Composers, Authors and Publishers Association of Canada, Limited v. Siegel Distributing Co

him, (i) that the representation was false, or (ii) that Anderson was the agent of the appellants. Laidlaw J.A. took a different view of the effect of the evidence on these two points and, as already stated, I agree with his findings. The learned justice of appeal makes no mention in his reasons of the point of pleading and it is a reasonable inference that either it was not raised or he regarded it as immaterial. In my opinion, no amendment of the pleadings is now necessary.

It was argued that the respondents failed to prove damage but I agree with the Court of Appeal that damage was shown and that in the circumstances of this case the proper course was to direct a reference.

The reasons of Laidlaw J.A. state correctly the principles to be applied in assessing the damages.

For the reasons given by Laidlaw J.A. and those set out above, I would dismiss the appeal with costs, with the usual provisions as to a married woman in the case of the appellant Yetta Junkin.

JUSJTICE:-This is a motion by the defendants to quash for want of jurisdiction an appeal lodged by the plaintiff against the judgment of the Exchequer Court' dismissing its action. The application is supported by the affidavit of Carlton F. McInnis showing the course of the trial and stating that the evidence offered by the plaintiff indicated that from March 11, 1955 to May 3, 1956, there were ten instances of recordings being played in the Superior Tea Room of the four musical works referred to in the statement of claim. The deponent believes that as between the plaintiff and the defendants the value of the amount in dispute is far less than $500.

In McNea and McNea v. The Township of Saltfleet , we said:

8.C.R.

It was there decided that, in the circumstances of that case as they were explained, the amount of damages asked for in the statement of claim could not be said to be any indication that the amount or value of the matter in controversy exceeded the stated sum.

Similarly in the present case, and notwithstanding the affidavit of Mr. Low, it cannot be said that the mere claim by the plaintiff for $525 damages, or a larger sum, is sufficient to show that the actual amount in controversy in the appeal exceeds $500 within the meaning of s. 82 of the Exchequer Court Act, R.8;C. 1952, c. 98. No opinion is * expressed as to the damages that might be allowed if the plaintiff had succeeded.

The motion is, therefore, granted with costs.