. 7, as amended by B.C. [1930], c. 47, a. 2, as. 2.] The fact that a taxi driver has not obtained the chauffeur's permit from the Chief of Police provided for by s. 2 (2) of the Motor-vehicle Act Amendment Act, 1930, c. 47 and has not procured the driver's licence required by the appellant city's by-law, does not affect the liability of the city for injuries caused to him by its negligence.-At common law and as a member of the public, any individual has the right to the use of the highway under the protection of the law;
and the liability of the municipality exists towards every member of the public so using the highway.
This principle should not be taken to have been altered in the Motor-vehicle Act, except by express words or by necessary intendment. The whole scope of the
Act is to prescribe certain requirements for those using the highway with motor vehicles, and to impose certain penalties upon the offenders; it does not provide that they will not be entitled to recover damages, if the damages are suffered while they are infringing the Act.- Goodison Thresher Co. v. Toumship of
McNab (44 Can. S.C.R. 187) dist. CIry
BURCHILL.........
HUSBAND AND WIFE-Life insurance policy-Wife as beneficiary-Transfer by husband and wife as security for debts of husband-Validity-Doctrine stare decisis-Finding of fact-Art. 1301 C.C.]
When a transfer by a married woman of an insurance policy on her husband's life, under which she is the beneficiary, has been found by the trial judge, which judgment was affirmed by the appellate court, to have been made as collateral security for the husband's debt, such transfer will be held to be null and void as being in contravention of the provisions of article 1301 C.C. Klock v.
Chamberlin (1887) 15 Can. S.C.R. 325;
Laframboise v.
Vallieres [1927]
Can.
S.C.R. 193; Rodrigue v. Dostie [1927]
Can. S.C.R. 563; Banque Canadienne
Nationale v. Carette [1931] Can. S.C.R.
33; Banque Canadienne Nationale v.
Audet [1931] Can. S.C.R. 293.] Cannon
J., dubitante, as to whether the evidence had clearly established that the transfer,
HUSBAND AND WIFE-Concluded being absolute on its face, had been made by the wife to secure the husband's debt, and also, whether the appellant, being a creditor contracting in good faith and having paid the premiums, should not be entitled to receive the benefit of the amendment to art. 1301 C.C., enacted in 1904 by 4 Ed. VII, c. .- Judgment of the Court of King's Bench (Q.R. 51 K.B. 193) aff., Cannon J. dubitante. & See 4, 5.
IMMIGRATION LAW - Alien-Entry .in Canada-Alleged misrepresentation - Deportation order not stating reasons- Habeas corpus-Order quashed-Same order amended to conform with statute- New order not valid-Immigration Act, R.S.C., 1927, c. 98, as. 23, 33 (5) and (7), 40, 41, 42.]
The appellant, a Japanese subject, entered Canada at the port of Vancouver on September 29, 1928, as a domestic servant, but, though permitted to land, was unable to obtain that kind of work. On January 28, 1931 under an order issued by the Deputy Minister of Immigration he was detained for examination upon a complaint of violation of the Immigration Act.
Neither complaint, nor a copy thereof was forwarded to the Board of Inquiry, or served on the appellant who was brought before the Board on April 29, 1931.
Finding the appellant had entered Canada by misrepresentation, the Board served on the appellant a deportation order stating that he was rejected because "in Canada contrary to the provisions of the Immigration Act and effected entry contrary to the provisions of s. 33 (7) of said Act." An appeal to the Minister having been dismissed, the appellant obtained a writ of habeas corpus and successfully applied for discharge thereunder to Fisher J. on July 8, 1931, on the ground that the order was not in accordance with the provisions of the Act, in that it did not specify with sufficient particularity the reason for his deportation.
On September 23, 1931, the appellant was re-arrested on the original order of April 29, 1931, which, however, had been amended by adding to it the reasons for his deportation so as to make it conform to the requirements of the statute. He again sued out a writ of habeas corpus and applied to quash the amended order. Murphy J. refused the application holding that, though deficient, the first order could be remedied by issuing the amended order, and he held the new order valid.
His judgment was affirmed on appeal.-Held, Anglin C.J.C. and Smith J. dissenting, that the amended deportation order issued by the Board of Inquiry should have been quashed and the appellant IMMIGRATION LAW-Concluded discharged from custody.
The Board of
Inquiry when a deportation order is found defective on its face, has the right to recall it and substitute therefor an order in proper form, so long as the defective order had not been acted upon.
Even after it has been served on the person in custody and constitutes the return made to a writ of habeas corpus, it may still by leave of the court or judge, be amended, or another order substituted for it, so as to make it conform to the finding of the Board. But after a deportation order which is not in accordance with the Act has been quashed by a court having jurisdiction, it cannot be amended for there is nothing to amend, the order of the Board no longer existing.
-Per Anglin C.J.C. and Smith J. dissenting.-The order made by Fisher J.
contravened the prohibition of s. 23 of the Immigration Act and was, therefore, invalid and ultra vires, since it amounted to a "reviewing, quashing, reversing, restraining, or otherwise interfering with,"
an order of the Minister, or of the Board of Inquiry the appellant being, admittedly, neither a Canadian citizen, nor a person having Canadian domicile.
being so, the order of the Board remained effective, as it clearly dealt with matter declared by s. 23 to be outside the authority of any "court or judge or officer thereof" to interfere with. Moreover, this defect in the jurisdiction of Fisher J who made the order was obvious on the face of it and, therefore, could be taken advantage of by the respondent; the order of Fisher J. being a nullity, the order of the Board, which it purported to set aside, was still valid and was legally amended so as to make it conform to the intention of the Board in making it.
KING
INCOME TAX - Taxation-Provincial income tax-Real estate company-All shares but two owned by one person- Profits of company-Whether accretions to capital or income.] A practising dentist incorporated a company with power inter alia to buy, hold and sell real estate and to carry on the business of real estate agents. He held all but two shares and he contended that his purpose was that the company manage his own property and control real estate for the investment of his own money, not for speculation.
He conveyed his real estate property to the company in exchange for shares.
These lands increased considerably in value and were sold at a profit. He contended that such profits were accretions to capital and not income made in the business of buying and selling real estate and, therefore, not subject to assessment as such.-Held that these profits were profits acquired in a scheme
INCOME TAX-Continued for profit making, which the appellant company was putting into effect as part of its business, and, therefore, were liable assessment under provincial Income Tax Act.
Upon the facts of the case, the properties in which the company dealt were acquired for the purpose of turning them to account to the profit of the company, by sale, if necessary; and it had been verbally admitted that the possibility of turning its properties to account by selling them at a profit was contemplated by the company from the beginning. Ducker v. Rees ([1928] A.C. 127) and Anderson Logging Co. v. The King ([1925] Can. S.C.R. 49) applied. 2-Income War Tax Act, 1917 (Dom.), c. 28 (as amended)-Right to asses--S. 3 (6), as enacted by 10-11 Geo. V, c. 49, s. 4 1927, c. 97, s. 11)-"Income accumulating in trust for the benefit of unascertained persons, or of persons with contingent interests"-Residence out of Canada-Construction of will-Contingent or vested legacies.] M. died in 1914, domiciled in Canada. His will, after sundry bequests, gave the residue of his estate to his executors and trustees upon trusts to sell and convert, to pay legacies, to invest, to pay an annuity, and "(e) to divide the balance of the income *
*
* into three equal parts and to pay or apply one of such parts, or so much thereof as my executors and trustees in their discretion deem advisable, in or towards the support, maintenance and education of each of my children until they respectively attain the age of 25 years, or until the period fixed for the distribution of the capital of my estate which ever event shall last happen, provided that any portion of any child's share not required for his or her support, maintenance and education shall be re-invested
*
*
* and form part of the residue of my estate given and bequeathed to such child; (f) After the death or remarriage of my wife, whichever event shall first happen, to divide the residue of my estate equally between such of my three children as shall attain the age of 25 years, as and when they respectively attain that age, provided that if any of the said children shall have died before the period of distribution arrives, leaving a child or children, such children shall take the share in my estate which his or her parent should have taken had he or she survived the period of distribution
.
s widow and three children survived him. His widow remarried in 1925. The eldest child attained the age of 25 years in November, 1928.
The children, at all material times, resided in the United States, except that one resided in Canada in and from 1926.
The respondent (a INCOME TAX-Concluded resident of Canada), the sole surviving executor and trustee of the will, was assessed for the years 1917 to 1928, inclusive, under the Income War Tax
Act, 1917 (Dom.) as amended, for income tax upon the undistributed income, not used in the maintenance, etc., of the children under the above quoted clause
(e) in the will, from the residuary estate.
Respondent claimed that he or M.'s estate was not assessable or taxable in respect thereof. - Held: The income assessed was "income accumulating in trust for the benefit of unascertained persons, or of persons with contingent interests," within s. 3 (6) of said Act, as enacted by 10-11 Geo. V, c. 49, s. 4
(now R.S.C., 1927, c. 97, s. 11), and was taxable in the hands of respondent.- Judgment of the Exchequer Court (Audette J.) [1931] Ex. C.R. 215, reversed.
HOLDEN......................
Aerial navigation - Seaplane - Accident
-Warranty - Licence-Aeronautics Act,
R.S.C., 1927, c. 3-Air Regulations, 1920,
Art. 3.
Co. v. ARo Co...............
ACCIDENT- Automobile driven by insured's daughter-Judgment obtained against her for negligent driving-Action defended by insurance company-Action against insurance company to recover amount of judgment- Liability-Estoppel-Insurance Act, B.C.,
1925, c. 20, s. 24.]
B, the owner of an automobile, was insured against loss in the appellant company.
was injured while driving in a car driven by her husand which collided with B's car driven by his daughter with B's permission and recovered judgment against her for damages, the appellant company taking charge of the defence on the trial.
The respondent then brought an action against the appellant insurance company under section 24 of the Insurance Act
(B.C.) 1925, c. 20, to recover the amount of the judgment rendered against B's daughter. That section provides: "24.
Where a person incurs liability for injury or damage to the person or property of another and is insured against such liability and fails to satisfy a judgment awarding damages against him in respect of such liability, and an execution against him in respect thereof is returned unsatisfied, the person entitled to the damages may recover by action against the insurer the amount of the judgment up to the face value of the policy, but subject to the same equities as the insurer would have if the judgment had been satisfied."
Under the policy, the indemnity to the owner was also "available in the same
INSURANCE, ACCIDENT-Concluded manner and under the same conditions as it is available to the insured to any person or persons while riding in or legally operating the automobile * with the permission of the insured *
*
"-Held, reversing the judgment of the Court of Appeal (43 B.C. Rep. 161), that the respondent was not entitled to recover judgment against the appellant company for the amount recovered in the judgment against B's daughter as the latter was not "insured" within the meaning of s. 24 of the Insurance Act. Section 24 of the Insurance Act is a provision in aid of execution and in the nature of a garnishee proceeding. action thereby authorized lies only if the judgment debtor, in this case B's daughter, is insured or has a right to recover indemnity from the insurer. The policy being between B. and the appellant company, B's daughter is not a party to it and there is no consideration moving from her to the insurer for the covenant upon which the respondent relies to establish that B's daughter was insured within the meaning of section 24. While it may be that B, according to the covenant, may recover from the insurer, presumably for the benefit of a person driving his car with his permission, it cannot be said that the insured can be compelled to exercise such a right of recovery or to undertake the duties and responsibilities of a trustee, unless by his consent or by reason of his having become a custodian of indemnity belonging to his daughter.
Section 24 does not confer upon the licensee of the car a right of action upon the policy to recover against the insurer or to compel the insured to exercise his remedies for the recovery and the insured cannot be compelled to become a trustee for a stranger for no other cause than that he had permitted the stranger to drive his car or to ride in it at a time when that stranger negligently caused an accident in which a third party suffered bodily injuries.- Held, also, that the appellant company, by its conduct in defending the respondent's action against B's daughter, was not estopped from denying liability under the insurance policy on the ground that she was not "insured" within the meaning of section 24
N.Y.
INSURANCE, FIRE - Insurance Act, R.S.O., 1927, c. 222-Property becoming vacant-Destroyed by fire within 30 days from commencement of vacancy-Liability on policy-Statutory condition 5 (d)- "Change material to the risk" (statutory condition 7)-Representation as to occupancy in application for insurance.] During the term of a fire insurance policy INSURANCE, FIRE-Continued on farm buildings, the insured, with his family, moved from the farm and took up residence in a new home, intending to reside there permanently and to rent or sell the farm, which remained vacant.
He gave no notice to the insurer of the vacancy. Within 30 days from the time the insured property became vacant, it was destroyed by fire.-Held: The insurer was liable on the policy.
(Judgment of the Appellate Division, Ont., [1931] 4
D.L.R.
720, affirmed.)-In view statutory condition 5 (d) (Ontario Insurance Act, R.S.O., 1927, c. 222) in the policy, vacancy for a period of 30 days was a risk contemplated by the policy and assumed by the insurer, and it was not open to the insurer to shew that the mere fact of vacancy or non-occupancy for less than 30 days was a "change material to the risk" within statutory condition 7.-The insured's answer "yes to the question in his application for insurance, "Is the house occupied all the year round," was not a misrepresentation, or a representation on which the insurer could deny liability; it was a representation as to an existing fact and was then true.
2-Insurance obtained by liquidator on company's property - Sale of the property by liquidator-Payment to liquidator of purchase price and of unexpired portions of insurance premiums-No conveyance of property nor assignment of insurance policies-Destruction of property by fire- Right of liquidator to recover on policies on behalf of purchasers-Alberta Insurance
1926, c.
31, statutory conditions
(schedule B) 4 (a), 5 company was liquidator of E. Co. and obtained from the appellant insurance companies policies of fire insurance on
E. Co.'s grain elevator, the loss, if any, being made payable to a bank to which
E. Co. was indebted. In the course of liquidation respondent sold the elevator to directors of E. Co. (who were guarantors on E. Co.'s indebtedness to the bank).
It was part of the arrangement that the purchasers. should pay the unexpired portions of insurance premiums from date of sale.
The purchasers paid the purchase price and the unexpired portions of insurance premiums.
he bank was paid off and it handed to respondent E. Co.'s certificate of title and the insurance policies (which the bank had held as security).
arranged between respondent and the purchasers that the conveyance to the latter should remain in abeyance, and no conveyance of the property, nor any assignment of the insurance policies, was made.
Subsequently the elevator was burned, and respondent, at the request
INSURANCE, FIRE-Concluded and for the benefit of the purchasers, sued appellants on the policies.- Held: Respondent was entitled to recover.- Per Rinfret, Lamont, Smith and Cannon JJ.: The stipulation in the contract of sale that the purchasers were to pay the unearned portions premiums constituted an implied undertaking on respondent's part to hold the policies for the benefit of the purchasers until such times as they were validly assigned to them. Such an undertaking was enforceable in a court of equity by respondent as trustee of the purchasers. Respondent as liquidator had an insurable interest in E. Co.'s assets when it obtained the policies.
Also it had an insurable interest at the time of the fire, by virtue (1) of its legal ownership, and (2) of its implied undertaking. Statutory conditions 4 and 5, schedule B, of the Alberta Insurance Act, (1926, c. 31) did not afford a defence to the claim. Appellants insured respondent as liquidator of E. Co.; by so doing they must be held to have insured all the interest in the elevator which, in the liquidation, would pass to or be under the control of respondent; the insured's interest was, therefore, stated in the policy within the meaning of statutory condition 4 (a). The insured's interest in the subject matter of the insurance had not been assigned within the meaning of statutory condition 5 (e).-The law in such cases discussed and authorities reviewed.-Judgment of the Appellate Division, Alta. (26 Alta. L.R. 21), affirmed. INSURANCE, LIFE-Husband and wife -Life insurance policy-Wife as beneficiary-Transfer by husband and wife as security for debts of husband-Validity- Doctrine of stare decisis-Finding of fact- Art. 1301 C.C..................... INSURANCE, MOTOR VEHICLES- Insurance of automobile against loss byfre- Terms of application and policy-Automobile to be "chiefly used for private purposes only"-Insurer's liability excluded if automobile "rented or leased"-Fire Insurance Policies' Act, R.S.N.S., 1923, c. 211- Variation in or addition to statutory conditions-Application of Act where policy covers hazards besides loss by fire-"Change material to the risk" (statutory condition 3) -Onus of proof-Effect of alleged misrepresentation in application as to previous claim for loss by fire.] Appellant was insured by respondent company against loss or damage to his automobile by fire, the policy covering other hazards also. His application, made a part of the policy, stated, item 4, that the automobile "will be chiefly used for private purposes only"; and, item 8, that he had made no claim for loss by fire within the last three years preceding the application in respect of the ownership or operation of any automobile; and that if the applicant knowingly misrepresented or omitted to communicate any circumstance required by the application to be made known to the insurer, the contract should be void as to the risk undertaken in respect of which the misrepresentation omission was made. The policy provided, under the heading "Exclusions from Perils," that respondent should not be liable for loss or damage arising while
.the automobile was being used otherwise than for the purposes specified in said item 4, or "if rented or leased."
During the term of the policy, appellant, who had taken the car to B.'s garage for repair, agreed, on request of B. who stated he was overhauling his own car and promised, for his use of appellant's car, to make certain adjustments and repairs, to allow B. to use his car and to leave it in B.'s garage until said work was done, but stipulated that appellant or his wife could use the car whenever they wished, and they did use it while it remained at
B.'s garage.
While B. was driving the car it took fire (supposedly from selfignition caused by the wires having become wet). B. had as yet made no adjustments or repairs. Appellant sued respondent to recover the loss by fire.- Held: Appellant was entitled to recover.
Judgment of the Supreme Court of Nova
Scotia in banco, 4 M.P.R. 280, reversed, and judgment of Carroll J., ibid, restored.
-Per Lamont, Smith and Cannon JJ.:
(1) The arrangement made with B. did not amount to a renting or leasing within the meaning of the policy.
(The limitation intended by the words "if rented or leased," and the nature of the arrangement with B., discussed).
Even if it did, the provisions of the Fire Insurance
Policies' Act, R.S.N.S.,
1923, c. 211, applied, and the clause excluding liability if the car was rented or leased was a variation in or addition to the statutory conditions and, not being evidenced in the form required by the Act, was not binding on appellant.-(2): The arrangement with B. could not be held to constitute a "change material to the risk,"
so as to avoid the policy, under statutory condition 3 of said Act. The onus was on respondent to shew that it was a
"change material to the risk"; there was no evidence on the point, nor was the case so clear that the court could itself say that it was; in fact, the use of the car from time to time by other qualified drivers, with appellant's consent, was a
INSURANCE, MOTOR VEHICLESthing likely, and should be held, to have been within the contemplation of the parties.
Semble, moreover, giving a reasonable effect to the word "chiefly" in said item 4 of the application, the latitude contemplated would cover such an arrangement as that made with B.- (3) The fact that, prior to his application, a car of appellant's was damaged by fire and the damage ($95) paid by an insurer, which occurrence, appellant explained, had entirely escaped his memory when making his application now in question, did not, upon the facts and circumstances, void the policy as being a misrepresentation in said item 8 of the application.
The policy provided that all statements made by the insured upon the application should, in the absence of fraud, be deemed representations and not warranties. This distinguished the present case from Dawsons Ltd. v. Bonnin, [1922] 2 A.C. Being simply representations, they affected respondent's liability only if material to the risk; and the non-disclosure in question was not material to the risk, as, upon the evidence, the proper inference was that full disclosure would not have influenced respondent, or any other reasonable insurers, to decline the risk or stipulate for a higher premium (Western Assur. Co. v. Harrison, 33 Can. S.C.R. 473, distinguished on the facts).-Anglin C.J.C. and Duff J. agreed in the result. Duff J. held that there was no renting or leasing; there was a bailment of a very exceptional character, not within the contemplation condition relied upon under the head of "Exclusions from Perils"; that, as to statutory condition 3, there was no material change proved; it did not appear that appellant did anything not within the contemplation of the policy; that, in so far as the contract was one of insurance against fire, the statutory conditions in said Act took effect, where not inapplicable by reason of the special nature of the subject matter of the contract. 2---Garnishment proceedings against JURY - Trial judge - Charge - Misdirection - Common fault-Annuity table -Estimate of damages
Exception to the charge-Presence of the judge when made-Arts. 466, 467, 498, 500, 506 C.C.P.--Supreme Court Act, 47, 48.] In an action for damages brought by the appellant for injuries suffered by him as the result of a collision between his horse-driven truck and, JURY-Continued one of respondent's tramcars, the jury rendered a verdict in favour of the appellant for $23,040, the full amount claimed.
But the appellate court ordered a new trial on the ground of misdirection by the trial judge in not instructing the jury properly as to the application to the case of the doctrine of common fault, and as to the use to be made of annuity tables by the jury in arriving at the amount of the verdict.- Held that the order for a new trial pronounced by the appellate court should not be interfered with.-Per
Anglin C.J.C. and Smith J.-It is unnecessary to decide the question whether or not the respondent was entitled as a matter of right to the order for a new trial made by the appellate court, as the result of the trial is so unsatisfactory that this court in the exercise of its own judicial discretion, inherent and statutory, ought to affirm such order.-Per Duff, Rinfret and Cannon JJ.-As to the question whether counsel for the respondent, at the trial, has "duly excepted to such misdirection" by the trial judge in the manner provided for by article 498
C.C.P., the circumstances of this case and the entries in the book of proceedings show that there has been a sufficient compliance with the requirements of the code. Moreover, per Duff, Rinfret and Smith JJ., this being a matter of practice and procedure, the judgment of the appellate court should be clearly wrong before this court ought to reverse it.-Per Duff, Rinfret and Smith JJ.- The fact that no mention of a by-law of the city of Montreal applicable to the case was made by the trial judge, in his charge made in French, (although asked to do so), and also the manner in which it was referred to in his charge made in
English, amounted to a refusal "to instruct (the jury) on a matter of law"
(Art. 498 C.C.P.) and constituted an additional reason for granting a new trial.-Judgment of the Court of King's
Bench (Q.R. 50 K.B. 414) aff. Dupiht
2 - Findings -Evidence - Questions to the jury-Answers inconsistent
-Counsel not olecting nor asking for direction by trial judge.............
3---Finding---Reasonable inference. 112
4-Admissibility of evidence.........
See PnomassoRy NoTE 3.
5- Contributory negligence-Action under Fatal Accidents Act,
R.S.O., 1927, c. 183 ("Lord Campbell's
Act")-Application and effect of Contributory Negligence Act, R.S.O., 1927, c.
JURY-Concluded
103-Excessive assessment of damages by jury-Insufficiency of findings-- New trial .. LANDLORD AND TENANT - Negligence-Fire in apartment building - Tenant of suite killed and his wife injured, in escaping; and property loss--Claim by wife against owner of building for damages alleged, and found by jury, in owner of building, in arrangement existing for garbage disposal-Insufficiency of alleged negligence, under the circumstances, to constitute actionable negligence in law...................
LAWYER-Bar of Quebec-Mandamus- Lawyer convicted of a criminal offence- Struck from the roll-Res judicata- Estoppel.......................... LEAVE TO APPEAL
MANDAMUS - Bar of Quebec-Lawyer convicted of a criminal offence-Struck from the roll-Res judicata-Estoppel.] appellant, a lawyer practising in the province of Quebec, was, on the 7th of March, 1922, convicted of having fraudulently converted to his own use a sum of money belonging to a client; the conviction was affirmed by the appellate court on the 20th of June, 1922; and, on the 24th of July, 1922, he was sentenced to two years in penitentiary.
No complaint was lodged by the syndic of the local council for the district of Montreal; but on the 23rd of June, 1922, it was decided at a meeting of that council, at which the appellant was present, to notify the secretary of the General Council of the Bar of Quebec that the offence for which the appellant had been convicted was a felony prior to the passing of the Criminal Code in 1892 and instructing him to act according to the statute incorporating the Bar. On the 26th of August, 1924, the assistant secretary of thelar of the district of Montreal sent a copy of the conviction to the secretary of the General Council, who, the 28th of August, 1924, struck the appellant's name from the roll of advocates for Quebec.
On the 13th of April, 1926, the appellant presented a petition for the issue of a mandamus against the General Bar of Quebec, calling the local Bar of the district of Montreal as third party, asking that the former be ordered to reinstate him as a member of the Bar and that the secretary of the latter be ordered to accept payment of any dues owed by him. On the 11th of October, MANDAMUS-Concluded
1926, the petition was dismissed, and there was no appeal.
On the 21st of
June, the appellant presented another petition for mandamus, asking that the respondent Campbell, as treasurer of the Bar for the district of Montreal, be ordered to accept payment of any fees due then and that the secretarytreasurer for the General Bar be ordered to reinstate him on the roll of the Bar of
Quebec.-Held that under the circumstances of this case, the appellant was not entitled to the issue of the writ of mandamus prayed for by his petition.-The judgment of the Superior Court rendered upon the first petition for mandamus constitutes res judicata as to the legality of the striking of the appellant's name from the roll of practising lawyers. Per
Duff J.-In the proceedings before the trial court on the appellant's first application for a mandamus, it was established as between the Bar of the district of Montreal and the appellant, that he was disfranchised from practising as a member of the Bar and that, for that reason, he was not entitled to call upon the treasurer of that Bar to accept his unpaid subscriptions; therefore, the conditions upon which alone the appellant could call upon the secretary-treasurer of the General Bar to act are, in point of law, non-existent, because of the estoppel as between him and the Bar of Montreal and the treasurer of that Bar.-Per
Anglin C.J.C.-The question of the legal nature and effect of the appellant's conviction has been conclusively determined against him by the Council of the District
Bar, and its view has been equally conclusively affirmed by the ap ellate court.
The appellant's liability to disbarment is a consequence of this conviction; and the statute incorporating the Bar of Quebec has made the Council the final judges upon the sufficiency of the conviction, unappealed and duly reported to them, to warrant their action.-Per Rinfret J.- A writ of mandamus could not be granted against the respondent Campbell, as treasurer of the District Bar, as the latter, in refusing to accept dues from the appellant, while he was no more a member of the Bar, was not refusing "to perform any duty belonging to such office or any act which by law he (was) bound to perform."
Art. 992 (3) C.C.P.-Judgment of the Court of King's Bench
(Q.R. 49 K.B. 124) aff.
MARION v.
CAMPBELL....................
MASTER AND SERVANT-Negligence of servant-Liability of master-Scope of employment-Motor vehicle driven by servant-Deviation from route - Whether servant on "frolic of his own."]
The defendant C., who was in the employ of his father, co-defendant and respond- MASTER AND SERVANT-Concluded ent, as a truck-driver, was instructed on Christmas Day to drive a load of milk from Lulu Island, where they lived, to the Fraser Valley Dairies, whose place of business was in the city of Vancouver but farther south than was the downtown section of the city; and he had orders to return home with the empty cans at three o'clock in the afternoon, to be in time to have dinner with the family. Instead of returning home from the dairy as soon as he had delivered the milk, C. went to the basement of the dairy, changed his working clothes for a better suit and proceeded in the truck to a down-town cafe.
After having his dinner, he picked up a friend and they spent the afternoon together. Shortly after five o'clock, they decided to go to visit a friend who was not at home and so they turned to come back. As they were driving back, C. ran down and severely injured the appellant.
At the time the accident occurred, C. was driving west headed for the hotel where had picked up his friend, intending to take him home; and after leaving the latter at the hotel, C. drove to his father's farm. The trial judge held that the proximate cause of the accident was the negligence of C.; but the appellant was to some degree at fault in not having looked up the street before attempting to cross and was assessed in one-fifth of the damages awarded; and the trial judge also held that at the time of the accident C. was on his way home and therefore acting within the scope of his employment and his father was liable. The Court of Appeal reversed that decision, holding that C. was "going on a frolic of his own without being at all on his master's business" and the action as against the master was dismissed.-Held, affirming the judgment of the Court of Appeal (44 B.C. Rep. 188), that, under the circumstances of this case, C. was not, at the time of the accident, in the course of his employment as his father's truck driver, but was "on a frolic of his own"; and that therefore the master was not liable.
..... MORTGAGE-Agency-Loan on security of mortgage on land-Loan required to pay off prior mortgage-Lender paying proceeds of loan to solicitor for prior mortgage- Authorization-Misappropriation by solicitor-Forged discharge of prior mortgage- Responsibility for loss-Validity of mortgage to secure the loan, as against the mortgagor and subsequent purchaser of the land.] Appellant sued upon a mortgage assigned to her by C. to whom it had been made with the object of finding a person to lend the money with which to pay off an overdue mortgage on the land to Y. for whom C. acted as solicitor; said MORTGAGE-Concluded method being adopted to avoid delay when a lender was found the mortgagor being away on a visit. H, who in the mortgagor s absence had attended for him to the business of Y.'s mortgage, interviewed appellant, who agreed to lend the money, and, as directed by H. (whether, in this regard, H. acted as agent for the mortgagor or for appellant was in dispute), made her cheque payable to C., and (through a solicitor, 0.) took from C.
and registered a purported discharge of the Y. mortgage, the mortgage in question and C.'s assignment thereof to appellant.
It was found later that the discharge of the Y. mortgage was a forgery, and that
Y. did not receive the money from C.- Held: Upon the correspondence facts in evidence, C. was authorized by the mortgagor to receive the money, and
H., in directing appellant to make her cheque payable to C., was acting for the mortgagor; the receipt and cashing of the cheque by C. completed the loan as between the mortgagor and appellant, and the registration of the mortgage constituted it a valid security on the land as against the mortgagor and the respondent (a subsequent purchaser of the land).
Even assuming that knowledge that appellant's loan was to be used to pay off the mortgage to Y. must be attributed to appellant by reason of information conveyed by H. to the solicitor, 0., who
(acting, as found, for both appellant and the mortgagor) attended to searching title and putting through the loan, yet such knowledge was only that C., the authorized agent of the mortgagor to receive the proceeds of the loan, was to apply them on the Y. mortgage.
While
0. owed a duty, both to appellant and to the mortgagor, to see that the title was clear, yet any negligence in that respect was a question between him and them and had nothing to do with the question of C.'s right to receive the money as the person authorized by the mortgagor to receive it. The situation was the same as if the mortgagor himself had received the money; and the argument that no consideration had passed from C. to the mortgagor, and that appellant, buying the mortgage, was bound by the state of the mortgage account, was, in the circumstances, untenable.-Murray
Crossland 64 Ont. L.R. 403, and Butwick v. Grant, (1924] 2 K.B. 483, distinguished.
of the Appellate Division
Ont. ([1931] O.R. 325), reversed, and judgment of Garrow J. (ibid) restored.
v. TORONTo WINE
Co.LrD.......................
Insurance, accident-Automobile driven by insured's daughter-Judgment obtained against her for negligent driving-Action defended by
MOTOR VEHICLES-Continued insurance company-Action against insurance company to recover amount of judg- Liability - Estoppel - Act, B.C., 1925, c. 20, s. 24.......... 2-Negligence-Collision between tramcar and automobile-Contributory negligence- Ultimate negligence-Jury trial- Findings-Evidence- New trial-Questions to the jury-Answers inconsistent-Counsel not objecting nor asking for direction by trial judge........................ 3-Master and servant-Negligence of servant-Liability of master-Scope of employment-Motor vehicle driven by servant-Deviation from route - Whether servant on "frolic of his own." 144 4 - Collision - Responsibility-Action under Families' Compensation Act, R.S.B.C., 1924, c. 85 (Lord Campbell's Act)-Application and effect of Contributory Negligence Act, B.C., 1925, c.8..........................
5--Negligence-Injury to pedestrian- Damages claimed against two motor drivers -Jury finding each driver guilty of negligence-Appeal by one driver-Question as to his responsibility for accident, having regard to evidence and jury's findings- Emergency through negligence of another- Control of car-Divided court- New trial. NELLEs............... 6 - Garnishment against 7 - Highways - Obstruction on - Municipal corporation-Injury to unlicensed driver -Liability of municipality - Motor-vehicle Act, R.S.B.C., 1924, c. 177, s. 7, ss. 7, as amended by B.C. [1930], c. 47, s. 2, s. 2...................
8- Insurance-Insurance of automobile against loss by fire-Terms of application and policy-Automobile to be "chiefly used for private purposes only"-Insurer's liability excluded if automobile "rented or leased"-Fire Insurance Policies' Act, R.S.N.S.,
1923, c. 211-Variation in or addition to statutory conditions-Application of Act where policy covers hazards besides loss by fire-"Change material to the risk" (statutory condition 3)--Onus of proof-Effect of alleged misrepresentation in application as to previous claim for loss by fire........................
See MOTOR ES.C.R. MOTOR VEHICLES-Concluded
9 - Collision between gas electric coach on railway and a motor car, at highway crossing-Responsibility for accident-Coach bell not rung- Nature of sound made by coach horn- Whether motor car driver guilty of contributory negligence-" Ultimate" negligence
.....................
MUNICIPAL
(QUEBEC)- Arts. 16, 243, 670, 743, 758, 769, 771,
772..............................
MUNICIPAL CORPORATIONS-Liability in damages for failure to keep drainage ditches in repair-Land Drainage Act,
Man., R.S.M., 1913, c. 56, 45, 46- Flooding of lands-Cause of damage.]
Plaintiffs claimed damages from defendant municipalities for flooding of lands caused, as alleged, by the municipalities failing to keep drainage ditches in repair.
-Held:
Plaintiffs could not recover from the municipalities because, while the municipalities would be liable for loss suffered by their failure to keep the ditches in repair, yet it was not shewn that any of the damage suffered arose from such failure; rather, it appeared that the damage was due to the unprecedented character of the rain storms, the inadequacy of the drainage system (for which the municipalities could not be held liable) to drain lands lying as low as those of plaintiffs, and the damming of the main ditch by the other defendants.
(Judgment of the Court of Appeal, Man
39 Man. L.R. 214, on this ground affirmed.)-The Land Drainage Act, R.
S.M., 1913, c. 56, ss. 45, 46, imposes on a municipality the legal obligation keeping the ditches, constructed under the Act, within its border in repair, and an action for damages lies, at the instance of any person for whose benefit the obligation is imposed, for loss sustained by failure to perform it. A different legislative intention is not indicated by the provision for the Municipal Commissioner to keep in repair on the municipality's failure to do so, or by the history of the legislation.-History of the legislation in question, and the principles as to liability of municipalities for non-performance of statutory duties, reviewed and discussed.
Groves v. Wimborne, [1898] 2 Q.B. 402, at 415-416;
Mersey Docks Trustees v. Gibbs, L.R. 1
H.L. 93, at 110; City of Vancouver v.
McPhalen, 45 Can. S.C.R. 194, and other cases, cited. MUN.
HANOVER.........................
- Voting - Municipal electors-Valuation roll-Whether roll is conclusive as to who are "proprietors"- MUNICIPAL CORPORATIONS- Enquiry by court whether proprietor at time of voting - Art. 50 C.C.CP. -Sale "a remere"-Promise of sale- Which party is entitled to vote as proprielor-Arts. 16, 243, 670, 743, 758, 769, 771, 772 M.C.]
When a by-law is submitted to the votes of the "proprietors" of taxable immoveable property who are municipal electors under the provisions of article 771 M.C., the fact that the name of an elector appears upon the valuation roll as being "proprietor" does not constitute conclusive proof of his qualification as such. In an action to set aside a by-law on the ground that it had received the approval of the requisite number of "proprietors", the trial judge is entitled to go behind the valuation roll and inquire into the qualification of the individual voters as actual "proprietors" at the time of the voting within the meaning given to that word by the municipal code.
Anglin C.J.C. and Cannon J. (dissenting)
.-Per Duff, Rinfret and Smith JJ.-The buyer in the deeds of sale "a remere" and the vendor in the promises of sale herein are the contracting parties entitled to exercise the right of vote granted to the "proprietor" by Art. 771 M.C.-Anglin C.J.C. and Cannon J., owing to their opinions on the main question, did not express any opinion on this point.-Per Anglin C.J.C.-There was no jurisdiction conferred under Art. 50 C.C.P. upon the Superior Court to entertain the respondents' action, especially when there were involved in it collateral trials of the right to vote of voters who were not parties to the litigation. BOULIANNE..................... - Liability - Constable - Killing of rioter-Dismissal of suit agains constable-Action by constable agains corporation for loss sustained in defending action-Whether constable acted as muni. cipal officer or minister of the law-Rights as mandatary - Art. 1725 C.C.] appellant, a constable of the village of Asbestos, later on annexed to the city of Thetford Mines, but employed and paid by a circus exhibiting in the village fired upon a body of rioters and killed one of them. An action was brought against the appellant and the municipality in the interest of the widow and the children.
The action was finally dismissed by this court on the ground that the appellant was not legally responsible for the death of the victim. ([1931] S.C.R. 145).
The appellant then sued the respondent municipality for indemnity against loss sustained by him as its mandatary in defending action brought against him.-Held that a constable binds the municipal corporation which has appointed him when he acts as municipal officer for the purpose of enforcing the observance of the local ordinances; but he does not bind the corporation when he acts as guardian of the peace to enforce observance of the laws concerning public order. La cite de
Montreal v. Plante (Q.R. 34 K.B. 137)
approved.-Held, also, that the mandatary of several principals binds only the one for whom he acts at the time when the act causing injury is committed.
It is not the regular and customary employment of the mandatary that must be taken into consideration, but the quality in virtue of which he really acts at the time of the event giving rise to the action brought against him.- Held, further, that the mandatary, who claims the right to be indemnified by his mandator for the costs awarded to him and taxed against a third party, must, in order to create a lien de droit, allege that he has tried, but has been unable, to collect these from that party, or, at least that that party is insolvent and not able to pay. Such an allegation is essential in order that these costs may be regarded as "losses caused to him by the execution of the mandate" within the meaning of
Art. 1725 C.C.]-Judgment of the Court of King's Bench (Q.R. 52 K.B. 1) aff.
CITE MINES
................
4 - Contract - Specifications - Municipal sewer system -Quicksand
- Trenching--Setting aside-Impossibility of performance-Supervision of city engineer- Arts. 13, 17 (24), 1062, 1080, 1200, 1201,
1202, 1688 C.C....................
5--Direct or indirect tax-B. N.A. Act,
92, head 2-Municipal tax, on contractors non residents of the province, computed on basis of percentage of contract price- Ultra vires..................
See AsssSMENT
Railways-Board of Railway Commissioners for Canada - Board's order directing municipality to contribute to cost of highway bridge crossing over a railway in another municipality- Whether municipality
"interested affected"
by order for construction of bndge-Railway Act, R.S.C., 1927, c. 170,
256, 39, 259, 33 (5) .............
7- Highways-Obstruction on-Injury to unlicensed driver-Liability of municipality--Motor-vehicle Act,
R.S.B.C.
B.C. [1930], c. 47, s. 2, as. 2 .........
NEGLIGENCE-Collision between tramcar and automobile - Contributory negligence - Ultimate negligence-Jury trial- Findings - New trial-Questions to the jury-Answers inconsistent- Counsel not objecting nor asking for direction by trial judge.]
with her husband and child, was proceeding easterly on 49th Avenue in Vancouver in their automobile, her husband driving.
On approaching the track of the appellant company across the road and seeing a tram-car coming from the south, the husband stopped his car, but as he saw a platform upon which people were standing, he thought that the tramcar would stop and he started to cross the track. The tram-car did not stop and consequently struck the automobile. As a result of the collision, the husband and child were killed and the respondent suffered serious injuries. The jury found that the employees of the appellant company were guilty of negligence and that the husband was also guilty of contributory negligence; but that, notwithstanding such negligence of the driver of the automobile, the motorman of the tramcar could have avoided the accident by the exercise of reasonable care. The jury then assessed the damages for which judgment was entered; and this judgment was affirmed by the Court of Appeal. The appellant company then appealed to the Supreme Court of Canada mainly on the ground that the finding of the jury, in answer to question no. 8 (that, notwithstanding the negligence of the driver of the automobile, the appellant, by the exercise of reasonable care, could have avoided the accident), was inconsistent with the earlier findings of primary negligence of the appellant and contributory negligence of the respondent, and, moreover, that such finding on question no. 8 was not supported by evidence.-Held, Rinfret and Smith JJ. dissenting, that there was no conflict in the findings of the jury and that they were sufficiently warranted by the evidence.-Per Anglin C.J.C. and Newcombe and Cannon JJ.- The appellant's contention, that the questions prepared for the jury and the answers thereto were insufficient and conflicting with each other and that a new trial should, therefore, be ordered, cannot be upheld, as the questions were drafted by both counsel, approved by the trial judge and submitted to the jury, whose answers and verdict were accepted without complaint by both parties, the appellant's counsel, moreover, not having asked for a more complete direction by the judge as to question no. 8, at the time of his charge.-Per Rinfret and Smith (dissenting).-The issue as to ultimate negligence was not properly put to the jury, either in the questions as framed, or in the charge of the trial judge; and it is impossible to say precisely in what the jury would, if asked, have found the ultimate negligence consisted.
This lack of proper instruction as to the law bearing on the questions at issue, coupled with the apportionment of the degree negligence and the finding of ultimate indicates that there was confusion in the minds of the jury, which may have affected all the findings. There should be a new trial as to the claim under what is commonly referred to as
Lord Campbell's Act.
THE COL- ELcERIc RY. Co. KEY....
2-Defective brake on railway car- Whether cause of death of operator of brake-Accident not seen-Jury's finding- Reasonable inference.] An employee of defendant was killed while engaged in switching operations in defendant's yard.
The accident was not seen, but he was found dead on the ground after "riding"
down a "hump" a car which, as later found, had a defective brake. Plaintiff, mother of deceased, recovered, on verdict of a jury, judgment for damages, which was affirmed by the Appellate Division,
Alta.-Held: Defendant's appeal to this
Court should be dismissed.
The jury were justified in concluding, as the reasonable inference from the facts and circumstances in evidence (nature and tendency of the defect in the brake, deceased's duty at the time, his operation and position when last seen before the accident, direction of car, position of body when found, etc.), that it was defendant's negligence in having in use the defective brake which caused deceased to fall and be killed. (Jones v. Great
Western Ry. Co., 47 T.L.R. 39, at 45;
Cottingham v. Longman, 48 Can. S.C.R.
542, and other cases cited.)
Ry.
3- Accident-Cement mixer in public lane-Small child injured while playing- Machine unattended and unguarded - Liability-Common fault.] The respondent, as father and tutor of his minor son, brought an action in damages against the appellant for injuries sustained by his son, then 7 years of age, resulting from a serious accident due to the alleged fault of the appellant.
The respondent's son was playing with a small tricycle in a lane behind his father's house; in that lane, facing the house, the appellant had placed a cement mixer at a short distance from a garage which he was constructing.
The respondent's son, on his tricycle, approached the mixer and put his hand on the machine while in motion, with the result that his hand was caught and drawn into the machine, where it remained until he was extricated. The evidence shows that the machine had been left unattended and unguarded at the moment of the accident.-Held, that, according to the circumstances of this case, the appellant was liable.-Per Anglin C.J.C. and Lamont and Cannon JJ.-The allurement of a piece of machinery in motion for a small child is notorious, and anybody, operating such machinery upon, or so accessible from, a highway or public place as to make it dangerous to children lawfully about neighbourhood, assumes the burden of so guarding the same as to make it practically inaccessible to them.-Per Anglin C.J.C., Lamont and Cannon JJ.-An issue of contributory negligence or common fault cannot be raised as a ground of appeal in the case of a child under eight years of age, such an issue being eminently for determination by the trial judge, who, in the present case, has found in favour of v. 118 4 - Landlord and Tenant - Fire in apartment building-Tenant of suite killed and his wife injured, in escaping; and property loss-Claim by wife against owner building for dapnages- Negligence alleged, and found by jury, in owner of building, in arrangement existing for garbage disposal-Insufficiency of alleged negligence, under the circumstances, to constitute actionable negligence in law.] Plaintiff's husband leased from defendant a suite in defendant's apartment building. On each floor beside the freight elevator, and separated from the hall by swinging wooden doors, was a platform on which were garbage receptacles.
A fire occurred in the building and in efforts to escape the plaintiff was injured and her husband was killed. For this and for property loss, the plaintiff sued for damages. The jury found that defendant was negligent in that it caused or allowed inflammable refuse to be deposited beside the elevator shaft and failed to safeguard such refuse against the danger of fire; that such condition amounted to a trap or concealed danger created by defendant and caused the injuries, death and loss; and judgment was entered for damages. The judgment was set aside by the Court of Appeal for
Manitoba.
Plaintiff appealed.-Held, affirming judgment of the Court of Appeal (39 Man. R.L. 399), that plaintiff could not recover (Anglin C.J.C. dubitante).-The principle of Ry. lands v. Fletcher (L.R. 3 H.L. 330) held not applicable.-The mere deposit and accumulation of inflammable material on an owner's premises does not make him responsible for damages resulting from a fire started in that material by some one else without his knowledge (Laidlaw v. Crow's Nest Southern Ry. Co., 42 Can. S.C.R. 355).-Plaintiff could not recover for her husband's death unless he would have had a right of action arising out of the wrong complained of, had he lived
(C.P.R. v. Parent, 51 Can. S.C.R. 234;
[1917] A.C. 195).-A tenant takes the premises as they are and at his own risk, no matter what condition of visible danger there may be (Robins v. Jones, 15
C.B., N.S., 221; Lane v. Cox, [1897] 1
Q.B. 415, at 417; Taylor v. People's Loan
& Svgs. Corp., [1930] Can. S.C.R. 190).
Defendant's obligation to plaintiff's husband was a contractual one, under which the latter leased the premises and the approaches by which he had access to them, as they were.
During his occupancy prior to, at the time of, and subsequent to the making of the lease, the arrangement for garbage disposal existed the same as at the time of the fire, and he and plaintiff knew of the condition and made use of the facility provided.
Any danger therefrom was not a hidden danger, but one as obvious to the tenant and plaintiff as to defendant.-For plaintiff to succeed in her action for personal injuries and loss, she must establish the existence of some concealed trap; and there was no evidence of such.
The negligence found by the jury did not in law constitute actionable negligence.
(Cavalier v. Pope, [1906] A.C. 428; Groves v. Western Mansions, Ltd 33 T.L.R. 76;
Lucy v.Bawden'[1914]2 K.318;Fairman v. Perpetual Investment Bldg. Soc., [1923]
A.C. 74, cited. Indermaur v. Dames,
L.R. 1 C.P. 274, explained and distinguished.
CITY
5 - Motor vehicles - Collision-Responsibility-Action under Families' Compensation Act, R.S.B.C., 1924, c. 85 (Lord
Campbell's Act)-Application and effect of
Contributory Negligence Act, B.C., 1925, c. 8.]
Plaintiff sued for damages for her husband's death in a collision between his automobile and defendant company's motor bus, on a wet morning, on Connaught Bridge, Vancouver.
The trial judge gave judgment for plaintiff, which was reversed by the Court of Appeal, which dismissed her action
(44 B.C.
Rep. 24).
She appealed.-Held (Anglin
C.J.C. and Cannon J. dissenting): Plaintiff's appeal should be dismissed. Deceased was himself guilty of negligence, and the evidence did not establish negligence in the bus driver.-The question arose whether or not, deceased being guilty of negligence contributing to the accident, plaintiff's action was maintainable under the Families' Compensation Act, R.S.B.C.,
1924, c. 85 ("Lord Campbell's Act"), having regard to the Contributory Negligence Act, B.C., 1925, c. 8. The judgment of the majority of the court, without deciding the question, assumed, for purposes of the judgment, that the action was maintainable.-Per Anglin C.J.C., dissenting:
both deceased and the bus driver were equally guilty of negligence causing the accident, the fault of each being in driving at a speed which, under conditions existing, was excessive, and the effect of which continued right down to the impact. A case was thus made for the application of the Contributory Negligence Act. That Act is applicable to cases under the Families' Compensation Act for the purposes both of enabling plaintiff to maintain an action under the latter Act notwithstanding contributory negligence of deceased, and of providing for apportionment of the liability for damages; and as, in the present case the evidence did not satisfactorily establish degrees of fault, the liability should apportioned equally, and defendants held liable for one half the damages found.-Per Cannon J., dissenting: On the evidence, the bus driver was guilty of ultimate negligence, in that prior to the impact he did not do everything reasonably required of him to avoid the possible consequence of deceased's loss of control of his car; and the judgment at trial in plaintiff's favour should restored.
B.C. 6 - Action under Fatal Accidents Act, R.S.O., 1927, c. 183 ("Lord Campbell's Act")-Application and effect of Contributory Negligence Act, R.S.O., 1927, c. 103-Excessive assessment of damages by jury-Insufficiency of findings-New trial.] In an action under the Fatal Accidents Act, R.S.O., 1927, c. 183 ("Lord Campbell's Act"), where the deceased has been guilty of contributory negligence, and though his degree of fault has much exceeded that of defendant, the Contributory Negligence Act, R.S.O., 1927, c. 103, is applicable to enable the action to be maintained; and it is also applicable for the purpose of providing for apportionment of the liability for damages. (Lamont J., dissenting, contra).-Plaintiffs claimed damages for the deaths of the occupants of a motor car through its collision with defendant company's electric train. The jury found negligence both in defendants and in the driver of the motor car, assessed damages, and apportioned the fault, 25 per cent to defendants, and 75 per cent to the driver of the motor car.
This Court held that, having regard to the evidence, the assessment of damages was unreasonably large and such as must have been occasioned by a misunderstanding of the basis upon which the amount ought to be determined; also that the jury should have been asked who was actually driving the motor car, and whether any of the other occupants stood in such a relation to the driver as to imply his responsibility for the driver's contributory fault or neglect;
and that there should be a new trial, but limited to the following issues: (1) the entire amount of damages suffered by each plaintiff; (2) to whom and how should responsibility for the contributory negligence found by the jury be imputed.
(Lamont J. dissented, holding, on his grounds next stated, that the action should be dismissed.)-Per Lamont J., dissenting: The requirement, to give a right of action under the Fatal Accidents
Act, that deceased's death was caused by a wrongful act, neglect or default of defendant, has not been affected by the
Contributory Negligence Act. To hold that the present action should succeed, with such damages only as would be proportioned to defendants' fault, would mean that the Contributory Negligence
Act, by inference, has amended the Fatal
Accidents Act in matters which are of its very essence, viz., (1) so as to give a right of action to dependants where the death though not caused, has been contributed to, by defendant's negligence; and (2), so as to restrict dependants' measure of damages as given by the Fatal Accidents
Act, which is based on a principle entirely different from that applicable were deceased living and suing; and implication of such amendments is not justified by the provisions of the Contributory
Negligence Act. That Act applies only to cases where the damages sought to be recovered in the action resulted partly from the defendant's fault and partly from the plaintiff's fault.
BROOKs......................
- Motor vehiles-Collision between gas electric coach on railway and a motor car, at highway crossing- Responsibility for accident-Coach bell not rung-Nature of sound made by coach horn-Whether motor car driver guilty of
" Ultimate"
negligence.] Appellant claimed for damages caused by his motor car being struck by respondent's gasoline electric coach on respondent's railway, at a highway level crossing near Colinton Station, Alberta, about noon on July 4, 1930. The coach was used for an inspection trip and was for the first time in that locality.
Appellant knew the times of the regular trains, that they stopped at the station, and that none was due. He had reason to expect workmen coming on hand-cars or speeders.
The coach bell was not rung.
Its horn was sounded, but its noise did nor resemble that made by a steam whistle, but rather that of a motor-bus horn.
Appellant, in approaching the crossing, looked once in the direction from which the coach was coming, but did not see it, as the station (at which the coach did not stop) obstructed his
NEGLIGENCE-Concluded view, and he did not look again. He had heard the horn once, and now heard it again, but thought it was from a car behind him (there was none in fact) whose driver wished to pass him, and he looked back. At no time did he see the coach. Just before the collision the coach operator, as appellant apparently was not going to stop, applied his brakes. Ford J. ([1913] 2 W.W.R. 886) held that respondent, in not ringing the bell, was guilty of negligence causing the accident, and that appellant, under the circumstances, was not guilty of contributory His Judgment was reversed by the Appellate Division (26 Alta. L.R. 49), which held (by a majority) that appellant was guilty of contributory negligence which was the causa causans of the accident.-Held
(Rinfret and Smith JJ. dissenting), that, under all the circumstances, appellant was not guilty of contributory and was entitled to recover.-Principles applicable discussed, and authorities referred to.- Canadian Pacific Ry. Co. v. Smith, 62 Can. S.C.R.
134, discussed and distinguished by Lamont J., but discussed and applied by Rinfret J. (Smith J. concurring)
(dissenting).-The application against respondent of the doctrine of "ultimate negligence" under the circumstances, discussed favoured by Cannon J. (Anglin C.J.C. concurring) but discussed and negatived by Rinfret J. (Smith J. concurring)
(dissenting).
8 - Injury to pedestrian-Damages claimed against two motor drivers-Jury finding each driver guilty of negligence-Appeal by one driver-Question as to his responsibility for accident, having regard to evidence and jury's findings- Emergency through negligence of another- Control of car-Divided court-New trial. NELLEs................ See 8.
See NoTE 3. Statute - "Officer"-Immunity for acts done under ultra vires statute-Whether judicial or public officers-Magistrates Act, R.S.B.C., 1924, c. 150, s. 9................... PATENT - Alleged infringement-Subject matter-Nature, scope and purpose of claims specification.] Respondent had obtained a patent for an improvement in blade holders. According to the specification, the invention was particularly applicable for detachably retaining blades in safety razors and blade stropping mechanism.
A particular PATENT-Concluded feature claimed was that a word or symbol, such as a trade-mark, might be outlined in the blade by means of apertures therein and the projection or projections on the holder might be arranged so as to enter one or more of said apertures to retain the blade in the holder.
Another feature claimed was that the projections might be formed in the holder at one period to engage certain of the blade apertures and at another period the projections might be located in a position to receive any other of the apertures, thus enabling the manufacturer, by shifting the position of the projections, to preclude the use in the holder of blades produced by an unauthorized manufacturer.
claimed that appellants had infringed the patent by selling blades, with certain positioned apertures, for use in respondent's holder.
Respondent relied on, and its action for infringement was confined to, two claims in the specification, which were those having to do with the blade itself.-Held: Respondent's action should be dismissed.
Judgment of Maclean J.,
President of the Exchequer Court of
Canada, [1932] Ex. C.R. 54, reversed.- Anglin C.J.C. and Duff J. agreed in the result.-Per Rinfret, Lamont and Smith
JJ.: Having regard to what was the sole subject matter in the issue, to the nature and scope of the claims in question, to the evidence, to the characteristics in the blade as presented by the claims, and to the purpose of the blade's design, there was no patentable invention in the blade, the claims in question in regard thereto in the specification were invalid and void, and therefore the present action for infringement did not lie.-The claim, in a specification, being primarily designed for delimitation, the monopoly is confined to what the patentee has claimed as his invention (British United Shoe Machinery
Co. Ltd. v. A. Fussel & Sons Ltd., 25
R.P.C. 631, at 650; Pneumatic Tyre Co.
Ltd. v. Tubeless Pneumatic Tyre and
Capon Heaton, Ltd., 15 R.P.C. 236, at
241).-The inventor must in his specification describe in language free from ambiguity the nature of his invention and he must define the precise and exact extent of the exclusive property and privilege which he claims (French's Complex Ore Reduction Co. v. Electrolytic Zinc
Process Co., [19301 Can. S.C.R. 462).- The idea of merely impressing a trademark in a razor blade by means of apertures in the blade, is not patentable.- A device designed exclusively for the protection of the particular manufacturer lacks utility within the meaning of the patent law and does not amount to invention in the patentable sense.
SAmr
PRACTICE
PROCEDURE - Motion to strike paragraphs from factum- Jurisdiction of a judge in chambers or the registrar.] The rules of this court concerning the contents of the factum and the form and manner in which they shall be printed must be followed before the registrar will receive them; but, otherwise, it is not within the province of the registrar, or a judge in chambers, to control the manner and form in which the allegations of fact or the arguments of law are.presented by counsel in their factum.
HAMILTON........................ PRINCIPAL AND AGENT
PROMISSORY NOTE - Agreement to subscribe for a university fund-Validity- Valuable consideration-Bills of Exchange Act, R.S.C., 1927, c. 16, ss. 10 and 53.] In March, 1914, R. offered to give to McGill University, namely the respondent, $150,000 for the erection and equipment of a gymnasium and the offer was accepted; but the building was deferred owing to the war. In 1920, the university authorities undertook a campaign for a "Centennial Endowment Fund" and R., by the terms of a "Subscription and Pledge Card," then promised to contribute $200,000 to that fund on the condition that the previous offer of $150,000 would be included in the subsequent offer, the university being at the same time released from the obligation of erecting the gymnasium.
R. paid $100,- 000 up to 1924, when he asked for an extension of time for payment of the balance.
The respondent acceded to R's request and agreed to accept a promissory note for $100,000 dated December 1, 1925, and payable three years after date. R. became insolvent and the trustee in bankruptcy disallowed the respondent's claim for the amount of the note and the interest accrued.
The Superior Court reversed that decision, which judgment was affirmed by the appellate court.- Held that R's offers to subscribe for the erection of the gymnasium and later for the Endowment Fund, upon the terms agreed, involved him in liability for the stipulated payments, according to the law of Quebec where the contract was entered into, and also, per Newcombe, Rinfret, Lamont and Cannon JJ., according to the common law of England.- Held, also, that the forbearance or extension of time limited for the balance of those payments which R. subsequently obtained by the giving of the note was valuable consideration within the meaning of the common law of England or under a. 53 of the Bills of Exchange Act, R.S.C., 1927, PROMISSORY NOTE-Continued c. 16.1-Judgment of the Court of King's
Bench (Q.R. 50 K.B.) 107 aff.
IsoN THE ROYAL
2 - Resolutions
-Persons authorized to sign-Abence of aignature-Person taking note-What is his duty--Companies Act, R.S.C., 1927, c. 27, as. 37, 100, 106d, 108.]
The Almur
Fur Trading Company was incorporated by Dominion Letters Patent on May 25,
1927, and went into liquidation in June,
The appellant bank filed its claim in respect of five promissory notes made by S., as president, on behalf of the company and amounting to $28,768.02.
liquidator called upon the bank to prove its claim before the Superior Court. The notes were signed in blank by S. alone and were handed to L., the New York buying agent of the company, to be filled in and used by L. in payment of goods bought or to be bought by the company.
L. filled the blank note forms with the names of two other companies owned and controlled by him, being also at that time the owner of all the shares of the insolvent company. The notes were endorsed to the appellant blank, and it is admitted that the bank was a holder in due course.
S. was the only witness at the trial; he produced a by-law of the insolvent company providing inter alia that "all cheques, *
* * notes shall be signed by such officer company and in such manner as shall from time to time be determined by resolution of the Board of Directors,"
and he also produced a resolution of the directors pursuant to the by-law which provides
"that all notes
* signed by the president and countersigned by the auditor
*
* *
"
which resolution the appellant bank had no knowledge.- Held, reversing the judgment of the Court of King's Bench
(Q.R. 50 K.B. 204) that the appellant bank, being a holder in due course, was entitled to rank as a creditor of the insolvent notes were made in general accordance with the authority of the president under the by-law of the company and it was not necessary for the appellant bank to inquire into the authority of the president to sign the notes on behalf of the company. Under section 106d of the Dominion Companies Act, the president had to be one of the directors; and, under section
37, the only persons who could make notes on behalf of the company would be those designated in the by-law. Persons dealing with a company are presumed to have notice of what is contained in the
Act under which the company was incorporated and the Letters Patent; and, in a case like the present, where the Act refers
PROMISSORY NOTE-Continued specifically to the by-laws as the place where the authority of an officer or an agent to sign promissory notes is to be found, the person taking a note made by an officer is under obligation to ascertain from the by-laws that the officer who signed the note might have been authorized to make such note in the course of the company's business; but he is not obliged to go further and inquire whether the directors passed the resolution which would give the officer express authority. That constitutes part of the company's "indoor management."
If the officer might, under the by-laws, have been authorized to make the note, the making of it was within his ostensible powers and was "in general accordance with his powers as such under the by-laws." STATES Ross.... 3 - Consideration - Alleged agreement not to negotiate after maturity-Admissibility of evidence-Questions for jury- Appeal-Jurisdiction-Appeal from order directing new trial-"Exercise of judicial discretion" (Supreme Court Act, R.S.C., 1927, c. 35, s. 38).]
Plaintiff sued upon two promissory notes made by defendant to L. and transferred, after maturity, and not for value, to plaintiff. They were renewals for the balance unpaid of a previous note from defendant to L. There was conflicting evidence as to the reason and consideration for giving the original note. L. asserted that the note was given for the amount owing to him by defendant on a loan.
asserted that the note was for L.'s accommodation; that the loan from L., asserted by L. to have been made to defendant, had in fact been made to one R., that subsequently L. wanted the money, R. could not then pay, that defendant gave the note (for the same amount as that owing by R.) to enable L. to raise money, but received no consideration, that it was agreed that defendant was not to be called upon to pay the note or any renewals, and that the note or any renewals would not be negotiated after maturity. The trial judge withdrew the case from the jury and gave judgment for plaintiff, holding that any verdict, other than that the original note was given in consideration either of a loan by L. to defendant or of a debt due by R. to L. (the taking of the note in such case involving a forbearance or suspension of L.'s remedy against R.) could not be sustained, and that, in either case, defendant was liable. The Supreme Court of Nova Scotia en banc (by a majority) ordered a new trial. Plaintiff appealed.-Held, affirming judgment of the Court en banc (3 M.P.R. 507), that there should be a new trial, as the questions whether the note was given simply for L.'s accommodation or in PROMISSORY NOTE-Concluded consideration of a debt due by defendant or by R., and whether there was an agreement, as alleged by defendant, that the note should not be negotiated after maturity, should have been submitted to the jury.-Parol evidence is admissible to shew that a promissory note was given without consideration, even though it contains the words "value received."
In the present case, should it be found as a fact on parol evidence that the note was given simply for L.'s accommodation, the action must be dismissed, as plaintiff stood in no better position than
L.-Extension of time for payment of a debt owing by a third person may be a good consideration from the payee to the maker of a promissory note. But in the present case, on the evidence, the jury, while they might have found, were not bound to find, that there was given such an extension of time in consideration of the note. A person, unable for the time being to collect from a debtor, may arrange with another to take that other's note for the same amount for his own accommodation, without thereby extending the time for payment by his debtor, and without imposing liability to him on the maker.-Even should the jury find that the note was given for a valuable consideration, but should find that the alleged agreement existed not to negotiate it after maturity, plaintiff's (though not
L.'s) right to recover would be defeated.
Oral evidence of such an agreement was admissible.-Per Lamont J.: Evidence of an oral agreement that the maker of a note is not to pay it at maturity, or that it is to be renewed, is not admissible.- Held, also, that this Court had jurisdiction to hear the appeal; the order of the Court en banc directing a new trial was not one "made in the exercise of judicial discretion" within the meaning of s. 38 of the Supreme Court Act (discussion as to when or when not an order for a new trial may be said to have been made in the exercise of judicial discretion). Where a party is held entitled to a new trial as a matter of right, the order granting it cannot be said to be made in the exercise of judicial discretion; and it is a matter of right where he is entitled under the law to have the facts of his case determined by the jury and that has been denied him.
PUBLIC OFFICER - Crown-Appointment to public office-Abolition of office- Claim by appointee against Crown for damages for breach of contract-Federal
Appeal Board-Dominion Acts, 1923, c.
62, s. 10; 1925, c. 49; 1926-1927, c. 65;
1930, c. 35 (Acts to amend the Pension
See CRowN 1.
QUICKSAND
Constitutional law - Jurisdiction of Board of Railway Commissioners for Canada-Foreign company, licensed in province, operating railway under Dominion jurisdiction and also operating its own provincial line, part of which connected two railways under Dominion jurisdiction-Railway Act, 1927, c. 170, ss. 6 (a), 314, 316, 317- B.N.A. Act, s. 92 (10) (a).] The B.C. Co. (British Columbia Electric Ry. Co.) was incorporated in England and operates in British Columbia under a provincial licence.
Under agreement with the C.P.R. Co. (Canadian Pacific Ry. Co.) it operates by electricity the V. & L.I. Ry. (Vancouver & Lulu Island Ry.) which connects with the C.P.R. and which, in 1901, was leased to the C.P.R. Co. for 999 years, and was declared by Parliament to be a work for the general advantage of Canada.
The B.C. Co.'s "Central Park Line" runs from Vancouver to its connection with a branch of the V. & L.I. Ry. and thence over the latter to the latter's terminus at or near New Westminster, from which terminus the B.C. Co.'s "Central Park Line" continues for one mile to a point where it makes physical connection with the Canadian National Ry. The Board of Railway Commissioners for Canada, by its order No. 42808, of June 10, 1929, directed the B.C. Co. and the Canadian National Rys. to publish and file, between stations on the V. & L.I. Ry. and points on the Canadian National Rys., "via direct connection between the companies," joint rates on the same basis as those published between the said V. & L.I. points and stations on the C.P.R. The B.C. Co. appealed against the order on the ground of lack of jurisdiction in the Board to compel it to file joint rates as aforesaid over the said one mile of its line, which, it contended, was subject only to provincial jurisdiction.- Held (Cannon J. dissenting): The Board had not jurisdiction to make the order.-The (as to railway companies incorporated elsewhere than in Canada) conferred by s. 6 (a) of the Railway Act, R.S.C., 1927, c. 170, is, on its proper construction in the light of ss. 5 and 6 as a whole, limited to the company's operation of lines of railway within the legislative authority of the Parliament of Canada. To construe s. 6 (a) otherwise would raise the question of its constitutional validity (Att.-Gen. for Quebec v. Att.-Gen. for Canada; Insurance Reference, [1931]
3 W.W.R. 689; [1932] 1 D.L.R. 97, referred to in this connection). -The Board did not acquire jurisdiction over the B.C. Co.'s line by virtue merely of that company's operation also of another line which was under Dominion RAILWAYS-Continued
Nor would the facts that a part of the B.C. Co.'s line formed a connecting link between two lines of railway under the Board's jurisdiction, one of which extended beyond the limits of the province, and that the B.C. Co. handled traffic over its provincial lines to and from lines of railway under Dominion jurisdiction, extending beyond the limits of the province, pursuant to agreements with companies owning and operating those lines under Dominion jurisdiction, be a ground for invoking, s. 92 (10) (a)
of the B. N.A.
Act in support of the
Board's jurisdiction. Nor could order be upheld on the ground that it dealt with the regulation of trade and commerce. Nor did the Board have jurisdiction by virtue of ss. 314, 316 and
317 of the Railway Act, the remedying of any discrimination in the manner provided in the order involving, as it did, the exercise of jurisdiction over said mile of railway which was under provincial jurisdiction.-Montreal v. Montreal Street
Ry., [1912] A.C. 333, cited and discussed.
Luscar Collieries v. McDonald, [1927] A.C.
2--Orders of Board of Railway Commissioners-Authorizing Construction of subways in connection with highway crossings
-Directing appellants to move utilities- Railway Act, sections 39, 255, 256, 257- Jurisdiction of Board under the Act- Whether these sections apply to Canadian
National Railways-Whether appellants
"interested or affected by" the Orders-Railway Act, R.S.C., 1927, c. 170, ss. 33 (5),
39, 44 (3), 52 (2), 162, 252, 255, 256, 257,
259, 260-Expropriation Act, R.S.C., 1927, c. 64-Canadian National Railways Act,
R.S.C., 1927, c. 172; 19-20 Geo. V, c. 10- Canadian National Montreal Terminals
Act, (D) 19-20 Geo. V, c. 12.] The Canadian National Railways, a railway company within the legislative authority of the Parliament of Canada, applied to the
Board of Railway Commissioners for the approval of plans and profiles for carrying its tracks across certain highways. The
Board, in final Orders granting the applications, authorized the construction of subways or other structures in connection with the highway crossings and, at the same time, directed the present appellants, amongst others, to move such of their utilities as may be affected by the construction or changes so authorized.
The appellants urged that the Board was without jurisdiction to make the Orders in so far as it directed the appellants to move their utilities; that, in any event,
RAILWAYS-Continued the orders were made irregularly and not in accordance with the rules binding upon the Board; that sections 255, 256 and 257 of the Railway Act were not applicable to the Canadian National Railways and that the Board had not the power to compel public utilities companies remove their facilities without previous compensation.- Held that these Orders were made within the exercise of the powers vested in the Board by the Railway Act, and more particularly by the provisions of sections 39, 255, 256 and 257 of that Act.-Per Duff, Rinfret and Lamont JJ.-The powers of the Board, under the sections above mentioned, are set in motion not alone at the request of the railway companies, but equally at the request of the Crown, of any municipal or other corporation or of any person aggrieved; or the Board may act proprio motu. The primary concern of Parliament in this legislation is public With that object in view, almost unlimited powers are given the Board to ensure the protection, safety and convenience of the public, and it may prescribe such terms and conditions as it deems expedient, its decisions being conclusive as to the expediency of the measures ordered to be taken.-Per Duff, Rinfret and Lamont JJ.-The appellants fall within the class of companies or persons "interested or affected" by the Orders, within the meaning of section 39 of the Railway Act, and, therefore, could competently be ordered to do the works in the manner specified in these Orders, unless it be "otherwise expressly provided" in some other part of the Act. But there is no other section of the Act which provides that the Board may not order a subway or any other work contemplated by sections 256 and 257 to be constructed in whole or in part by a person other than a railway company.-Per Duff, Rinfret and Lamont JJ.-Sections 39, 252, 255, 256 and 257 of the Railway Act apply to the Canadian National Railways, as there are no other provisions, either in the Special Act or Terminals Act of the Canadian National Railways which are inconsistent with these sections of the Railway Act. Moreover, that being so, it is unnecessary to inquire whether they are inconsistent with the Expropriation Act, as that Act cannot prevail against the provisions of the Railway Act relating to highway and railway crossing plans.- Per Duff, Rinfret and Lamont JJ.- Applications under sections 252, 255, 256 or 257 of the Railway Act are not complaints within the meaning of subs. (a) section 33 and the Board may conduct its proceedings in these matters in such manner as may seem to it most convenient.
The Board itself is the proper RAILWAYS-Continued judge of the circumstances under which section 59 of the Act and Rule 6 of its
Regulations should be acted upon.-Per
Duff, Rinfret and Lamont JJ.-Sections
367 to 378 of the Railway Act deal with telephones or telephone companies qua telephones or telephone companies; but there is nothing in them to detract from the authority of the Board to exercise its powers over telephone companies qua companies or persons, in the same manner and with the same effect as against any other company or _person.
NAT. Rys................
.....
3-Dominion and provincial electrical companies-Electric lines along or across railways-Order of the Board making companies wholly liable for damages- Jurisdiction-Whether Order is altering laws in force in provinces-Section 372 of the Railway Act, 1927, R.S.C., c. 170.1
The Board of Railway Commissioners, acting under the powers given to it by section 372 of the Railway Act, issued a
General Order in respect of the conditions and specifications applicable to the erection, placing and maintaining of electric lines, wires or cables along or across all railways, subject to the jurisdiction of the Board; and section 2 of the
Order stipulated that "The applicant shall, at all times, wholly indemnify the company owning, operating or using the railway, from and against all loss, damage, injury and expense to which the railway company may be put by reason of any damage or injury to persons or property, caused by 4ny of the said applicant's wires or cables, or any works herein provided for by the terms and provisions of this order, as well as against any damage or injury resulting from the imprudence, neglect or want of skill of the employees or agents of the applicant, unless the cause of such loss, cost, damage, injury or expense can be traced elsewhere."
The appellants' contentions were that, upon an application for leave to cross railways with power lines, the authority of the Board is limited to imposing terms and conditions as to the manner and means of construction of the works; and that the Board is without jurisdiction to alter the law in force in the various provinces relating to the respective liabilities in damages of the railway and power companies.-Held,
Rinfret and Cannon JJ. (dissenting)
, that the Order was within the jurisdiction of the Board and that section 2 had been validly promulgated.
TEm
Rys.........................
4 - Board of Railway Commissioners for Canada - Board's order directing municipality to contribute to cost
RAILWAYS-Concluded of highway bridge crossing over a railway in another municipality-Whether municipality "interested or affected" by order for construction of bridge-Railway Act, R.S.C., 1927, c. 170, as. 256, 39, 259, 33 (5).]
A street ran east and west through (and continuing beyond) the northern p art of the city of Toronto and of the adjoining village of Forest Hill. At a point in Forest Hill it was carried over a ravine by a bridge under which a railway (under Dominion jurisdiction) crossed the street. The bridge was 500 feet beyond the nearest point of the Toronto city limits. The
Board Railway Commissioners for Canada on application of the Village of Forest hill, authorized reconstruction of the bridge, and directed that the City of Toronto contribute to the cost. The City appealed.-Held: The Board had not jurisdiction under the Railway Act to direct that the City contribute to the cost of the work. There were no circumstances to warrant a holding that the City was "interested or affected" by the Board's order, within the meaning of the Act.- The Railway Act, R.S.C., 1927, c. 170, ss. 256, 39, 259, 33
(5), considered. Toronto Ry. Co. v. Toronto, A.C. 426, at 437, and Canadian Pacific Ry. Co. v. Toronto Transportation Commission, [1930] A.C. 686, cited; and other cases referred to and discussed.
Toronto v. Canadian Pacijc Ry. Co., [1908] A.C. 54, distinguished.]-Quaere whether, in any case, under the circumstances in question, the reconstruction of the bridge was not a matter merely of "street improvement" (British Columbia Electric
Co. v. Vancouver, etc., Ry. & Nay. Co. et al., [1914] A.C. 1067); whether the order did not deal with matters which, in their essence, fell under the category of "municipal" rather than that of "railway". HILL.......
5 - Negligence-Defective brake on railway car-Whether cause of death of operator of brake-Accident not seen- Jury's finding-Reasonable inference.. 112 6 - Colllsion between gas electric coach on railway and a motor car, at highway crossing- Responsibility for accident-Coach bell not rung-Nature of sound made by coach horn-Whether motor car driver guilty of "Ultimate" REAL PROPERTY
RES JUDICATA-Claims present action all before court in former action though not claimed directly as specific relief-Agreement for sale of land-Action by vendor for cancellation and possession;
counterclaim by purchaser for return of payments-Subsequent action by vendor for damages for loss on re-sale and sums paid for repairs and taxes.] A vendor of land sued for cancellation of the agreement for sale, and for possession, alleging the purchaser's default in payment of interest and taxes; and recovered judgment for possession - and a declaration that the agreement had become null and void.
The purchaser counterclaimed for repayment of all amounts paid by him and, by the judgment, recovered all amounts in excess of the first payment.
The vendor subsequently brought the present action, claiming damages for loss on a re-sale of the land, and sums expended by him in repairs and for taxes.- Held: While, in the first action, the claims now made were not all claimed directly as specific relief to which the vendor would be entitled upon cancellation of the agreement, yet they were all urged as separate reasons why the amount recovered by the purchaser should not be returned to him. The claims now made were thus all before the court in the first action; and therefore could not be made the subject of another action.-Judgment of the
Appellate Division, Ont. ([1932] O.R.
29), sustaining judgment of Garrow J.
(ibid), dismissing the action, affirmed.
V. YORK..................
2 - Conditional sales-Excise Act, R.S.C., 1927, c. 60- Forfeiture of vehicle under s. 181-Legal owners having no notice or knowledge of illegal use-Penal statutes-Construction.]
A vehicle, otherwise undisputably liable to forfeiture under s. 181 of the Excise
Act, R.S.C., 1927, c. 60, is (on construction of s. 181 and the Act as a whole)
to be held so liable notwithstanding that its legal owner had, prior to seizure, no notice or knowledge of the illegal use which was being made of it.-Even a penal statute must not be construed so as to narrow its words to the exclusion of cases which those words in their ordinary acceptation would comprehend (Dyke v. Elliott; The "Gauntlett,"
L.R. 4 P.C. 184, at 191; Craies on Statute
Law, 3rd ed., p. 444).-A truck in the possession and use of its purchaser under a conditional sale agreement, by which the property in and title to it remained in the vendors until payments in full and on which a balance remained unpaid was seized under circumstances which, as held on facts admitted, must be taken to have made it liable to forfeiture to the
REVENUE-Continued
Crown under said s. 181.
Held that it was liable to forfeiture not only as against the person in whose possession it was seized but also as against the said vendors, although the latter had no notice or knowledge of the illegal use which was being made of it.-The court is not vested under s. 124 of the Act with any discretionary power in the matter.- It must decide according to law.-Forget v. Forget et al., Q.R. 67 S.C. 78; The King v. Traders' Financial Corp. (In re Excise [1929] 4 D.L.R. 154; Le Roi v. Messervier et al., 34 R.L.n.s. 436, so far as inconsistent with above holding, overruled. The Ship Frederick Gerring Jr. v. The Queen, 27 Can. S.C.R. 271, at 285, cited.-Judgment of the Exchequer Court (Audette
J.),
Ex. C.R. 137, reversed.
THE 134 2 - Excise and Customs Act -Bond - Interest - Exchequer Court Act, section 30-Ontario Judicature Act, section 34.] The actions are for the recovery of the amounts of bonds given by the appellants to the Crown in respect of liquors entered at a port for export, the form of bond being expressed to secure actual exportation to the place provided for in the entry and production of proof thereof, such as has been fully described and discussed in the case of The Canadian Surety Co. v. The King ([1930]
appellants denied liability on the bonds and alleged that, in any event, the Crown could not recover interest, and that the Exchequer Court of Canada had no jurisdiction in the matter, the matter being one of contract and not one arising out of the administration of the laws of Canada and the provincial courts only having jurisdiction.-Held that the Exchequer Court of Canada had jurisdiction to hear and determine the claims. It was competent for the Parliament of Canada, in virtue of the powers vested in it by section 101 of the British North America Act, to confer upon a court, created by it for "the better administration of the laws of Canada,"
authority to hear and determine such claims; and the Parliament has clearly intended to confer such jurisdiction on the Exchequer Court of Canada, the cases probably falling within clause (a), but clearly within clause (d), section 30 of the Exchequer Court Act.- Held, also, that, under the circumstances of these cases, the full amount nominated in the bond is recoverable.- Held further, Anglin
C.J.C.
dissenting, that interest should only run from the date of the judgment of the trial court as, at no date prior to it, the penalty became payable as a "just debt" within the meaning of Lord MacNaghten's judgment in Toronto Ry. Co. v. City of Toronto REVENUE-Concluded
([1906] A.C. 117).-Section 34 of the
Ontario Judicature Act should not be regarded as dealing merely with a matter of procedure; it deals also with important matters of substantive law.-Judgment of the Exchequer Court of Canada ([1931]
Exc. C.R. 85) aff.
Dis- Municipal corporation - Liability - - Killing of rioter - Dismissal of suit against constable--Action by constable against corporation for loss sustained in defending action-Whether constable acted as municipal officer or minister of the law-Rights as mandatary- Art. 1725 C.C.....................
SALE OF LAND - Resjudicata-Claims in present action all before court in former action though not claimed directly as specific relief-Agreement for sale of land- Action by vendor for cancellation and possession; counterclaim by purchaser for return of payments-Subsequent action by vendor for damages for loss on re-sale and sums paid for repairs and taxes ......
See REs 1.
SLANDER
SOLDIER'S SETTLEMENT ACT - Agreement to purchase-Default in payments-Property not kept in good condition- Notice by Crown to rescind agreement-Action to recover land and chattels- Tenancy at will-Reciprocal rights of parties to agreement-Soldier's Settlement
Act, R.S.C., 1927, c. 188, as. 22 and 31.]
The Soldier's Settlement Board entered into an agreement with the respondent for the sale of land to him as authorized by the Soldier's Settlement Act.
Between going into occupation under the agreement in August, 1919, and determination on the part of the Board to rescind the agreement in April, 1929, the respondent defaulted in payments and neglected proper husbandry of the property. The agreement was rescinded by resolution of the Board on the 8th of August, 1929.
The respondent brought an action, by petition of right, to recover the land and chattels of which he had been dispossessed and for damages for depreciation of the same.
The Exchequer Court of Canada held that the respondent was not entitled to have the land or chattels returned to him; but that the notice of intention to rescind the agreement had not been given by the Crown sufficiently early to deprive the respondent of damages to be ascertained by the Registrar of that court upon a reference.-Held that, under the circumstances of this case, the respondent has established no actionable
SOLDIER'S SETTLEMENT ACTclaim as against the Crown and that the Soldier's Settlement Act fully authorized the proceedings taken by it.-Held also, per Duff, Lamont, Smith and Cannon JJ. that, by the effect of section 31 of the Soldier's Settlement Act, the purchaser who is let into possession becomes tenant at will and, in respect of possession of the lanid, has no greater interest than such a purchaser would have had at common law before the Judicature Acts.-Semble, per Duff, Lamont, Smith and Cannon JJ., that the reciprocal rights of the parties are by no means to be ascertained (in their entirety) by reference to the equitable principles governing the rights of vendor and purchaser, but chiefly by reference to the provisions of the statute, and especially to section 22.-Judgment of the Exchequer Court of Canada, ([1932) Ex. C. 18) rev.
THE V. CCLELLAN...................... SOLICITORS-Action for payment of bill of costs-Alleged absence of retainer- Instructions given to solicitors by litigant's husband-Authority of husband-Ratification by litigant's conduct-Estoppel. MCMILLAN.................... STATUTE - Retrospective construction- Statute giving new right of appeal-21-22 Geo. V., c. 28, a. 15 (amending a. 1025, Cr. Code).] Legislation conferring a new jurisdiction on an appellate court to entertain an appeal cannot be construed retrospectively, so as to cover cases arising prior to such legislation, unless there something making unmistakable the legislative intention that it should be so construed. The matter is one of substance and of right. (Doran v. Jewell, 49 Can. S.C.R. 88; Upper Canada College v. Smith, 61 Can. S.C.R. 413).-In the present case, held, that 21-22 Geo. V, c. 28, s. 15 (amending s. 1025 of the Cr. Code) did not give a right to appeal to the Supreme Court of Canada from the sustaining of the appellant's conviction by a judgment of the Appellate Division, Ont., rendered prior to such legislation. v. THE KING............... - - Immunity for acts done under ultra vires statute-Whether judicial or public officers -Magistrates Act, R.S.B.C., 1924, c. 150, The term "officer" in section of the British Columbia Magistrates Act should not be limited in such a way as to exclude all officers who are not judicial officers from its denotation; such interpretation would involve the contention that an act or thing done by any person, in order to fall within the ambit of the STATUTE-Concluded section, must be an act or thing in its nature judicial.-Any public officer, not belonging to any of the specific classes of officers enumerated, is, when performing executive duties, within the descriptive words of the section, and, subject to the conditions prescribed, entitled to claim the benefit of it.-Judgment of the
Court of Appeal (44 B.C.R. 354) reversed.
MEN'S TRUST
3 - Penal statutes-Construction. . 134
4 - Crown grant.........................
STATUTES-(Imp.) B.N.A. Act, s. 92
(2)...............................
2-(Imp.) B. N.A. Act, s. 92 (10a). 161
3-R.S.C. [1886] c. 50, s. 11 (North
West Territories Act)...............
4- R.S.C. [1886] c. 51 (Territories Rea
Property Act).....................
5-R.S.C. [1886] c. 54 (Dominion Lands
6- R.S.C. [1906] c. 35, 8. 15 (Department of Railways and Canals Act).... 511
7-R.S.C. [1927] c. 3 (Aeronautics Act)
.................................
8- R.S.C. [1927] c. ss. 16 (2), 191
(q.r.) (Bankruptcy Act) .............
9- R.S.C. [1927] c. s. 193 (Bankruptcy Act).......................
1-R.S.C. [1927] c. 12, a. 42 (5) (Bank
. ............
See BANKS BANKING 1.
11-R.S.C. [1927] c. 12, 75 (1) (c) (d)*
(Bank Act)........................
12-R.S.C. [1927] c. 12, s. 88 (Bank
Act)......................... 524
See CHATTEL MORTGAGE
13-R.S.C. [1927] c. 16, s.
10, 53
(Bills of Exchange Act)..............
STATUTES-Continued
14-R.S.C. [1927]
c. 26
(Combines Investigation Act) ............. 183, 15-R.S.C. [1927] c. 27, 37, 100, 100, 106 d, 108.................... See NOTE 2.
16- R.S.C. [1927] c. 34, 22 (Exchequer See TRADE-MARK.
17-R.S.C. [1927] c. 34, s. 30 (Exehcquer Court Act).................... 18- R.S.C. [1927] c. 35, s. 2 (b) (Supreme 19- R.S.C. [1927] c. 35, s. 2 (e) 36 (Supreme Court Act)............. 20-R.S.C. [1927] c. 35, 8. 38 (Supreme 21-R.S.C. [1927] c. 35, 39 (Supreme 22-R.S.C. [1927] c. 35, 8. 41 (Supreme 23-R.S.C. [1927] c. 35, s. 47, 48 (Supreme Court Act)................ 24- R.S.C. [1927] c. 36, 8. 226 (Criminal See CRIMINAL 6.
25-R.S.C. [1927] c. 36, 417c (Criminal Code)..................... See CRIMINAL LAW
26-R.S.C. [1927] c. 36, s. 498 (1) (a, b, d) (Criminal Code)................. 27-R.S.C. [1927] c. 36, s.
749, 761, 765 (Criminal Code)................ 28-R.S.C. [1927] c. 36. s. 1010, 1011 (Criminal Code)................... R.S.C. [1927] c. 36. s. 1012 (Criminal Code)..................... 30- R.S.C. [1927] c. 36,
1013 (4) (Criminal Code)................... 31-R.S.C. [1927] c. 36, 1025 (Criminal Code) .............. 101,
2, 3, 5. STATUTES-Continued
32-R.S.C. [1927] c. 60 (Excise Act)
.............
.....
. . .
.134,
See 1, 2.
33-R.S.C. [1927] c. 64 (Expropriation
34- R.S.C. [1927] c. 97, 8. 11 (Income
War Tax Act).....................
(7), 40, 41, 42 (Immigration Act)....
36- R.S.C. [1927] c. 170, 6 (a), 314Y
316, 317 (Railway Act).............
37-R.S.C. [1927] c. 170, s. 33 (5), 39,
44 (3), 52 (2), 162, 252, 255, 256, 257,
259, 260 (Railway Act) ......... 222, 602
See 2, 4.
37- R.S.C. [1927] c. 170, as. 33 (5), 39,
44 (3), 52 (2), 162 252, 255, 256, 257,
259, 260 (Railway Act) .........
222, 602
38- R.S.C. [1927] c. 170, a. 372 (Railway Act)......................
R.S.C. [1927] c. 172 (Canadian
National Railways Act) ............
R.S.C. [1927] c. 188, s. 22, 31
(Soldiers' Settlement Act) ...........
See SOLDIERs'
41-R.S.C. [1927] c. 201, as. 4 (c), 11,
12, 45 (Trade-Mark and Design Act). 189
42-(D.) 42 Vic., c. 31 (Dominion
Lands Act)........................
43-(D.) 7-8 Geo. V, c. 28; 10-11 Geo.
V, c. 49, 4 (Income War Tax Act). 655
See TAx 2.
44- (D.) 13-14 Geo. V, c. 62, 8. 10,
15-16 Geo. V, c. 49, 16-17 Geo. V, c. 65;
20-21 Geo. V, c. 85 (Act to amend The
Pension Act)......................
45-(D.) 18-19 Geo. V, c. 23 (Exchequer
Court Act) (enacting 8. 22 of the Exchequer
46-(D.) 19-20 Geo. V, c. 10 (Canadian
National Railways Act) ............
47-(D.) 19-20 Geo. V, c. 12 (Canadian
National Montreal Terminals Act)...
STATUTES-Continued
48-(D.) 20-21 Geo. V
11, a. 28 (enacting a. 1013 (4) of the Criminal 49- (D.) 21-22 Geo. V, c. 28, s. 15 (Criminal Code)................... 50- R.S.O. [1927] c. 88, s. 34 (Judicature Act).......................... 51- R.S.O. [1927] c. 43, as. 32, 52 (Lakes and Rivers Improvement Act). . 495 52-R.S.O. [1927] c. 103 (Contributory Negligence Act).................... 53-R.S.O. [1927] c. 183 (Fatal Accidents Act)......................... 54-R..O. [1927] c. 222 (Insurance 55- R.S.A.
[1922] c. 78, s. 9 (Magistrates and Justices Act).............. 56- (Alta.) 16-17 Geo. V, c. 31 (Insurance Act)......................... 57-(Alta.) 17 Geo. V, c. 5; 18 Geo. V, c. 25 (Domestic Relations Act) ....... 58- (Alta.) 19Geo. V, c. 12, s. 5 (Bills of Sale A ct)......................... 60- R.S.B.C. [1911] c. 19 (Benevolent Societies Act)...................
61-R.S.B.C. [1924] c. 85 (Families' Compensation Act)............... 62-R.S.B.C. [1924] c. 123, as. 6, 10, 15 (Jury Act)..................... 63-R.S.B.C. [1924] c. 150, 8. 9 (Magistrates Act)........................ 64- R.S.B.C. [1924] c. 177, e. 7, as. 7 (Motor Vehicle Act) ................ 65-R.S.B.C. [1924] c. 236 (Societies 66- (B.C.) 16 Geo. V, c. 8 (Contributory Negligence Act)................. INTDEX
STATUTES-Concluded
67- (B.C.) V, 20, s. 24 (Insurance A ct).........................
68- (B.C.) 20 Geo. V, c. 47, 8. 2, ss. 2
(Motor Vehicle Act) ................
69- R.S.M.
[1913] c. 56, 45, 46
(Land Drainage Act) .. . . .
... ....
R.S.N.B. [19271 c. 151 (Bills of
Sales Act).........................
71-R.S. N.S.
c. 211
(Fire
Insurance Policies' Act) ............
STOCK BROKER--Claims for damages for alleged failure to perform agreement as to short sales and for alleged delay in carrying out instructions to transfer accounts...............
......... 210
STREET RAILWAYS
SUCCESSION DUTIES - Banks and banking-Petition of right-Bank shares- Owner domiciled in
United States- Shares registered outside of Canada- Whether the words "elsewhere" in s. 42, ss. 5 of the Bank Act authorize share registry offices outside Canada-Bank Act,
R.S.C., 1927, c. 12.................
TRADE-MARK - Conflicting claims to word-Whether descriptive-Questions open for determination by court under proceedings taken- Use of word-Class of goods-"Merchandise of a particular description" - Confusion - Conditions justifying refusal of registration-Trade- Mark and Design Act, R.S.C., 1927, c.
Act, R.S.C., 1927, c. 34, s. 22 (as enacted by 18-19 Geo. V, c. 23).]
G. Co. in 1923- 1924 adopted, put into use, and caused to be registered in Canada, the word
"Zipper" as a specific trade-mark in connection with footwear, and has since sold under it overshoes equipped with slide fasteners.
slide fasteners were manufactured by L. Co. which supplied all of them that were so used by G. Co.
In 1927 L. Co. applied for registration of the word "Zipper" as a specific trademark in connection with the sale of slide fasteners. Subsequently G. Co. applied for registration of the word as a specific trade-mark in connection with the sale of slide fasteners and all articles containing the same.
The Commissioner of Patents refused both applications, notifying the parties that, in view of certain conflicting
TRADE-MARK--Continued applications, no further action could be taken "until the rights of the different parties have been determined either by mutual agreement or by a court of competent jurisdiction."
L. Co. then petitioned in the Exchequer Court, and G. Co. (objecting party) counter petitioned each for an order for registration as applied for. Maclean J. ([1931] Ex. C R. 90) dismissed both petitions, holding that the word had become descriptive of slide fasteners in such degree as to preclude its registration as a trade-mark. Both parties appealed, both contending that the judgment below was made upon an issue not properly before the court, and that, in any case, the evidence was insufficient to support the holding, and each claiming an exclusive right to the use of the word for its purpose as applied for.-Held (1): It was within the competence of the Exchequer Court (and of this Court on appeal) to pass upon said ground taken in the judgment below. On proceedings such as those taken in this case, the court has jurisdiction to enquire into all reasons wherefor, under the Trade Mark and Design Act, the registration should be permitted refused; its powers are co-extensive with those conferred on the Minister in s. 11, and (in the absence of surprise to the parties) its investigation should cover the same field (s. 45 of said Act cited and discussed; also s. 22 of the Exchequer Court Act, as amended by 18-19 Geo. V, c. 23).
(Quaere whether, on a reference by the Minister to the Exchequer Court under s. 12 of the Trade Mark and Design Act, the court's jurisdiction may not be limited to the determination of the question involved in the reference).-(2): The evidence, however, was not such as to establish that, at the time of the applications in question, the word "Zipper" had become descriptive, so as to justify refusal of registration on that ground.-To deny registration of a word on the ground that it is descriptive, it must appear that, at the date of the application, it was a name, in current use, descriptive of the article itself.- (3): G. Co.'s petition should be refused. A specific trade-mark can only be registered "in connection with the sale of a class merchandise of a particular description" (s. 4 (c) ); and the "inerchandise of a particular description" which G. Co. sold was an overshoe, not the fastener with which it was equipped; nor did G. Co. indicate any present intention of manufacturing or selling slide fasteners separately (Batt & Co.'s Trade Marks, 15 R.P.C. 262 and 534 (at 538), A.C. 428; Bayer Co. v. American Druggists' Syndicate, [1924] Can. S.C.R. 558, at 569-570; Pugsley, Dingman & Co. v. Proctor & amble Co., [1929] Can. S.C.R. TRADE-MARK-Concluded
442, at 448, referred to in this connection).
Further, although G. Co. had used and registered the word in connection with footwear, it had never used it in connection with fasteners (and the exclusive right to a mark is restricted to the class of goods to which it has been attached: Somerville v. Schembri, 12 App.
Cas. 453); and its application for registration was posterior to that of L. Co.
Also its application to register the mark in connection with "all articles containing" slide fasteners should be refused by reason of the confusion which, on the evidence (which showed that slide fasteners are or may be used on a great number of goods of all classes), would otherwise result; (quaere whether, under the Act, a request in that form for a specific trade-mark may be entertained at all).-(4): L. Co.'s petition should also be refused. In view of the long and extensive use of the word by G. Co. in connection with overshoes, of the existence of certain other marks on the
Register, and of the wide variety of goods to which the fasteners were or might be attached, confusion would likely have resulted had the mark been allowed.
justify refusal of registration it is sufficient that the mark might have the effect of deceiving the public (Eno v. Dunn)
15 App. Cas. 252, at 257).
L. Co.'s adoption of the word as a mark for slide fasteners came too late in the world's history.-Judgment of the Exchequer
Court (supra), in its result, affirmed.
2 -Relief - Copyright-Exchequer Court
- Jurisdiction- Nature of claim.
VALUATION ROLL - Municipal law- Voting - Municipal electors - Whether roll is conclusive as to who are
"proprietora"-Enquiry by court whether proprietor at time of voting-Jurisdiction- Art. 50 C.C.P.-Sale "a rdmir"-Promise of sale-Which party is entitled to vote as proprietor-Arts. 16, 243, 670, 743,
758, 769, 771, 772 M.C.............
See CORPORATION 2.
VOTING - Valutation roll - Municipal electors...........................
Real property--Crown grants of land in
Northwest Territories abutting on nonnavigable lake--Subsequent recession of waters owing to drainage for construction wor-ubsequent acquisition of title by present owners-Claim by present owners, against the Crown, to land to centre of lake-Presumption of grant ad medium filum aquae-Applicability-Rebuttal or exclusion of the presumptive rule by inference from statutes, language of grant or agreement, surrounding circumstances - Dominion Lands Acts, R.S.C., 1886, c. 54; 1879, c. 31; Territories Real Property 1886, c. 51;
Northwest Territories Act, R.S.C., 1886, c. 50, s. 11.] In 1888, 1889 and 1890, the Crown issued patents, some to the C.A.C. & C. Co., and some to the C.P.R. Co., for certain fractional sections of land in the Northwest Territories (within what is now the province of Saskatchewan), which fractional sections then abutted on Rush Lake (held to be non-navigable). only survey at that time of lands in Rush Lake's vicinity was that of 1883, and was of land not covered by water. The patents made no reference to the survey nor to Rush Lake. The descriptions in the patents were all in form such as follows: "All that parcel or tract of land, situate
*
*
* in the 17th township *
*
* and being composed of the whole (fractional) of section 12 of the said township, containing by admeasurement 127 acres more or less."
The survey of 1883 shewed the edge of Rush Lake as a meandered line, and the area of each fractional section bordering on the lake was shown, on the map, on that fractional section. The rights of the C.A.C. & C. Co. to its lands were acquired under an agreement in 1887 (made pursuant to an Order in Council) in which the Dominion Government agreed to sell 50,000 acres, 5,000 acres at each of ten points, of which Rush Lake was one, at the price of $1.50 per acre and performance of certain cultivation conditions, which acreage the com pany selected and paid for. The rights of the C.P.R. Co. to its lands were acquired under agreement of October 21, 1880, appended to and ratified by c. 1 of 44 Vict. (Dom.). In 1903-4, the C.P.R. Co., for the purposes of straightening its railway line, made a drain to lower the waters, and the effect was to make bare a large extent of land formerly part of the lake bed. In 1909 the respondents acquired title to the fractional sections in question (on the same descriptions of the lands as in the patents). the present action they claimed, as being successors in title to the patentees and riparian owners, to be entitled to all the land in front of their fractional sections to the centre of Rush Lake, or, in any event, to the remainders of the whole sections respectively (which remainders had become dry owing to the recession of the waters.-Held: Respondents were not entitled to the land so claimed. Judgment of the Exchequer Court (Maclean J.),
Ex. C.R. 144, reversed.- Under Englian law, the presumptive rule for construing a conveyance as a grant ES.C.R. ad medium filum aquae is rebutted if an intention to exclude it is indicated in the language of the conveyance or is reasonably to be inferred from the subject matter or the surrounding circumstances.
(Dwyer v. Rich, I.R. 6 C.L. 144, at 149;
City of London Tax Commrs. v. Central
London Ry. Co., [1913] A.C. 364, at 372, and other cases cited). Likewise, assuming that said presumptive rule would otherwise apply in the Territories (Northwest Territories Act, R.S.C., 1886, c. 50, s. 11; semble, the rule was not entirely excluded from the general body of English law as introduced into the regionper Duff and Rinfret JJ.; Lamont and
Cannon JJ. inclining to the same view), and would apply there to such a body of water as Rush Lake, yet the rule would be excluded if the Dominion statute law applicable to the Territories satisfactorily disclosed an intention inconsistent with its application.
And, per Anglin C.J.C., the Dominion statute law in force when the patents in question were issued indicated, as the proper inference therefrom, an intention to exclude the application of the rule to grants of Crown lands in
Northwest
Territories.
(Lamont and Cannon JJ. were inclined to the same view, but based their decision on the interpretation, as stated below, of the patents and agreements from the Crown.
Duff and Rinfret JJ. held that where lands were acquired through the commoner transactions sanctioned by the
Dominion Lands Ad-homestead entry, preemption entry, sale at a given price per acre-the presumption must necessarily be excluded in order to give full effect to the intent of the statutory provisions.)
(Dominion Lands
Acts,
14, 29, 32, 129, 130, 131; 1879, c. 31, particularly ss. 30, 34; Territories Real
Property Ad, R.S.C., 1886, c. 51, referred to.) Also, the patents, and the agreements under which the lands were acquired from the Crown, and the circumstances of the purchase, (all as interpreted in the light of the statutory provisions), indicated, as the reasonable inference therefrom, that there was no intention that the ad medium filum rule should apply, but that the patents to the fractional sections now in question should be granted and accepted as covering only the acreage therein set out.-Duff and Rinfret JJ.
further held that, even assuming that the presumption ad medium filum took effect and that, by force of the presumption, strips of the bed of the lake ex adverso passed to the grantees from the Crown, yet, on the subsidence of the lake in 1904, the land expressly described in each grant ceased to be riparian land, and, to a conveyance of this land to respondents under that express description, land not in contact with the lake, the presumption could not apply; no equitable right of respondents has been alleged or proved. (Anglin
C.J.C. doubted whether the Crown should be allowed to set up the fact of the subsequent transfers in reference to the present claim; and was inclined to the opinion that, although respondents must succeed by the strength of their own title, they had an equitable, if not legal, right to everything granted by the Crown to their predecessors in title.)
THE FAREs ........ 2-Timber-Lakes and Rivers Improvement Act, R.S.O., 1927, c. 43, ss. 32, 52- Authorization for construction of works in river and charging tolls on timber passing through-Application of Act to international boundary streams-Application to Pigeon River-Validity of legislation-Construction, application and effect of provision in clause 2 of Ashburton Treaty.] Sees. 32 and 52 of the Lakes and Rivers Improvement Act, R.S.O., 1927, c. 43, providing for incorporation companies for "acquiring or constructing and maintaining and operating works upon any lake or river in Ontario," and for charging tolls upon timber passing through such works, apply with respect to the Ontario side or part of boundary streams between Ontario and the United States, including the Pigeon River. Appellant company, incorporated under the Ontario Companies Act, R.S.O., 1914, c. 178, for the purpose (inter alia) of constructing works on that part of said river which is within Ontario, was held entitled to charge tolls, under the provisions of the Lakes and Rivers Improvement Act, upon all timber passing through such works. The Ontario legislation aforesaid, authorizing such powers, is intra vires.-Judgment of the Appellate Division, Ont., 66 Ont. L.R. 577, reversed. -Per Anglin C.J.C., Rinfret and Smith JJ.: The legislation, so construed as applicable to said river, is not in conflict with the provision in Article 2 of the Ashburton Treaty (between Great Britain and the United States, August 9 1842) that "all the water-communications, ana all the usual portages along the line from Lake Superior to the Lake of the Woods, and also Grand Portage from the shore of Lake Superior to the Pigeon River, as now actually used, shall be free and open to the use of the subjects and citizens of both countries."-Per Anglin C.J.C.: By that provision in the Treaty it was intended merely to ensure to the citizens of both countries equality of rights in regard to the water communications, portages, etc., and not to prevent either party from imposing tolls on its citizens for the use of improvements lawfully to be made, or from imposing like tolls (but none greater) on citizens of the other country for the use of such improvements.
-Per Rinfret and Smith JJ.: That provision in the Treaty does not apply to the non-navigable part of Pigeon River in which the works in question are situated, as that part of the river was not, at the time of the Treaty, "actually used" for water communication,
Grand Portage being used to carry traffic round the high falls and rapids in that part of the river.
The words "as now actually used"
applied, not only to Grand Portage, but also to "all the water-communications,"
etc.-Per Lamont and Cannon JJ.: The words "as now actually used," in the provision in the Treaty, referred only to
Grand Portage and not to all water communications and usual portages.
Pigeon
River from its mouth along both sides of the boundary line forms part of the
"water-communications"
which were to be "free and open."
The words "free and open" are not consistent with the imposition of tolls for the use of improvements erected in the river; they mean that the citizens of both countries are to be at liberty, as a matter of right, to travel these waters on both sides of the fixed boundary line without let or hindrance from anyone or having to pay anything for so doing.
Therefore, s. 52 of the Lakes and Rivers Improvement Act, in so far as it authorizes the imposition of tolls for the use of improvements erected in the Pigeon River, is at variance with the provisions of the Treaty. But this does not make it invalid as a legislative enactment.
The existence of the Treaty of itself does not impose a limitation upon the provincial legislative power. The provision in the Treaty, in the absence of any legislation, Imperial or Canadian, implementing or sanctioning it, has only the force of a contract between Great
Britain and the United States, which is ineffectual to impose any limitation upon the legislative power exclusively bestowed by the Imperial Parliament upon the legislature of a province; and, in the absence of affirming legislation, the provision in the Treaty cannot be enforced by our courts.
&
& BooM Co. V.
Postponed distribution-Provision for advancement of portion of share in estate-Postponed payment-Death of beneficiaryfect of gift over.] A testator gave all his property to his executors upon trusts, which included a direction to pay his wife during her life or widowhood the income of the estate for maintenance of herself and children, a direction for
WILL-Continued settlement upon his daughers on marriage, a direction "to pay to each of my sons who shall reach the age of 30 years, a sum equal to half that portion of my estate, to which such son is entitled under this my will upon the death of his mother, such portion to be valued at the time of each son attaining his
30th year * *
*
Such payment to be considered as a loan from the estate."
Upon the death or remarriage of the testator's wife the residue of the estate was given to his children share and share alike, deducting from each share "any sum or sums which shall already have been advanced" to the child; with provision for division among surviving children of the share of any child who predeceased the widow without leaving issue, and for the issue of any child who predeceased the widow to take the share of their parent. By a codicil the testator directed that his real property (of which his estate mostly consisted) should not be divided among the beneficiaries as directed by his will until after the lapse of 10 years from his death. The testator died in 1911. At the time of the present proceedings, begun in 1930, his widow (who had not remarried) and children still survived except a son S. who died in 1914, having attained the age of 30 years in the testator's life time.
S. left a widow and children, one of whom, a posthumous child, died in infancy.-Held (1): The half portions which the sons were to receive at 30 years of age should be considered, not as loans, but as advances out of their shares of the residue (The holding to this effect in Re Singer, 33 Ont. L.R. 602, at 618; 52 Can. S.C.R. 447 adopted). -(2):
S's share in the residue of the estate became vested in interest at the testator's death (Busch v. Eastern Trust Co., [1928] Can. S.C.R. 479, distinguished) S., who was over 30 years of age, had then, subject to the effect of the codicil, an immediate right to payment of his half portion; and, while the codicil may have practically operated, owing to the nature of the assets, to postpone payment, it did not affect the vesting; nor was the right to the advance personal only to S. so as to be defeated by his death during the 10 year period. But S's. vested interest was subject to defeasance by an executory gift over (to his issue) in the event which happened (issue of S. surviving him). therefore his share was not transmitted by his will and, the right now to the advance did not belong to S's. widow as his personal representative or as beneficiary under his will, but to his children (S's. widow inheriting her distributive share in the estate of S's said deceased child).-Duff J. dissented, holding that the direction for payment of half portions to the sons was strictly personal in rela- WILL-Continued tion to them in its incidence and effect, and that, with regard to S., no right now existed in any person to have the direction carried out.
.....
2 - Res judicata.] The testator, who died in
1881, by his will devised, subject to a life estate to his wife, who died in March,
1912, certain property respectively to each of his five daughters with a provision for remainder to the daughter's children, but with no specific provision as to the remainder in the event of the daughter's death without children.
testator directed that, after his wife's death, the residue of his property should be divided equally amongst his children with provision for issue taking a deceased child's share.
A daughter C. died in
1919, having disposed of her property by
A daughter E. died in
1926, unmarried. The present question was whether there had been vested in C., and so passed under her will, a share of the remainder in the property devised for life to E.; or whether, as claimed by appellant, a child of C., such share in the remainder belonged to C.'s issue.-Held:
There was established a vesting in C., prior to her death, of a share of the remainder in question, which share passed under her will. If such remainder fell into the testator's residuary estate, the question of the vesting in C. of a share therein was res judicata by virtue of a consent order made in June, 1912, declaring the right of the testator's daughters to their share in the residue and ordering realization and distribution of the residuary estate; that order was binding until set aside by an action brought for that purpose; and the present appellant, who was represented by counsel on the motion for the order, could not now be heard to say that he was not bound thereby (Kinch v. Walcott, [1929]
A.C. 482; Ainsworth v. Wilding, [1896]
1 Ch. 673; Firm of R.M.K.R.M. v. Firm of M.R.M.V.L., [1926] A.C. 761, at 771).
If there was an intestacy as to such remainder (and if that view was now open, having regard to said order), then it had vested on the testator's death and C., as one of his heirs at law, could dispose by will of her share therein.
HAWTHORNE..............
3 - Words "legacies"
and "bequests"-Whether used by testator to distinguish donations to different classes
-"Legatees."]
A testator's property when he made his will, when he died, and at the time for distribution hereinafter mentioned amounted in value to about
$55,000.
By his will, he left to his wife
(who actually survived him only eight days) the entire income during her life,
WILL-Continued with provision for payments to her out of principal if required; after her death the estate was to be converted into cash and distributed as follows: specified amounts to four individuals, aggregating $2,500; specified amounts to various charities, aggregating $4,600; then, by clause 5, "All money remaining after payment of the legacies and bequests made herein shall be paid to the said legatees in equal shares, and in case my said estate shall not be sufficient to pay all of the said legacies and bequests in full then I direct that the legacies and bequests shall abate proportionately."
Clause
6 provided: "In the event of any of the legatees dying leaving a child or children, then the share which would have gone to the said legatee shall go to the child or children of such legatee in equal shares, and in case any of the said legatees die without leaving a child or children then the share to which they would have been entitled to shall become part of my residuary estate, and shall be divided as aforesaid." question for determination was whether the residue dealt with in clause 5 was bequeathed to the four individual legatees, or was to be divided in equal shares among them and the charities.- Held, that, upon the true construction of the will as a whole, and considering the circumstances surrounding and known to the testator when he made it, and in view of the effect of the other construction, and the nature of some of the charities, the testator must be taken to have intended the word "legatees" in clause 5 to mean the four individual legatees only; that he intended a distinction between the "legacies" and the "bequests" in clause 5, applying "legacies" to his gifts to the individuals, and whom he referred to as "legatees," and "bequests" to his gifts to charities.of the Appellate Division, Ont., [1932] 1 D.L.R. 595, reversed.- In construing a testator's language, where ambiguous, the court may consider not only the provisions of the will, but also the circumstances surrounding and known to him when he made it, and adopt the meaning most intelligible and reasonable as being his intention.-While the words "legacies"
"bequests"
are indiscriminately used in testamentary dispositions to mean gifts of personality, yet a testator may use them to distinguish donations to different classes, and his intention to do so, if clear, will be given effect.-It is not to be imputed to a testator, unless the context requires it, that he uses additional words for no purpose (Oddie v. Woodford, 3 My. & Cr. 584, at 614).
HOME FRIENDLEss CHATHAM................. WILL-Concluded
4 - Testamentary capacity- Concurrent findings of two courts below on questions of fact........ .........
5-Income tax-Income War Tax Act,
1917 (Dom.), c. 28 (as amended)-Right to assess-S. 3 (6), as enacted by 10-11 Geo.
V, c. 49, 8. 4 (R.S.C., 1927, c. 97, a.
"Income accumulating in trust for the benefit of unascertained persons, or of persons with contingent interests"-Residence out of Canada-Construction of will- Contingent of vested legacies .........
WORDS AND PHRASES-"Amount in controversy in the appeal".............
2- "Bequests"................ 713
3- "Change material to the risk"....
............
491, 680
4- "Chiefly used for private purposes only".... ........................
5- "Elsewhere"............... 410
6- "Exercise of judicial discretion" 260
7- "Final judgment" .............
WORDS AND PHRASES-Concluded 8-"Frolic of his own" ............ 9- "Income accumulating in trust for the benefit of unascertained persons, or of persons with contingent interests" ..... 10-"indebted to the judgment debtor" ...... 11- "Interested or affected by" ..... 12- "Judgment of any other court of 13- "Kept for gain"........... 626 14-' "Legacies" ..................
15- "Legatees".................. 16- ........ 17- "Person within Ontario".... . . 529 18- "Question of law" ..........
19- "Rented or leased" ............ 20-"
Ultimate" negligence........ 689
Cases cited
- A.C. 602 A.C. 602
- Henderson v. The Bank of Hamilton scr-23-716
- Robins v. National Trust Co. A.C. 515 517-518
- Perera v. Perera A.C. 354 361
- A.C. 117 A.C. 117 125
- O.R. 22 O.R. 22
- Re Grand River Motors Ltd. O.R. 101
- Brunet v. The King scr-1928-161
- O.R. 699 O.R. 699
- 1 W.W.R. 912 1 W.W.R. 912
- O.R. 342 O.R. 342
- A.C. 127 A.C. 127
- O.R. 325 O.R. 325
- Hébert v. Martin scr-1931-145
- A.C. 195 A.C. 195
- Cavalier v. Pope A.C. 428
- 2 W.W.R. 886 2 W.W.R. 886
- 1 D.L.R. 97 1 D.L.R. 97
- A.C. 333 A.C. 333
- Canadian Pacific Ry. Co. v. Toronto Transportation Commission A.C. 686
- Toronto v. Canadian Pacijc Ry. Co. A.C. 54
- A.C. 1067 A.C. 1067
- 4 D.L.R. 154 4 D.L.R. 154
- Toronto Toronto
- A.C. 364 A.C. 364 372
- Firm of R.M.K.R.M. v. Firm of M.R.M.V.L. A.C. 761 771
- 1 D.L.R. 595 1 D.L.R. 595
Statutes and regulations cited
-
- s. 39
- s. 2
- s. 26
- ss. 26
- 30
- s. 761
- s. 41
- s. 765
- s. 9
- s. 30
- s. 749
- Section 1025
- Section 193
- s. 1012
- 1025
- s. 38
- s. 92
- section 16
- s. 42
- section 30
- s. 1025
- section 1025
- section 193
- ss. 761
- 765
- 749
- s. 38 of the Supreme Court Act
- ss. 314
- 316
- sections 39
- 255
- 256
- 257
- sections 256
- section 2
- ss. 256
- 39
- ss. 16
- s. 193
- s. 47
- 48
- ss. 2
-
- section 59
- 259
-
- section 30 of the Exchequer Court Act
- section 22
- s. 30
- s. 22
- s. 22 of the Exchequer Court Act
- ss. 30
-
Unresolved citations
- sections 2
- s. 26 of the Domestic Relations Act
- section 191 of the Bankruptcy Act
- s. 5 of the Bills of Sale Act
- Section 372 of the Railway Act, 1927
- s. 6 of the Bills of Sale Act
- s. 2 of the Bills of Sale Act
- section 193 of the Bankruptcy Act
- s. 10 of An Act
- s. 26 of Domestic Relations Act
- (F)
- s. 23 of the Immigration Act
- section 24 of the Insurance Act
- s. 24 of the Insurance Act
- Section 24 of the Insurance Act
- sections 255
- 256
- 257 of the Railway Act
- sections 39
- 255
- 257 of that Act
- section 39 of the Railway Act
- Sections 39
- 252
- sections 252
- section 372 of the Railway Act
- section 101 of the British North America Act
- section 31 of the Soldier's Settlement Act
- s. 45 of said Act
- s. 12 of the Trade Mark and Design Act
- s. 52 of the Lakes and Rivers Improvement Act