Reinblatt v. The King

-*Nov.

HIS MAJESTY THE KING.............. RESPONDENT. ON APPEAL FROM THE KING'S BENCH, APPEAL SIDE, PROVINCE

The appellant was convicted under subsection (a) of s. 415 Cr. C. Upon appeal, the conviction was affirmed by a majority of the Court, the dissent of one judge being merely mentioned in the formal judgment. Under a recent amendment (s. 14 of c. 28 of 21-22 Geo. V), subsection 6 was added to s. 1013 Cr. C. providing that, in case of a dissenting opinion, the formal judgment should specify the grounds in law on which such dissent was based. The Crown contended that, owing to the failure of the appellate court so to specify the grounds of dissent, an appeal to this Court was not open to the appellant. Held that this Court had jurisdiction to entertain this appeal. The only section of the Criminal Code dealing with the jurisdiction de plano of the Supreme Court of Canada is section 1023, under which the fact that there has been a dissent on a question of law is the sole condition for the foundation of its jurisdiction: the circumstance that the grounds of dissent are not specified in the formal judgment of the appellate court does not avoid the fact of there having been a dissent, which is the only requirement contained in section 1023 Cr. C. APPEAL by the defendant from the judgment of the Court of King's Bench, appeal side, province of Quebec, dismissing his appeal by a majority of the Court from his conviction by the Court of King's Bench, criminal side. The appellant was convicted of the following offence: Being president and general manager of a company called *PRESENT:-Rinfret, Lamont, Smith, Cannon and Hughes JJ. Rayon Trimmings Limited, which company had been declared insolvent and was being wound up, he has, during the year preceding the winding up order of the company, committed the following indictable offence, to wit: " Acting in his capacity of president and general manager, with intent to defraud, he did destroy, alter, mutilate and/or falsify the books, papers, writings, valuable securities and documents belonging to the Rayon Trimmings Limited, and/or concur in the same being done." This is an offence against subsection (a) of section 415 of the Criminal Code. The accused had also been found guilty of an offence under .section 417 of the Criminal Code, but his appeal was unanimously allowed on this last conviction by the appellate -court. The Crown contended that the appeal to this Court should be dismissed, because the judgment of the appellate -court was not rendered in accordance with section 1013 of the Criminal Code as amended. In 1931, 21-22 Geo. V, c. 28, s. 14, subsection (6) was added to 1013 of the Criminal Code reading as follows: " Whenever an appeal under this section is dismissed by the Court of Appeal, and any judge of such Court expresses an opinion dissenting from the judgment of the Court, the formal judgment of the Court shall specify any ground or grounds in law on which such dissent is based either in whole or in part."

The formal judgment of the appellate court did not specify the grounds in law on which the Honourable Judge Howard was dissenting: it merely stated that Howard J. was dissenting.

On the appeal to this Court, it was held that the Supreme Court of Canada had jurisdiction to entertain the appellant's appeal. On the merits of the appeal this Court held that there was evidence on which it could well be found that the appellant was guilty.

Lucien Gendron K.C. and Moses Doctor for the appellant.

Ggrald Fauteux K.C. for the respondent.

The judgment follows:

THE CouRT:-The appellant was convicted under subsection (a) section 415 of the Criminal Code.

Upon appeal, the conviction was confirmed by the majority of the Court of King's Bench, but Mr. Justice Howard dissented. In the formal judgment of the Court, the dissent is merely referred to as follows:

Under a recent amendment (sec. 14 of s. 28 of 21-22 Geo. V), the following subsection was added to section 1013 of the Criminal Code:

In this case, the formal judgment does not specify the grounds on which the dissent of Mr. Justice Howard is based, and the Attorney-General, invoking former judgments of this Court (Davis v. The King (1); Gouin v. The King (2), and De Bortoli v. The King (3) ), contends that, owing to the failure so to specify the grounds of dissent, an appeal to the Supreme Court of Canada was not open to the appellant.

We are of opinion that such contention cannot be upheld. The only section of the Code dealing with the jurisdiction de plano of the Supreme Court of Canada is section 1023. It gives to

The fact that there has been dissent on a question of law is therefore the only requirement.

In the Davis case (1) and in the others referred to by the Crown, upon the state of the law as it then was, no dissenting judgment could be legally pronounced, unless the court of appeal directed to the contrary, and unless the direction was plainly " evidenced by the order of the Court" (Gouin v. The King (4)); and this Court held that dissenting opinions expressed contrary to the prohibition of the statute should be treated as non-existent-the consequence being that there was to be found, in the record, no dissent as a result of which the right of appeal could operate under section 1023 of the Code.

But the restrictions to the power of a judge of the court of appeal to pronounce a dissent have been removed. The cases relied on by the Attorney-General therefore no longer . apply. The new enactment does not forbid a dissent from being expressed without leave of the Court; and the circumstance that the grounds of dissent are not specified in the formal judgment of the court does not avoid the fact of there having been a dissent,-which remains the sole condition for the foundation of our jurisdiction, provided the dissent was in respect of a question of law.

Here, the ground of Mr. Justice Howard, the dissenting judge, is that there was no evidence whatever upon which the trial judge could convict.

This raises a question of law; and the effect was, by force of section 1023, to give the appellant a right of appeal to this Court. The objection to our jurisdiction therefore must fail.

When, however, we turn to the examination of the matter, we are clearly of opinion that there was evidence on which it could well be found that the accused was guilty.

We do not lose sight of the point submitted by counsel for the appellant that the evidence was wholly circumstantial, and that this would be a case where the well known rule laid down by Baron Alderson would apply (Hodge's case (1) ). Bearing that in mind, we think the evidence was of such character that the inference of guilt of the accused might and could legally and properly be drawn therefrom. That is sufficient to dispose of the appeal on the question of law raised by the dissenting opinion of Mr.

Justice Howard. The further question whether guilt ought to have been inferred in the premises was one of fact, with which we are not concerned here.

For these reasons, the appeal should be dismissed.

Appeal dismissed.

ACTION-Right of action by infant, after birth, for damages to infant caused by accident to pregnant mother..........

2- Right of.....................

3-See 1.

AGENCY

See 3; 2.

ALIENS

APPEAL-Jurisdiction-Judgment by appellate court quashing appeal for failure to give security-Matter in controversy- Supreme Court Act, section 39.]

appellant, having appealed from a judgment of the Superior Court and having apparently failed to give security within the delays prescribed by the code, the respondent obtained a certificate of default from the prothonotary and moved the appellate court to have the appeal declared abandoned.

The appellate court granted the motion and from that judgment the appellant appealed to this court.- Held that there is no jurisdiction in this court to entertain the appeal.- In appeals from judgments upon demurrers or from judgments dismissing actions upon points of law, the title to the relief claimed is in controversy. Here, the only question involved is the regularity of the particular proceedings in appeal.

Gatineau Power Co. v. Cross [1929] Can.

S.C.R. 35 followed.

V. DUKE- PRICE POWER CO..................

2 - (Supreme Court Act, R.S.C., 1927, c. 35, as. 2

36)-Appeal from judgment setting aside arbitrator's award and referring matter back.] The Appellate Division of the Supreme Court of Ontario had

(35 Ont. W.N. 126) set aside awards of the official arbitrator fixing the rentals to be paid on renewals of certain leases, and referred the matter back for reconsideration from the viewpoint of certain aspects of the case, with liberty to the parties to supplement the evidence already given.

An appeal to this Court was quashed

([1930] Can. S.C.R. 120) for want of jurisdiction on the ground that the judgment of the Appellate Division was not a "final judgment" within as. 2 (b)

and 36 of the Supreme Court Act.

arbitrator again made awards, and the

Appellate Division again (41 Ont. W.N.

341) set them aside and referred the matter back, in order that the arbitrator

"should, upon the existing evidence,

APPEAL-Continued determine" the proper rentals "in conformity with the considerations laid down" in its first judgment.

From this second judgment, special leave to appeal (refused by the Appellate Division) was asked from this Court.-Held: judgment sought-to be appealed from was not a "final judgment," being not distinguishable in this respect from the one previously appealed from; and this Court was without jurisdiction to entertain an ToRoNTo - Exchequer Court Act (R.S.C., 1927, c. 34), s. 82-"Actual amount in controversy"-Claim involved to property or rights of value exceeding $500, but no pecuniary demand--Conflicting claims in applications for patents.] The right of appeal to the Supreme Court of Canada given by s. 82 of the Exchequer Court Act (R.S.C., 1927, c. 34), although expressed in the words "the actual amount in controversy," extends to cases where a claim to property or rights (in the present case, conflicting claims in applications for patents) of a value exceeding $500 is actually involved in the proceeding, although no pecuniary demand is involved. Such value may be established by affidavit.-Burnett v. Hutchins Car Roofing Co., 54 Can. S.C.R. 610, and other cases referred to.-Quaere whether, where it appears that an applicant for leave to appeal has a right of appeal de plano, a judge has authority to allow an appeal under s. 83 of said Act.

BuRT BUsINEss FoRMs LTD. v. JoHNsoN ........... 4 - Amount in controversy in appeal-Claims for damages, by infant suing by father as next friend, and by father, in same action-Appeal by them from judgment reversing judgment at trial in their favour for a sum to each of less than $2,000, the sums together exceeding $2,000- Alternative motion for special leave to appeal.] The action was for damages resulting from the infant plaintiff being struck by defendant's motor truck. The infant, suing by his father as next friend, claimed for personal injuries, and his father claimed for hospital and medical expenses and loss of work. At trial the infant recovered $1,875, and the father $284.25.

The Court of Appeal for Ontario reversed the judgment and dismissed the action. Plaintiffs appealed de plano to this Court. The present motion was by way of appeal from the Registrar's refusal to affirm jurisdiction.- Held: This Court had not jurisdiction. APPEAL--Continued

To give jurisdiction in regard to either appellant, the amount in controversy in the appeal with regard to him must exceed $2,000. Each cause of action was complete in itself and distinct from the other. Appellants were in the same position (as to jurisdiction) as if separate actions had been brought and separate judgments rendered.

The amounts recovered at trial could not be added to give jurisdiction.-"L'Autorite," Limitte v.

Ibbotson, 57 Can. S.C.R. 340, Armand v.

Carr, [19261 Can. S.C.R. 575, and McKee c. City of Winnipeg, Can. S.C.R.

133, cited.-An alternative motion for special leave to appeal was refused.-On an application for special leave to appeal, within s. 41 (f) (amount exceeding $1,000)

of the Supreme Court Act, the mere fact that an important point of law is involved in the appeal is not in itself a sufficient reason for granting leave, if the point has already been the subject of a decision in this Court or in the Judicial Committee of the Privy Council.

5----Jurisdiction--pecial leave to appeal under proviso of s. 41 of Supreme Court

Act, R.S.C., 1927, c. 35-"Other matters by which rights in future of the parties may be affected."] An application, under the proviso of s. 41 of the Supreme Court Act

(R.S.C., 1927, a. 35), for special leave to appeal from the judgment of the Court of

Appeal for British Columbia ([1933] 1

W.W.R. 681;

2 D.L.R. 545), dismissing the applicants' appeal from an order allowing the adoption by respondents of the applicants' daughter, was dismissed, on the ground of want of jurisdiction, the rights in dispute not coming within the meaning of the phrase "other matters by which rights in future of the parties may be affected," having regard to its context, in s. 41.

The scope of the phrase discussed, and the opinion indicated that it is restricted, pursuant to the formula noscitur a sociis, to matters involving something in the nature of a pecuniary or economic interest. Davis v.

Shaughnessy, [1932] A.C. 106, discussed and distinguished.

v. AGNEw 345

- Appeal from pronouncement by Court of

Appeal for Ontario on questions submitted in case stated by arbitrator under Arbitration

Act, R.S.O., 1927, c. 97, s. 26-Construction by Court of Appeal in England of English statutory enactment reproduced in Canadian statute.] The appeal was from the pronouncement of the Court of Appeal for

Ontario, given in exercise of that court's jurisdiction under s. 26 of the Arbitration

Act, R.S.O., 1927, c. 97, in answer to certain questions of law submitted to it by the arbitrator, arising in the course of a reference to determine the amount of

APPEAL-Continued compensation from appellant city to be awarded to respondent (in pursuance of the Municipal Act and the Municipal Arbitrations Act, R.S.O., 1927, c. 233 and c. 242) for alleged damages resulting from respondent's lands being injuriously affected by certain works. On motion by appellant to affirm the jurisdiction of this Court:-Held: This Court had not jurisdiction to entertain the appeal, as the pronouncement of the Court of Appeal was not a final judgment in the sense that it bound the parties to it and concluded them from taking exception to any ultimate award by the arbitrator founded thereon.

In re Knight and Tabernacle Permanent Bldg. Soc., [1892] 2 Q.B. 613; British Westznghouse Electric & Manufacturing Co. Ltd. v. Underground Electric Rys. Co. of London Ltd., [1912] A.C. 673, at 686, cited.-The observations Trimble v. Hill, 5 App. Cas. 342, at 344- 345, as to the authority which in this Court should be ascribed to the decision of the Court of Appeal in England upon the construction and effect of an English statutory enactment which has been reproduced in a Canadian statute, commented on as being a little too absolute. (Robins v. National Trust Co., [1927] A.C. 515, at 519, referred to.)

Crr HOSIERY - Bankruptcy-Leave, under Bankruptcy Act (R.S.C., 1927, c. s. 24, to commence action in King's Bench Court, Sask.-Appeal from Court of Appeal to Supreme Court of Canada, without special leave obtained under Bankruptcy Ad, s. 174.]

The plaintiff's tenant made an assignment under the Bankruptcy Ad, R.S.C., 1927, c. 11, and defendant was appointed trustee. Plaintiff claimed the amount of three months' rent ($5,250) under s. 126 of said Act and as. 41 to 48 of the Landlord and Tenant Ad, R.S.S., 1930, c. 199, and obtained leave, under s. 24 of the Bankruptcy Act, to commence an action in the King's Bench Court, Sask. Plaintiff recovered judgment at trial, which was reversed by the Court of which dismissed its action. Plaintif appealed to the Supreme Court of Canada. Defendant moved to quash the appeal for want of jurisdiction, on the ground that the judgment appealed from was in a proceeding under the Bankruptcy Act and no special leave to appeal had been obtained under s. 174 thereof.- Held: The motion to quash should be dismissed; said s. 174 had no application, the action not falling within the description therein, "proceedings under this APPEAL-Concluded

8---Court, on appeal, finally determining issue, to avoid further trials..........

9-Bankrupcy-Application to judge of

Supreme Court of Canada for special leave to appeal-Order by which a debtor is adjudged a bankrupt - Bankruptcy Act, R.S.C., 1927, c. 11, s. 174

... .

..

.I.......

10-Leave to appeal to Supreme Court of

Canada-Criminal law--Court of appeal judgment conflicting with judgment of another court of appeal in like case-Both judgments not necessarily in similar cases, but upon similar questions of law---Section

1025 Cr.C........................

11-From decision of the Ontario Railway and Municipal Board under s. 83 of the Assessment Act, R.S.O., 1927, c. 238

...................

- Criminal law - Formal judgment of appellate court -Mere mention of dissenting opinion-Not specifying grounds of dissent.............

ARBITRATION - Jurisdiction - Appeal from pronouncement by Court of Appeal for

Ontario on questions submitted in case stated by arbitrator under Arbitration Act,

R.S.O., 1927, c. 97, s. 26............

2.-See 2.

ASSESSMENT

AND TAXATION - Municipal corporation - Valuation roll - Land and buildings owned by same person- Erroneus description-Real owner as to buildings and previous owner as to land- Sale for taxes-Notice to previous owner not excluding buildings-Action in nullity

-Limitation of action-Absolute nullity- Statements in deeds to be taken as proved, even against third party, until contrary evidence-Arts. 414, 415, 1210, 1222 C.C.- Arts. 699 C.C.P.-Arts. 16, 654, 673,

726, 729, 740, 747 M.C.]

Title to mining property having been granted by the

Crown in 1906 to one K., the latter appeared in the books of the appellant municipality as owner until 1926, when the property and the buildings erected thereon were sold for unpaid taxes which were alleged to be due by K. The respondent company bought the property in 1922. According to the books of the appellant municipality in 1926 and previously, the land and the buildings were not described on the valuation roll under consecutive numbers nor on the same pages of the book. Accounts for municipal and school taxes were sent and paid by the respondent company. It was not disputed that the taxes on the buildings were paid; but the municipality claimed taxes were due on the land.

The appellant municipality, in the public notice of sale for unpaid taxes, described the whole lot as being to be sold without indicating that the buildings were excluded. 1928, title to the property was delivered to the purchaser at the tax sale by the appellant. The respondent company had no knowledge of the sale until 1929 when notified by the purchaser and then took an action to annul the sale.-Held that the tax sale was null and void ab initio, and that the title of the purchaser should be set aside.-Held, also, that, in a case of absolute nullity, the provisions of article 747 M.C. enacting limitation of the action in annulment of the sale do not apply.-Held, further that the declarations and statements contained in authentic deeds as well as in deeds under private seal are considered as proved until they are challenged and contrary evidence is adduced and it is so not only as between the paries to the deeds, but also against third parties.-Judgment of the Court of Kings Bench (Q.R. 52 K.B. 458) affirmed.

2-Assessability of "racks" for storage of barrels of whisky during maturing and aging process, elevator, fan, sprinkling system, electric wiring-Assessment Act, R.S.O., 1927, c. 238-"Real property" (s. 1 (h) ) (4) -Exemption of "fixed machinery used for manufacturing purposes" (s. 4 Held, that certain structures, known as "racks," for storage of barrels of whisky during the maturing and aging process, were, along with the erections enclosing them, assessable under the Assessment Act, R.S.O., 1927, c. 238, as being real property, and the racks not being "macmery" within the exemption in s. 4 (19) of "fixed machinery used for manufacturing purposes;" but that the maturing and aging of the whisky was a part of the process of manufacture and an elevator (for hoisting the barrels, etc.) and a fan (for the circulation of heated air), being used in connection with such process, came within said exemption; that the sprinkling system and electric wiring were not machines, therefore not exempt, and were assessable. HAs & THE TowN OF WALKERVILLE..................... 3-Land offered at tax sale bid in by municipality-Alleged offer of redemption- Alleged misrepresentation by municipal official preventing redemption-Claim to have conveyance by municipality set aside and for right of redemption--Conflict of testimony. CIrY

.....

..........

4-Assessment Act, R.S.O., 1927, c.

238, 8. 40 (4)-Exemption (from assessment) of "the buildings, plant and machinery in, on or under mineral land, and used mainly for obtaining minerals from the ground" and "concentrators."] A system for disposal of the slimes from which mineral had been extracted, held to be an absolutely essential part of the effective separation of the minerals from the dross, and therefore part of a "concentrator"

within s. 40 (4) of the Assessment Act,

R.S.O., 1927, c. 238, and exempt from assessment.

(Definition of "concentrator," within s. 40 (4), in Re McIntyre

Porcupine Mines Ltd. and Morgan, 49

Ont. L.R. 214, at 218, adopted and applied).

The Act aims at exempting such means as may be adopted at the mining location to aid in the concentrating of the ore mass.-The scope of the exemption in said s. 40 (4) of "the buildings, plant and machinery in, on or under mineral land, and used mainly for obtaining minerals from the ground,"

discussed, with regard to the general scheme of taxation as disclosed in s. 40 (4), (5)

and (6).

Held, that said exemption covers all buildings, plant and machinery

(situated upon mineral lands) which form an essential part of the system actively in operation in obtaining the minerals, and is not confined to what is used directly in getting out the minerals.-Buildings, plant and machinery held exempt in the present case included (inter alia): a

"change house," boiler house and heating system, power line, electric railway, powder magazine, a "conveyor system" (to transport sand or gravel to fill in the space left in the mine by extraction of rock; and including, inter alia, compressor house, locomotive and cars, electric shovel, railway track, power transmission lines, and conveyor equipment, including steel towers, cables, buckets, etc.)-No appeal lies from a decision of the Ontario Railway and

Municipal Board under s. 83 of said Act on a question of fact; therefore where the

Board has found as a fact that lands in question were mineral lands within the meaning of s. 40 (4), an appellate court

(if finding no error of law or of statute construction involved in the Board's finding) is precluded from interfering with such finding.-Judgment of the

Appellate Division, Ont., [1931] O.R. 640, affirmed, on above grounds. TowNsmp

MINES

5--Income tax-Income War Tax Act, RS.C., 1927, c. 97-Dividend of company paid in Dominion of Canada bonds issued exempt from Dominion income tax-Assessment of shareholder for income tax upon dividend so paid-Exempting provision in bond.] A company declared a dividend payable in Dominion of Canada war loan bonds held by it, at the par value thereof. The bonds each provided that "the obligation represented by this bond and the annexed interest coupons and all payments in discharge thereof are and shall be exempt from taxes-including any income tax-imposed in pursuance of any legislation enacted by the Parliament of Canada."

Appellant, a shareholder in the company, received a dividend in bonds as aforesaid, and was assessed upon the amount thereof under the Income War Tax Act, R.S.C., 1927, c. 97.-Held: The assessment was valid. The taxation was not on "the obligation represented by the bond," but upon appellant's income, which was in part measured by the amount of the bonds which he received as dividend, and which constituted income.-Judgment of the Exchequer Court (Audette J.), Ex. C.R. 108, affirmed.-Lamont J. dissented.

v. TE MINISTER OF REVENUE............... 6- Income--Company assessed for income tax in respect of profit on sale of land-Whether profit was a profit of the company-Whether sale was made by or on behalf of the company-Facte and circumstances in connection with transaction- Agreement of sale by individuals to whom company had made voluntary and unregistered conveyance-Resulting trust-Land Registry Act, R.S.B.C., 1924, c. 127, s. 34.] The question in dispute was whether or not the profit on sale of certain land was a profit of the appellant company and therefore income of the company upon which it was liable for income tax under the Taxation Act, R.S.B.C., 1924, c. 254, as. 2, 4. The land had been purchased by or on behalf of three individuals (who, with their solicitor, were the company's only shareholders) who paid the purchase price.

The land was transferred to the company (which made no payment therefor), one lot by a conveyance (direct from the original vendor) in February, 1928, and the other lot by a conveyance in May, 1928. The land (upon which were rented buildings) was managed by one of the individuals, the same as if the company did not exist. In 1929 the said three individuals entered into an agreement to sell the land to a purchaser at a profit (the profit in question), which agreement was registered on February 5, 1929. On the face of the agreement, it was a sale by the three individuals; the money was payable to them, and the proceeds of the sale were paid to them.

In June, 1928, the company had executed a conveyance of the land to the three individuals, for a nominal consideration, which conveyance was not registered until February 5, 1929, a few minutes after the registration of said agreement of sale.]-Held: Upon all the facts and circumstances in evidence, the sale on which said profit was made was not a sale by the company or on its behalf, the profit was not a profit of the company, and it was not liable for income tax thereon.-It was contended that the said conveyance from the company to the individuals was a voluntary deed, and that, consequently, it passed nothing but the legal estate, and that there arose a resulting trust in favour of the grantor, the company.

Held: Although it may be a disputed question whether or not a voluntary deed, without more, gives rise to a resulting trust in favour of the grantor, yet the law is clear that all the circumstances are to be looked at, and if the conclusion is that, in view of all the circumstances, no resulting trust was intended, then no resulting trust arises.

In the facts and circumstances of the present case, no resulting trust was intended.

The intention was to vest the full beneficial, as well as the full legal, title in the grantees.-The individuals were in a position to enter into the agreement of sale, notwithstanding that the conveyance from the company to them had not been registered; and the mere fact that, at the times of the making and registering of the agreement of sale, the conveyance from the company to them had not been registered, did not militate at all against the conclusion that the sale was their sale and that the purchase price was theirs.

(The effect of s. 34 of the Land Registry Act, R.S.B.C., 1924, c. 127, discussed).-Upon the facts in evidence, the individuals, in managing the property and in receiving the conveyancy of June, 1928, from the company, were not acting as agents or trustees for the company; the company was intended to be merely the depository of the title, while all responsibilities in relation to the land were to be borne by, and all benefits to be enjoyed by, the individuals.

Certain assessment returns made by the company, while entitled to their proper weight as evidence against the company, could not, under the circumstances in which they were made and in light of all the facts, affect the above conclusion.- In re Hastings Street Properties Ltd., 43

B.C. Rep. 209, discussed and distinguished.

M. D. LTD. v. BROWN

....................

-Concuded 7-Action for municipal taxes before the Superior Court-Execution of judgment- Sale by the sheriff-Right of redemption by the owner-Arts. 600, 780, 708, 760 C.C.P. -Cities and Towns Act, R.S.Q., 1925, c. 102, s. 564 et seq.] Section 564 of the Cities and Towns Act, giving to the owner of an immoveable the right to redeem it within a year from the date of its sale for municipal taxes, does not apply in a case of a judicial sale by the sheriff in execution of a judgment rendered by the Superior Court in an action for municipal taxes brought and proceeded with in accordance with the provisions of the Code of Civil Procedure.-The Superior Court of Quebec has jurisdiction to entertain an action for municipal taxes when the amount claimed is $100 or more.-Judgment of the Court of King's Bench (Q.R. 54 K.B. 161) affirmed.

8--Sales tax..................... AUTOMOBILES-Theft-Sale ...... 382 2-See 1, 3, 6, 7, 8. BANKRUPTCY-Application to judge of Supreme Court of Canada for special leave to appeal-Order by which a debtor is adjudged a bankrupt-Jurisdiction-Bankruptcy Act, R.S.C., 1927 c. 11, s. 174.1 A judge of the Supreme Court of Canada is competent, under section 174 of the Bankruptcy Act, to grant leave to appeal from the judgment of an appellate court affirming an order rendered by a bankruptcy court, by which a debtor was adjudged a bankrupt. Even although no actual amount may be in controversy, such an appeal involves the future rights both of the creditor and of the debtor, which are directly affected by the bankruptcy proceedings following as a consequence of the order.

VIGER CO........................ 2 - Leave, under Bankruptcy Act (R.S.C. 1927, c. 11), s. 24, to commence action in King's Bench Court, Sask.-Appeal from Court of Appeal to Supreme Court of Canada, without special leave obtained under Bankruptcy Act, s. 174.1 The plaintiff's tenant made an assignment under the Bankruptcy Act, R.S.C., 1927, c. 11, and defendant was appointed trustee. Plaintiff claimed the amount of three months' rent ($5,250) under s. 126 of said Act and ss. 41 to 48 of the Landlord and Tenant Act, R.S.S., 1930, c. 199, and obtained leave, under s. 24 of the Bankruptcy Act, to commence an action in the King's Bench Court, Sask.

Plaintiff recovered judgment at BANKRUPTCY-Continued trial, which was reversed by the Court of which dismissed its action.

Plaintiff appealed to the Supreme Court of Canada.

Defendant moved to quash the appeal for want of jurisdiction, on the ground that the judgment appealed from was in a proceeding under the Bankruptcy

Act and no special leave to appeal had been obtained under s. 174 thereof.- Held: The motion to quash should be dismissed; said s. 174 had no application, the action not falling within description therein, "proceedings under this Act."

AsSN. LTD....................

3-Bankruptcy Act, R.S.C., 1927, c. 11' ss. 24, 104-"Debts provable in bankruptcy' -Action brought, without leave of court, against assignor in bankruptcy- Costs-Leave nunc pro tune on conditions- Action against stock brokers for unauthorized sale of shares and unauthorized use of proceeds- Nature of claim-"Breach of trust"-Brokers acting on instructions of unauthorized person-Latter's liability to person for whom he assumed to act, nature of claim against him and measure of damages.] Defendants S. and F. carried on business in partnership as stock brokers. Defendant B's relation with them was that of "customer's man;" he received a share of commissions earned on business he brought to them, which included business of M. S. and F. held stocks on margin for M., who was, unknown to S. and F., too ill to do business.

The prices of the stocks were falling, and, acting on instructions given

(without M.'s authority) by B. (and with concurrence of M.'s son who acted in concert with B.), S. and F. sold the stocks, realizing, net, $41,822, and (again on unauthorized instructions as aforesaid) used this money in speculative trading, resulting in its loss. Subsequently S. and F. made an assignment bankruptcy. Later the plaintiffs, representing the estate of M. (who had died), brought action, without obtaining leave of the court under s. 24 of the

Bankruptcy Act, against B., S. and F., their claims including an accounting;

damages for wrongful conversion, breach of contract, fraud and fraudulent breach of trust; and, alternatively, an accounting and judgment for the amount of the proceeds of the sales of the stock. At trial, judgment was given against defendants for $41,822 (the sum above mentioned).

This judgment was varied by the Court of A ppeal, Ont. ([1932] O.R.

245), which held that the liability of S.

and F. was a "debt provable in bankruptcy" within s. 104 of the Bankruptcy

Act and, leave not having been obtained under s. 24, the action against them

BANKRUPTCY-Continued should be dismissed, without prejudice to rights of plaintiffs proceeding in bankruptcy; and that there should be a reference to determine the sum recoverable from B.

Plaintiffs appealed.-Held: The shares having been sold, even though wrongfully (which might well be open to question on the facts and circumstances), the proceeds, which were traceable, were in equity M.'s property (Sinclair v. Brougham, [1914] A.C. 398, at 441-2). Having regard to the cause of action asserted, and S. and F. being (as found) innocent of fraud, the charge established against S. and F. in respect of the proceeds of sale was breach of trust; and the claim, being one arising out of a breach of trust (provable in bankruptcy under s. 104), was unenforceable against them except by leave under s. 24.

But, under the circumstances, leave to bring action should be granted nunc pro tunc (Blais v. Bankers' Trust Corp., 14 D.L.R. 277, referred to with approval), and judgment given for said sum of $41,822 against S. and F., subject to conditions imposed (that plaintiffs do not use the judgment except as one determining the amount for which they may rank upon the estate in bankruptcy and then as no more than prima fade evidence of that amount); plaintiffs to pay costs of S. and F. throughout.-As to B., there were not sufficient reasons for reversing the trial judge's finding that he acted fraudulently; he was chargeable as having fraudulently brought about the breach of trust; and should be held liable to plaintiffs in said sum of $41,822 (statement of the law in 28 Halsbury's Laws of England, p. 204, par. 407, approved and applied; Gray v. Johnston, L.R. 3 H.L. 1, at cited).- Cannon J. dissented in part, holding that the plaintiffs' claim, as made and pursued, was such as entitled them to remedy against S. and F., as well as against B., in the present action as brought, and that the judgment at trial should be restored in its entirety, with costs to plaintiffs throughout.

TRusTS & GuAn- 4-- Claim, under agreement, to possession and control of theatre property-Claimant suing his assignors' trustee in bankruptcy for damages for disposition by trustee-Nature, purpose and effect of the agreement, and extent of claimant's rights and security thereunder- Bankruptcy Act, R.S.C., 1927, c. ss. 64, 54-"Change of possession" of chattels (Bills of Sale Act, Alta., 1929, c. 12, s. 2 (b) . .

. .

.

. .

.. 5-Contract-Agreemnent called lease and promise of sale-Whether valid as such as to third party-Sale of goods-Conditional BANKRUPTCY-Concluded sale-Claim for rent--Saisie-gagerie - Right of vendor of goods to recover same- Art. 1622 C.C.-Bankruptcy-Writ issued without leave of court-Nullity-Section

126 of the Bankruptcy Act-Art. 871

C.C.P ..........................

6--Conditional sale-Bill of sale--Validity as against trustee in bankruptcy- Trust-Estoppel................

BARRISTERS AND SOLICITORS- Solicitor and client-Benefit to loan company's solictor from loan made by company

-Liability of solicitor to company-Basis damages.] A transaction between solicitor and client, in which the solicitor takes a benefit, cannot be supported unless the solicitor has taken care that his client is fully acquainted with the facts and properly advised upon them, and the onus of proving this is upon the solicitor.

(Ward v. Sharpe, 53

L.J.

Ch. 313, at 319).- Where (as found by this Court) the solicitor for a loan company had benefited from a loan made by the company to B., by receiving out of the proceeds of the loan payment of certain mortgages from B. to the solicitor and certain commissions and fees in connection with said mortgages, it was held, under the circumstances of the case, that the solicitor must be held to have been guilty of a breach of duty to the company and that he was liable to it for loss suffered through the transaction.-The majority of the court (Rinfret, Lamont and Smith

JJ.) held that the company was entitled to recover from the solicitor (with right of the solicitor to subrogation)

the full amount of damages sustained (Nocton v.

Lord Ashburton, [1914] A.C. 932), this being (the loan turning out to be a highly improvident one) the full amount of the loan and interest less the amount of a bonus retained by the company out of the loan and less an amount based on a reduction (for the purpose of calculating the damages) of the interest rate payable to the company under its mortgage.

Cannon and Crocket JJ. were in favour of limiting, under the circumstances, the amount recoverable to the amount which the solicitor had received out of the proceeds of the loan and interest at said reduced rate (with right of the solicitor to subrogation).

& SAvv. 257

BILL OF SALE-Conditional sale-Bill of sale-Validity as against trustee in bankrupcy-Trust-Estoppel........ 591

BILLS OF EXCHANGE ACT

BOARD OF RAILWAY

COMMIS- SIONERS FOR CANADA

See 2, 3. BONDS--Succession duties-Local situation, etc.-Specialties.............. 670 BROKERS

BULK SALES--Sale-Entire stock in trade-Purchaser to pay liabilities--Purchase price- Not paid in money, but by delivery of capital stock of purchasing company-Whether arts. 1569 (a) to (d) C.C. (Bulk Sales) apply-Bulk sale without affidavit (art. 1569 (b) ) not void de plano, but voidable only.]

By notarial deed, L.D. sold to L.D. & F. Ltde. his manufacturing plant as a going concern, comprising certain lands, stock in trade, goods on hand, accounts due and bills receivable, his good will and certain specified patent rights; it was also provided by the deed that the purchaser would pay all the liabilities of the vendor. The consideration or purchase price did not consist in money, but in the above undertaking and in the issue to the vendor of virtually the whole of the capital stock of the purchasing company which had been incorporated precisely to carry on the business of the vendor.- Held that the provisions of the civil code as to bulk sales (arts. 1569 (a) to (d) do not apply to such a transaction. Mathieu v. Martin (29 R.L.n.s. 111) foll.-Per Smith and Cannon JJ. and Rivard J. ad hoc.-A bulk sale, which is not accompanied with an affidavit as required by art. 1569 (b) is not void de plano but voidable only. Mathieu v. Martin, supra, foll.

D'AMouns ...... CIVIL CODE-Arts. 414, 415 (Right of accession)......................... 2- Art. 755 (Gifts inter vivos)...... 3- Art. 981a (Trusts)........... 283 4-Arts. 1013 et seq. (Interpretation of contracts)......................... 495 5--Art. 1029 (Effect of contracts with regard to third persons) ............. 6- Art. 1053 (responsibility for damage) ............. 7-Arts. 1053, 1054 (Responsibility for damage).......................... 8-Art.

1054 (Responsibility for damage) ......... CIVIL CODE-Concluded

9- Arts. 1156 (3)

(Of payment with subrogation), 1190 (Of compensation). 355

10- Art. 1204 (Proof) ............

Moro

11-Arts. 1210, 1222 (Proof writings)

............

..

..............

12- Art. 1234

(Writings-testimony)

.................

13-Art. 1323 (Abrogated 60 Vict., c. 52) (Community of property) ......

Arts. 1486 et seq. (Of things which may sold)

....................

15-Arts. 1569 (a) to 1569 (d) (Bulk sales)............................

16- Art. 1571 (Sale of debts and rights of action).....................

17-Art. 1622 (Obligations and rights of lessor)..........................

18- Art. 1622 (Obligations and rights of lessor).......................... 570

19--Art. 1642 (Lease and hire of houses).

Arts. 1667, 1668, 1670 (Lease and hire of personal service)...................

20- Art. 2013 (d) (e) (Privileges upon immoveables)......................

CODE OF CIVIL PROCEDURE-Art.

286, 288 (Discovery).............

2-Art.

600 (Compulsory execution of judgments).............

..........

See 7.

3-Art.

699 (Seizure of immoveables)

.................

4-Arts. 708, 760, 780 (Execution upon immoveables)......................

5-Art.

871 (Abandonment of property)

..............

........ ..........

COLLISION

COMMUNITY

OF PROPERTY - Death of one consort-Failure to make inventory-Continuation of the Community -Art.

1323 C.C., abrogated in 1897 by 60 Vict., c. 52.

COMPANIES AND CORPORATIONS -Sales tax-8pecial War Revenue Act, 1915, 8. 19BBB as amended by 13-14 Geo. V, c. 70, s. 6 (1)-Manufacturing company and selling company and control by foreign parent company-Relationship of the companies and mode of business- Sales by manufacturing company to selling company and by latter to public-"Sale price" for basis of the tax............ 2-Dividend of company paid in Dominion of Canada bonds issued exempt from Dominion income tax-Assessment of shareholder for income tax upon dividend so paid............................. 3--Company assessed for income tax in respect of profit on sale of land-Whether profit was a profit of the company-Whether sale was made by or on behalf of the company-Facts and circumstances in connection with transaction-Agreement of sale by individuals to whom company had made voluntary and unregistered conveyance -Resulting trust-Land Registry Act, R.S.B.C., 1924, c. 127, 8. 34......... COMPENSATION-For lands being injuriously affected by works........ 2-(For injuries).

See WoRKMEN'S COMPLAINT - Sufficiency of, in proceedings under Immigration Act ..... CONDITIONAL SALE - Bill of sale- Validity as against trustee in bankruptcy- Trust-Etoppel.] Respondent as trustee bankruptcy Ontario, disputed the right appellant, as to the certain automobiles, in stock on the dealer's premises at the time of the assignment in bankruptcy.

Two of the automobiles, Viking cars, had been ordered by the dealer from the maker, and shipped to the dealer by freight, the bills of lading being sent to a bank with draft for price attached, so that the dealer could get possession by payment of the draft. The dealer, having ascertained the serial numbers of the cars, executed an "indenture," in reality a bill of sale, purporting 7()6

CONDITIONAL SALE-Continued to sell, assign, transfer, and set over the cars to appellant in consideration of the price represented by the drafts. The bill of sale was not registered. The appellant and the dealer then executed a conditional sale agreement (which was registered) by which appellant agreed to sell the cars to the dealer for the amounts represented by the drafts, the property in the cars to remain in appellant until the price was paid. Appellant then gave cheques to the dealer with which the dealer paid the drafts and got possession of the cars.

In the case of the other cars the dealer, when ordering one, sent its driver to the maker's factory with the dealer's blank cheque, which was filled in for the price and handed to the maker, the driver then taking possession of the car and driving it to the dealer's place of business, where it went into stock.

The dealer then executed an "indenture" or bill of sale (not registered), of the car to appellant, which then executed a conditional sale (registered) of it to the dealer for the original price, or 90% of it, and gave its cheque to the dealer for that sum, thus enabling the dealer to meet its cheque to the maker of the car.-Held (affirming judgment of the Court of Appeal, Ont.,

[1932] O.R. 712), that, as against respondent, the bills of sale and conditional sale agreements were invalid.-As to the

Viking cars-Per Rinfret, Smith and

Hughes JJ: The attempted transfer of ownership from the dealer to appellant, by means of the "indenture" or bill of sale and payment by appellant of the drafts, came within s. 14 of the Bills of

Sale and Chattel Mortgage Act, R.S.O.,

1927, c. 164 (s. 14 extending the Act to a sale of goods which may not be the property of or in the possession, custody or control of the bargainor or any person on his behalf at the time of the making of the sale), and, in the absence of registration, was void as against respondent. The presence of s. 14 in the Ontario Act distinguishes this case from In re Estate of

Smith & Hogan Ltd., [1932] Can. S.C.R.

661, which would have applied had s. 8 of the Act stood alone, as a. 8 (like s. 6 of the New Brunswick Act dealt with in the Smith & Hogan case) does not apply to a transfer of a mere right to acquire ownership of chattels

(Ontario cases cited), and, at the time of execution of the

"indenture", ownership was sti shipper, and all the dealer had was a right to acquire ownership by payment of the draft, and this right or interest in the property was all that passed by virtue of the "indenture."

Per Lamont J. (concurring that the bills of sale were invalid, but on different grounds): The documents and course of dealing clearly established an intention of the dealer and appellant that the dealer should acquire

CONDITIONAL SALE-Concluded title to the cars from the shipper and then, having the property in them, should sell them to appellant, and appellant should in turn sell them back to the dealer under a conditional sale agreement. The bill of sale was, for convenience, drawn up and executed preparatory to completion of the transaction, but was not to operate as a bill of sale until the dealer had the cars upon its premises. The order of the steps toward completion was immaterial, the documents were effective from the moment the parties intended they should become operative. The Smith & Hogan case (supra) did not apply because, in the present case, a court could not, without doing violence to the language used in the bill of sale, find as a fact that the intention was that appellant, in consideration of the cheques which it advanced, was to have only an equitable right to acquire the ownership and possession of the cars, and not the absolute property in them.-As to other cars-The ownership property therein vested in the dealer upon delivery to it, and the "indenture" or bill of sale by it to appellant, without change of possession or registration, came within s. 8 of the Act and was void as respondent.-Ownership never having passed to appellant as against respondent, appellant was not, as against respondent, in a position to make a conditional sale of the cars to the dealer, retaining the ownership.-Appellant's contention that, in view of the general course of dealings between the dealer and appellant in connection with the financing of the purchase of the cars, a trust was created, by which the dealer held the cars in trust for appellant, and unaffected by said Act, was rejected.-It was held further, that the giving up by respondent to appellant of possession of the cars had not, under the circumstances in question, raised an estoppel against respondent. 2-See 3.

CONFISCATION

CONSTITUTIONAL LAW - Statutes (construction, validity)-Turner Valley Gas Conservation Act, Alta., 1932, c. 6-Competency, in so far as it affects leases from Dominion Government under Regulations of 1910 and 1911 (made under authority of Dominion Lands Act, 1908, c. 20)-Agreement between the Dominion and the Province of Alberta respecting transfer to Province of public lands, etc. (confirmed by B. N.A. Act, 1930)-B.N.A. Act, 1867, ss. 91, 92.1 Appellant was holder of a lease from the Dominion Government, granted under CONSTITUTIONAL LAW-Continued the regulations of March, 1910 and 1911

(made under authority of the Dominion

Lands Act, 1908, c. 20), of a tract of land in the Turner Valley gas field, in the province of Alberta, for the purpose of mining and operating for petroleum and natural gas. Sec. 2 of the agreement between the Dominion and the Province, dated December

14, 1929 (respecting transfer to the Province of public lands etc.; and which agreement was confirmed and given "the force of law" by the

B.N.A. Act, 1930, c. 26) provides that

"the Province will carry out in accordance with the terms thereof every contract to purchase or lease any Crown lands, mines or minerals and every other arrangement whereby any person has become entitled to any interest therein as against the

Crown, and further agrees not to affect or alter any term of any such contract to purchase, lease or other arrangement by legislation or otherwise" except with consent or "in so far as any legislation may apply generally to all similar agreements relating to lands, mines or minerals the Province

*

*

*."

(c. 6) the Province passed the Turner

Valley Gas Conservation Act, the broad purpose of which was to reduce the loss of gas in the said field by burning as waste, and which subjected a lessee's operations to the control of a Board whose duty it was to limit the production of natural gas, in the said field, and from any particular well by reference to the amount of naphtha the well ought, in the Board's opinion, to be permitted to produce.- Held: The said Act of the Province

"affected" the "terms" of the lease and of similar leases made under said regulations, within the meaning of s. 2 of said agreement (and did not come within the exceptions in said s. 2), and was, in so far as it affected such leases, incompetent.

(Judgment of the Appellate Division,

Alta., [1932] 3 W.W.R. 477, [1932] 4

D.L.R. 750, reversed in this respect).- The Act "affected" the lease notwithstanding that the lease required the lessee to work the mines "in such manner only as is usual and customary in skilful and proper mining operations of similar character when conducted by proprietors themselves on their own lands.'

Conforming to such standard of working did not require following methods dictated by considerations of public policy, as contradistinguished from the interests of proprietors as proprietors.-Sec. 29 of the

Dominion regulations of 1928 (published in 1930), which (among other provisions)

required a lessee to take precautions against "waste" of natural gas, did not apply to the lease in question. The rule that alegislative enactment is not to be read as prejudicially affecting accrued rights, or "an existing status" (Main v.

CONSTITUTIONAL LAW-Continued Stark, 15 App. Cas. 384, at 388), unless the language in which it is expressed requires such a construction, operated against such application; the Order in Council bringing s. 29 into force contained nothing in its language to indicate that s. 29 was intended to take effect upon the mutual rights of lessors and lessees arising under the terms of leases granted pursuant to the regulations of 1910 and 1911. Neither the terms of the lease itself, nor the regulations of 1910 and 1911, justified a construction by which s. 29 was made to constitute a part of the contract. But even assuming that s. 29 applied, it afforded no escape from the conclusion that the terms of the lease were disadvantageously "affected" by the provincial Act; whatever might be the exact effect of such a requirement against "waste" (if it applied to the lease), the provincial Act, limiting arbitrarily the gross production of the field, and subjecting the lessee, in respect of the production of gas, to the "uncontrolled discretion" (s. 13 of the Act) of an administrative Board, in this respect radically altered the status of the lessee under the terms of his lease.- Sec. 2 of said agreement between the Dominion and the Province precluded the Province from legislating in such a way as to "alter" or "affect" any "term of any such lease," irrespectively of any possibility that such legislation might be of such a character as to fall under powers of legislation possessed by the Province prior to the agreement.

But, further, had the provincial Act in question been passed prior to the agreement, and while the public lands were still held by the Dominion, it would have been inoperative, as regards such leases as that in question, on the grounds (1) that it was repugnant, in so far as it affected tracts leased under the regulations of 1910 and 1911, to those regulations, and the Dominion statute under which they were promulgated; and (2) that, in so far as it authorized the Board to make regulations (taking effect by orders of the Board which were given statutory force) concerning the production of natural gas and naphtha from lands held under lease from the Dominion for the purpose of working them for the production of those minerals, it was egislation strictly concerning the public property of the Dominion (reserved for the exclusive legislative jurisdiction of the Dominion by s. 91 (1) of the B. N.A. Act, 1867).-Held also (agreeing in this respect with the judgment of the Appellate Division, supra): The Act of the province could not be said to be invalid on the ground that, as a whole, it dealt with matters falling strictly under s. 91 (2) (regulation of trade and commerce), or, at all events, with matters outside the scope of s. 92, of the B. N.A. Act, 1867. 7()8

[8.C.R. CONSTITUTIONAL LAW-Continued

(Union Colliery Co. ofBritish Columbia Ltd.

v. Bryden, [1899] A.C. 580, at 587, cited).

The Act was, in substance, legislation providing for the regulation of the working of natural gas mines in the Turner

Valley area from a provincial point of view and for a provincial purpose;

nothing had been shown to indicate that the working of the mines (excepting the wells upon lands leased from the Dominion) was a matter which, by reason of exceptional circumstances, had ceased to be, or had ever been, anything but a matter "provincial" in the relevant sense.

OILs THE

ALBERTA......................

2 - Succession duties - Bonds or debentures of railway companies (G.T.P. Ry.

Co. and C. N. Ry. Co.) having head offices in the province of Quebec, at Montreal, where they were registered and transferable

-Owner at his death domiciled in the province of Ontario-Whether subject to succession duties under sectio* 5 of the

Quebec Succession Duties Act,

R.S.Q.,

1925, c. 29, as modified 18 Geo. V, c. 17-Powers of provincial legislature to fix situs of intangible property-Specialties.] The Crown, in the right of the province of Quebec, by its action claimed the sum of $15,775.95, as representing succession duties alleged to be due by the respondent as sole trustee and executor of the estate of the late Sir Clifford Sifton who died in New York in 1929 and was at the time of his death domiciled in the province of Ontario. Amongst the assets of his estate were certain bonds or debentures of the Grand Trunk Pacific Railway

Company and the Canadian National

Railway Company, respectively, guaranteed by the Government of Canada.

These bonds or debentures, registered in

Montreal, were at the time of Sir Clifford

Sifton's death in the possession of the latter in

Toronto.

were paid to the Government of the province of Ontario; but the Government of the province of Quebec also claimed succession duties on the ground that these bonds or debentures were to be considered for succession duty purposes as property situate in the province of

Quebec according to the definition of the word "property' in section 5 of the

Succession Duties Act (R.S.Q., 1925, c.

29) because the two companies debtors their head offices at Montreal and the bonds and debentures were registered and in that city.-Held that the bonds or debentures had not, in the relevant sense, a local situation within the province of

Quebec, and, therefore, were not subject to the payment of succession duties in

CONSTITUTIONAL LAW-Concluded that province. Brassard v. Smith ([1925] A.C. 371) dist.-Held, also, that a provincial legislature is not competent .to prescribe the conditions fixing the situs of intangible property (which has no physical existence) for the purpose of defining the subjects in respect of which its powers of taxation under section 92 (2), B. N.A. Act, may be put into effect. Therefore, section 5 of the Quebec Succession Duties Act is ultra vires of the legislature of that province, when invoked by it for the purpose of claiming succession duties upon property which has no local situation in that province, within the definition laid down implicitly, if not explicitly, by decisions of the Judicial Committee of the Privy Council.

Woodruff v. Atty. Gen. for Ont. ([1908 A.C. 508); Rex v. Lovitt ([1912] A.C. 212); Toronto General Trusts Corp. v. The King ([1919] A.C. 679); Royal Trust Co. v. Atty. Gen. for Alberta ([1930] A.C. 144); English, etc., Bank v. Commissioners of Inland Revenue ([1932]

A.C.

238);

Commissioners of Stamps v. Hope ([1891] A.C. 476); N.Y. Life Ins. Co. v. Public Trustee ([1924] 2 Ch. 101); Atty. Gen. v.Bouwens ((1838) 4 M. & W. 171), discussed or referred to.- Comments on the legal institution of the common law known as specialty. Debentures authorized by the Parliament of Canada and charged by statute upon the Consolidated Revenue Fund have the character specialties.

Grand Trunk Pacific Ry. Co. has statutory powers to create bonds having the character of specialties. The bonds in this case must, as respects the obligation of the railway company, be considered specialties, although the head office of the company is fixed by statute in Quebec; and, in view of the statute law applicable to the case, it must be held such a specialty has its situs in Ontario. Neither, for the reasons fully stated in the judgment, have the bonds of the Canadian National Railway Company in question in this case a situs in Quebec.-Judgment of the Court of King's Bench (Q.R. 54 K.B. 351) KING v. - Homesteads-Agreements respecting transfer from Dominion to Western Provinces of Crown lands, etc. (confirmed by B. N.A. 1930)-Obligation to refund dues to homesteaders pursuant to terms of S. 47 (f) of Timber Regulations promulgated under Dominion Lands Act-Whether an obligation of the Dominion or of the respective Provinces....................... CONTRACT-Lease or hire of personal services-Engagement at so much per year- Whether yearly or for an unlimited term- Dismissal-Claim for full year salary- Tacit renewal-Arts. 1642, 1667, 1668,

1670 C.C.]

The respondent alleged a verbal contract of lease or hire of his services as Assistant Manager of the appellant company "at an annual salary of $6,000 per annum dating from 1st of

May, 1927, payable $500 a month" with the free use and occupancy of a dwelling house belonging to the company; and he further alleged that this oral agreement had been confirmed by a letter from the president of the company dated 5th May,

1927, as follows: "Mr. Cook has agreed to join us on the conditions mentioned at

$6,000 per annum, and use of Penhale's house."

The appellant company alleged the oral agreement was for hire from month to month; but the only evidence tendered on either side was the letter of the 5th of May. The respondent continued in the discharge of his duties until the 31st August, 1929, when he was dismissed and paid $1,875, being his salary to that date plus three months' pay in lieu of notice.

The respondent then brought an action claiming the balance of his salary up to the 1st of May, 1930, on the ground that he was entitled to his salary up to the end of the current year.- Held, Anglin C.J.C. and Cannon J., dissenting, that the respondent was not entitled to the surplus of salary claimed by him.-Held, also, that the respective claims of the parties must be determined by the terms of the letter, as no other evidence had been adduced. According to its literal meaning, a contract of lease or hire of personal services at so much per year or month is not a contract for a fixed term but one for an indeterminate period; and there is no provision in the

Civil Code to the effect that a contract of hire of personal services, whose duration has not been agreed upon, will be deemed to have been made for one year when the salary has been fixed at so much per year.

Article 1642 of the Civil Code, relating to the lease or hire of houses, is not applicable to lease or hire of personal services.- Anglin C.J.C. (dissenting) was of the opinion that, under the circumstances of the case, a new trial should be ordered.- Per Cannon J. dissenting.-According to the terms of the letter coupled with the circumstances of the case fully detailed in the reasons for judgment, the engagement of the respondent's services by the appellant company was for a term of one year;

and such contract had been continued from year to year by tacit renewal.

2 - Claim, under agreement, to possession and control of theatre property-Claimant suing his assignors' trustee in bankruptcy for damages for dispossession by trustee- Nature, purpose and effect of the agreement, and extent of claimant's rights and security thereunder- Bankruptcy Act, R.S.C., 1927, c. ss. 64, 54--"Change of possession" of chattelsr (Bills of Sale Act, Alta., 1929, c. 12, s. 2 (b) ). Appellant, claiming that he was entitled to possession and control of theatre property under an agreement with B. & H., and that respondent, to whom B. & H. had made an assignment under the Bankruptcy Act, had wrongfully dispossessed him, sued respondent for damages.-Held (affirming, Crocket J. dissenting, the judgment of the Appellate Division, Alta., 26 Alta. L.R. 393): On construction of the agreement, appellant's personal interest in the equitable interest assigned by the agreement to him was, at most, to hold it as his security for the 5% of the gross receipts which he was to receive for his wages as manager. His contract for services as manager ended with the assignment in bankruptcy. - He would have no right to retain possession of the property to enforce a contract for personal services (Stocker v. Brocklebank, 20 L.J. Ch. 401; Frith v. Frith, [1906] A.C. 254); his only remedy being an action for damages for breach of contract (Ogden v. Fossick, 4 DeG. F. & J. 426). (As to provision made in the agreement for the payment of a debt of B. & H. to one Hoar (who was not a party to the agreement or the action)-it was very doubtful if that provision made the property in appellant's ands a security for that debt. Appellant, who was suing only for his own personal damages, could not rely on any rights of Hoar. Moreover, if the agreement and transfer was to secure Hoar's account, it was for that purpose fraudulent and void as against respondent). Appellant, after the assignment in bankruptcy, had no personal right to possession, either of the realty or chattels. Further, as to the chattels, there was not such a "change of possession" as defined by the Bills of Sale Act, Alta.; moreover, respondent was protected by the provisions of s. 54 of the Bankruptcy Act.- Per Crocket J. (dissenting): The agreement was not essentially a contract for personal services. Its terms, as well as the whole evidence as to the acts and conduct of the parties under it, indicated rather that its main purpose was to vest in appellant all the title and interest of B. & H. in the property, and to transfer to him the actual possession and complete control thereof, in order that the business might be placed on a profitable basis in the interest and for the benefit of both parties. If appellant was in any sense an agent of B. & H. under the agreement, it was an agency created to secure some benefit to him beyond his mere remuneration as agent, and therefore an agency irrevocable until its puposes were fulfilled.

B. & H. had no right to interfere with appellant's possession and control until completion of the payments on Hoar's account (for which appellant was personally liable) and the fulfillment in other respects of the agreement; (Frith v. Frith, supra, and Ogden v. Fossick, supra, distinguished); nor, unless the agreement was impeachable as a fraud upon creditors, had respondent any right so to interfere.

(Ex parte Holthausen; In re Scheibler, L.R. 9 Ch. App. 722, at 726).

The agreement was not impeachable under s. 64 of the Bankruptcy Act, as no intent to hinder, delay or defeat creditors or to give a preference could properly be imputed.

S. 54 of said Act did not apply.

DOWSLEY v. BRITISH

3---ale of goods-Contract for sale of potatoes to be delivered in carload instalments-Rejection by purchaser of carloads shipped, as being of inferior quality - Question whether these carloads were shipped on account of the contract-Question whether rejection amounted to repudiation of the whole contract--Jury'8 findings-Sale of

Goods Act, R.S.N.B., 1927, c. 149, s. 28

(2).]

By contract dated September 3,

1927, respondent agreed to sell and appellant to buy 20 carloads of white potatoes,

Cobblers or Green Mountains, Canada

Grade A, at 90 cents per 90 pounds, bulk, delivered at rate of 5 cars per week, payment to be made in cash against documents.

All cars were to be Government inspected and certificate of grading was to accompany the draft for each car as shipped.

The contract did not specify time of shipment, but no Government certificate as to grade could be obtained before October 1 (Root Vegetables Act,

R.S.C., 1927, c. 181, s. 19).

On September 17 the broker who had arranged the contract wired respondent: "Thompson and Alix (appellant) would like you ship one car this coming Monday against their contract can you do so if not kindly wire immediately present price and conditions," to which respondent replied:

"Will ship one car Thompson and Mix 90 per bag bulk to-morrow or Tuesday best can do."

A car was shipped on September 21 and was followed by another.

Appellant refused to accept and pay for these, claiming they were of inferior quality, whereupon respondent refused to make further shipments. Appellant sued for damages. The jury found that the two cars were shipped under the contract, that the potatoes therein were grade A, that respondent did not commit a breach of the contract, that respondent, by appellant's statements and conduct, was justified in repudiating the contract and relieved from making further delivery under it; but the trial judge held that, on interpretation of the documents, the two cars were not shipped under the contract, and, notwithstanding the jury's findings, ordered judgment for appellant. Supreme Court of New

Brunswick, Appeal Division (4 M.P.R. 245), set aside the judgment and ordered a new trial. Appellant appealed, and respondent crossappealed, to this Court, each asking for judgment in its or his favour and (there having been already two trials) for a final decision that would avoid further trials.- Held (Lamont J. dissenting): Appellant had not repudiated the contract, and was entitled to damages for non-delivery by respondent.-Per Smith J.: Assuming the first car of potatoes was shipped on account of the contract (requirement of certificate of grading being waived as to it), and was of the required quality, appellant's rejection of it (though making him liable for breach in respect of that car) was not, and there was no evidence on which the jury could find that it was, a refusal to carry out the contract. second car was never ordered, had not the necessary certificate, and appellant was not bound to accept it, and there was no evidence justifying the jury's finding in reference to it.-Per Cannon and Crocket JJ.: Assuming the two cars were shipped on account of the contract (Cannon J. was clearly of opinion they were not; Crocket J. thought there might be justification for a finding that the first was but none for a finding that the secona was), and was of the required quality, appellant's rejection of them was merely a "severable breach giving rise to a claim for damages," and was not, and a jury could not, on the evidence, reasonably find that it was, a repudiation of the contract.-Per Lamont J. (dissenting): The jury was justified on the evidence in finding that the two cars were shipped on account of the contract and were of the required quality, and, in view of the contract, letters and other evidence, it was open to them to find that appellant's refusal to accept and pay for them evidenced an intention to repudiate the whole contract unless respondent would ship Green Mountains (instead of Cobblers as shipped) which the contract did not require him to do.-The Sale Of Goods Act, R.S.N.B., 1927, c. 149, s. 28 (2); Freeth v. Burr, L.R. 9 C.P. 208, at 213, and other cases referred to.-As to the Court finally determining on this appeal the issue between the parties, Cannon J. referred to Order 58, Rule 4, and Order 40, Rule 10, of the New Brunswick Rules of Court, and to Skeate v. Slaters, 83 L.J.K.B. 676, at 680-681, 686, and Banbury v. Bank of Montreal, A.C. 626.

& ALix SMiTH.............. 4 - Building of dam - Tender-Fixed price-Additions or deductions to be at the rates of the tender-Extras--Quantum meruit-False representations-Contract not void, but voidable.] A party to a contract, as soon as he has knowledge of any fraud or false representations, must decide at once either to continue to carry out the contract or take immediate steps to repudiate it. If he continues to carry out the contract, he cannot later, on the ground of such fraud or false representations, ask for payment on a basis different from that provided for in the contract or on quantum meruit or as damages arising from the fraud or misrepresentations.

United Shoe Machinery Co. v.Brunet ([1909]

A.C 330) followed. THE

5- Building--Advances made by builder to contractor way of mortgage-Transfer of the mortgage to third party-Notice to be served by transferer to debtor-Evidence- "Contradicting or varying terms of writing"

-Arts.

1156 (3), 1190, 1234, 1571, 2013

(d) (e) C.C.]

The appellant D, by private writings, entered into a contract on the

6th of July, 1929, whereby H. the defendant undertook to build tenements for

$10,900 and agreed as to the mode of payment with moneys secured through ypothees on the improved property.

On the 14th of September, work being sufficiently advanced, D. gave a first mortgage of $6,750 from the proceeds of which he paid H. $6,503.68.

On the

20th of September, H., representing that he needed a further guarantee for the benefit of his creditors, prevailed upon D., although the work was not completed, to give a second mortgage for $4,150, which was executed on that day and registered on the 14th of October. The appellant

D., on the 16th of November, caused a protest to be served upon H., which was registered on the 18th, notifying him inter alia that the sum due under the second mortgage was not to be paid unless

H. paid the overdue accounts for work and material and requesting him not to negotiate the same in any manner.

But

H., who was indebted to the (respondents)

mis-en-cause D. & F., had transferred and assigned to them on the 29th of October this second mortgage as collateral security for his indebtedness; however, it was not until the 9th of

December that the respondents D. & F. served upon the appellant D. notification of this transfer.

H. absconded some days after receiving the protest of the 18th of November and left the uncompleted. The appellant D. then discovered that the settlement of privileged claims registered against the property and the cost of the uncompleted work increased the cost of

CONTRACT-Concluded the buildings to a sum exceeding the contract price, and that therefore the debt guaranteed by the second mortgage of $4,150 was extinguished.

D. took the present action against H. as defendant, and D. & F. as mis-en-cause, for a declaration that the mortgage if not null and void should be cancelled or paid by compensation, with an order to the registrar to enter such cancellation in his book.- Held, reversing the judgment of the Court of King's Bench (Q.R. 53 K.B. 81) that the appellant's action should be maintained.

The principle laid down in Lamy v. Rouleau ([1927] S.C.R. 288), where it was held that "the transferee acquires possession available against (the debtor) only upon service of the transfer being made upon the debtor," applied. Accordingly D. & F. were in the same position towards D. as if the deed of transfer to them had been passed on the day of its service to D., i.e., on the 9th of December, 1929. Therefore any cause of extinction of the debt in whole or in part operating between H. & D. and anterior to such service has had the effect of liberating D.-Article 1234 C.C. does not apply to the evidence adduced to prove such extinction as between D. and H., as such evidence does not "contradict or vary the terms of" the second mortgage but on the contrary has the effect of affirming that deed by proving its extinction.

DuPuY &

6-Alterations to store-Building materiala-Work for a fixed price or by the day- Oral evidence.

7-See CONVERSION

CONVEYANCE-Allegation of fraud in execution-Confidential relationship between the parties-Conveyance set aside-Lack of independent advice. CONVICT-Release by act of clemency in the exercise of the royal prerogative of mercy-Effect.

................. COSTS

CRIMINAL LAW -Evidence - Trial - Direction to jury as to uncorroborated evidence of accomplice-Refusal to allow opinion evidence of ballistic expert-Competency to testify as to handwriting.] The judgment of the Supreme Court of New Brunswick, Appeal Division, setting aside CRIMINAL LAW-Oontinued a jury's verdict of acquittal of appellant on a charge of murder, and ordering a new trial, was affirmed, on the ground that the trial judge charged the jury in such a way as to give the impression that they should not convict on the uncorroborated evidence of an accomplice and, unless they found corroborative evidence, their duty was to acquit; that this was a misdirection in law; and, under the circumstances, probably had a material effect upon the jury's minds.-The jury should be told that it is within their legal province to convict, but should be warned that it is dangerous to convict, and may be advised not to convict, on the uncorroborated of an accomplice.

Rex v.

Baskerville [1916] 2 K.B. 658; Rex v.

Beebe, 19 Cr. App. R. 22; Gouin v. The

King, [1926] Can. S.C.R. 539, and other cases referred to.-Crocket J. took also the ground that the trial judge erroneously refused to allow a certain ballistic expert witness to state his opinion as to whether or not the bullet which caused the death had been fired from the revolver produced.

(Rinfret, Lamont and Smith JJ., while holding that the trial judge's ruling out was wrong, were of opinion that, in view of later evidence from the same witness, the ruling out had not much effect.)-Rinfret, Lamont and Smith JJ.

held that the trial judge had rightly refused to allow the evidence of a certain witness as to certain letters being in appellant's handwriting, as the witness' competency to testify in that regard had not been established; a witness may be competent to testify as to a person's handwriting by reason of having become familiar with his handwriting through a regular correspondence; but in the present case the evidence to establish competency did not shew sufficient to constitute a

"regular correspondence."

KING.........................

2 - Conflict of decisions

-Seditious words-Joint indictment- Criminal Code, R.S.C., 1927, c. 36, sections

133, 133a enacted by 20-21 Geo. V., c. 11 and 134 re-enacted by 20-21 Geo. V., c.

CiALMERs v. THE KING ............

3-Appeal-Leave to appeal to Supreme

Court of Canada--Court of appeal judgment conflicting with judgment of another court of appeal in like case-Both judgments not necessarily in similar cases, but upon similar questions of law-Section 1025

Cr. C.]

In order to obtain leave to appeal to the Supreme Court of Canada in a criminal case under section 1025 Cr. C., it is not necessary that the judgment from which it is sought to appeal and that of any other court of appeal should have been rendered in cases in all respects the same; but there should be a conflict

CRIMINAL LAW-Continued between the two udgments upon a question of law similar in both cases.- Barrd v. The King ([1927] S.C.R. 284) foll.; The King v. Boak ([1926] S.C.R. 481) and Liebling v. The King ([1932] S.C.R. 101) ref.

4-Statements made by accused in the presence of several police officers, who were not produced as witnesses-Admissibility in evidence of such statements-Inquiry by trial judge as to voluntary character of- Not a mere matter of discretion for trial judge-Declaration by accused as to previous arrest.] The Court, reversing the judgment of the Court of King's Bench, appeal side, quashed a conviction for murder and granted a new trial, on the ground that a statement in writing alleged to have been made by the appellant to certain police officers has been improperly received in evidence upon his trial. Sankey v. The King ([1927] S.C.R. 436) foll. and Rex v. Seabrooke (58 C.C.C. 323) ref.-Determination of any question raised as to the voluntary character of a statement by an accused elicited by interrogatories administered by police officers is not a mere matter of discretion for the trial judge.

Where such a statement is elicited in the presence of several officers, the statement ought, as a rule, not to be admitted unless (in the absence of some adequate explanation of their absence) those who were present are produced by the Crown as witnesses, at least for cross-examination on behalf of the accused; and, where the statement professes to give the substance of a report of oral answers given by the accused to interrogatories, without reproducing the questions, then the written report ought not to be admitted in evidence unless the person who is responsible for its compilation is (here again in the absence of some adequate explanation of his absence) called as a witness.-Upon the evidence, although the document was read over to the appellant before he signed it, it was not, in one most important particular, a correct statement of what the accused appellant said and intended to say. Moreover the statement made by the accused in this case contained a declaration that he had been once arrested "for a fight

*

*

* and I had paid the costs."

The fact that the accused had been arrested for a criminal offence and had paid "the costs" could not be competent evidence-not only on the ground that the fact itself would be in law wholly irrelevant, but on account of the unfair prejudice to the accused which would be the likely effect of the reception of evidence of it; and a document professing to embody admissions obtained as the admissions of the accused were in this [.CR. CRIMINAL LAW-Continued case, which included a record of an admission of a fact that would be inadmissible against him, and which was calculated to prejudice him, could not properly be received in evidence.

It might in a proper case be used by a witness to refresh his memory; but the use of the document itself as evidence could not be justified.

THE 509

5 - Murder - Jury - Proper instructions as to circumstantial evidence-Prospective jurors-Examination on voir dire- Not given under oath-Mention by the trial judge as to the possibility of executive clemency.]

The appellant was convicted of murder and sentenced to be hanged.

Upon dppeal the conviction was affirmed,

McGillivray J. (dissenting)

.

The questions of law upon which the latter based his dissent are (1) that the trial judge failed to give to the jury a proper direction with respect to the law relating to circumstantial evidence; (2) that his ruling with respect to the questions permitted to be asked of the prospective jurors on their examination on the voir dire was erroneous and that the examination was not under oath-the alleged error was that, although the trial judge allowed the accused to ask each juror challenged for cause, if, from what he had heard or read, he had formed an opinion on the case to be tried, he refused to allow a further question as to the nature of that opinion;

and (3) that the direction of the trial judge to the jury respecting the possibility of executive intervention was, as given insufficient.- Held that the appeal should be dismissed.-On the first point, this

Court is of the opinion that the accused had no substantial ground of complaint, taking the charge to the jury as a whole, although the trial judge could have given a more proper direction to the jury as to the circumstantial evidence.

There is no single formula which it is the duty of the trial judge to employ; but as a rule he would be well advised to adopt the language, or its equivalent, of Baron

Alderson, in the Hodge case (2 Lewin

C.C. 227): the trial judge should instruct the jury that, in so far as they relied upon circumstantial case before them, they must be satisfied not only that the circumstances proved were all consistent with the guilt of the accused, but also that they were inconsistent with any other rational conclusion.-On the second point, this Court is of the opinion that the accused had a fair trial. Whether the accused had a right to have the question, which the trial judge disallowed, put to the jurors, it is unnecessary to determine, for, assuming that he had, he had suffered no prejudice by the trial judge's refusal.

As to the objection that the juror witnesses were not sworn, held that it was the duty of the accused, as the

CRIMINAL LAW-Concluded challenging party, to see that the witnesses be called to support the challenge were properly sworn.-On the third point, although the reference to the executive clemency was an unfortunate one, this Court is satisfied that no harm has been done to the accused, if the trial judge's instructions to the jury are taken as a whole.

McLEAN v. THE KING.. 6 - Formal judgment of appellate court-Mere mention of dissenting opinion-Not specifying grounds of dissent-Section 1023 Cr. C.- Subsection 6 of section 1013 Cr. C.-21-22 Geo. V, c. 28, 8. 14.]

The appellant was convicted under subsection (a) of Cr. C. Upon appeal, the conviction was affirmed by a majority of the Court, the dissent of one judge being merely mentioned in the formal judgment. Under a recent amendment (s. 14 of c. 28 of 21-22 Geo. V), subsection 6 was added to s. 1013 Cr. C. providing that, in case of a dissenting opinion, the formal judgment should specify the grounds in law on which such dissent was based. The Crown contended that, owing to the failure of the appellate court so to specify the grounds of dissent, an appeal to this Court was not open to the appellant.- Held that this Court had jurisdiction to entertain this appeal. The only section of the Criminal Code dealing with the jurisdiction de plano of the Supreme Court of Canada is section 1023, under which the fact that there has been a dissent on a question of law is the sole condition for the foundation of its jurisdiction; the circumstance that the grounds of dissent are not specified in the formal judgment of the appellate court does not avoid the fact of there having been a dissent, which is the only requirement contained in section 1023 Cr. C.-REIN- BLATT v. THE KING................ 7-Proceedings under Immigration Act. .. 8 - Immigration-Release convict from prison prior to completion of term of sentence without his consent- Validity and effect-"Endured the punishment adjudged" (Cr. C., s. 1078)-Expiry of sentence or term of imprisonment within s. 43 of Immigration Act-Liability to deportation proceedings upon serving sentence or upon release from prison prior to expiry of term of sentence ........... CROWN-Goode seized as forfeited under the Excise Act-Section 125--Goods situated in leased premises-Whether suiject to seizure and sale for rent-Art. 1622 C.C.- Immunity of the King from processual coercion in his own courts-Excise Act, CROWN-Concluded

R.S.C., 60, 77, 79, 116,

124, 125, 133, 181.]

Goods seized as forfeited under the Excise Act, to which s. 125 of that statute applies, and in the possession of the Crown as such, in leased premises in the province of Quebec, are not subject to seizure at the instance of the landlord in proceedings by way of saisie-gagerie and to sale to satisfy the landlord s claim for rent.-Under a writ in the King's name, issued out of the

Superior Court of the province of Quebec, goods which are the property of His

Majesty and in the possession of His

Maiesty's officers cannot be seized and so1d to satisfy a pecuniary claim of a subject.-Under the English law, the rule is absolute that no proceeding having for its purpose the issue of any process against His Majesty himself or against any of His Majesty s property is competent in any of His Majesty's courts; and there is nothing in the Quebec Act of 1774

(s. 8), in the two ordinances of 1777 establishing the courts of Quebec and regulating the proceedings in those courts or in the Civil Code or the Code of Civil Procedure, justifying an inference that there was any intention of in any way impairing such immunity of the sovereign from processual coercion in his own courts.- On the first point, Cannon J. stated further that these goods were extra commercium and therefore unseizable.

He expressed no opinion on the second point which he deems unnecessary to decide the appeal.

2 - Criminal law - Immigration - Release of convict from prison prior to completion of term of sentence without his consent-Validity and effect-"Endured the punishment adjudged" (Cr. C., a. 1078)

-Expiry of sentence or term of imprisonment within s. 43 of Immigration Act- Liability to deportation proceedings upon serving sentence or upon release from prison prior to expiry of term of sentence

...................

3-Royal prerogative of mercy-Act of clemency in exercise of .............. 269

4-Defendant sued by Crown-Third party procedure-Jurisdiction of Exchequer Court........................

5 - -Fishing net-Public work-Damages- Interference with navigation-Jurisdiction of Exchequer Court.................

6--See

LANDs;

Homesteads-Constitutional law-Agreements respecting transfer from Dominion to Western Provinces of Crown lands, etc. (confirmed by B. N.A. Act, 1930)-Obligation to refund dues to homesteaders pursuant to terms of 8. 47 (f) of Timber Regulations promulgated under Dominion Lands Act-Whether an obligation of the Dominion or of the respective Provinces.] Sec. 47 (f) of the Timber Regulations, promulgated under the Dominion Lands Act, required the holder of an entry for a homestead, if he desired to cut timber on the land, for sale, to secure a permit, and to pay dues on timber sold to other than actual settlers, but provided that the amount so paid should be refunded when he secured his patent. After the agreements for the transfer of Crown lands, etc., to Manitoba, Saskatchewan and Alberta, and for retransfer of Crown lands in certain areas to British Columbia, became effective (in 1930), the question arose whether the obligation to refund dues as aforesaid was upon the Dominion or the Province. The agreement between the Dominion and Manitoba provided (and clauses in the other agreements were to the like effect) that the Crown's interest in Crown lands, etc., and all sums due or payable for such lands, etc., should belong to the Province, subject to any trusts existing in respect thereof, and to any interest other than that of the Crown in the same, and that

"any payment received by Canada in respect of" any such lands, etc., before the agreement came into force, should continue to belong to Chnada whether paid in advance or otherwise, the expressed intention being that (except as in the agreement otherwise specially provided) Canada should not be liable to account for any payment made in respect of any of the lands, etc., before the agreement came into force, and that the Province should not be liable to account for any such payment made thereafter; and that the Province would "carry out in accordance with the terms thereof every contract to purchase or lease" any Crown lands, etc., "and every other arrangement whereby any person has become entitled to any interest therein as against the Crown."-Held: The obligation to refund dues as aforesaid was, under the terms of the agreement, upon the Province.-The obligation to refund was a term of an "arrangement" whereby the homesteader had "become entitled to an interest" in "Crown lands" "as against the Crown," within the meaning of the agreement.

(A homesteader's rights and the character thereof, with regard to timber on the land, discussed, with reference to the Dominion Lands Act and Regulations).-The moneys so received by the Dominion as timber dues were

"payments"

(and continued to belong to Canada without liability to CROWN LANDS-Concluded account) within the contemplation of the agreement.-Said S. 47 (f) of the Regulations was validly promulgated under authority of the Dominion Lands Act

(as. 57 57 (2b) and 74 (k) of the Act particularly referred to and considered.- Held, further: The patentee of a homestead has, by force of the B.N.A. Act,

(confirming the agreements and giving them "the force of law"), a direct recourse, for such refund, against the

Province.

DUEs 47 (f)

2---Constitutional law-Statutes (construction, validity)-Turner Valley Gas

Conservation Act, Alta., 1932, c. 6-Competency, in so far as it affects leases from

Dominion Government under Regulations of 1910 and 1911 (made under authorsty of

Dominion Lands Act, 1908, c. 20)-Agreement between the Dominion and the Province of Alberta respecting transfer to

Province of public lands, etc. (confirmed byB.N.A. Act, 1930)-B. N.A. Act, 1867, ss. 91, 92.....................

DAMAGES-Apportionment of...... 154

2-Right of infant, after birth, to sue for damages to infant caused by accident to

3- Right to-Measure of..........

4---Colllsion of motor cars-Drivers found equally negligent-Damages recovered by driver's wife (riding with him) against driver of other car-Latter's claim to indemnity from the other driver (the husband)- Negligence Act, Ont., 1930, c. 27, s. 3-Married Women's Property Act,

R.S.O., 1927, 182, s. ............

See 8.

5-See 4;

4;

4;

DEBENTURES - Succession duties - Local situation, etc.--Specialties .....

EDMONTON CHARTER

S. 519 (Notice of accident) ..........

ELECTIONS-Election law-Petition by qualified elector-Claim to the seat on behalf of defeated candidate and claim for the voiding of the election, not incompatible

-Computation of votes-Voiding of election

ELECTIONS-Concluded for corruption or illegality-Dominion Controverted Elections Act, R.S.C., 1927 c 50 ss. 9,10 (5), 47, 48, 49, 57.]

In an election petition, a claim to the seat on behalf of a candidate defeated according to the return and a claim for the voiding of the election are not so incompatible as to render the petition illegal and void.- On the hearing of the petition, the trial judges, after having proceeded to the computation of votes under section 48 of the Act and having eliminated all the votes of each candidate tainted with illegality, are not bound to award the seat to the candidate having a majority of votes after such computation and elimination.-The trial judges have still jurisdiction to declare the election void owing to acts of corruption or illegality practised by one or both of the candidates.-Judgment of the trial judges (Q.R. 70 S.C. 339) ESTOPPEL

Title to lands-Wilderness land - Documentary title - Burden of proof-Pedigree evidence-Rule as to such evidence.] The matter in controversy respondent's action involved the title to and ownership of 200 acres of wilderness or wood-land. respondent claimed title to the property through a conveyance dated May 3, 1920, from John and James Fitzgerald, the sons and heirs of one David Fitzgerald, deceased, who, in turn, was alleged to have been the only child of one Elizabeth Fitzgerald, the original grantee from the Crown. The appellant company claimed a documentary title to the property through a series of five conveyances from the first deed in 1897 to the last in 1909, and also claimed a title by continuous, exclusive and adverse possession in itself and its predecessors in possession for a period of over twenty years. The trial judge, after having admitted as evidence, subject to objection by appellant's counsel, the declarations made to witnesses by the two brothers, John and James Fitzgerald, concerning their own pedigree, excluded them in his judgment and dismissed respondent's action, finding that the appellant company had established its title to the property. The Appeal Division reversed the judgment.-Held, reversing the decision of the Appeal Division (5 M.P.R. 261), that the trial judge was justified in excluding the declarations of the deceased grantors in the deed to the respondent, John and James Fitzgerald, as evidence that they were grandsons of Elizabeth Fitzgerald, the original grantee from the Crown and EVIDENCE-Continued that he was also justified in reaching the conclusion that the respondent had failed to establish his title. Crocket J.

dissenting.- Held, also, Crocket J. dissenting, that the statements made by

James and John Fitzgerald to the respondent, when the sale was being negotiated and they were trying to establish their title, would appear to be inadmissible, as having been made in favour of interest and at a time when, in the circumstances of the case, the title itself and the question relationship had already become matters in controversy within the principle of the rule stated below.

At all events, the interest of James and John

Fitzgerald was so obvious and of such a character as to entitle the Court to regard their declarations as destitute of evidentiary weight.

Declarations as to pedigree made by deceased persons are receivable to establish the particular issue, provided they were made ante litem motam (i.e., "before the commencement of any controversy, actual or legal, upon the same point"), and provided the deceased are proved aliunde to be members of the family by extrinsic evidence.

The declarant's relationship must be proved independently and cannot be established by his own statement. The rule must be understood in this sense, that the party on whom the onus lies to establish the affirmative of the issue and who, for the purposes of the issues, must show that A was in family relation with B (as, for example, in such cases as the present where the party seeks to establish a right to property through inheritance from B)

must adduce some evidence that the declarant was "de jure by blood or marriage" a member of the family of B.-Per

Crocket J. (dissenting)

.-The trial judge has erred in excluding the declarations of

John and James Fitzgerald as evidence that they were grandsons of the original grantee from the Crown; and, when the whole record of the trial, including these declarations, is considered, the decision of the Appeal Division in favour of the respondent should be affirmed. The rule as to pedigree evidence, applicable to this case, is that any declaration made by a deceased person touching his own pedigree is prima facie admissible as proceeding from one who is presumed to possess competent knowledge of the matter of which he speaks, and that no interest, which falls short of constituting a lis mota or actual or legal controversy upon the precise question which is the subject-matter of such a declaration, will render it inadmissible.

If it appears, either from the declaration itself or from any other evidence which may be tendered, that there was, before or at the time the declaration was made, such a controversy upon the particular fact of which

EVIDENCE-Continued the declaration speaks and which it is sought to prove by it, the declaration will not be received. PAPER v. FARREN......

.............. 2---Criminal law-,Statements made by accused in the presence of several police officers, who were not produced as witnesses -Admissibility in evidence of such statements-Inquiry by trial judge as to voluntary character of-Not a mere matter of discretion for trial judge-Declaration by accused as to previous arrest.] The Court, reversing the judgment of the Court of King's Bench, appeal side, quashed a conviction for murder and granted a new trial, on the ground that a statement in writing alleged to have been made by the appellant to certain police officers has been improperly received in evidence upon his trial. Sankey v. The King ([1927] S.C.R. 436) foll. and Rex v. Seabrooke (58 C.C.C. 323) ref.- Determination of any question raised as to the voluntary character of a statement by an accused elicited by interrogatories administered by police officers is not a mere matter of discretion for the trial judge. Where such a statement is elicited m the presence of several officers, the statement ought, as a rule, not to be admitted unless (in the absence of some adequate explanation of their absence) those who were present are produced by the Crown as witnesses, at least for cross-examination on behalf of the accused; and, where the statement professes to give the substance of a report of oral answers given by the accused to interrogatories, without reproducing questions, then the written report ought not to be admitted in evidence unless the person who is responsible for its compilation is (here again in the absence of some adequate explanation of his absence) called as a witness.-Upon the evidence, although the document was read over to the appellant before he signed it, it was not, in one most important particular, a correct statement of what the accused appellant said and intended to say.

Moreover the statement made by the accused in this case contained a declaration that he had been once arrested "for a fight * * * and I had paid the costs."

The fact that the accused had been arrested for a criminal offence and had paid "the costs" could not be competent evidence-not only on the ground that the fact itself would be in law wholly irrelevant, but on account of the unfair prejudice to the accused which would be the likely effect of the reception of evidence of it; and a document professing to embody admissions obtained as the admissions of the accused were in this case, which included a record of an admission of a fact that would be inadmissible against him, and EVIDENCE-Concluded which was calculated to prejudice him, could not properly be received in evidence.

It might in a proper case be used by a witness to refresh his memory; but the use of the document itself as evidence could not be justified.

THE KING........................

3 - Trusts - Transfer of land - Oral understanding - Evndence of - Sufficiency

-Claim against estate.

4-Declarations and statements in deeds

..

.

...... ...............

5-Examination of evidence as to its sufficiency to justify decision of Board of

Enquiry in proceedings under Immigration

6Direction to jury as to uncorroborated evidence of accomplice-Refusal to allow opinion evidence of ballistic expert-Competency to testify as to handwriting ......

- Promissory note - Consideration - Onus..........................

See PROMIssORY NOTE 1.

8- "Contradict or vary the terms of"

mortgage-Art. 1234, C.C ...........

9 - Tramway - Pregnant mother-Fall from car-Infant born with club feet-Right of infant to sue for damages after birth-Whether deformity of the child's feet resulted from accident to mother-Evidence-Reasonable inference- Jury's finding..................

- Automobile - Placed by owner at disposal of a friend- Accident-Patron momentand - -Declarations by the owner admitting his liability-Proof by the injured person. 489

11- Proper instructions to jury as to circumstantial evidence..............

12-See 3, 6;

2, 7;

EXCHEQUER COURT - Jurisdiction- Third party procedure-Defendant sued by

Defendant claiming indemnity against third party under Bills of Exchange

Act, R.S.C., 1927, c. 16, s. 50-Jurisdiction of Exchequer Court in respect of claim against third party-Exchequer Court Act,

R.S.C., 1927, c. 34, ss. 30, 87 (as enacted by

18-19 Geo. V, c. 23, s. 5), 88-Exchequer

Court Rules 234 to 241.] The Crown took action in the Exchequer Court to recover

EXCHEQUER COURT-Concluded from the defendant bank the amounts of certain cheques signed by the Crown's proper officers and paid by the bank and charged by it to the Crown's account, the Crown alleging that the payees' endorsements on the cheques were forged. The bank, purporting to act under rules 234 to 241 of the Exchequer Court, served a third party notice on another bank, claiming indemnity (for which claim it relied on a. 50 of the Bills of Exchange Act) against any liability, alleging that the cheques (purporting to be duly endorsed by the payees) were presented by the other bank to the defendant bank and paid by the defendant bank to it. The third party notice was set aside in the Exchequer Court. The defendant bank appealed.

Held (affirming the judgment below): The Exchequer Court had not jurisdiction in respect of the claim in the third party notice.

Sec. 30 (d) of the Exchequer Court Act, by which that court possesses "concurrent original jurisdiction" in actions "of a civil nature * * * in which the Crown is plaintiff" did not make it competent for that court to deal with the claim in question. The proceeding against a third party on such a claim is a substantive proceeding and not a mere incident of the principal action. Rules for third party procedure are in essence rules of practice, not of law, introduced for the purposes of convenience and to prevent circuity of proceedings. Secs. 87 and 88 of the Exchequer Court Act, notwithstanding their comprehensive language, do not invest the judges of that court with power, by promulgating a rule, to enlarge the scope of the subject matters within that court's jurisdiction. Nor was the claim in question within the intendment of s. 30 (a), giving jurisdiction "in all cases relating to the revenue in which it is sought to enforce any law of Canada."

2- EXEMPTION

2, 4, 5. FISHERIES -Fishing net - Interference with navigation-Fisheries Act, S. 33- Dredging operations-Public work-Negligence-Damages................... FORFEITURE OF GOODS

FRAUD-Conveyance-Allegation of fraud in execution - Confidential relationship between the parties-Conveyance set aside- Lack of independent advice........... 2- GAS AND PETROLEUM-Turner Valley Gas Conservation Act, Alta., 1932, c. 6

(construction, validity) ..............

HABEAS CORPUS - Detention under

Immigration Act...................

2-Objection of insufficiency in complaint in proceedings under Immigration Act

HIGHWAYS

See 7, 8.

HOMESTEADS - Crown lands-Timber

-- Constitutional law-Agreements respecting transfer from Dominion to Western

Provinces of Crown lands, etc. (confirmed by B. N.A. Act, 1930)-Obligation to refund dues to homesteaders pursuant to terms of

S. 47 (f) of Timber Regulations promulgated under Dominion Lands Act-Whether an obligation of the Dominion or of the respective Provinces ...................

HUSBAND

AND WIFE-Collision of motor cars-Drivers found equally negligent

-Damages recovered by driver's wife (riding with him) against driver of other car- Latter's claim to indemnity from the other driver

(the husband)- Negligence Act,

Ont., 1930, c. 27, s. 3-Married Women's

Property Act, R.S.O., 1927, c. 182, s. 7. 603

See 8.

ICY SIDEWALK-Accident-Notice of, etc..........................

IMMIGRATION - Aliens - Immigration Act, R.S.C., 1927, c. 93, ss. 41, 42, 21- Complaint - Warrant -Examination by

Board of Enquiry-Resolution for deportation -Appeal to Minister-Detention- Habeas corpus-Suficiency of complaint- Examination of evidence.] Each of the appellants was taken into custody under a warrant or order issued under s. 42 of the Immigration Act (R.S.C., 1927, c. 93), pursuant to a complaint, by the Commissioner of Immigration, expressed to be

"made under section 41 of the Immigration Act and Regulations that (appellant)

is a person other than a Canadian citizen, who advocates in Canada the overthrow by force or violence of the Government of

Canada, the overthrow by force or violence of constituted law and authority and by word or act creates or attempts to create riot or public disorder in Canada."

A Board of Enquiry found each appellant guilty of the acts alleged in the complaint and passed a resolution for his deportation. Each appellant appealed to the

Minister of Immigration and Coloniza- IMMIGRATION-Continued tion, and also, before the Minister's decision, applied for discharge from custody under the Liberty of the Subject Act, R.S.N.S., 1923, c. 231, and obtained ex parte an order nisi in the nature of habeas corpus with certiorari in aid. To this order the Board made its return. Carroll J. refused the applications (5 M.P.R. 151), his decision was affirmed by the Supreme Court of Nova Scotia en banc (ibid), and appellants appealed to this Court.- Held: Appellants were entitled to apply to the court. Broadly speaking, every alien who has been admitted into and is actually in Canada and who has been taken into custody on a charge for which he may be deported, is entitled to the benefit of the writ of habeas corpus to test in court if his detention is according to law.-Appellants' detention was authorized under the Immigration Act, and their applications for release were rightly dismissed.-The complaint was sufficient, notwithstanding that it did not state the date when, or the particular place where, the acts charged had been committed. All that is necessary is that it makes known with reasonable certainty to the person against whom the investigation is directed his alleged conduct, in violation of the Act, to which objection is taken. (Samejima v. The King, Can. S.C.R. 640, distinguished).

There is no analogy between a complaint under the Immigration Act and an indictment on a criminal charge (The King v. Jeu Jang How, 59 Can. S.C.R. 175, Immigration Act, ss. 33 (2) 42 (2), referred to). Moreover, the objection of insufficiency in the complaint was not open to appllants because (1) they did not challenge the return, which stated that the case was considered by a Board of Enquiry constituted under the provisions of the Immigration Act, and, under English law, the facts stated in a return to a writ of habeas corpus or order in lieu thereof are taken to be true until impeached; and (2) in the proceedings before Carroll J. and the Court en banc they did not question the regularity or sufficiency of the complaint or the warrant; and, before this Court, they stated they were not impeaching the validity of the warrant.-After the Board's decision, and pending the Minister's decision on the appeals to him, the appellants were lawfully detained under s. 21 of the Immigration Act.- The court was not entitled to examine the evidence as to its sufficiency to justify the Board's decision (McKenzie v. Huybers, [1929] Can. S.C.R. 38; Samejima v. The King, [1932] Can. S.C.R. 640, referred to). v. THE 2 - Criminal lat--Immigration-Release of convict from prison prior IMMIGRATION-Concluded to completion of term of sentence without his consent-Validity and effect-"Endured the punishment adjudged" (Cr. C., e. 1078)- Expiry of term of imprisonment within 8. 43 of Immigration Act-Liability to deportation proceedings upon serving sentence or upon release from prison prior to expiry of term of sentence.] The act of clemency by the Governor General, in the exercise of the royal prerogative of mercy, in releasing a convict from prison prior to the completion of the term of his sentence may be valid and effective in law without the convict's consent.-A convict so released would not be deemed to have

"endured the punishment adjudged,"

within the meamng of s. 1078 of the Cr.

Code.-The sentence or term of imprisonment of a convict so released would be deemed to have expired, within the meaning of s. 43 of the Immigration Act, R.S.C.,

1927, c. 93.-If a convict be other than a

Canadian citizen and be subject to be deported under s. 42 of the Immigration

Act as belonging to that one of the "prohibited or undesirable classes" which is defined by the words (in s. 40), "any person who has been convicted of a criminal offence in Canada," he does not cease to be so subject to be deported, upon serving his sentence in full or upon his release from prison under a valid exercise of the royal prerogative prior to the expiration of his sentence.

question is one of construction of the language of s. 40, and, in view of the fact that the liability to proceedings under s.

42 is not contemplated by the Act as one of the penal consequences of a conviction for a criminal offence, that this liability is not attached de jure to the fact of conviction but is placed by the Act under the control of an administrative discretion, and in view of the unrestricted language of s. 43, there is no admissible ground for a construction requiring a restriction of the words of s. 40 by excluding from their scope cases where punishment adjudged has been endured or has been remitted through an exercise of the royal clemency.

(Immigration Act, ss. 40, 42,

43; Cr. Code, sa. 1076, 1078; The Queen v.

Vine, L.R. 10 Q.B. 195; Hays v. Justices of the Tower, 24 Q.B.D. 561; Leyman v.

Latimer, L.R. 3 Ex. D. 15, 352, discussed.

Marion v. Campbell, [1932] Can. S.C.R.

433, at 451, referred to).

INCOME TAX

See 5, 6.

INFANT-Right of, after birth, to sue orf damages to infant caused by accident to

INTERVENTION

See 1, 3.

INTOXICATING LIQUORS

INVENTION

JUDICIAL SALE

Superior Court of Quebec-Jurisdiction to entertain an action for municipal taxes................. 2- 2; 2, 6; 4; 2, 3.

JURY-Proper instructions as to circumstantial evidence - Prospective jurors - Examination on voir dire-Not given under oath-Mention the trial judge as to the possibility of executive clemency ...... LANDLORD AND TENANT-Lease- Clause giving right to increase rent on law being changed so as to facilitate sale of the products manufactured by the lessee- Construction of clause-Effect of change in the law by Liquor Control Act, Ont., 1927, c. 70-Suficiency of notice by lessor (the Crown) as to increase of rent.] In 1912 the Crown (Dom.)

expropriated land of appellant in Ottawa, Ontario, on which appellant carried on a brewing business. Appellant remained in occupation and a yearly rental of $11,292.60 was fixed. At that time the law in Ontario permitted free sale of intoxicating liquors by licensed persons.

After the Ontario Temperance Act (1916, c. 50) came into force, which prohibited sale for beverage purposes in Ontario of products such as appellant manufactured, a lease to appellant was made, and renewed in 1921, at rentals lower than the sum aforesaid. At expiry of the renewal lease in 1926, appellant continued in occupation, thereby becoming a yearly tenant on the terms in the lease. The lease contained a clause that, should the provincial legislature pass any Act amending or repealing the Ontario Temperance Act, "so as to allow or facilitate the manufacture or sale of the products manufactured by the said lessee," the Crown should have the right to increase the yearly rent to $11,292.60, or to any figure which might be agreed upon, the increased rental to become due from the date of the repeal or amendment. On June 1, 1927, the Liquor Control Act, Ont. (1927, c. 70) came into force, and on June 13, 1927, a notice, signed by the Assistant Chief Architect of the Department of Public Works (Dom.), was sent to appellant, stating: ES.C.R. LANDLORD AND TENANT-Continued

"As the Ontario Temperance Act has been repealed, your company according to the above quoted clause [that above mentioned] is liable for rental from 1st

June, 1927, at the annual rate of

292.60."

After unsuccessful negotiations by appellant to fix the rental at what it was paying or at less than the sum claimed, the Crown brought action for the balance due for rent on the basis set out in said notice, and recovered judgment in the

Exchequer Court ([1932] Ex. C.R. 171).

On appeal: Held: (1) The words "products manufactured by the said lessee 'in said clause in the lease, on proper construction, meant, not the actual products of appellant's brewery, but products of the kind manufactured by appellant.- (2) The change effected in the law by the

Liquor Control Act was such as to facilitate the "sale of the products manufactured by" appellant

(construed as above)

within the meaning of said clause in the lease, and justified the increase of rent.- (3) The notice given was effective for the purpose of increasing the rent.-Judgment of the Exchequer Court (supra)

.................

2-Covenant in lease for renewal- Construction-Indeflniteness as to duration of renewal term--Covenant void for uncertainty.] A covenant in a lease, which provides for a renewal of the term, in order to be valid must designate with reasonable certainty the date of the commencement and the duration of the renewal term to be granted. This certainty as to duration must appear from the express limitation of the parties or from reference to some collateral matter-itself certain or capable of being made so before the renewal lease takes effect-which may, with equal certainty, be applied in measurement of the continuance of the term.-In the present case

(where the lease was of certain rooms and hallway in the lessor's building which adjoined the lessee's hotel, the leased premises being used in connection with the hotel) it was held that the language used shewed that the intention was to provide for a right of renewal for such period as the lessees should need the use of the rooms for purposes specified, and that, as there was nothing in the covenant which enabled the court to determine the duration of the lessees' need for the rooms, the covenant was too indefinite to be enforced, and was therefore void for uncertainty.

(Semble, had the provision been for renewal "for such further term as the lessees may request or demand," it would not have offended against the rule requiring certainty, for the duration of the term would be made certain by the request or demand for renewal.)

Goun- LANDLORD AND TENANT-Concluded 3---Crown--Goods seized as forfeited under the Excise Act -Section 125 - Goods situated in leased premises-Whether subject to seizure and sale for rent-Art. 1622 C.C.-Immunity of the King from processual coercion in his own courts-- Excise Act, R.S.C., 1927, c. 60, sa. 77, 79, 97, 116, 124, 125, 133, 181.......... 4---Contract-Agreement called lease and promise of sale-Whether valid as such as to third party-Sale of goods-Conditional sale-Claim for rent--Saisie-gagerie--Right of vendor of goods to recover same-Art. 1622 C.C.-Bankruptcy-Writ issued without leave of court- Nullity-Section 126 of the Bankruptcy Act-Art. 871 C.C.P. . 570 5---Competency of Turner Valley Gas Conservation Act, Alta., 1932, c. 6, in so far as it afects leases from Dominion Government under Regulations of 1910 and 1911 (made under authority of Dominion Lands Act, 1908, c. 20)................... LANDS, TITLE TO

LEASE

LEAVE TO APPEAL-Application for special leave to appeal within s. 41 of Supreme Court Act (R.S.C. 1927, c. 35)- Importance of point of law involved as ground for granting leave............ 2- See 2, 3, 4, 5; BANKRUPTCY LIQUOR CONTROL ACT-(Ont., 1927, c. 70)-Effect of the change in the law, with regard to right under clause in lease.. 226 MARITIME FREIGHT RATES ACT MASTER AND SERVANT-Negligence - Use of motor car-Disobedience-Act in course of employment-Master's liability- Distinction between "in the performance the work" and "during the period of work' -Art. 1054 C.C................... 2.-See 2; 6. MINES AND MINERALS-Turner Val- Gas Conservation Act, Alta., 1932, c. 6 (Construction, validity).............. 2- Building - Advances made by builder to contractor by way of mortgage-Transfer of the mortgage to third party- Notice to be served by transferer to debtor-Evidence--"Contradicting or varying terms of writing"-Arts.

1156 (3), 1190, 1234, 1571, 2013 (d) (e)

C .0 ..............................

MOTOR VEHICLES - Sale - Automobile-Theft-Insurance company claiming from subsequent buyer-Identification of car-Enactments of the civil code as to stolen goods modified by the Motor Vehicles

Act, R.S.Q. 1925, c. 35, as to automobiles- Arts. 1204, 1486 et seq. C.C.]

The provisions of the Motor Vehicles Act, R.S.Q.,

1925, c. 35, have had the effect and were enacted for the very purpose of modifying, with regard to stolen automobiles, the general law concerning the sale and the revendication of stolen goods as enacted in the Civil Code (Arts. 1486 and seq.

C.C.)-Imperial Assurance Company v.

Lortie (Q.R. 50 K.B. 145) followed.

FIRE Co.

2-See

3, 6, 7, 8.

MUNICIPAL CODE (QUEBEC)-Arts.

16, 654, 673, 726, 729, 740, 747......

MUNICIPAL CORPORATIONS - Negligence-Pedestrian falling on icy sidewalk- Notice accident- Not given within time prescribed by charter-Section

519 Edmonton charter-Whether city "prejudiced in its defence"-Findings of trial iudge, as to reasonable excuse for delay and as to existence of prejudice, can be reviewed on appeal.] The appellants, husband and wife, brought an action for damages against the city respondent for personal injuries to Daisy Carmichael caused by falling on an icy sidewalk.

The respondent alleged lack of notice of the accident within the delays prescribed by section

519 of the city charter.

Subsection 1 provides that no action can be brought against the city in any case of injury due to negligence, unless notice is served within sixty days of the happening of the accident and within ten days "in the case of personal injury caused by snow or ice on a sidewalk."

Subsection 2 further provides that "the want or insufficiency the notice

*

*

* shall not be a bar to an action if the" trial judge "considers there is reasonable excuse

*

*

* and that the city has not thereby been prejudiced in its defence."

The first notice was given by the appellants ten weeks after the accident and the city respondent had no knowledge of it until then.- Held that the appellants' action should be dismissed for want of notice

MUNICIPAL CORPORATIONS -Concluded required by section 519 of the respondent's charter. The inherent probability of prejudice to the respondent in making its defence arises from the undisputed circumstance of the lack of notice within ten days of the accident, coupled with the established lack of knowledge of the respondent.

respondent was deprived of any opportunity of inspecting the locality or condition of the sidewalk within ten days of the accident, and, after the lapse of ten weeks, no evidence of any weight upon these points could be procured.-Held, also, that the findings of the trial judge, that there was reasonable excuse for the appellants' delay in giving notice of the accident and that the respondent city had not been prejudiced in its defence by such delay, can be reviewed upon appeal; the words in subsection 2 of s. 519 "if the judge considers" do not give any discretion to the trial judge, the exercise of which should not be reviewed on appeal.-Judgment of the Appellate Division ([1933] 1 W.W.R. 533) aff.

2-Jurisdiction of Board of Railway Commissioners for Canada-Railway Act, R.S.C., 1927, c. 170, s. 39-Whether municipality "interested or affected" (and liable to be assessed for part of cost) by order for construction of subway in another municipality...................... 3-See

3, 7.

MURDER

NAVIGATION - Interference with - Fishing net........................ Collision between automobiles-Narrow bridge-Duty of drivers -Proof of negligence-B.C. Highways Act, section 19.]

On a foggy night, at about seven o'clock, the appellant's minor son in a roadster (about 5 feet, 10 inches wide) and the respondent's employee (the other respondent) in an auto truck with an overhanging rack (about 7 feet wide), approached a small bridge or culvert on a highway from opposite directions. The bridge was twelve feet long having 4 x 4 rails on each side, four feet high and its width between the railings on each side was seventeen feet, the floor or travelled part consisting of 3-inch planking and being 14J feet wide. The respondent's truck reached the bridge first and when somewhere on the bridge the overhanging rack scraped the left side of the appellant's car; and, as the appellant's son while driving allowed his left elbow to protrude slightly from the open window to his left, the rack also struck his arm, which was severely injured. The trial judge found that the respondent's truck in crossing the bridge was as near the right railing as he could safely go, but that the real cause of the accident was the overhanging rack, of which the appellant's son had no knowledge, owing to fog and darkness. He found both drivers at fault, awarding , of the fault to the appellant's son and 2 to the respondent's employee.

The majority of the Court of

Appeal reversed this judgment on the ground that on the facts it was impossible to find negligence on the part of the respondents.-Held, reversing the judgment of the Court of Appeal (45 B.C.R.

234), Rinfret and Lamont JJ. dissenting, that the judgment of the trial judge should be restored. The respondents owed a special duty, under the circumstances of the case fully stated in the judgment, on a foggy night, to the appellant's son on account of the wide vehicle under his control and he should have used special care in approaching the narrow bridge.- Per Rinfret and Lamont JJ. dissenting.

According to the finding of the trial judge, the respondent's employee was, at all times material to the action, "to the right from the centre of the travelled portion of the highway," as provided by section 19 of B.C. Highways Act; and the only way the collision could have happened was by the appellant's son driving over to respondent's side of the centre line. Therefore respondents cannot be held to have been in any way responsible for the collision.

2-Person struck street car while crossing track in front of car, intending to board it-Liability of railway company- Jury's findings-Jury's apportionment fault (The Negligence Act, 1930, Ont.,

27, s. 7).]

Plaintiff sued for damages for injuries caused by her being struck by defendant's street car while she was crossing on a concrete walk traversing the defendant's double-tracked right of way from the north platform to the south platform at defendant's Ottawa Civic

Hospital terminal station, intending to board the car. The station and tracks were in a field beyond the city limits.

It was daytime.

The car was going easterly.

Passengers waiting at the station to return to the city were allowed to board cars from the south platform, when the cars stopped at the station, before proceeding east to turn west at a loop about 700 feet beyond the station.

Plaintiff, before she reached the station, had seen the car coming and persons standing on the south platform. The jury found defendant negligent in not having the car under proper control, and plaintiff negligent in not taking a second look before crossing, and apportioned the blame for the injuries, 90% to defendant and 10% to plaintiff.

The trial judge, however, dismissed the action on the ground that there was no evidence upon which a reasonable jury could find for the plaintiff. His judgment was affirmed by the Court of Appeal, Ont., [1932] O.R. Plaintiff appealed.-Held (reversing the judgments below):

Plaintiff should have judgment in accordance with the jury's findings, which there was evidence to support.-As to defendant's negligence-It was not a question as to its motorman being under a duty to stop at the south platform or to expect that any person desiring to board his car for return to the city would be coming to the south platform; but a question whether, having regard to all the circumstances and conditions obtaining at the time and of which he was or should have been aware, he exercised due care in approaching and rushing through the station at the speed he did. There was clear evidence of negligence in his approaching and passing through the station at a speed which disabled him from exercising that degree of control which, under the circumstances, he should have been able to exercise for the reasonable safety of people whom he might have expected to be passing, as they had a right to do, over the walk to the south platform to board the car.-The jury's apportionment of fault (The Negligence Act, 1930, Ont., Geo. V, c. 27, s. 7) must stand as the basis for the apportionment of the damages, the court not being prepared to hold that it was one which could not fairly and honestly be made in any reasonable view of the evidence.

NixON

ELECRIc RY. Co.................. 3-Master and servant- Use of motor car-Disobedience--Act course employment-Master's liability-Distinction between "in the performance of the work" and "during the period of work"- Art. 1054 C.C.]

The appellant was receiving guests at dinner, at his home, on New Year's eve.

One C. had been invited with his wife, but she had been unable to come as she found the distance too great for walking.

The appellant then offered to C. the use of his automobile to go and get her. C. took the car, but stopped on his way.

One R.M., nephew of the appellant but not his employee as chauffeur or otherwise, happened to pass on the street where the car was parked, and, seeing nobody in charge, thought fit to notify his uncle by telephone. The appellant then gave the following instructions to his nephew: "Take my automobile and bring it back here immediately and don't go anywhere else."

The nephew took the car, but, instead of bringing it back immediately to his uncle's home, he left the direct route towards it and drove off to a neighbouring town with friends. After having left them there, he started his return trip alone; and, on his way back, he overtook a sleigh driven by the respondent, hit it from the rear and upset all the passengers including the respondent's minor daughter, who had to be extricated from under the sleigh and suffered serious injuries. The accident occurred before

R.M. had reached the intersection of the road which would have been the direct road between the place where the appellant's car was parked and the latter's home. The respondent's action in damages was maintained for $4,000 by the trial judge, which judgment was affirmed by the appellate court.-Held, reversing the judgment of the Court of King's

Bench (Q.R. 52 K.B. 183), that the appellant was not liable, for, at the time of the accident, the appellant's nephew was not "in the performance of the work"

which had been entrusted to him.

(Art.

1054 C.C.).-In interpreting the meaning of the last paragraph of article 1054 C.C., it would be an error in law to assimilate to an offence committed by a servant or workman "in the performance of the work for which they are employed," a similar offence committed "during the period" of that work.

Plump v. Cobden ([1914]

A.C. 62) ref.-Curley v. Latreille (60

Can. S.C.R. 131), Governor and Company of Gentlemen Adventurers of England v.

Vaillancourt ([1923] S.C.R. 414), Cox v.

Hall (Q.R. 39 K.B. 231), Clermont Motor

Ltd. v. Joly (Q.R. 45 K.B. 265) and Prain

V. Bronfman (Q.R. 69 S.C. 187) referred to and valuable comments made upon these decisions.

4 - Fishing net

-Damages - Public work

-Interference with navigation-Exchequer

Court Act, section 19 (c)-Fisheries Act, s.

33.]

At Livingstone Cove,

Nova

Scotia, is a breakwater owned by the

Crown to provide a shelter for boats of shallow draught. In this cove respondent had set a salmon trap net under licence from the Department of

Marine and Fisheries, the leader of the net being attached to the breakwater.

Dredging operations were being carried on in the vicinity of the Department of

Public Works under the supervision and direction of one of its officers.

The tug

A., hired by the Crown, whilst moving a loaded scow to the dumping grounds, came into contact with the respondent's net, seriously damaging it. The action is to recover the value or cost of repairing the net and the loss of its use for about one month.-Held that the Exchequer Court of Canada had jurisdiction to hear the case.

According to the circumstances, the master and crew of the tug A., the crew of the scow and the master and crew of the dredge were servants of the Crown acting within the scope of their "duties or employment" upon a "public work" within the meaning of section 19 (c) of the Exchequer Court Act.- Held, also, that the accident was attributable to the negligence of the servants of the Crown in the management of the tug and scow under the circumstances and conditions existing at the time of the accident, and that the respondent was entitled to damages for the injury caused to his net and damages for the loss of its use.-Held, further, that, upon the evidence, the respondent's net was not an interference with navigation within the meaning of section 33 of the Fisheries Act. That section should not be interpreted as relieving those in charge of any vessels of the duty to exercise due care to avoid damage to the property of others, whether that property constitutes an obstruction to navigation or not.-Judgment of the Exchequer Court of Canada ([1933] Ex. C.R. 1) affirmed.

- Tramway - Fall from car-Infant born with club feet- Right of infant to sue for damages after birth-Whether deformity of the child's feet resulted from accident to mother-Evidence -Reasonable inference-Jury's finding.] The respondent's wife, being seven months pregnant, was descending from a tram car belonging to the appellant company when, by reason of the negligence of the motorman, she fell, or was thrown, from the car and was injured. Two months later she gave birth to a female child who was born with club feet. The respondent, as tutor to his child, brought an action against the appellant company, claiming that the deformity of the child was the direct consequence of the negligence of the appellant company by which the mother was injured. The action was tried with a jury who found in favour of the respondent and judgment for $5,500 was rendered accordingly, which was affirmed by a majority of the appellate court.-Held, Smith J. dissenting, that the judgment appealed from should be affirmed and the appeal dismissed.- Held, also, Smith J. dissenting, that there was sufficient evidence adduced at the trial to produce in the jury's minds a conviction that it was reasonably probable that the deformity of the child resulted as a consequence of the mother's injury, and, consequently, their verdict should not be disturbed. The fact that the appellant's fault caused the deformity of the child cannot, from the nature of things, be established by direct evidence.

It may, however, be established by a presumption or inference drawn from facts proved to the satisfaction of the jury. These facts must be consistent one with the other and must furnish data from which the presumption can be reasonably drawn.

It is not sufficient that the evidence affords material for a conjecture that the child's deformity may have been due to the consequences of the mother's accident. It must go further and be sufficient to justify a reasonable man in concluding, not as a mere guess or conjecture, but as a deduction from the evidence, that there is a reasonable probability that the deformity was due to such accident.-Per Smith J.

(dissenting).-The evidence of the medical experts called on behalf of the respondent establishes that medical science has not yet discovered the cause of club feet and such evidence has merely put forward more or less plausible theories on that subject. Therefore, having regard to the scientific problem involved, there was no evidence sufficiently positive definite upon which the jury could reasonably find as a fact that the child's club feet resulted from the injury to the mother.- Held, further, Smith J. dissenting, that under the civil law, a child, who suffers injury while in its mother's womb as the result of a wrongful act or default of another has the right after birth to maintain an action for damages for the injury received by it in its prenatal state.-Per Rinfret, Lamont and

Crocket JJ.-The answer to the appellant's contention that an unborn child being merely a part of its mother had no separate existence and, therefore, could not maintain an action under article 1053

C.C., is that, although the child was not actually born at the time the appellant by its fault created the conditions which brought about the deformity to its feet, yet, under the civil law, it is deemed to be so if for its advantage.

Therefore when it was subsequently born alive and viable it was clothed with all the rights of action which it would have had if actually in existence at the date of the accident.

The wrongful act of the appellant produced its damage on the birth of the child and the right of action was then complete.-Per Cannon J.-The action in damages, and consequently the possibility of exercising it, has its existence from the date the injured person has suffered prejudice.

In this case, the right of the infant child to claim damages was not entire before its birth. The child, while in its mother's womb, was not suffering any prejudice nor inconvenience and no complete right of action then existed.

Right to damages was born at the same time as the child when the deformity was revealed and therefore the respondent's action was well founded in law.-Per Rinfret, Lamont, Smith and Crocket JJ.- The great weight of judicial opinion in the common law courts denies the right of a child when born to maintain an action for pre-natal injuries; per Rinfret, Lamont and Crocket JJ., although it has been held that the doctrine, which regards an unborn child as born if for its benefit, had been adopted in England by the Ecclesiastical and Admiralty courts, and to some extent by the Court of Chancery. MONTREAL 6- Automobile-Placed owner at disposal of a friend-Accident-Patron momentan6-Evidence-Declarations owner admitting his liability-Proof the injured person.] The respondent, who was vice-consul for Italy, and also a physician and surgeon, carrying on the practice of his profession in the city of Montreal, had amongst his patients the appellant. On the 17th December, 1928, the appellant required by telephone the services of the respondent during the course of the afternoon, but the respondent had some professional calls to make before he was free to call upon the appellant. The latter accordingly-as he had done on former occasions-placed at the disposal of the respondent his automobile, together with his chauffeur, in order that the respondent might make his other professional visits and then call at the appellant's residence.

Between the hours of six and seven o'clock in the afternoon, the chauffeur of the appellant, in approaching from the south the subway under the Canadian Pacific Railway tracks over St. Denis street, drove the automobile against one of the steel uprights dividing the lane for vehicles of this nature from the lanes provided for the tramway lines, and as a result of the impact the respondent sustained serious injuries, for which he claimed damages from his friend and patient, the appellant. Before the trial, the appellant's counsel proceeded to the examination of the respondent on discovery (art. 286 C.C.P.); and the latter swore that the appellant admitted to him, in the presence of other witnesses, that the accident "was the chauffeur's fault" and that "he appellant) was liable

*

*

* for the accident and its consequences." At the trial, the respondent merely proved the amount of damages and produced no further evidence as to the chauffeur's fault. The appellant's grounds of appeal were, first, that the record did not show any evidence that the accident was due to the fault of his chauffeur and, secondly, that the respondent, at the time of the accident, was the patron momentand of the chauffeur, and as such had no claim against the appellant.- Held, affirming the judgment appealed from, (Q.R. 54

K.B. 197), that the respondent's examination on discovery established sufficiently the existence of facts which explained the acknowledgment by the appellant of his liability, as sworn to by the respondent and which also fully justified the judgment appealed from in favour of the respondent.

Such examination taken under the provisions of art. 286 C.C.P. forms part of the record under art. 288 C.C.P., it contains evidence of "aveux extra-judiciaires" by the appellant in which he admits his liability and his chauffeur's fault.

These "aveux"

were expressly alleged by the respondent in his statement of claim, and, as this is a case where parol evidence is admissible, they could be proved by the respondent under his oath.-Held, also, that the respondent was not, at the time of the accident the patron momentand of the appellant's chauffeur. The appellant had retained for himself the power and the right to give instructions to his chauffeur; and the respondent, being merely the appellant's guest in his car, had no control over the acts of the chauffeur.

Under the circumstances of the case, there has been no transfer to the respondent of the appellant's control over the chauffeur's acts and of his power to give orders to the driver qf the car.

....................

7 - Contributory negligence - Ultimate negligence-The

Negligence Act,

(Ont.), c. 27-Collision between motor vehicles-Jury's findings-Whether findings reasonably warranted by the evidence- Setting aside of verdict.] A motor car driven by one of the plaintiffs, and in which the other plaintiff was riding, collided with the defendant's motor bus at a curve on a wet pavement. Plaintiffs

-laimed, and defendant counterclaimed, for damages. At the trial each party contended that the vehicle of the other had crossed the middle line of the road and caused the collision, and the evidence was largely directed to this issue. In answers to questions put to them, the jury found negligence in defendant's driver, causing the injuries to plaintiffs, in that "driver had been warned (this referring to a passenger's remark on seeing the motor car's approach) and might have applied brake sooner;" and also found negligence in plaintiff driver, causing the injuries to plaintiffs and damage to defendant, in that, "owing to the wet surface of road and worn condition of his front tires, he should have taken more precaution in making this curve;" and found the degrees of negligence: plaintiff driver 70%, defendant 30%; in accordance with which judgment was given at trial (The Negligence Act, 1930, Ont., c. 27).

This judgment was varied by the Court of Appeal, Ont which dismissed the plaintiffs' action and sustained defendant's judgment against plaintiff driver. Plaintiffs appealed. Held (Cannon and Crockett JJ. dissenting): Plaintiffs' appeal should be dismissed.-Per Rinfret, Lamont and Smith JJ.: The jury's finding of negligence against plaintiff driver was a finding that he did not exercise the care which a reasonable and prudent man would have exercised circumstances, further, by implication, that the accident occurred on defendant's side of the road. By their answer as to defendant's negligence, the jury found in effect that, notwithstanding that through plaintiff's negligence his car crossed the middle line and went in front of the bus, the bus driver by applying his brakes more promptly could and should have avoided the accident. This was a finding of ultimate negligence, and, if supported by the evidence, left defendant responsible for the whole resulting damage. But the evidence did not reasonably warrant such a finding.

(As to lack of time to act, Swadling v. Cooper, [1931] A.C. 1, at 10, referred to).

The verdict against defendant could not be sustained and should be set aside (reference to Can. Pac. Ry. Co. v. Frdchette, [1915] A.C. 871, at 881).- Per Cannon J. (dissenting): The jury's findings were in effect that the negligent driving of both plaintiff and defendant's driver contributed (in the degrees mentioned) to cause the accident; and, upon the evidence, their verdict should not be set aside as unreasonable.

(As to cases of contribution, Admiralty Commissioners v. S.S. Volute, [1922] 1 A.C. 129, at 144, cited).

The judgment at trial should be restored.-Per Crocket J. (dissenting): The jury's finding against the defendant was a finding of ultimate negligence, and was reasonably warranted upon the evidence. But also the finding against the plaintiff driver was, on its face, a finding of ultimate negligence, and, but for the finding of ultimate negligence against defendant, a finding of either ultimate or contributory negligence against the plaintiff driver would have been reasonably supportable upon the evidence. The two findings (of the negligence in each which "caused" the injuries), upon the wording of the questions and answers, were contradictory, and both could not stand, either as findings of ultimate or of contributory

(The law as to contributory negligence and ultimate negligence discussed).

For above reason, and having regard to the direction, exclusive in certain respects, of the contest at the trial and of the judge's charge to the jury, there should be a new trial.

........................

8-Motor vehicles- Husband and wife- Collision of motor cars-Driver swerving to wrong side of road-Alleged sudden emergency from conduct of other driver-Jury's findings-Drivers found equally negligent- Damages recovered by driver's wife (riding with him) against driver of other car- Latter's claim to indemnity from the other driver (the husband)- Negligence Act,

Ont., 1930, c. 27, s. 3-Married Women's

Property Act, R.S.O., 1927, c. 182, s. 7.]

driving his motor car northwards, and Y., driving his southwards, collided, after dusk, about 50 feet north of the north end of a curve, on a paved highway, in Ontario. Y.'s wife was riding with him.

Y. and his wife sued M., and M.

counterclaimed against Y., for damages.

It was alleged against each driver that he was on the wrong side of the road.

The jury found that negligence of M. and

Y., equally, caused the collision, the negligence consisting, on M.'s part, "by being too far over on his wrong side, swerved to east (his right) side of road but was too late to avoid the accident,"

and on Y.'s part, "on seeing M.'s car coming towards him, swerved to the east

(his wrong) side of the road in the direction of oncoming car."

Based on the jury's findings (and having regard to the Negligence Act, Ont., 1930, c. 27), judgment was entered for Y. against M. for onehalf of Y.'s damages, and for M. against

Y. for one-half of M.'s damages, and for

Y.'s wife against M. for the whole of her damages, and M. was awarded indemnity against Y. for one-half of the damages awarded to Y.'s wife. This judgment was varied by the Court of Appeal, Ont., which allowed Y. his full damages and

,dismissed M.'s counterclaim

(leaving undisturbed Y.'s wife's judgment against

M. and not allowing indemnity to M.

Y. in respect thereof).

appealed.-Held: The judgment at trial should be restored, except that M. should have no indemnity against Y. as to damages awarded to Y.'s wife.-In view of all the evidence, the charge to the jury and the jury's findings, there was not adequate ground for holding that M.,

"by being too far over on his wrong side,"

had created a sudden emergency such as to relieve Y. from blame for his act (as found by the jury) of swerving to his left;

and the finding of negligence against Y.

should not be set aside.-The court could not award to M. indemnity against Y. in respect of the damages awarded to Y.'s wife; s. 3 of the Negligence Act (supra)

provided for contribution and indemnity

NEGLIGENCE-Concluded only in the case of joint and several liability, and, under the law (Married Women's Property Act, R.S.O., 1927, c. 182, s. 7), Y. could not be sued by his wife for damages caused by the accident, and therefore was not and could not be found liable jointly and severally with M. to her. (McDonald v. Adams, 41 Ont. W.N. 145, approved on this point; Ralston v. Ralston, [1930] 2 K B 238; dottliffe v. Edelston, [1930] 2 K.B. 378; doldman v. Goldman, 61 Ont. L.R. 657; Coupland v. Marr, [1931] O.R. 707; Tetef v. Riman, 58 Ont. L.R. 639, referred to.

V. 603 9-Icy sidewalk-Notice of accident- Edmonton Charter, S. 519 ........... 10-See NEXT FRIEND

PARTIES

PATENTS - IThfringement--Specification -Claims-Patent relating to safety razors -Claim for blade as subordinate invention -Anticipation-Subject matter-Scope of invention.] Appellant sued respondent for alleged infringement of a patent relating to safety razors, alleging that respondent had manufactured and sold razor blades which constituted an infringethe blade alone) of the patent.-Ileld: Three of the claims alleged to have been infringed were clearly anticipated in the prior art. As to the others (certain openings in the blade for certain purposes) -if construed as presenting generally having regard to the prior art; if construed as limited to the precise mechanism described in the specification and shown in the drawings, the respondent's blade did not infringe; the patent in question had to do with a certain mechanical improvement in a well known class of safety razors; and, even if there was valid subject matter of a patent in the blade alone (to which a contrary view was indicated), the subject matter lay in the particular mechanical mode by which the alleged invention was carried into operation, and the patentee could not bring within the scope of his invention a blade such as that of respondent (although it might fit the patented razor), differing, in the respects in which it did, from what the patentee had specifically described and claimed.

(Tweedale v. Ashworth, 9 R.P.C. 121, at 126, 128, and other cases cited).- The nature of the invention protected by a patent and the extent of the monopoly thereby granted must be ascertained from the claims.

The claims should be con- PATENTS-Continued strued with reference to the specification and to the drawings, but the patentee's monopoly is confined to what he has claimed as his invention (Patent Act,

R.S.C., 1927, c. 150, s. 14; Pneumatic

Tyre Co. Ltd. v. Tubeless Pneumatic Tyre

& Capon Headon Ltd., 15 R.P.C., 236, at

241; Ingersoll Sergeant Drill Co. v. Consolidated Pneumatic Tool Co. Ltd., 25

R.P.C. 61, at 82-83).-The patentee had claimed the blade as an appendant or subordinate invention (in addition to the main or principal invention consisting in the complete safety razor). In such a case, the patentee must describe with particular distinctness the alleged new element for which he asks special protection. He must make plain the metes and bounds of the subsidiary invention and he will be held strictly to the thing in which he has claimed "an exclusive property and privilege" (Patent Act, s. 14;

Ingersoll v. Consolidated Pneumatic, supra, at 84).-Judgment of Maclean J., President of the Exchequer Court, [1932] Ex.

C.R. 132, dismissing appellant's action,

CORP.,

2 - Infringement - Invalidity- Novelty and utility-Evidence of invention-Commercial success-Making or selling of an element of a patent.] Novelty and utility, without something more requiring the exercise of inventive ingenuity, is not sufficient to make an article a good subject-matter of a patent. The patentee must show an inventive step.-Commercial success is nothing more than a question of fact depending upon several factors; and although it may assist in determining whether there is invention, it cannot afford a basis for controverting the conclusion that the alleged improvements of a known article are not of such a character as to show invention in a pertinent sense.-The making or the selling, without more, of an element of a patented combination does not of itself constitute an infringement of the combination.

FoRMs v.

.......

...........

3-Novelty-Matter covered the invention-Infringement.] The judgment

Maclean J., President of the Exchequer

Court, Ex. C.R. 89, in favour the plaintiff in an action brought for alleged infringement of its patent, which was for an invention relating to a machine and method for producing straight and curved fastener stringers, was reversed, on the ground that, having regard to the prior art, the only invention disclosed plaintiffs patent was a particular method and a particular mechanism for achieving

PATENTS-Continued a known result, which method and mechanism were not infringed by defendant's machine.

4-Validiy-New combination of old element s-Uusefulness-Advantages not produced before-Requirement of inventive step.] A new combination of old elements is not a patentable invention simply because it is useful and possesses advantages not produced before. The patent in question was held invalid because the improvement for which it was granted did not, having regard to the prior state of knowledge, require such exercise of the inventive faculty as would justify the granting of a monopoly. Co., CoL- 5- Validity-Prior disclosure.] judgment of the Exchequer Court, [1932] Ex. C.R. 127, dismissing the plaintiff's action for damages for alleged infringement of a patent relating to a locking device for separable slide fasteners, was affirmed, on the ground that the plaintiff's patent was invalid, all its essential points having been already brought out in a disclosure patented in France more than two years prior to the application in Canada for the patent in question. LIGHTNING Co., 6-Action for infringement-Parties- Right of action-Right to damages-Measure of damages.] A. Co., a foreign corporation, owner of a patent, sued defendant in the Exchequer Court of Canada for infringement of it. Defendant admitted infringement, but denied that plaintiff had suffered damages.

On May 31, 1932, judgment was given for plaintiff upon the pleadings, a reference being directed as to damages.

The referee found special damages of $10,013.17, and general damages of $1,000.

The patented articles were manufactured and sold in Canada by D. A. Co., practically all the shares of which were owned by A. Co., whose profits from D. A. Co.'s operations were only through dividends on said shares. The special damages found were based on the profit which would have been made by D. A. Co. on articles sold by defendant which the referee found would otherwise have been sold by D. A. Co. Subsequent to the referee's report A. Co. obtained an order adding D. A. 6o. as a co-plaintiff, and the Exchequer Court gave judgment to plaintiffs for $8,663.14 (reducing the special damages found by the referee but otherwise confirming his report). The defendant appealed.-Held (1) D. A. Co. was, upon the facts in evidence, only allowed by A. Co. to make and PATENTS--Concluded sell the subject of the invention.

A. Co.

only, and not D. A. Co., had a cause of action within the pleadings defendant.

D.

"patentee" or the "legal representative"

of the patentee, had no right, at any rate after the judgment of May 31, 1932, to be a party to the action.

(Patent Act,

R.S.C., 1927, c. 150, ss. 2 (e), 2 (c), 30,

32, considered; Hussey v. Whitely, 2

Fish. Pat. Cas. 120, Heap v. Hartley, 42

Ch. D. 461, cited).-(2) A. Co. was not entitled to damages on the basis adopted below. There was no evidence to shew that the dividends on the stock of D. A.

Co. were in fact affected by the infringement or that the value of the shares of

D.

(Rainham

Chemical Works Ltd. v. Belvedere Fish

Guano Co. Ltd., [1921] 2 A.C. 465, at 475;

Collette v. Lasnier, 13 Can. S.C.R. 563;

Meters Ltd. v. Metropolitan Gas Meters

Ltd., 28 R.P.C. 157, at 163, 164; Watson,

Laidlaw & Co. Ltd. v. Pott, Cassels &

Williamson, S.C., (1913-1914) 18, at 31,

32; cited).

INC.............................

7--See 3.

PENAL LAW-Illegal conveying of liquors

-Boat confiscated and later stolen-Revendication by the owner. LA

............

..........

PETROLEUM AND NATURAL GAS- Turner Valley Gas Conservation Act, Alta.,

1932, c. 6 (construction, validity) .....

PROMISSORY NOTE-Nature of agreement-Effect of document-Conditional or unconditional promise-Consideration - Onus--Collateral engagement-Request by maker not to produce note until after maker's death-Bills of Exchange Act

R.S.C., 1927, c. 16, ss. 176,

Respondent, who had long worked for M. on M.'s farm, sued, after M.'s death, on an alleged promissory note to him from M., dated anuary 13, 1927, for $5,000, payable one year after date.

Respondent (believed by the trial judge) testified that M. made the note on the occasion of one of their yearly settlements to fix the balance due respondent on wage account, that the balance found due for wages was 8206.87, that respondent, asked by M. if he needed the money, replied that he did not as long as he remained there, that M. then said that he wanted to give respondent something, referred to services for M. of respondent's mother (who had recently

PROMISSORY NOTE-Concluded died) and had respondent fill out (on M.'s directions) a note form and signed it, but stated that he wanted to keep it for a while, to which respondent agreed; that M. kept the note until January, 1928, when he handed it to respondent, asking him not to tell anyone that he had it, and not to produce it until after M.'s death and then only if there was more than enough in M.'s estate to support M.'s sister, and if he would remain on the farm at his present wages until M. died; to all of which respondent agreed.

M. died in February, 1929, leaving an estate of $50,000. His sister died soon after. Respondent then presented the note and sued thereon.- Held: Respondent's evidence that the note was signed by M. was abundantly corroborated in the evidence.

The note was a promissory note within the Bills Exchange Act (R.S.C., 176) and respondent was entitled to recover thereon.-Respondent's acceptance M.'s requests amounted to no more than a collateral engagement not to enforce his rights until the requests had been complied with. That did not make the document any the less an unconditional promise in writing by to pay at a fixed time a sum certain in money to respondent. The agreement not to enforce payment while M. lived was no part of the note. The terms of the note imported a present and unqualified obligation, and there was nothing in the evidence to justify the conclusion that its delivery by M. was conditional upon the fulfilment of his requests.

Even if respondent could have been enjoined from enforcing payment in M.'s lifetime, the document was still a promissory note within the meaning of the Act. As such, it imported that valuable consideration had been given for it (s. 58), and the onus (thus shifted) to establish want of consideration had not been met. Consideration being presumed until the contrary was shown, M.'s obligation on the note was contractual, and not by way testamentary gift.

WESTcorr ...... PUBLIC LANDS

QUANTUM MERUIT

RAILWAYS-Board of Railway Commissioners for Canada-Jurisdiction-"Radl. way Grade Crossing Fund"-In what cases grant can be made-Interpretation of section 262 of the Railway Act.] The Board of Railway Commissioners for Canada has jurisdiction to order that a grant will be made from "The Railway Grade Crossing Fund" to help construction work, only when the crossing is eliminated or such RAILWAYS--Continued protection is provided by the work that the danger is lessened and the safety and convenience of the public increased-The

Board has no power to grant an application for a contribution from that Fund towards the costs of highway diversions whereby rail level crossings are not eliminated, although they would relieve the crossings from a substantial volume of highway traffic.

"TE

FUND ...........

2- Jurisdiction of Board of Railway

Commissioners for Canada-Railway Act,

R.S.C., 1927, c. 170

. 39-Whether municipality "interested or affected" (and liable to be assessed for part of cost) by order for construction of subway in another municipality.] The matter of where traffic through a subway under a railway originates and the volume of it from various districts is not a factor in deciding whether or not a particular municipality is "interested or affected" by the work of constructing the subway, within the meaning of s. 39 of the Railway Act,

R.S.C., 1927, c. 170.

(City of Toronto v.

Village of Forest Hill, [1932] Can. S.C.R.

In the present case it was held that the Board of Railway Commissioners for Canada had no jurisdiction to order the appellant city to pay a portion of the cost of a subway wholly situate within the limits of the respondent town and at some distance from the limits of the appellant city, notwithstanding that access to and from the appellant city (having a large population) from and to other municipalities might be largely through said subway.

ToWN

3-Board of Railway Commissioners for

Canada-Jurisdiction-Maritime Freight

Rates Act, R.S.C., 1927, c. 79 (original

Act, 17 Geo. V, c. 44), ss. 3, 7, 8, 9-Approval by Board from time to time of tariffs filed by 'other companies" (s. 9) specifying tolls lower than those specified in tariffs originally filed and approved under s. 9- Board certifying from time to time normal tolls differing from those originally certified at time of approving of tariffs originally filed and approved under s. 9-Reimbursement to company of difference between lower tolls and modified normal tolls.]

It is within the jurisdiction of the Board of Railway Commissioners for Canada

(a) to approve from time to time, under s. 9 of the Maritime Freight Rates Act

(R.S.C., 1927, c. 79), tariffs filed by "other companies" therein referred to (companies other than the Canadian National Railways), specifying tolls lower than those specified in the tariffs originally filed and approved (which provided for reductions in rates of approximately 20%) under s.

9; (Cannon J., dissenting, held that any

RAILWAYS-Continued special or competitive tariffs filed by "other companies" of their own motion specifying tolls lower than those specified in the tariffs originally filed and approved under s. 9, are not to be taken as filed under said Act, but under the Railway Act and there can be no approval thereof under said s. 9); (b) to certify from time to time (as distinct from the provision in s. 9 (4) for certifying in every third year etc., as to revision of the normal tolls and subsequent use of revised normal tolls) normal tolls in respect of particular freight movements differing from those originally certified at the time of approving the tariffs originally filed and approved under said s. 9; (Cannon J., dissenting, contra); and (c) to certify as the amount of reimbursement to the company the difference between the lower tolls referred to in (a) supra and the modified normal tolls referred to in (b) supra; (Cannon J., dissenting, contra).-The Board's ruling of September 23, 1932, to the effect that, where a railway company, under said s. 9, has made an approximate 20% reduction in its rates, and subsequently publishes a tariff making a further reduction in rates, to meet water or truck competition, or for other reasons, such tariff containing the further reduced rates should be published under the general provisions of the Railway Act, and the company is not entitled to any reimbursement under said s. 9 with respect to such rates, and there should be no reference on such tariff to the Maritime Freight Rates Act, and was not a correct one.

(Cannon J., dissenting, contra).-Subs. 2 of s. 3 of the Maritime Freight Rates Act, as contained in R.S.C., 1927, c. 79, applies to "other companies" referred to in s. 9 of said Act (notwithstanding the rearrangement in R.S.C., c. 79, of the sub-secs. of sec. 3 as contained in the original Act, and s. 9 (2) in each Act making applicable "the provisions of subs. 2 of

* * * this Act").-Having regard to the general scope and terms of the Maritime Freight Rates Act, tariffs filed by "other companies" referred to in s. 9 are lawful tariffs until disallowed, notwithstanding that subs. 3 of s. 3 (being the same as subs. 2 of s. 3 of the original Act) is not now expressly referred to in s. 9. (Cannon J. held that "competitive tariffs filed by other companies are lawful tariffs until disallowed under the express terms of sees. 331 and 332 of the Railway Act; and to reach this conclusion, it is not necessary to have regard to the general scope and terms of the Maritime Freight Rates Act or to subs. 3 of s. 3 thereof").- The intent and scheme of the Maritime Freight Rates Act as to above matters, discussed, with particular regard to as. 3, 7, 8 and 9 thereof.

RE RAILWAYS-Concluded

4-Bonds or debentures of railway companies-Succession duties-Situs-Specialties...........................

5--See (Street railways) 2, 5.

REAL PROPERTY-Title to lands- Wilderness land-Documentary title- Evidence-Burden of proof-Pedigree evidence-Rule as to such evidence ......

2--Company assessed for income tax in respect of profit on sale of land-Whether profit was a profit of the company-Whether sale was made by or on behalf of the company--Facts and circumstances in connection with transaction-Agreement of sale by individuals to whom company had made voluntary and unregistered conveyance- Resulting trust-Land Registry Act, R.S.

B.C., 1924, c. 127, 3. 34 ............

3-See

REVENUE - Sales tax - Special War

Revenue Act,

1915, s. 19BBB as amended by 13-14 Geo. V, c. 70, s. 6 (1)- Manufacturing company and selling com pany and control by foreign parent com pany-Relationship of the companies and mode of business-Sales by manufacturing company to selling company and by latter to public-"Sale price" for basis of the tax.]

P. Co. (an Ontario company), incorporated January 17,

1924, manufactured

(inter alia) certain kinds of toilet articles, which they sold only (and were, by arrangement, allowed to sell only) to C.

Co. (a Dominion company, which, prior to incorporation of P. Co., was engaged in the manufacture and sale of such articles)

which sold them to the trade. Both companies had the same president, and the same vice-president and general manager. All the capital stock of both companies, except qualifying shares, was owned by a foreign parent company, which fixed from time to time the percentage over, cost to be allowed P. Co., on figures furnished by department heads.

The quantity of goods to be produced by

P. Co. was prescribed by C. Co., which controlled the formulae.

The Crown claimed that the sales (from January 17,

1924, to April 13, 1927) made by C. Co. to the trade were chargeable with sales tax, under s. 19BBB (1) of the Special War

Revenue Act, 1915, as amended by 13-14

Geo. V, c. 70, s. 6

The companies claimed that the prica at which P. Co.

sold to C. Co. (and not the price received by C. Co., as claimed by the Crown) was the proper basis for the ta.- Held: C.

Co. (but not P. Co.) was liable fer the tax, based on the prices obtained by it, as

REVENUE-Concluded being the real prices taxable under the true intent of the Act. The character and substance of the real transaction must for taxation purposes, be ascertained and the tax levied on that basis.

On the evidence it must be held that the goods in question were produced and sold to the public by a combination of the two incorporated departments of a foreign company doing business here in order to reach the Canadian consumer. While the two companies were separate legal entities, yet in fact, and for all practical purposes, they were merged, P. Co. being but a part of C. Co., acting merely as its agent and subject in all things to its proper direction and control.-Dixon v. London Small Arms Co., 1 App. Cas. 632, at 647- 648, 651, etc., and other cases, referred to. -Judgment of Maclean J., President of the Exchequer Court, [1932] Ex. C.R. 120 (holding P. Co. liable for the tax, to be based on the selling price of the goods calculated at the "fair market price," as and when sold), varied.

KING V. SALE-Deed-Sale of undertaking as "going concern"-Certain rights and things specifically mentioned-Claim against third party-Whether included in the sale.] When, in a deed of sale, an autobus company "conveys, sells, assigns and transfers to the purchaser the whole of its enterprise and undertaking as a going concern, including its good will and clientele" and further specifically mentions as sold certain equipment and parking rights, such a sale includes a contract with a third party, as an accessory of and as forming part of the enterprise; and a claim made in respect of said contract also forms part of the rights and interests assigned and transferred, together with any action already brought to enforce that claim. If, at the time of the sale, the action against the third party by the vendor be pending before the courts, the purchaser has the right to substitute himself to the plaintiff vendor by way of intervention, and deal with the case as he thinks

2- Entire stock in trade-Purchaser to pay liabilities-Purchase price- Not paid in money, but by delivery of capital stock of purchasing company-Whether arts. 1569 (a) to (d) C.C. (Bulk Sales) apply-Bulk sale without affidvait (art. 1569 (b) ) not void de plano, but voidable only.] By notarial deed, L.D. sold to L.D. & F. Ltie. his manufacturing plant as a going concern, comprising certain lands, stock in trade, goods on hand, accounts due and SALE-Continued bills receivable, his good will and certain specified patent rights; it was also provided by the deed that the purchaser would pay all the liabilities of the vendor.

The consideration or purchase price did not consist in money, but in the above undertaking and in the issue to the vendor of virtually the whole of the capital stock of the purchasing company which had been incorporated precisely to carry on the business of the vendor.-Held that the provisions of the civil code as to bulk sales (arts. 1569 (a) to (d)) do not apply to such a transaction. Mathieu v. Martin

(29 R.L.n.s. 111) foll.-Per Smith and

Cannon JJ. and Rivard J. ad hoc.-A bulk sale, which is not accompanied with an affidavit as required by art. 1569 (b) is not void de plano but voidable only. Mathieu v. Martin, supra, foll.

DARVEAU.........................

3- Agreement called lease and promise of sale-Whether valid as such as to third party-Sale of goods-Conditional sale- Claim for rent-Saisie-gagerie-Right of vendor of goods to recover same-Art. 1622

C.C.-Bankruptcy-Writ issued without leave of court-Nullity--Section 126 of the

Bankruptcy Act-Art. 871 C.C.P.]

On the

2nd day of April, 1928, the respondent, widow of one Geo. Vezina, entered into an agreement, entitled "Lease and promise of sale,"

to transfer an immoveable property to an incorporated company,

"Geo. Vezina Ltd.," for a sum of $26,000, of which $10,000 was paid cash and

$16,000 payable in deferred payments twice a year, with interest half-yearly on the unpaid balance.

The agreement was passed before a notary under the form of a lease at a rental equivalent to the deferred payments plus the interest on the unpaid balance, with an additional right of the lessee to have the property transferred to it for the sum of one dollar upon the expiration of the term and full payment of the "rents" or deferred instalments and interest. On December

1, 1930, the

Vezina Company did not pay the "rent"

then due, and on the 3rd of the same month made an assignment.

The "bilan"

signed by the bankrupt, which was sent and received by the respondent, described her as an hypothecary creditor for

$14,000, and not as a privileged creditor for rent as a lessor.

Moreover the respondent filed with the trustees a sworn claim for

$14,391.50 for balance due and interest on a lease and promise of sale.

In May, 1930, the Vezina Company had bought certain machines from the appellant company on the usual terms and conditions of conditional sales contract and payments were made regularly until the Vezina Company went into liquidation. The machines remained in the premises of the Vezina Company with

SALE-Concluded the consent of all parties so as to enable the trustees to effect a more favourable sale of the assets; but in July, 1931, the appellant company, with the trustees' consent, decided to repossess the machines and secure their return to Montreal. Before the appellant could do so, the respondent secured, without leave of the court, the issuance of a writ of saisiegagerie and seized the machines in satisfaction of "rents" then due.

The appellant company filed an intervention demanding the dismissal of the seizure.- Held, reversing the judgment appealed from, that the appellant company s intervention should have been granted.-Per Duff C.J. and Lamont,

Smith and Crocket JJ.-Although the transaction above described may be valid in all its terms as between the parties, the privilege given by art. 1622 C.C. and the use of the procedure therein provided cannot be invoked by the respondent under the circumstances of the case.-Per Cannon J.- The respondent by filing her claim with the trustees in bankruptcy for the balance of the purchase price and not for "rents," elected to act as unpaid vendor and could not, six months afterwards, substitute to this remedy, or add to it, a claim for rent in order to exercise a privilege on appellant's property under article 1622 C.C.- Held, also, that the proceeding (writ of saisie-gagerie) initiated by the respondent was incompetent, as having been taken without leave of the court. (Bankruptcy Act, s. 126--Art. 871 C.C.P.) A. R. 4-Conditional sale-Bill of sale-Validity as against trustee in bankruptcy- Trust-Estoppel.................... 5- SALE OF GOODS-Contract for sale of potatoes to be delivered in carload instalments-Rejection by purchaser of carloads shipped, as being of inferior quality- Question whether these carloads were shipped on account of the contract-Question whether rejection amounted to repudiation of the whole contract-Jury's findings-Sale of Goods Act, R.S. N.B., 1927, c. 149, s. 28 (2)...........................

2-See 2, 3.

SALE OF LAND-Company assessed for income tax in respect of profit on sale of land-Whether profit was a profit of the company-Whether sale was made by or on behalf of the company-Facts and circumstances in connection with transaction- Agreement of sale by individuals to whom SALE OF LAND--Concluded company had made voluntary and unregistered conveyance-Resulting trust-Land

Registry Act, R.S.B.C., 1924, c. 127, 8. 34

...................

2-See

SALES TAX

SCHOOLS-School Act, Alta., 1931, c. 32, s. 157-Provision requiring inspector's approval before notice terminating teacher's engagement-Its application as to engagements entered into prior to its enactment.]

The provision in s. 157 of the Alberta

School Act, 1931, that, except in the month of June, no notice terminating a teacher's engagement should be given by a school board without the approval of an inspector previously obtained, which provision was first introduced into the school law by said Act (1931, c. 32), which replaced the former Act (R.S.A., 1922, c. 51), was held to apply in regard to the termination

(after said Act of 1931 came into force) of an agreement of engagement entered into prior to the enactment of said provision.- Judgment of the Appellate

Division,

Alta., [1932] 1 W.W.R. 849, [1932] 3

D.L.R. 262, affirming judgment of Ewing

J., [1932] 1 W.W.R. 315, affirmed.- Rinfret

J. dissented.

SOLICITORS

SPECIALTIES - Situs - STATUTES - Retrospective operation--School Act, Alta., 1931, c. 32, s. 157-Provision requiring inspector's approval before notice terminating teacher's engagement-Its application as to engagements entered into prior to its enactment......................

2--Construction by Court of Appeal in

England of English statutory enactment reproduced in Canadian statute ......

3---Construction-Legislative enactment not to be read as prejudically affecting accrued rights or "an existing status,"

unless the language in which it is expressed requires such a construction .........

4- (Imp.) B. N.A. Act, 1867, ss. 91, 92

...................

See LAW

5--(Imp.) B. N.A. Act, 1867, s. 92 (2)

...................

STATUTES-Continued

6-(Imp.) B. N.A. Act, 1930 (20-21 Geo. V., c. 26).................616; 7-R.S.C. [1927[ c. s. 174 (Bankruptcy Act)....................... 8- R.S.C.

c. ss. 24, 174 (Bankruptcy Act) .................

See 2; 7. 9- R.S.C. [1927] c. ss. 24, 104 (Bankruptcy Act).................. 10-R.S.C. [1927] c. ss. 64, (Bankruptcy Act).................. 11-R.S.C. [1927] c. s. 126 (Bankruptcy Act)....................... 12-R.S.C. [1927] c. 16, s. 50 (Bills of Exchange Act)..................... 13-R.S.C. [1927] c. 16, as. 176, 58 (Bills of Exchange Act).............. R.S.C. 34, s. 82, 83 (Exchequer Court Act) .............. 15-R.S.C. [1927] c. 34, as. 30, 87 (as enacted by 18-19 Geo. V., c. 23, s. 5), 88 (Exchequer Court Act) .............. 16-R.S.C. [1927] c. 34, s. 19 (c), (Exchequer Court Act) .............. 17-R.S.C. [1927] c. 35, s. 39 (Supreme Court Act)........................ 18- R.S.C. [1927] c. 35, s. 39, 41 (f), (Supreme Court Act)................ 19-R.S.C. [1927] c. 35,8. 41, (Supreme Court Act)........... .........

20-R.S.C. [1927] c. 36, ss. 133, 133a (enacted by 20-21 Geo. V., c. 11) and 134 (re-enacted by 20-21 Geo. V., c. 11) (Criminal Code)................... 21-R.S.C. [1927] c. 36, ss. 1013 (as amended by 21-22 Geo. V., c. 28, s. 14), 1023 (Criminal Code)............... 22-R.S.C. [1927] c. 36, s. 1025 (Criminal Code)........................ STATUTES-Continued

23-R.S.C. c. 36, 1076, 1078

(Criminal Code) ..................

24-R.S.C. [1927] c. 50, s. 9, 10 (5),

47, 48, 49, 57 (Dominion Controverted

Elections Act).....................

25-R.S.C. 60, ss. 77, 79,

116, (Excise Act)...

26-R.S.C. [1927] c. 73, 33 (Fisheries

27- R.S.C. [1927] c. 79, ss. 3, 7, 8, 9

(Maritime Freight Rates Act) ........

28-R.S.C. [1927] c. 93, s. 41, 42, 21,

33 (2) (Immigration Act) ...........

29- R.S.C. [1927] c. 93, ss. 40, 42, 43

(Immigration Act).................

R.S.C. [1927] c. 97 (Income War

Tax Act).....................

31-R.S.C. [1927] c. 113 (Dominion

Lands Act)........................

32-R.S.C. [1927] c. 150, ss. 2 (e), 2 (c),

30, 32 (Patent Act).................

33-R.S.C. [1927] c. 150, s. 14 (Patent

34- R.S.C.

(Railway

35-R.S.C. [1927] c. 170, s. 39 (Railway

..............

R.S.C. [1927] c. 170, s. 262 (Railway

................

37-R.S.C. [1927] c. 181, s. 19 (Root

Vegetables Act)....................

38- (D.) 7-8 Edward VII, c. 20 (Dominion Lands Act)....................

39- (D.) 5 Geo. V., c. 8 (as amended by

13-14 Geo. V., c. 70, s. 6 (1) ), s. 19 BBB

(1)........

(The Special War Revenue

Act, 1915).......................

40-(D.) 17 Geo. V., c. 44 (Maritime

Freight Rates Act)..................

STATUTES-Continued

41-(D.)

23, 5 (amending Exchequer Court Act) ..... 42-(D.) 20-21 Geo. V., c. (amending Criminal Code).................... 43-(D.) 21-22 Geo. V, c. 28, s. 14 (amending Criminal Code, e. 1013)... 694 R.S.O. [1927] c. 97, s. 26 (Arbitration A ct).......................... 45- R.S.O. [1927] c. 164, ss. 14, 8 (Bills of Sale and Chattel Mortgage Act).......1..................... 591 46-R.S.O. [1927] c. 182, s. 7 (Married Women's Property Act)........... 47-R.S.O. [1927] c. 238, ss. 1 (h) (4), 4 (19) (Assessment Act) ............ 48- R.S.O. [1927] c. 238, s. 40 (4) (Assessment Act)................... R.S.O. [1927] c. 233 (Municipal 50- R.S.O. [1927] c. 242 (Municipal Arbitrations Act)................ 51-(Ont.) 6 Geo. V., c. 50 (Ontario Temperance Act)....................... 52-(Ont.) 17 Geo. V, c. 70 (Liquor Control Act)....................... 53-(Ont.) 20 Geo. V, c. 27 (The Negligence Act, 1930)................... 54- (Ont.) 20 Geo. V, c. 27, s. 3 (The Negligence Act, 1930).............. (Ont.) 20 Geo. V, c. 27, s. 7 (The Negligence Act, 1930).............. 56- R.S.Q. [1925] c. 29 (as amended by 18 Geo. V, c. 17), s. 5 (Quebec Succession Duties Act)....................... 57- R.S.Q. [1925] c. 35 (Motor Vehicles 58-R.S.Q. [1925] c. 102, es. 564 et seq. (Cities and Towns Act) ............. See 7. STATUTES-Concluded

59- R.S.Q. [1925] c. 274, s. 6 (Workmen's Compensation Act) ............

(Que.) 60 Vict., c. 52 (repealing

Arts. 1323 et seq., C.C., and replacing by other articles)......................

61-(Que.) 18 Geo. V, c. 17 (amending

Quebec Succession Duties' Act) ......

See LAW 2.

62-(Alta.) 19 Geo. V, c. 12, s. 2 (b)

(Bills of Sale Act)..................

63-(Alta.) 21 Geo. V, c. 32, s. 157

(School A ct).......................

64- (Alta.) 22 Geo. V, c. 6 (Turner

Valley Gas Conservation Act) ........

65-R.S.B.C. [1924 c. 127, s. 34 (Land

Registry Act)...................

66-R.S.B.C. [19241 c. 254, ss. 2, 4

(Taxation Act)....................

See TAXATION 6.

67-(B.C.) 20Geo. V, c. 24, s. 19 (Highway Act)........................

68-R.S.N.B. [1927] c. 149, s. 28 (2)

(Sale of Goods Act) .................

R.S.N.S. [1923] c. 231 (Liberty of the Subject Act)....................

70- R.S.S. [1930] c. 199, s. 126 (Landlord and Tenant Act) ...............

See 7; 2.

STOCK BROKERS - Stock exchange - Broker and client-Stocks delivered as collateral security-Wrongful conversion- Evidence.] The respondent employed as stock brokers the appellants who carried on business first as partners and later as a limited company.

From time to time the respondent delivered to them stocks, shares and bonds as security to finance his transactions with the appellants with whom he carried on an active trading account. In each case, before depositing the shares, the respondent endorsed the certificates in blank, and they became what is known as "street certificates."

The respondent, when placing orders to buy or orders to sell, received from the appellants confirmation in the form of a bought or sold note and also during the whole course of his trading, received each month a statement showing the position

STOCK BROKERS-Continued of his account. The respondent took no exception to the bought and sold notes or to the monthly statements, and, at the securities were first transferred over from the partners to the limited company and, when it closed out, they were at the respondent's request turned over to newly employed firm of stock brokers. Several months later, without making any previous demand upon the appellants, the respondent brought an action for damages for wrongful conversion of the securities so deposited with them. The appellants did not give evidence other than calling the secretary and a member of the Vancouver Stock Exchange, who testified as to the rules and customs of the exchange. The respondent, however, not without objection, secured the production of the appellants' books and documents. An extract of the ledger so produced showed in respective columns the name of the stock deposited by the respondent, the date of the deposit, the number of shares, the number of the certificate and its date, that it was received from the respondent, and then, under the heading "To whom delivered," an indication that delivery had been made either to "H.O." (head office) or to certain brokers whose names were given, together with mention of the date on which such delivery was made. The trial judge held against the appellants on the ground that the entries in the books showed that the appellants "dealt with these securities as if they were their own property, without notice and regardless of the rights of the plaintiff."

This judgment was unanimously by the Court of Appeal: Martin and McPhillips, JJ.A., agreed with the conclusions arrived at by the trial judge, although Martin, J.A., admitted the case was "not free from doubt," and Macdonald, C.J., thought the respondent's evidence was "insufficient to support the action"; but he was of opinion that the onus was upon the appellants "to show that, in accordance with their duty, they had properly disposed of the collateral securities."- Held (reversing the judgment appealed from) that the respondent's action ought to have been dismissed on the ground that, on the record submitted and upon the evidence, the court could not come to the conclusion that wrongful conversion had been established. Smith v. Great Western Ry. [1922] A.C. foll.-Semble that the onus was upon the respondent to prove wrongful con- 2-Action against stock brokers for unauthorized sale of shares and unauthorized use of proceeds- Nature of claim-"Breach of trust"-Brokers acting on instructions STOCK BROKERS-Concluded of unauthorized person-Latier's liability to person for whom he assumed to act, nature of claim against him and measure of damages......................... 656

STOCK EXCHANGE

STREET RAILWAYS - Person struck by street car while crossing track in front of car, intending to board it- Liability of railway company-Jury's findings-Jury's apportionment of fault (The

Negligence Act, 1930, Ont., c. s. 7) 154

2 - Tramway-Pregnant mother-Fall from car-Infant born with club feet-Right of infant to sue for damages after birth-Whether deformity of the child's feet resulted from accident to mother

-Evidence-Reasonable inference-Jury's finding...........................

SUBROGATION

Bonds or debentures of railway companies (G.T.P.

Ry. Co. and C. N. Ry. Co.) having head offices in province of Quebec, where they were registered and transferable-Owner at his death domiciled in province of Ontario- Whether sulject to succession duties under s. 5 of Quebec Succession Duties Act, R.S.Q.,

1925, c. 29, as modified by 18Geo. V, c. 17- Powers of provincial legislature to fix situs of intangible property-Specialties... 670

TARIFFS-Filed under Maritime Freight

Rates A ct.........................

THEFT

THIRD PARTY PROCEDURE

Homesteads

-Constitutional law-Agreements respecting transfer from Dominion to Western

Provinces of Crown lands, etc. (confirmed by B. N.A.

1930)-Obligation to refund dues to homesteaders pursuant to terms of S. 47 (f) of Timber Regulations promulgated under Dominion Lands Act- Whether an obligation of the Dominion or of the respective Provinces ...........

TITLE TO LANDS

TRAMWAYS

See See

2, 5.

TRUSTS AND TRUSTEES - Trusts - Transfer of land-Oral understanding- Evidence of-Sufficiency-Claim against estate.......

FRASER.... - Trust - Donation - Acceptance trustee-Revocation by donor-No acceptance by beneficiary-Arts. 755, 981a, trust created by a trust deed under the provisions of Art. 981a C.C. is perfect and complete after it has been accepted by the trustee; acceptance by the beneficiary is not necessary to make the stipulation in his favour effective and irrevocable, unlike cases donation under article 755 or of contracts under article 1029 C.C.-Judgment of the Court of King's Bench (Q.R. 53 K.B. aff.

........ 3- Resulting Trust............... 4-See 3; TURNER VALLEY GAS CONSERVA- TION ACT (Alta., 1932, c. 6) ...... WILL - Clauses - Interpretation - Rules as to contract applicable-Intention of the testator-Literal meaning of the words-Art. 1013 et seq. C.C.] The general provisions of the Civil Code (Arts. et seq.) enacting certain rules of interpretation as to contracts are applicable, analogy, to arrive at the true meaning the clauses of a taking into account however the difference existing between a contract and a will.

Therefore, in a will as in a contract, the real intention of the testator must first be looked for and such intention will be found by giving a fair and literal meaning to the actual language of the will; and it is only when the intention is really doubtful that it is permissible to go outside the literal meaning of the words.-This must be the rule even the result is that the clause in the will might thereby become inoperative. Art. 1014 C.C. applies only when the meaning of a clause is doubtful.

WORDS

AND PHRASES-"Actual amount in controversy" (Exchequer Court Act, R.S.C. 1927, c. 34, s. 82)........ 2-"Afect" (within the meaning of s. 2 of agreement between Dominion and Alberta respecting transfer to the province of public lands, etc.)........................ 3-"Amount of the matter in controversy in the appeal" (Supreme Court Act, R.S.C. 1927, c. 35, s. 39).................. IS.C.R. WORDS AND PHRASES--Continued

4- "Arrangement" (within meaning of agreements for transfer of Crown lands, etc., to Manitoba and other western provinces)............................

5-"Become entitled to an interest"

(within meaning of agreements for transfer of Crown lands, etc., to Manitoba and other western provinces)..................

6- "Buildings, plant and machinery in, on or under mineral land, and used mainly for obtaining minerals from the ground"

(exemption from assessment of, in Assessment Act, R.S.O. 1927, 238, s. 40 (4) ))

...............

7- "Change of possession"-(Bills of

Sale Act, Alta., 1929, s. 2 )..

8- "Concentrators" (exemption from assessment of, in Assessment Act, R.S.O.

238, 40 (4) ) ............

9- "Contradict or vary the terms of"

(Art. 1234 C.C.)...................

"Debts provable in bankruptcy"

(Bankruptcy Act, R.S.C., 1927, ss.

24, 104).........................:

11-"Due to the inexcusable fault of the employer" (Workmen's Compensation Act,

Quebec)............

12-"Duties or employment" (Exchequer

Court Act, s. 19 (c))................

13-"Endured the punishment adjudged"

(Cr. Code, s. 1078) .................

"Final judgment" (Supreme Court

Act, R.S.C. 1927, c. 35, ss. 2 (b), 36)

......

.. ..

.

.

...

77,

2, 6.

"Fzxed machinery used for manufacturing purposes" (Assessment Act, R.S.O

1927, c. 238, s. 4 (19) ) ............

"oing concern" .............

17-"If the judge considers" (Edmonton

Charter, s. 519)...................

18-"In all cases relating to the revenue in which it is sought to enforce any law of

Canada" (Jurisdiction of Exchequer Court.

Exchequer Court Act, R.S.C. 1927, c. 34, s.30 (a)).........................

WORDS AND PHRASES-Concluded 19-"In such manner only as is usual and customary in skilful and proper mining operations of similar character when conducted proprietors themselves on their own lands". (Requirement in lease as to working mines.)................... 20- "In the performance of the work for which they are employed" (Art. 1054, C.C.) ........... 21-"Other matters by which rights in future of the parties may affected (Supreme Court Act, R.S.C. 1927, c. 35, s. 41) ............

. e...

. .............

22-"Payments" (within the contemplation of the agreements for transfer of Crown lands, etc., to Manitoba and other western provinces)..................... 23-"Prejudiced in its defence" (Edmonton Charter, s. 519)................ 24- "Proceedings under this Act" (Bankruptcy Act, R.S.C. 1927, c. s. 174)............................

See 7; BANKRUPTCY 25-"Products manufactured by said lessee" (in clause in lease) ....... 26- "Property" (Succession Duties Act, 29 s. .............

27-"Public work"

(Exchequer Court Act, s. 19 (c))...................... 28- "Real property" (Assessment Act, R.S.O. 238, s. 1 (4))...... "Sale price" for basis of Sales Tax . ..........

.

............

"Terms" (of lease, within the meaning of a. 2 of agreement between Dominion and Alberta respecting transfer to the province of public lands, etc.) ........... 31-"Waste" of natural gas (requirement against, in lease).................. WORKMEN'S

COMPENSATION - Accident - Inexcusable fault-Amount of damages-Statutory discretion of the Court -Section 6 of the Workmen's Compensation Act, R.S.Q., 274.]

One Joseph Geoffroy was employed as helper to one Lvesque, part the together on the floor of the respondent's mill next above the blow pit floor.

These separators, which were round wooden vats, were placed over what are called in the case basins, the walls of the basins being 3 to 4 feet wide, and stood about 3 feet above the level of the basin floors.

There was an opening of about 18 inches diameter in the bottom of each separator.

Ldvesque and another millwright, Tr6panier, were instructed by one of the respondent's foremen, to make the repairs in question. The electric switch, by which it was set in motion and which was placed on a wall some 10 feet or more from the separator beside the switches by which the two other separators were started and stopped, was shut to enable the repairs to be made.

While the repair work was in progress the power suddenly went off, putting out the regular lights as well as stopping all the machinery in that portion of the mill. The two millwrights resorted to an electric extension hand lamp to avoid delay in the repair work.

Joseph Geoffroy was standing on the floor of the cement basin with the upper part of his body inside the separator endeavouring to continue the work with the improvised light, while his boss, L6vesque, was standing outside the separator within the basin wall, when, the electric -current having been restored, the switch controlling the shaft by which the separator in question was operated was opened by one of the respondent's employees, the separator began to turn and Joseph

Geoffroy was so injured that, although he was able to get himself through the opening in the bottom of the separator, he died soon afterwards.

The respondent, recognizing its responsibility under the

Workmen's Compensation Act, c. 274,

R.S.Q.,

[19251, without awaiting the appointment of a tutor to represent her infant children, paid the widow 83,000the maximum sum payable under the

Act except in those cases which fall within the provisions of sec. 6-and $50

WORKMEN'S COMPENSATION- Concluded additional for funeral expenses. Ladislas Geoffroy, one of the appellants, was subsequently appointed tutor to the infant children, and in his quality as such brought, with the widow of the deceased as co-plaintiff, this action to recover further compensation to an amount of $20,000 under section 6 of the Act, alleging that "the accident was due to the inexcusable fault of the" respondent. -Held, reversing the judgment appealed from, that the accident was due to the inexcusable fault of the respondent company within the meaning of the Workmen's Compensation Act.

The accident was one-which would not have occurred if any precautions of any kind had been taken to protect the deceased in the dangerous position in which he was placed, and one for which there was no valid excuse-Dufresne Construction Co. v. Morin ([1931] S.C.R. 86) applied.- As to the amount by which the compensation should be increased, section 6 of the Act, in authorizing the Court to increase the compensation awarded where the accident "was due to the inexcusable fault of the employer," does not contemplate compensation estimated according to the standard of full reparation as in cases under arts. 1053 and 1054 C.C.- It is reasonable, in this case at all events, to limit the indemnity for the benefit of the children by reference to the principle of the enactment of section 4, ss. 2, by which compensation is payable "to the legitimate children

*

* * to assist them to provide for themselves until they reach the full age of sixteen years or more if they are invalids."

This Court, in exercising its statutory discretion, is of the opinion that a fair award would be the sum of $10,000 from which must be deducted the sum of $3,000 already paid, this amount to be apportioned one half to the tutor for the benefit of the infant children in equal shares and the other half to the deceased's widow.

IS.C.R.