periodical receipts dependent upon the production or use of real property, notwithstanding that the same were payable on account of the use of such property, are taxable. It seems to me that Sterling Royalties in receiving the proceeds of production allocated to the units of Snyder and the others were receiving it as agents for them, and in paying Head they were likewise paying it as agents for them. If this be so, then it is simply a case of paying a capital expenditure out of the earnings of the business. I think that in all respects material to this litigation Sterling Royalties should be regarded simply as agents for Snyder and his associates from the making of the first agreement entered into with that company.
For these reasons, I think the appeal should be dismissed with costs. There was a cross-appeal by the respondent in respect of costs in the court below. I think, however, that this was a matter within the discretion of the learned trial judge and would not disturb his judgment in this respect. Solicitors for the appellant: Patterson, Hoff & Patterson. Solicitor for the respondent: W. S. Fisher.
MONTREAL TRAMWAYS COMPANY
DAME HANNA LINDNER Bench, appeal side, province of Quebec, affirming the judgment rendered by Rh6aume J., upon the verdict of the jury at the trial in favour of the respondent.
The respondent brought this action claiming damages on behalf of herself and as tutrix of her minor children, in consequence of the death of her husband, the father of the children, caused as alleged by the negligence of the appellant.
Jean Letourneau for the appellant.
John L. O'Brien for the respondent.
J.-The grounds of appeal submitted to the Court were as follows:
We will now discuss each of these points in order. On the first ground: The motion for non-suit having been disallowed, the appellant proceeded with the case and produced evidence on its own behalf. Under the circumstances, in dealing with this point, an appellate court may not be restricted to a consideration of the evidence as it stood when the motion was presented, but the court must have regard to the whole of the evidence submitted to the jury.
In that view of the matter, it cannot be said that there was no evidence to go to the jury. It is suficient for the present purpose to refer to the many extracts of the testimony quoted in the judgment of the trial judge and to the careful review of the facts made in the Court of King's Bench by Mr. Justice Hall, with whom the other judges either concurred or agreed in a separate judgment.
We would not feel warranted in reversing and setting aside the verdict on that first ground.
It is unnecessary to expose in detail the somewhat complicated incidents upon which the appellant based his second and third grounds of appeal, for we indicated at the hearing that, in our view, these were strictly questions of practice and procedure in respect to which we would not interfere with the unanimous decision of the Court of King's Bench; and counsel for the respondent was told that he need.not present any argument on these points.
As to the fourth ground: The rule invariably followed in this Court is that the findings of a jury must be read in the light of the pleadings, the evidence and the charge of the trial judge; it must receive a fair interpretation and must not be submitted to a "rigorous critical method." So construed, the verdict in this case undoubtedly constitutes a fault in law and it is a proper finding of negligence.
The fault found by the jury was sufficiently alleged, and we have already stated in discussing the first ground of appeal, that there was evidence upon which the jury could find as it did.
There is no inconsistency in the findings against each of the parties, since the verdict is to the effect that each of them directly contributed to the accident.
Coming to the fifth ground of appeal, it may be stated that a court of appeal, more particularly this Court sitting as a second court of appeal should be slow in interfering with the amount of damages awarded.
The rule as laid down by the Code of Civil Procedure (art. 502) is that
On this point, the Court of King's Bench was unanimous in refusing a new trial. In the premises, it is not easy to see how we could declare that it was "evident that the jurors have been influenced by improper motives."
But the appellant says that they were " led into error" by the learned trial judge, in his charge, when he referred to a passage in the judgment of Mr. Justice Anglin, as he then was, in the case of Canadian Pacific Ry. Co. v. Lachance (1), as a result of which the jury was induced to include in its award items of damages not contemplated by article 1056 of the Civil Code.
This, however, is the equivalent of a complaint of mis- J. direction and under the Code of Civil Procedure, it could be given effect to, only if "the party complaining duly excepted to the misdirection" (Art. 498, subp. 3, C.C.P.). In the Court of King's Bench, Mr. Justice Barclay was of opinion that no exception was taken. The other judges did not express any opinion on this point. We would be inclined to think that the exception was not insisted upon in the course of the discussion which followed the learned judge's charge.
But the main difficulty in which the appellant finds itself is that Canadian Pacific Ry Co. v. Lachance (1) is a case in this Court. The citation referred to by the trial judge and to which the appellant objects is taken from a judgment delivered in this Court.
On the pertinent point, the judgments of the other members of the Court were along the same lines, and we would not see our way clear to differ from what was said in those judgments.
The remaining ground of appeal is that this case was not susceptible of being tried by a jury.
So far as this Court is concerned, we consider that the matter is concluded by the decision in Montreal Tramway8 Co. v. Siguin (1).
No doubt one of the reasons in that case was that the point had been taken too late by the appellant, but the majority of the Court also decided that a jury was competent to try an action brought under art. 1056 of the Civil Code.
This disposes of all the grounds of the appellant; and, as a result, the appeal fails and should be dismissed with costs.
J.-While I doubt very much whether the jury's answer to question 4 is a sufficient specification of the particular fault on the part of the motorman, which contributed to the accident, to enable the Court to determine with any degree of certainty whether it was his antecedent negligence in failing to keep a proper look-