Majority
Sir W. J. C.J.-This is an appeal from a judgment dismissing the petition in disavowal of Mr. Win. McD. Dawson against Mr. Dumont, the respondent, who appeared for him in a suit brought against his brother and himself in the Superior Court at Three Rivers and in which a judgment was obtained in 1874. Now it is not pretended that the respondent had any other authority than the letter which was addressed to Mr. Dumont by Mr. S. J. Dawson on the 22nd October, 1866, which is as follows:- Now it is possible, inasmuch as he does not express it in so many words, that Mr. Dumont might have considered and no doubt did consider that the letter gave him authority to appear for the two defendants, but even supposing it did give him authority, and that Mr. S. J. Dawson had given it in so many words, that would not get us a step further in the case, for we would then have to ask: Where does it appear that Mr. Dawson got DONT. the authority to name an attorney for his brother ? There is no evidence whatever of record; on the con- i .J. trary the evidence is to the effect that he had not such authority. I cannot conceive how the courts below came to the conclusion that there was evidence that Mr. Dumont was authorized to appear in this matter.
Now the moment we have come to that conclusion the next question is whether there is any evidence of ratification by Mr. W. McD. Dawson.
only fact relied on is the evidence showing that when
Mr. McD. Dawson came to discover years after, and to his great surprise, that an execution had been taken out against him, he naturally went to inquire about this at the office of the prothonotary with Mr.
Dumont. Now there is not a tittle of evidence that Mr. Dawson said to Mr. Dumont on that occasion either impliedly or expressly : " You were right to appear but you should have pleaded," or that he ever gave his assent to what had been done. In my opinion it was natural for him to go and look after the judgment which so seriously affected his interests, yet we are asked to infer that he ratified the act which at that very time he was repudiating in every .way he could.
As to the question of jurisdiction I cannot see how the objection can be urged if we had jurisdiction in the cases between the same parties that have already been decided by this court.
Under these circumstances I am of opinion that the appeal should be allowed with costs.
STRONG J.-I think it quite clear that there was no original authority given to Mr. Dumont, though Mr
Dumont supposed that he was properly authorized by the letter of the 23rd October, written by Mr. Simon J. Dawson at Quebec.
This letter on its face is general in its terms, authorizing Mr. Dumont
J.
Now construing the words in their ordinary meaning, and setting aside the relation of brother existing between the two defendants, it would only refer to an appearance for the party who sent the writ, and wrote and signed the letter, and there is no evidence that he either pretended to be or was authorized by his brother' the defendant William McD. Dawson to write the letter. But granting that in so many words Mr. Simon J. Dawson had written, authorizing Mr. Dumont to appear for both defendants, where did Mr. Simon J. Dawson get authority to do that ? Where is there the evidence of record that Mr. William McD. Dawson had authorized his brother to retain the services of an attorney for him ? Are we to say that the mere relationship existing between the two parties is enough ? Surely not.
There was therefore originally no authority to enter appearance for William McD. Dawson.
Then as regards ratification, we must expect Mr. Dumont would put the case as strongly in his favour as he possibly could and what does he say as to any subsequent recognition and confirmation of his authority by Mr. William McD. Dawson?
At p. 84 of the case we find the following evidence :- There could be no ratification in this, for how can . Mr. William McD. Dawson be held to have then ratifled the act of Mr. Dumont when we know from the Strong J. record that at that very time he was opposing the judgment ? The conversation might have been and probably was a series of objections on the part of Mr. William McD. Dawson.
Therefore, so far as that goes there is no ratification.
So that there is nothing of record by which it is proved or from which we can infer as a fact that the respondent was ever authorized to represent Mr. William McD. Dawson, or that the latter in any manner ratified his unauthorized proceedings. That being so, upon the merits the judgment appealed from was wrong exactly upon the ground taken by Mr. Justice Tessier in the Court of Queen's Bench that Mr. William McD. Dawson was never served with a copy of the summons nor authorized Mr. Dumont to appear for him.
As to the question of jurisdiction-that question is concluded by the decisions of this court upon contestations of oppositions. I can draw no distinction between an opposition and a petition for disavowal. This is really a judgment in a judicial proceeding in which the question has been finally decided by the highest court of final resort in the province of Quebec, and the matter in controversy involves a sum of over $2,000, the amount fixed by the statute, so that the appeal is competent within the exact words of the statute.
Then as io the question of law which has been raised, viz., that of prescription, it was determined by the judgment of the majority of this court in the former case of Dawson v. McDonald that under the Code YOL. XX.]
of Civil Procedure and the ordinance of 1667 there is no other prescription or limitation to a petition for a disavowal than that of years and I am bound to follow that decision.
J.
There remains but the objection taken by the respondent's counsel that all the partids are not before this court on the present appeal.
This is removed by what has been suggested by my brother Taschereau during the argument.
FOURNJER
J. concurred in the observations Strong J.
J.-No direct relief is asked against the original plaintiffs.
All that is now asked is that a judgment may be pronounced which may be an element in attacking the judgment which they still have in their favour.
Then it appears also that this petition was served on all the parties, and if they chose not to contest it, but elected to allow the point to be decided upon a contestation between the appellant and the respondent, they are not now in a position to complain because they were not served with a notice of appeal.
For these reasons the judgment of the Court of Appeal should be reversed, and a judgment entered in the Superior Court declaring the disavowal valid with costs in all courts.
J.-The other members of the court being clear that we have jurisdiction I shall only say that I have not considered the point sufficiently to assent, but will not enter a dissent.
I think the real question is : Was Mr. Dumont authorized to appear for both defendants ? I am scarcely prepared to say upon the evidence we have that he was.
I am not prepared to hold that an appearance authorized by one brother, a co-defendant, is authority to appear for both. Whether the judgment obtained on the subsequent opposition does not put an end to the objection I have some doubt.
J. Appeal allowed with costs. Solicitor for appellant: Robertson.
Solicitor for respondent : L. D. Paquin.
AFFIDAVIT-Newspaper Act, Manitoba-50
23-Authority publish-Deposit of affidavit or affirmation- Contents- Who may make- Authority of commissioner take
AFFIRMATION-Newspaper Act, Manitoba-50 c. 23-Authority publish-Deposit ofaffidavit
APPEAL- Continued.
joint stock company the defendant being call often per cent shares each alleged to subscribed the capital stock of company, and prayed that the defendant condemned to pay the of with costs.
The defendant denied any liability and prayed the dismissal of the action. During the pendency of the suit, company's business was ordered wound under the Winding-Up Act, and the liquidator was authorized to continue the suit. The Superior Court condemned the defendant to the amount claimed, but appeal to the Court of Queen's Bench (appeal APPEAL - Jurisdiction-Final Judgment-Judi- the action tue plaintif company was discretion-il. . c. 2 and m issed.
appeal the Supreme Court defendants action the Hith Court Canada.
f teld,
Gwynne J. (dissenting)
, that the Justice for Ontario made appeal would not the amount controversy England, and plain claim with being under and. there being future the assignee bankruptcy.
The High Court of ri ghts sec. Justice Eneland made order reatraininO
C., which mightbe bound judgment. the plaintiffs gro prcedn wt hiraio il Oilman S C. and a like order was made a Divisional Court Blod oiiNSAVG&WRCIGU.. Judge Ontario perpetually restraining plainproceeding but reserving liberty to 4-Action aside municipal by-lawapply.
This latter order was the Supreme and .Exchequer Courts Act, Divisional Court and the Court of Appeal and Invru fab-a ase tameigo h plaitifs soghtan ppea totheSup corporation city in the absence ofCanada.
Held, that the judgment wihof the mayor, but presided over councillor the appeal was sought was not judgment elected to the chair, annual tax of was within meaning of the Supreme Court Act the Telephone Company -Held, per Patterson J., that if it Caps
(aplatadatxo.100o h the plaintiffs Company. In actions instituted rid was made the exercise judicial dis- the appellants the purpose of annulling the cretion which Suprm Cor by-law the Court Queen's Lower Act not allow an appeal.
Canada (appeal reversed the judgment 105 Superior Court and dismissed actions 2-Leaee appeal-WJinding-Up Act-Leave holding the tax valid. appeal the Supreme grantedl after argument of After case Court of Canada: Held, that the under the Winding-Up Act argued the not appealable, appellants not having takerappellant with the consent the respondent out refused, after argument, rule obtained judge the court order quashing the by-law question within oider extend the time bringing the appeal terms the Supreme and and subsequently, the time expired, Exchequer Courts Act providing for appeals in order the registrar the Supreme municipal by-laws.
Varennes 1r sitting judge chambers, giving Can. ; v. to appeal accordance with section Iteffanamy Can. C. followed. of Winding-Up Act, and the order clared that all proceedings had 'the appeal should considered taken subsequent to the order granting leave appeal.
5--Lessor and lessee-Amount claimed-Arts. C.C.P.-urisdiction.1 Held, judgment the court below, 3-Action for call of $,1,000-Future rights-, Fournier J. dissenting, that where an action Supreme and Exchequer Courts Act brought the lessor under arts. and APPEAL-Continued.
APPEAL-Continued.
P. to recover possession of premises, alias writ execution, the appellant, having mand of joined their and occupa- opposition tojudgment. fled petition since the expiration of the lease, such tion disavowal respondent. action must brought in the Circuit Court, avowed attorney pleaded inter alia that had the amount claimed being under beenauthorizedtoappear alettersignedby 269 S.D., saying: to appear- 6--Acquiescence judgment-Jurisdiction-36 to which the inclosed has refer- P.Q.prescription, ratification Vic.ch.81, do~tittioaliy--Tteren-and insu~ciency the allegations the petition tion- Abandonment of appeal.] In an action disavowal.
petition disavowal was which the constitutionality Vic.
dismissed.
appeal Supreme Court (P.Q.) was raised the defendantthe Attorney- Canada respondent quash the ap- General of province of Quebec intervened, the ground that the matter controand the judgment of the Superior Court having s maintained the plaintiff's action and the At- r did not amount the of He,that the judgment obtained against the torney-General's intervention the defendant appallant Match, the appearance appealed the Court Queen's Bench (appeal respondent, the amount side) but afterwards abandoned his appeal from the o the judgment the intervention. furgppa ther appeal to the Supreme Court of Cann petition disavodaal has been served all fromtio e prties to the suit and only contested the the principal action the defendant attorney, authority act denied, the claimed the right to have the judg- latter ment the Superior Court the intervention reviewed.
Held, that the appeal to the Court parties interested the result are not parties apelto the appeal.
Queen's the judgment ofthe
9-Election trial-Decision-Iferences the Attorney-General could not the subject of an appeal this court.
petition-Evidence-Cortrial judqesjudgment-Attorney litem-Right
Court of Queen's Bench the defendant society li-Admiralty deeision-Jurisdietion paymentota
12-Election trial-Enlargement for oftrial-Obectionto 626 appeal if the society paid the amount directed paid. An appeal was subsequently taken before the plaintiffs attorney complied with the terms the motion to ARBITRATION AWARD-Expropriation Aet-R.S.C.
21-Discretion arbitrators-Amount J.-That appe.l an agreement with the opposing attorney that appeal would taken.
LA'ASSESSMENT TAXES-Tax sale -Irregularities-Validating acts-Crown lands-45 449 (Han.)-51 Lands Manitoba assessed the years Juridiction-Action disavowal-Pre- sold unpaid taxes. statute scription-Appearance attorney-Service of authorizing the assessment required the municimmons-C. L.
In an action I pal council, after revision ofthe assessbrought the of and interest ment roll each year, pass by-law at per cent against two brothers J. and levying rate all real and personal roperty being the amount of promissory mentioned said but such by-a was note signed them, copy of the summons passed either the years was served at the domicile of J. at Three latds assessed and formerly Rivers, the other defendant then lands which and paid siding the state York. the return btt the patent not until April ofthe writ, the respondent an appearance The patentee sold lands, and after the tax attorney both defendants, and proceedings sale mortgage thereon given to who were suspended until when judgment was sought have tax sale set aside invalid. taken and upon the isue 5 c. s. provides that every TAXES-Continued.
ATTORNEY-Continued.
made pursuant to sale for taxes shall valid, act, and therefore the petition disavowal notwithstanding any informality or preced- should maintained.
ing the sale, unless questioned within year its execution, and (an.)ppeal provides that assessment heretofore made
S-Power claim-Authority thereby."
Held, affirming the judgment of the court below, Patterson J. dissenting, that the assessments for years were illegal BANK-Bank (R. c. 79-Lien for want of a by-law and the sale for taxes assets-Priority of note-holders-53 S. thereunder was void.
If the lands could
Under the Bank Act taxed the defect the assessments was not note-holders have the cured by c. 7, c. S. assets an insolvent bank priority to which would cure irregularities but could Crown. Strong and Taseherean JJ. dissenting. not make good deed that was nullity was (But the present Bank Act the here.-Held, per Gwynne J., Patterson passed since this decision.) accrued due while the lands vested the
Crown, and were exempt taxation.- BRITISH COLUMBIA-Land Ordinance, -Grant sater-Biparian oeners-Bight Can. that the operation of c. 7 restricted to curing the defects the proceedings for the sale itself distin- BUILDING SO0ITY--By-lae-ndetedness I shores-Security 31unicipal by-law-Annual
-Validity-Appeal-R.S. s. 230 BY-LAW shares-Idehtedess transferrer-Right by-law of a building ASSIGNMENT-For of creditors-Claim society (appellants) required that shareholder assignor-Notes should have satisfied all obligations the -Collocation-Joint liability at liberty transfer P. director, contravention of by-law, induced secretary counter. ATTORNEY-Authority sign a transfer his shares to the Banque Ville Ratification-Disavowal an action collateral security for the amount brought the sum of and interest borrowed the bank, it was not till P.'s at per cent against two brothers J. abandonment assignment for the benefit and W. being the amount of a promis- creditors that the other directors knew sory note signed them, copy of the the transfer the bank, although at the time mons was served at the domicile of J. at asignment P. was indebted the appellant Three Rivers, the other defendant society of which amount then residing the state of York.
the under the by-law his shares were charged return of the writ, the respondent an ap- between P. and the society.
The society pearance attorney both defendants, and mediately paid the bank the amount due P. proceedings were suspended until when and took assignment the shares of Ps judgment was taken December, upon debt.
shares being worth than the the issue an alias writ execution, the appel- the hank the curator to the lant, having failed opposition to judgment, solvent estate of P. brought action petition in disavowal of the respondent. the shares forming part of the insolvent's The disavowed attorney pleaded inter alia that estate and with action tendered amount had authorized to appear a letter due P. the bank.
society claimed the signed J. saying: so good to shareswerepledgedtothemfortbewholeamount an appearance in the to which the in- P.'s indebtedness to them nder the by-laws. closed has reference, and also prescription, Held, reversing the judgment of the Court Canada (appeal of the petition of disavowal.
The petition andrestoringtbejudgmentoftheSuperiorCourt, disavowal was dismissed.-Held, that there was that the shares question must held hayevidence authority given the respondent ing always charged under the by-laws or of ratification appellant of respondent's with the amount of P.'s indebtedness to the [S. C. R. Vo. BY-LAW-Continued.
CASES-Continued.
society, and that his creditors had only the Election Can. R. 12)followed himself had when made the abandonment of his property, viz., to get the shares upon pay- I ment of P.'s indebtedness to the society. 14-Stephens v. McArthur 'an. R. JJ.
446)followed
MONTREAL v.
- AELY
Bank of Montreal Can. 2-Of municipality -Local tax-Validity- R. Cas. followed Appeal-Rule or order quash-R.S.C. c. I
16- Verchres Can. C. followed-230
3municipal corporation-Authority for of streets-Right
S.C.R.
3-Art.
2- Gilbert Gilman Can. S.C.R.
followed
--- -- 203 4-Arts.
6-Art.
King's Election Case Can. S.C.
S
888-269 egantic Election Case Can. S.C.R.
discussed
- --- Bank Halter Can. S.C.R.
followed bank funds agent-Security bank-Bond- Consideration-Agreement net prosecute 7- McDonald Dawson Q.L.R. fol- - - - - - Construction of-Telephone vice-Transmission of message-Use wires.] Crysler follwed esof followed
-e
Ietc. it Elec. TAXES followed
-- - - Elec.
Queenv. Bank followed
Telephone an action breach agreement with the Elec. 11- Queen's I.) and Can. S.C.R. followed
- phone allowing their wires giving orders for messengers, etc.: that the Telephone Co., Mcfanamy not "transmit
CONTRACT-Continued.
that charges-Estoppel it were possible to to take measures to ascertain the nature communications with of mailsof P.M.G.-R.S.C.
ELECTIONS performance-Deed land-U-ndis- Petition-Prelim inary objections-RlS.C. trust-Enforcement-Statute of Frauds.] 63-En rules-Copy ofpetitionhaving
'h)-Description sale under power mortgage arranged tion petiti
Held, affirming judgwith the mortgagee to redeem it making ment that the judges the cash payment and giving another mortgage court not having made rules the the balance.
enable her to pay the amount practice and procedure controverted agreed to lend it for year taking an abso- tions the English rules Term, lute the property security and holding were force, (RS C 9 and it trust that time.
contract was drawn that under rule 1 English rules the up the mortgagee's solicitor for purchase etitioner, election petition, is B. the property at the agreed price which signed, and told the solicitor that would court to sent to the returning and advise telephone whether the would that failure the subject subtaken in his name his daughter's. stantial preliminary objection fatal the The next day telephone message petition.
Strong and GwynneJJ. (dissenting)
- B.'s house the solicitor instructing to field further, reversing judgment the make the the name of B.'s daughter, court below, that the set out the which was done, and the deed was executed petition the residence, address and occupation A1. and and the arrangement with the the petitioner objection form mortgagee carried out
Subsequently B.'s which cas remedied amendment, and daughter claimed that had purchased the therefore not fatal.
property absolutely, and for her benefit, and brougit 2-Election appeal-Preliminary petitioner-Onus of the property subject to repayment the preliminary objections to election petition loan and for performance of the the respondent claimed the petition should agreement. The plaintiff the action charged dismissed because the petitioner had collusion and conspiracy the part the right vote at election.
defendants to deprive her of the property, and for proof and hearing preliminary in addition to denying said charge defendants tions the petitioner adduced proof and pleaded the
Frands.
Held, affirming respondent declared that had evidence the decision of the Court of Appeal, Strong J. and the preliminary objections dismissed. dissenting, that the evilence proved that daugter as wareof te ausenent adechereau and Patterson JJ., that the onus prowith and the having been executed bandi was upon the petitioner establish pursuance of such agreement must status and that the appeal should alloved to have taken tle property trust as would and election petition dismissed-Per have if the had been taken Strung that the probandi was upon the name, and the Statute of Frauds did not petitioner, but the established jurisvent parol evidence being given of the agree- prudence the appeal should allowed without with the plaintiff.
costs. Fournier and GwyneJJ. contra, were 404 opinion that the was the spondent.
Can. discussed.
3-Election petition-Preliminary Personal Ottawa-Security-Receiptss.8 ands. bank, and having embezzled the bank funds
In Prince Edward Island two members the bond was given consideration of an are returned the electoral district of agreement not to prosecute.
field, affirming County.
With election petition against the the judgment of the court below, that the return of the two sitting the petisideration for said bond was illegal and J. tioner deposited the with the not liable thereon.
deputy rothonotary of the court, and the 541, opresentation deposit CONTROVERTED ELECTIONS- CONTROVERTED ELECTIONS- Continued. security stated that had given security to first being to the status of the amount of one thousand dollars for each petitioners.
the parties were heard respondent, all two thousand dollars"
merits the preliminary objections duly deposited with the prothonotary as re- deuce was given the status ofthe petitioners quired statute.
The receipt was signed and court dismissed objections. W. A.Weeks, the deputy prothonotary appointed the Supreme Court.
eld, reversing the judges, and acknowledged the receipt Judgient the court below (Gwynue J. without stating that was depo- that the onus was the petitioners to sited security for each respondent.
The their status as voters.
Stanstead Case petition was served personally the respond- Can. C. R. followed.
ents at Ottawa.
That personal service of an election petition at Ottawa with- 6-Electionpelition-Prelinanry at sion-k/fect of-Six tation the petition security to the amount of and
April, after the fr th cots fr ech rspodenttheso-petition this was at the petitioners curity given was sufficient.
8 and tme to ha rsodt exaiedeprito subsec. e'"
3rd. That the tpaya-s hthemgtus h epsto subee."
1 ch.9
. C.3r. Tat hepay- trial.
respondent moved postment of the money the deputy prothonotary examination until after the of the court at Charlottetown was a valid Payone g ment.
Sec. subsec.
" g" S.- C goud ntha bepig tor
(P.E.I.)
ASESanswer the interroga tories and attend the CASES
26 which his presene necessary of-Order the the session.'
This motion grantinq of time-Preliminary supported an affidavit the respondent stattions-R. 10-Description of irg that it would necessary tioner.] the of April, the petitioner constantly court attend omitted serve the appellant with the sent election trial" and that it not possible tion petition this copy of the deposit
"for to attend present forwhich receipt, but the of April applied to presence necessary the closing judge extend the for service that the session," and court ordered the respondalight cure the
An order extending ent not appear ntil after the session the time subsequently appeal the Parliament.
Immediately after the session was Court of Appeal for Ontario, was made and the October, application petition was re-served accordingly with all the was to trial, and it was other papers prescribed statute.
the l0th December, the the order extending the time had drawn respondent examined interval. up respondent had preliminary objec- December the respondent objected tions, and leave contained the order to the jurisdiction the court the ground further preliminary objections after the that the trial had not within service.
The new list of objections included months following the filing petition those made the first instance, and also an the objection was maintained.
Held, reversing objection the powerorjurisdiction of the Court the judgment the court that order Appeal, or udge thereof, extend the time enlargement ofthe for service the petition the days commencement the trial until after the session prescribed the act. Held, that the order was Parliament and, the computation perfectly valid and good order, and that the time for the Comncenent the trial re-service made thereunder was a proper of Parliament regular service. R. c. 9 10.-The petinot included.
c 9 petition of Angus Chisholm, of the township petition-Preliminary describing his occupation, and it was shown Deposit security-R. c. 9 8. 9 (f).] affidavit that there are two or three other preliminary bjection the was that the sons that the list thatnull township.
Held, the judgment the and the written receipt signed the procourt that the petition should not dis- thoisotuary oecurt be as o ws missed the want of more particular descripeuir had be gin o behalf ote tit
CASE(Dominion
Canada) bearing the number petition-Status ofpetitioner-Onus deposited our hands the petitioners, probandi.] The petition was served upon the constituting legal teider under statute appellant the of and the Domition Canada now force." appellant preliminary deposit fact Dominion note CONTROVERTED ELECTIONS- Continued. CONTROVERTED ELECTIONS- Continued. Held, affirming the judgment of thecourtbelow, for the respondent-Patterson J. dissenting that the deposit and receipt complied sufficiently the ground that the decision the court with section 9 (f)
the Dominion Contro below depended the credibility of the witverted Elections Act.
itought nottobe interfered with.-Per 194 Strong and Patterson 55., affirming the judgment court that the evidence, petition-Status of hich reviewed judgments. the Grand determined-R. T
13.] In this case the respondent, by preliminary TukRiwy ikt suda oot n 13.]In his espnden, preimiaryStratford the transportation voters rail objection, objected status of the petitioner the polls in this tickets and and the case being at issue copies of the voters that the tickets bad given to voters lists for said electoral district were but well known supporters respondother evidence and court set aside ent prepared to for and for alone, the preliminary objection " without prejudice if they voted at all, it not amount to paying to the right of the respondent if advised the travelling of voters within the raise the objection at the trial the peti- meaning of Dominion Elections tion."
appeal was taken from this decision Act.
Berthier Election Case, 9 Can. and the went to trial, where the objection followed was renewed but was overruled the trial jndges had i0-Eection-Promise tain it, and the merits they allowed the peti- candidate- Corrupt practice-Finding of tion and voided the election.
Thereupon the trial Jndges-.S.C. 8 (b).] charge appellant appealed to the Supreme Court of: the petitioner that the appellant Canada the ground that the onus the guilty personally corrupt practice prorespondents to prove their status, and that their rising voter endeavour procure status had not proved. Held, affirming the bin situation order induce vote, judgment the court below, that the objection and that promise was subsequently carried raising the question of the qualification of the into the trial judges evidence petitioner was properly raised preliminary that the charge had proved.
promise objection and disposed of, and the judges at was charged having made townthe trial had jurisdiction to entertain such ship ofThorold the February, objection.
R.S.C. c. and trial it proved that A.some before -196 trial declaration upon the charve was basedl,at the instance of solicitor Act-Appeal-Evidence- Reversal-Loan for empoyment the P. expenses-Proof corruptintent-R.S.C.
until the trial took place, and swore that 91; s (e)-Free thepromise had madeon the February. voter and supporter of the respondent holding G the appellant, although denying the charge, free railway ticket to to Listowel to vote admitted examination that intimated and wanting two dollars for his expenses while to away asked for the loan of the evdec that astimnd thee W money W1. bar tender and friend.
W.
ndear thepeletionhimwre not having the money at the time applied but the letters not put evidence having agent of the respondent, who was present destroyed at the request the the the money. tolling wanted pellant. Held. nifirming the judgmeit it lend to to enable to Listowel court that evidence W. to vote.
S. the agent. lent the money to W.
to vte.S.
gen. leit toP1.part corroborated evidence the appelwho handed it over returned the lant. the conclusion arrived at trial judges dollars to the day before the trial.
~
~ ~ ~
T toStedyieoete ta,
Tewas not wrong, still entirely erroneous judges at the election trial held that it was justify court app-llate tribunal fide lonn appeal the
Supreme Court of Canada : Held, reversing thdi he court
ON the judgment of the court below, that the 1 decision of the trial judges depended the
11-Election petition-JTdgltont-P could 43-Enlargement timefor trial-P. 33-Notice trial-Shortthat notes-Appeal-P. s.50 was mere colourable transaction to pay the Pontiac Election the judgthe travelling expenses of within the provi- mont apealed not contain any special of of The Dominion Elections Act findings ftor statement that any the and corrupt practice sufficient to avoid the charges mentioned the particular tion under of said act.-Strong J., found proved, but stated generally that corrupt sentingwas opinion that there evidence acts had committed respondent's that the loan of the two dollars made agents without his knowledge declared that with corrupt intent inducing had not duly elected that the le- ELECTIONS-Continued. Liability of-Negligence of appeal the Supreme
Prescription-Ars.
tion
C.-44 25-R?.
Court ground that the judgment was too C164e. 1 o oeain that general operation] in gta corrupt acts had proved eas eversing the judgment Exchequer Court, oicompliance with the terms that assu a c. gives apponte bythgudeanedc
Claimnt statute R.S.C. 9 43.-On the October, aing to Crescr eon judge this within months received public work resulting negliafter the Iiling election petition order gence which servant guilty ervie ofetiiefo rity-R.
.menc.mencf which point court expresses ead th
9e) and commencemen inse t trial the months ha not8rt ing the October.
the October gives right action injuries received another order was judge the Iprior the passing of act-feld, also, that date the trial the
Ash
November, ar assuming that tinder common law province Quebec, statutes in force at the fourteen clear days E received, Crown could respondent objected the jurisdicteor liable, injury complained this the court.
ileld, that the orders made hvn et eevdmr hnaerbfr saa inAefq rhan valid.
.
.
Held, also, 1. the itin aton That the objection the the notice action trial given the under c.
prescribed under arts. C. C. Per J.-The Crown made liable CO R wai opb ectionn u r thiamages caused negligence servants apealundrse.
5(b)of . 9R. .C.j peratiii rnment railways c. 25 2. That taken shorthaind writer, (xe ob right not stenographer of the court but th wase ae pasing 5he been sworn and appointed the c claimant subject to the read over witnesses extended. lswi rte t p
626e eating to prernmentnof the province and action was presribed. petition-Preli inary objections ofpetition-Security- 2-Petitionofright(P.Q.)-R.S.Q art and (g)
169 -Sale limits-icenses- lan-Description-Damaes-Art. C.C-Practice- Lhere the holder timber license nit verify the correctness the description lands it PicToa
CORPORATION-Publisher 23-Deposit affirEationmake-Con- 14- -Per ticket-Loan for the Supreme Court, the court ordered that name fler Majesty the substituted the province ELECTIONS376
Council-Liquor apeal-Prceeing aainst claim brought the under Liceiise Act. paid out license inspectors with the CROVR approval of the Departmeint of Inland Revenue, 3.but found afterwards salaries years later was 2-Doniinion Election-Petition Order Council tinder section -Deposit security-Dominion
Act, :Held, the Exchequer Court, that the CROWN-Continued.
CROWN LANDS-Continued.
Crown could not liable for any pied lands" within those laws and the excess the salary and approved of the lands claimed had long reserved Governor General in Council.
The Liquor town site; and that the claimants not License Act, upon lands actual settlers agricul- 420'tural purposes," but had entered witti express railway-43 notice that the lands not settleof-Damage farm from of ment.
& Ry. Negligence-Boundary
& Rv. Beld, affirming the judgment the Exchequer
Co.-235
2-Taxation of- Sale-Delay agreement sale
Company the Crown the purchase the
Rividre Loup branch of their railway, the
Crown cannot held liable for damages caused CURATOR- substitution- Purchase bythe accumulation surface water to land crossed the railway since unless it caused acts Crown's ser-:
WL.
vants, and the damages in the present cise appear, the evidence relied been DAMAGES- Libel-Special damage-Loss through the nn-maintenance thel Pleading boundary ditches farm, the
Crown under obligation repair keepse appellant's claim damages must dismissed.
DEBTOR
CREDITOR
5-Contract-Carriage mails-Authority insoleent-Notes Crown-i. An' urity-1ledge-Collocation-oint seeral action will not against the Crown hreach liability.]
oeld, affirming the judgment the contrUct carrying mails for nine months court belov, that creditor way at the rate year, made parol I debt portion the with the Postmaster-General and accepted assets debtor, consisting certain the contractor letter, notwithstanding and promissory notes endorsed was partly performed. a the securitract, being larger oa it could not entitled to collocated u-on the cot made without the authority order estate of such debtor liquidation under a ioundadcil,tand if temporary it revocahle at voluntary assignment full amount ofhis the will the Posmaster-C eneral.
claim, but obliged deduct any Of QUKENE money received from other parties 6-Prerogatie-ECercie liable upon such notes which may have Pn.t-Probincial rights.] government realized the
Fournier J. dissenteach province Canada represents oiln the ground that the notes having the exercise her prerogative to all mat- corsed over to the creditor, additional ters affecting the rights the province.
security, all the parties thereto became jointly e. Bank of Noea Scotia Can. S. and severally liable and that under Gwynne J. dissenting.-: law the creditor ofj oint and several debtors en- Under Bank Act S. titledto rank the estate each his co-debtthe note-holders have the first lien the assets for the full amount claim until has insolvent bank priority the Crown. paid fsll without being obliged deduct Strong and Taseherean JJ dissenting. (Bit therefrom any received the estates the present Bank Act c.
. passed the co-debtors jointly and severally liable theretie decision).
Gwynne dissenting, ground that there being law the 895 hound upon the construction CROWN
LANDS-Right of pre-ethrn the agreement between parties, viz., the resere-Agricultural settlers-47
Voluntary collocate appel- 14s.C.)]
c.wynnecf.
B.lants the whle their claim certain land conveyed th
& N.
tled
.
ak nte ettf ao was, four years debtors-Insoleencythrown actual for agri- asithu-Prieilege-R land 62-Winding-up Act-Deposit excepted.
respectively claimed a suspension-Practice-Leare appealright pre-emption under this C.J., affirming the decision the court that, and Tasherea
J..
the act nut confer right of pre-emption the court below, Strong and Fournier Ju. contra, the that creditor not entitled the province; that full tates of insolvent debtors jointly and severally IIg liable for the amount of the debt, but obliged to deduct claim the amount previously by-Pressure jointly and severally liable therefor.-Per mortgage given Gwynne and Patterson JJ., that a person who debtor knows tht unable has realized a portion of debt upon the all debts full not a preference solvent estate of co-debtors cannot thc nortgagee over other creditors if given allowed to rank upon the estate liqui- result pressure bontfide debt dation under the Winding-up Act) his other andif the mortgagee not aware debtor co-debtorsjointly and severally liable without being insolvent circumstances. first deducting the amount previously Bank Halter Can. and received the estate of other co-debtor
Stephens McArthur Can. S.C.R. The Winding-up Act.followed.
bank-Lien that Crown-Claim of Provincial ing of cheques of third parties drawn and accepted the bank question, not entitled to paid privilege the amount of such
152 DEED-Ofjproperly trust-Condition trust-Peilure ofjudgment-Attorney litem-Right of appeal-Building society-C.
69-By-laws-Transfer of
2-Absolute inform Pledge-Art.
-Insolvent-Creditor's mortae-Evidence-Proof riqht - Art.
by-law of building society (appellants) required that a shareholder should have satisfied all his obliga- DONATION-Inter vivos-eglect registerat to transfer his shares
P. director, contravention of the by-law, induced the secretarv to countersign transfer shares EASEMENT-Use of ofwater-British the umbia-Land I865-Riqht was nottillP.'s abandonment or assignment the benefit of creditors that the other direc- I
RioIrS.
tois knew of the transfer to the bank, although at the time of his assignment P. was indebted ELECTION PETITION.
the appellant society a of amount under by-law shares were charged between P. and society.
The ESTOPPEL-stoppel -Contract- Boomag-Repairs-Useofboomsfrce-S3 P. and took assignment of th
P.Q).J Me.brought action aantt GB. shares and of P.'s debt.
shares being charges which worth than the amount due to the authorized tocollectunder 36V. C.81,P.Q.,for bank the curator to the insolvent estate of the GB. of certain Nicolet brought an action claiming the shares as river during theyears and pleading part of the insolvent's estate and with the that under certain contracts entered into action tendered the amount due P. to the tween and and auteurs, ald bank. The society claimed that the shares were put them F. the them for the whole amount of the and were, tact, indebtedness to them under the madebyhimandthatinconsiderationthereofhe laws. Held, reversing the judiment of the was tube allowed to passhislogsfree; and, also, Court of Queen's for Lower Canada pleaded compensation for use (appeal side) and restoring the judgment of the F. other and repairs Superior Court, that the shares question
F. McC.s and which law must held as having always been charged was bound to make, Held, reversing the under the by-laws with the amount of P.'s in- ment the courtbelowthattherewasevidence debtedness to the society, and that his creditors that G.B. believe that under had only the same rights respect of these the contracts was to have the the shares P. himselt when made the consideration the repairs abandonment of property, viz., to get the and that F. was shares payment of P.'s indebtedness to the eto ppd conduct claiming dues EVIDENCE-Continued.
inform mortgage-Intention-Character claimed was fully compensated for the To induce a court declare a deed, absolute amount expended in repairs him its to have intended to operate a must of the clearest, most conclusive and un- EVIDENCE-Election appeal-Preliminary jections-Status petitioner-Onus
-- -preliminary objections to an election petition trial-Decision trial for proof and hearing of the preliminary trial-Proof of of voter-Finding per Ritchie
. J. and Tascherean and Patterson JJ., that the robandi was the I petitioner to establish status and that the EXPROPRIATION-Expropriation under Rail- Act--R.S.C.ch.109sec.8 tion dismissed.-Per that arbitrators-Award-Inadequate pro bandi the petitioner, but vicw of! compesto.
nacs fa wr nepo the established jurisprudence the appeal should priation proceedings tnder the Railway Act, allowed without costs-Fournier and Gwynne it was held two courts that the JJ. contra, of opinion that the onusprobandi arbitratoi had acted good faith and fairness was respondent.
considering the value the property before (8 S.C.R. discussed.
the railway passed through it, and its value after the railway had constructed, and that the awarded was not grossly and petition-Status ofpetitioner-Onus probandi.] The election petition was served ofjustice.
appeal the Supreme Court upon the appellanton the of and Canada : Held, that judgment should not of petitioners.
When the parties were heard corporation-Alteration of grade-Excavation-Injury tioners jacent land-Subsidence appeal the Supreme Court: field, reversing the judgment of the court below (Gwynne dissenting), that onus was oe the peti- FINAL JUDGMENT-Order tioners prove their status nsJrsito--uica icein
.C .ngs-Jurediction--Tudicial c.135
3--Contract-Deed ofthird IFOREITURE-Of land-Gift vios-A~eregiser-Arts.
absolute property security for a loan the same held trust for the time the loan was to run.
B.s directions the RAILWAYSdee mde ruhe'
Iae
Crown-Liability for-Contruiction was made out aughters name. The daughter having claimed that purchased statute-44 c.
R.
and 51 the property absolutely, and for her benefit, 16240 an action was brought M. against her and B.
for performance of the contract with and for declaration that the daughter was a subject bg-tccmulation ditches-Liaclaim and pleaded the Statute Frauds. Held,
Strong dissenting, that the evidence showed that tbe daughter aware of the agreement made with and the Statute Frauds did not I HIGHWAY-Railwag passing-Construction road-Iipiring uselness agreement.
GOVHe eNVeN
S-elgn.o INSOLVENCY- Claim against insolvent-Notes 'INSURANCE,
LIFE-Continued.
held as collateral security-Collocation-Joint ing directly or indirectly consequence and several liability
- - disease, nor to any death or disability which 2-Distribution assets-Joint and bodily infirmities disease, existing prior debtors-Privilege- Winding-up
_ subsequent date this contract, the taking of poison or any surgical operation medical or mechanical treatment, nor to any Insolvent bank-Lien assets-Prerogative except where the injury aforesaid the prox- -Claim ofProvincial Government-Priority 695 imate cause the disability or death." The policy also provided that the event .
any accident or injury for which claim may "4 made under the policy, immediate notice FIRE -Policy-flescription of' must given writing, addressed the premises-Reference plan-Variance -Falsa manager the company at Montreal, stating demonstratioionnocetnvasser-A ency] An fl occupation and address of the insured, insurance policy dcscribed goods insured with full particulars of the accident and injury; stock, consisting of dry goods, while and failure give such immediate written tained that and half story frame build- tice, shall invalidate all claims under the policy. ug occupied a store said building the the insured was acciplan back of application " dentally wounded in the leg falling from a house ' situate attached to wood-shed of as- verandah within four orfive days the wound sured's dwelling-house.
The plan referred to which appeared at to a slight one was had made a canvasser insurance, compticated by erysipelas, which death who had obtained the application, and the build- ensned the of April following. ing said plan marked " did not local agent of the company at Simcoe, Ontario, any respect conform to the description the received written notice of accident policy, but another building thereon answered days before the death, but the notice of the the description every way except as to the accident and death was only sent to the designation "
The goods insured pany the April, and the notice was were stored this latter building and at Montreal the Ist burnt.
company refused alleging manager of hecompa wacowedged re breach condition policy that proofs death which where subsequently flammable materials should stored the said without complaining of want notice, and premises, well misdescription of the build- timately declined to pay the claim the ground ing containing the goods insured.
In an action that the death was caused disease, and therethe policy it appeared that a barrel of the company could not recognize their was the building marked " house " at liability.
At the trial there was conflicting the time ofthe jury found a verdict evidence to whether the erysipelas resulted for the plaintiff and non-suit, moved for solely the wound but the court found pursuant to leave reserved, was refused the the facts that the erysipelas followed as a direct full court. Held, that the non-puit was rightly result from the external injury. appeal to refused ; that it was evident that the building the Supreme Court : Held, reversing the judgwhich the goods stored was that intend- ment of the court below, Fournier and Patterson to described the policy; that the build- JJ. dissenting, that the company had ing marked " house" being detached from received sufficient notice of the death satisfy that in which the goods were was suitable the requirements the policyand thatby declinplace for storing which, therefore, was not ing to pay the claim other grounds there had a breach of the condition ; that the was a no waiver any objection which they bad proper one the application of the maximfalsa a right urge this regard.-Per Strong, demonstratio non nocet, but if not the matter was Fournier and Patterson JJ., that the external the jury had pronounced upon jury was the proximate cause death Held further, that the canvasser who secured within the meaning the policy. of assured, but was the agent the
---pany which was bound his acts.
JUDGMENT-Acquiescence in--Intervention- 208 ofappeal
INSURANCE, LIFE-Accident insurance-Immediate notice ofdeath-TWaiver-External injuries 2-Acquiescence ia-Attorney ad litem-Agreeproducing erysipelas-Proximate or cause of ment appeal death.] accident policy issued the appellants.was payable case, inter alia, " the bodily injuries alone shall have occasioned death with- JUDICIAL DISCRETION-Jurisdiction hear ninety days the happening thereof, and appeal- Order stay proceedings-R. S.C. c to hernia. nor any bodily injury happen- ,
'LIBEL-Continued.
custom not claim special damages under LESSOR LESSEE -Disturbance oflessee's this section.-Per Strong
Where special use-Claim for rent-Trespass-Arts. damages sought recovered action verbal slander where the words Co. v. THE are actionable
Co.-----alleged and pleaded wt particularity, and special damage reason of loss 2--Action custom names customers must ed-Jurisdiction
269 otherwise evidence the inadmissible. Co.-Collector tolls-Negligence- LICENSE- limits-Description- Plan Liability los--- LIBEL-Prodisions LICENSE ACT-Act 1883-Salaries with-Special damage-Loss paid -Lability for
3ooff50Vii.bc.e22l(,an.) 'The Act,"
person entitled the benetit thereof unlessm complied with the provisions of50 bic. account-Curator Act respecting newspapers and othero like publications."
section latter act person shalr print publish aec newspaper until affidavit affirmationT-DComade and signed, and containing such matter tolls-Negligence-Liarility as the act directs, deposited with the------------------605 prothonotary the Court Queen's Bench.or
Clerk the Crown
M-Palsa nocet-Applipublished ; section 2 catio davit affirmation shall set forth the real and ct,"
printer publisher of the newspaper and of all proprietors; MORTGAGE-Absolte 6 if the number publishers not as-Evidence-Proofof affidavit affirmation shall made all, and if they four it shall made four them ; and 5 that -2-Preference by-Presure-R.
the affidavit affirmation taken 2.587 justice the peace or commissioner for taking adavits the Court Queen's
Held, That c. contemplates,; CORPORATIONJ-Dutit light and its provisions apply corpo streets-Liabilitgfor ration being the publisher and proprietor sidewalk-Positionof hydrant.] was walking newspaper-2. That
2 complied with along the sideaialk ofastreet Halifax atnight if the affidavit or affirmation states that when an electric lamp went out and the darkness over hydrant and was J.
aainststhe damages seting-3. lit that director-4. that memers of certain religions government not oblige council bodies persons haviing religious scruples.to keep the streets lighted ut authorize That if the affidavit affirmation urports enter into contracts that purpose. At have taken before commissioner time ofthis accident the city was lighted authority will presumed until the contrary electricity company had contracted shown.- Libel Act actual with the corporation therefor.
Evidence was malice or culpable negligence must proved given that it was not possible prevent action for libel unless special damages are single lamp a batch lamps going out at claimed.
Held, that malice negligence times.
Held, reversing the judgment the below, Strong and Tascherean JJ. dissentjury, and there disagreement o-g, that the was not liable ; that the issues the verdict cannot stand. Held, further, poration being under statutory duty to light that general allegation damages of; streets the relation between it and MUNICIPAL CORPORATION- Continued.
MUNICIPAL CORPORATION-Continued. tractors was not that master and servant, or have if skilfully executed, negliprincipal and agent, but that of employer and gence the manner of executing it entile independent contractors, and the corporation owner of the adjacent land to recover was not liable for negligencein the performance damages for the injury sustained-Held, of the service; that the position of the hydrant Patterson, thatin the absence of the statutory was not itself evidence of negligence the prelininariesamunicipality has greater right corporation and that could have avoided the than other owner adjacent land disturb accident the exercise of reasonable care. the private person.
2-Improvement or alteration ofladree da- 3-Maintenance of county buildings-Establishing grade-Injury a4jacent land-Remedment of count court and Jail-it Action-Compensation under statutory provisions from shire town.]
. -By-law-51
V. c. s. (B.C).] The act Ser c. s. 1, amended c. incoporating city of Westminster, V.
county or dist c. (B.C.) empowers the council rice ails t-hes the city toorderbyby-lawtheopeningorextendseaire be establ cted inI of streets, etc., such purposes repredborrte municipal concils quire-and useanyland within the citylimits,either t respe emnpalite
Ini189 private contract or by complying with the formalities prescribed in subsections palito said section, which provide for the appointment ced ing
'orthuse eing commissioners the price be paid funin courosean af such land ; subsection provides for the ount euenburtor firmation the appointment and for the tprovis t ent corthe inisai posit in court of said price the council which couty ovision bng unicideposit should vest them the title to said land.
pary orChesteoanditheatownounebiirg Subsection of section enacts that subpectasd shll pplyto ofdamoa ively contributing towards payment said loan. sections and shall apply to cases of damag of shire town said county real personal estate reason of any altera- where the sittings Supreme Court are tion made order of council the line level held required statute, and where any street, and for payment the compensa- county court-house and jail'had always tion therefor without further formality.
The situated.
pursuance the above authority council was authorized by-law to raise money. borrow, the council of the municipality, improving certain streets but by-law was resolution, proposed build court-house and passed expressly ordering such improvements. jail at another town the county, intending one streets named said by-law the after they built to petition the legislature grade was lowered, doing which the approach transfer the sittings the Supreme Court to to and an adjacent lot became very difi- B
The corporation of caused an injunction cult and retaining wall having built the said lot caved and sunk thereby beapidfrndbtndrsriigth weakening the supports buildings thereon municipal council erecting a court-house Helaening the and jail, the general purposes the county, Held, affirming the decision the court below, repnigi uheeto
Ritchie O.J. and Taschereau J. dissenting, that at B gch ert an f the owner of said lot could maintain an action either them, interested.
Os appeal the damage sustained lowering the grade the judgment granting such injunction the street and was not obliged to seek redress Held tht municipality could not, under under the statute ; that subsection of section which dispenses with the formalities required court-house fnd jail, these buildings prior subsections only applies to cases where from town and repeal and annul land injuriously access thereto statutes the legislature which had being interfered with, and where land taken established them Without direct legisor for the purposes of work the streets lative authority therefor the county buildings the corporation must comply with the at ouly erected the shire town. malities prescribed subsections and injunction was, therefore, properly granted. which caused asubsidence adjoining land latter must regarded having been taken and for the purposes of the excavation, and 4-Construction of sewar-Right enter lands the council should have acquired it under the of adjoining municipality-Restrictions-R. SO. statute; not having acquired it, and having 15-51 c. (0.). neglected to take steps to present the subsidence of the adjacent land, they are liable for the damage thereby caused.-Aeld, further, that the &-By-law of-Annual tax companyneglect to take such precautions was in itself, Validity-Appeal-R. c. legal the making excavation
.733
NEGLIGENCE-Liability Co.-Collect- NEGLIGENCE-Continued.
oftolls-Lessee.]
1unil
Le on ing facts proved : The toll-house extended to the edge of the highway, and in front it
Curator to post the opposite of the road, and was fastened at night a chain which was usually carried across the board walk and held walk was generally foot passengers, and
(Aan.).] action was brought.
toll collector was section the act of Manitoba respecting made defendant the action but did not enter newspapers c. shall print defence.
It was shown that had made or publish newspaper until affidavit agreement with the company pay for privilege of collecting tolls the year' ing suh matter, act directs has and was not account for the receipts.
een
BechoCr company claimed that was of the tolls, Cowic and that they were not responsible for acts.
The jury found, however, that usingthe chain paper published; section 2 such to fasten the gate did was only follow- affirmation shall forth real and true ing the practice that had existed years the printer or publisher previously, doing had been directedby ding hadbee dircte number publishers not exceed by the company.
The statute under which the company incorporated contains express affidavit affirmation shall all, authority leasing the tolls, but the term and if they exceed four it shall " renter " section, and another speaks
; and 5 provides that the affidavit of " lease orcontract" for collecting ibe tolls. affirmation may e taken ajustice The company claimed, also, that had peace commissioner taking affidavits right to board walk in walking along the Court of Queen's held the highway, and her being there was contribu- That c. contemplates, and protory negligence her part which relieved them visions apply the corporation being liability for the accident.
affirming the and proprietor newsthe decision the Court of Appeal, Gwynne f paper2. That 2 complied with if the dissenting, that had right to the board affidavit affirmation states that corporation walk part public highway, and was, proprietor of the newspaper and prints moreover, invited the company to it, and and publishes the Gwyue J. dissenting. there was,therefore, contributory negligence;
3. That the affidavit or affirmation, the that whether the toll collector was servant of proprietor a Corporation, may made the the company or lessee of the tolls the company, managing director.
jury, ice-Dfence of-Refusal of Crown-Liability for groundsrailways-Construction of
PLEADING-Libel-Special " 1.custom.]
of the Libel Act toba actual malice or culpable " 1.
negligence must proved action for libel unless special damages claimed. Impairing for that general allegation damages of not claim special damages &eunder this section-Per Strong J.Where special corporation-Duty damagesaresoughtto recovered action sidewalk-Position of libel, verbal slander where the words 505 actionable per such special damage must alleged and pleaded with particularity, special damage reason of loss railway-Land by-Ac- the the customers must of given or otherwise evidence of the special ditches-Liability
PLEDGE-Of shares in Building Society-By- PRACTICE-Continued.
Imc-Indebtedness society-Security the Electoral District of Queen's County. election petition against return two sitting the petitioner deposited POLICY-Ofinsurance against fire-Description the of$2,000 with the deputyprothonotary of premises-Reference plan-ariance e court, and the notice presentation of petition and deposit security stated that bad given security to the amount of one thousand agaist ccidnt-eathof~dollars respondent all two thousand 2- Of insurance ie-Waivr dollars" duly deposited with the prothonotary insured-Prozimate causeaiver-280as reuired statute.
The receipt was signed A
Weeks, the deputy prothonotary appointed the judges, and acknowledged the POWER OF ATTORNEY-Construction receipt $,000, without stating that Authority settle and adjust claim-Right deposited security for each respondent. payment under.] crew of sailors claim- petition was personally the ing salvage owners of vessel picked spondents at Ottawa. held, That personal at sea gave power of attorney to author- service ofan election petition at Ottawa withizing him to bring suit otherwise settle and out order the courtis service under adjust any claim which they might have for section the Controverted Elections Act. salvage services, &c. Held, affirming the That there being at the time the precision of the local judge admiralty, that P. sentatiot ofthe petition security the amount was not authorized to receive payment the the costs each respondent the awarded for salvage or to apportion the security given was sufficient.
8 and respective shares the sailors therein.
Tas- 9, 9R.S.C.
That the chereau J. took part judgment enter- payment the money the deputy prothonotaining doubts to jurisdiction of the court tary court at Charlottetown valid hear the appeal.
McKAY-In payment. 9 subsec.
re SIP " "
(PEl.) PRACTICE- Election Petition- Preliminary objections-R. S. s. 63-English general rules-Copy of petition-R. ch. 9 (b)
4-Electionpetition--Be-servic of-Ordergrant- Description and occupation of petitioner.] Held, ig of time-Pretiminar' objectionsaffirming the judgment the court below, that B.S.C. 9 10-Description of petstioner.1 judges the court in Manitoba not having April. petitioner omitted made rules for the practice and procedure served appellant with the election controverted elections the English rules petition this deposit Michaelmas were force (R.S.C.
receipt, but the April applied a and that under rule of said judge extend the time service that English rules the petitioner, when filing an might cure the omission.
order extendin election petition, bound to leave a copy with the subsequently appeal te the clerk of court to sent to the return- Court Appeal Otario, was made and the ing and that failure to do the petition was re-served accordingly with all the subject of substantial preliminary objection other papers prescribed the statute. and fatal the petition.
Strong and Gwynne the order extending the time had bean drawn dissenting.-Held, further, reversing the judg- respondent had preliminary objection, ment of the court below, that the omission set and leave contained the order out in the petition the residence, address and further preliminary objections after occupation of the petitioner a mere objection service.
list objections included to the which can remedied amend- those firstinstance, and also an ment. and therefore not fatal.
ELEc-jection the power jurisdiction the Court - ----- Appeal, or judge thereof, extend the service petition beyond the days Court equally divided-ElTect When prescribed the act. Held, that the order was the Supreme Court of Canadain case appeal a perfectly valid and order, and that the is equally divided that the decision appealed thereunder properand regular against stands unreversed the result of the case service. R.S.C.
see. The petition in this in the Supreme Court actual parties simply stated that it the petition to the litigation only and the court, when a Angus Chisholm, township of Lochiel, similar brought before it, not bound the county ofGlengarry, withoutdescribing occupation, and it was shown affidavit that there two orthree other persons of that name the voters' list for that township. Held, Election petition-Preliminary objections affirming judgment court below, that -Personal at Ottawa-Security-Recipt- the petition should not dismissed the R.S.O. c. 8 4- sub-ss. e and and a. want particular tdward two members returned petitioner.
PRACTICE-Continued.
PRACTICE- Continued.
5-Afidavit or afirmation--Commissioner.- Dominion note, to wit, bank note of Presumption of authority-Persons having reli- (Dominion Canada) bearing the number gious scruples-Libel-Malice or negligence-Dis- deposited our bands the said petitioners, agreement ofjury-50V. and23(Man.).] The constituting legal tender under the statnte actrespecting newspapers c.23) the Canada force." provides that person shall print or publish deposit was fact Dominion note of newspaper until affidavit affirmation, Held, affirming judgment the court below, containing the matter directed deposited with that deposit and receipt complied sufficiently the prothonotary of the court and that with section 9 (f)
the Dominion Controaffidavit or affirmation may taken verted Elections Act.
justice commissioner.
Held, that such davit or affirmation, if a corporation proprietor the newspaper, may made the Wheto e etin-S.C etiner managing director; that t ere an option either swear airm and the right this the respondent, preliminary objecnot to members of certain religious p bodies persons having religious scruples; th at of the voters' and that if the affidavit or affirmation purport to lists for said electoral district were but have been taken before a commissioner his au- other evidence and the court aside thority will presumed.-By of the Libel the preliminary objection without prejudice Act of Manitoba actual malice or right of the respondent if advised to culpable negligence must proved in an action raise the objection at the trial of the petifor libel, unless special damages are claimed. tion."
appeal was taken this decision Held, that such malice or negligence must andthecasewenttotrialwheretheobjectionwas established to the satisfaction the jury, and renewed but was overruled the trial judges if this disagreement to these issues the held that they had right to entertain it, verdict cannot stand.
and the merits they allowed the petition and the election.
Thereupon the appellant Leave appeal-Winding-up Act-Time tended after argument.] After case under the
Winding-up Act was argued the appellant, with the consent of the respondent, obtained from a judge of the court below an order to extend the time for bringing the appeal, and subsequently the time expired be got an order the registrar of the Supreme Court, sitting as a chambers, giving him leave to appeal accordance with section of the Winding- Act, and the order declared that all proceedings had upon the appeal should considered as taken subsequent to the order granting leave
7- Election petition-Preliminary examination
-Order postpone until after session of Parliament-Six months' limit.] motion for preliminary examination of the respondent to an election petition the court ordered, at respondent's instance, that was not to appear until after the current session Parliament.
reversing the judgment the election judges, that the order in an enlargement the time for the commencement of the trial until after the the time occupied by which was not to computed part the months' limit. R.S.C. c.
8-Election petition-Preliminary objections- Deposit of security-R.S.C. c. s. (f).] The preliminary objection in this case was that the security and deposit receipt were illegal, null and void, the written receipt signed the prothonotary of the court being as follows:-" That the security required law bad given behalf of the petitioners a sum of in a the of the ground that the onus was the respondents to prove their status, and that their status had not proved. Held, affirming the judgment of the court below, that the objection raising the question of the qualification the petitioner was properly raised preliminary objection and disposed and the judges at the trial had jurisdiction to entertain such objection. 10-Lesor and lessee-Amount claimed-Arts. and C.C.P.-Juridiction.] Held ing the judgment the court below, Fournier J. dissenting, that where in an action brought the lessor under arts. and 0.0.P. to recover possession of premises a demand joined their and occupation since the expiration of the lease such action must brought the Circuit Court, the amount claim- 11-Action against Provincial Government- Style of cause.] In this case the action was instituted against the Government of the province of Quebec, but when the case came up for hearing the appeal to the Supreme Court the court ordered that the name of Her Majesty the Queen substituted for that the Province 12-Election petition-Enlargement of timefor commencement of trial-Notice of trial-Shorthand writer's notes-R.S.C.c. ss. the October, the judge the trial an election petition, within six months after the filing of the petition, order enlarged the time for the commencement of the trial to the PRACTICE-Continued.
PRINCIPAL AGENT-Insurance Co.- Canvasserfor
October.
the October another order was made the judge fixing the date PROMISSORY NOTE-Failure of consideration the trial the 4th November, and four- -Delay in objecting-New trial teen clear days' notice of trial was given.
respondent objected to the jurisdiction of the court. Held, that the orders made were valid. RAILWAY- Railway Co-Negligence--Con- Secs. R
Held, also, 1. That the struction of road-Impairing usefulness highobjection to the of the notice of trial way.] railway company has authority to given in this case under sec. of 9 R.S.C.
its road that part its road-bed shall was not an objection which could relied distance below the level of the highway an appeal under see. (b) of 9 R.S.C. unless upon the express condition that the high- 2. That evidence taken shorthand writer way shall restored not impair its not an stenographer of the court, but usefulness, and the company constructing its who has sworn and appointed the road and any other company operating is judge, need not read over to the witnesses liable for injuries resulting from the dangerous when extended.
628 condition of highwa persons lawfully Parition-Parties suit
430 usin it.-A company whch has not complied with the statutory condition of ringing when approachin crossing liable 14-Trespass land-Title-New trial-Mis- injuri r horse taking fright at direction-Misconduct of party at of pre- the approach train and throwing the occumises-Nominal damages
174 pants of the carriage over dangerous part of the highway the track though there was contact between the engine and the Appeal-Intervention - Abandonment of carriage.
Grand Trunk Railway Companyv. appeal
3-- -- - Rosenberger Can. C. followed:- PRE-EMPTION-ofpublic lands-Landsreseryed-Agricultural settlers-4 7 V. c. (B.C.) 235 2-Epropiation under Railway Act-Arbitra ion-Dicretion of arbitrators-Adequacy of p iON
1.on-177
PREFERENCE-By mortgage-Pressure-R.
0. c.
- - - 587 REDDITION OF ACCOUNT-Indivisibility -By curator-Release-Effect ef] P. PREROGATIVE-of Crown-Provincial respondent, as representing the institutes and ernment-Right to exercise-Insolvent banksubstitutes under the will the late J. Lien on asseta-Priority brought an action against J.B.T.D. (appellant), who was of institutes and had acted as curator and administrator the estate for a PRESCRIPTION-Negligence of servant-Crown certain time, for reddition of an account of three -Liability of-50-51 16-Arts.
particular sums, which the plaintiff alleged the Held, that even assum- defendant had received while was curator. ing that under the law of the province Held, reversingthejudgmentofthecourtbelow, of or statutes in force at the time of the that an action did not against the appellant injury received,the Crown could held liable particular sums apart and distinct an injury caused negligence its servants, action for an account adminisinjury having been received more than the rest of estate.-The plaintiff year the filing of the petition the right of action alleged that represented action prescribed under arts. and the substitutes, in virtue a C.C.-Per Patterson J. The Crown made release and subrogation which it appeared liable for damages caused the negligence of had paid S.D's attorney for and behalf its servants operating government railways the defendant sum of £447 6.d., the Vic. (R.S.C. but as the petition defendant having action reddition of right in this case was after the passing account settled notarial of settlement of Vic. c. the claimant became with said the of $4000 which subject to the laws relating prescription agreed to and which amount the plainthe province of and action was pre- tiff surety.
Held, that the notarial 240, ofsettlement gave the defendant full and complete discharge all redditions of account 2-Length of-Petition in disavowal.] Held, curator or administrator the estate, the following McDonald v.Dawson Q.L.R. plaintiff could not claim further reddition that the only prescription available against a account ofthese particular surs. plaintiff petition disavowal that of thirty years. also claimed that represented F.D. and ED. 709 two oterf institutes under the will, in virtue REDDITION OF ACCOUNT-Continued.
I RIPARIAN OWNERS-Continued.
two assignments made to him them the water granted to for several years would January, and November, required, action damages caused respectively.
In and after the defendant interference with such user, prove that had sued in an action of reddition of the notices required that section as account, a deed settlement the said F.D. would presumed that the given and agreed to accept as their share in the recording the grant.-Held, per Ritchie estate the each, and gave the J. and Strong J., that the water records defendant a complete and full discharge all evidence imperfect and the grant to plainfurther redditions account. Held, affirming tiff was not proved thereby; that having failed the judgment the Court of Queen's Bench, prove authority from the magistrate direct that the defendant could not sued water his riparian rights either at account, but could only sued for the law under the ordinance not established performance of the obligations had contracted and the action failed. under the settlement.
- - - - - - 430 SL
FLNSUpi ae-reua REGISTRY -Of deed-Gift inter vivos- Arts
RES ADJUDICATA-Equal division of court- Effect of - -- -assessment- Validating act-Nullity
2-Sale in trust-Conditions performed by cestui trust-Failure of-Revocation. - SALVAGE-Claim for-Power of attorney- Authority settle and adjust-Right payment.
---- - OWNERS-Land
-Grant of water under-Right exclusive of stream-Unoccupied water-Proof of SPECIFIC PERFORMANCE-Contract-Absonotice of aplcto fo grn.
Te lute of lend- -Undisclosed trust-Deed in pplication for grant.]
British Columbia Land Ordinance, of third party-Collusion.
tains the following provisions:-44. " Every person lawfully occupying and fide cultivating lands may divert any unoccupied water STATUTE-Aplication of-Negligence of the natural channel of any stream, lake vantCown iaility of-44
25river adjacent to or passing through such C.
38-50-51 s. 18land, for agricultural and other purposes, upon Retroactive ojeration.-Held, reversing the judgobtaining the written authority the Stipenut the Court, that even diary Magistrate of the district the purpose, Vic. gives an action against the and recording the same with him, after due Crown an injury to personyeceived a notice, hereinafter mentioned, specifying the work resultin neIgence which name of the applicant, the quantity sought to servant ut u diverted, the place of diversion, the objec the court expresses opinion), such act thereof, and all such other particulars such retroactive and gives right of magistrate may require."
"Previous to tion injuries received prior the passing such authority being given, the applicant shall theact.
post a conspicuous place each person's 2-Construction of-anitoba Libel Act V. land through which it proposed that the water c. 22-Manitoba Newspaper Act 23-Anshould pass, and the District Court House, thor notices writing, stating intention enter or ito ne o take and carry such water specifying all par- LIEL.
ticulars relating thereto, including direction, quantity, purpose and term."
In an action 3-Construction oj-Ktncipel taxation-Sale grantee of water under this ordinance for f terference with the the same: Beld, affirming the judgment the court below, that the ordinance was not passed the benefit riparian owners only, but any cultivator ofland 4-43 c. 8-Government railways-Injury could obtain a grant of water thereunder. Held, byoverflow of water, further, that the water of stream, may unoccupied under the ordinance even though OF FRAUDS-Absolute deed-Unthere may riparian proprietor upon a part disclosed trust-Deed in name of third partyand Strong J.404 dissenting, that the provisions are merely directory but if imperative grantee
S water under the ordinance who has the 1rs
S. C. R. XX.]
from
2-44V. (D.) [Government Railways]-240
3-46
(D.) (Liquor License Act,
R. S. c.8 (a) [Dominion
5-R.
S. s. (b) (Dominion Elections
Act]- - - - ----- 6-R.
c. [Controverted
Elections Act] - - - - - 7-R.
c. (g), [Controvert- 26,
8-R.S.C. s. lControverted Elections
Act]
- - - - - - 9-R.S.C. [Controverted Elections Act ----- R.S.C. c. s. (f)
[Controverted Elec- R.S.C. 9 (Controverted Elections Act]
- - - - - (Controverted
13-R.S.C. (Post Ofice Act)
(Supreme Ex- R.S.C. c. s. [Supreme and Ex- 21-50 4 c. (Exchequer Court Act]
- -- - - [Bank s. Insolvents]
- - - - - 24-R..O.11887]c.
] C.S.L.C. [Building Societies] 26-C.S.L. [Procedure Act] 27--36 V. (P. Q.) Booms and Piers on S. Q. Art. [Suits against the Crown]
-- - - - 29--R.S.N.S. 5th Ser. I [Jails other county V. J s.
(Man.) (Municipal Acts] 27s.58.
14-R.S.C. c. [Government Railwaya]-240 31-50 c. (Man.) (Libel Act]
15-R.S.C. c. s. s.s. [Railway
16--B.S.C. c. s. [Bank Act]
R S.C. s. [Winding-up Act]-152
18-R.S.C.
(Supreme
32-50 V. (Man.) [Act respecting papers]
-- -- 33-Land Ordinance, (B.C.)
34-47 V. c. (B.C.) [Island Railway, 35--51 V. c. s. (B.C) [Incorporation of Westminster]
STOCK-Transfer -Duty trans- Society-Transfer-By-lawsociety-Security to-Action of by-Consideration principal-Stifling inter vivos-Subsequent deed-Giving pay
C. C. parties to a gift certain real estate with warranty the donor did not register it, but subsequent deed which was registered changed its nature from an apparently gratuitous donation to a
In action brought the testamentary tors of the donor to set aside the donation want of registration: Held, affirming the judgment of the court below, that the forfeiture under art. resulting from neglect to register applies only to gratuitous donations, and the in this was the with warranty, which under article equivalent to sale, the testamentary executors of the donor bad no right of action against the donee based the absence registration the original of gift vivos.
- -- -- TRUSTEE-Conditions trust-Failure grantor.]
deed between grantor of the first part, certain named persons, trustees, the part, and P. grantee of the third part, his property to the trustees, the trusts declared being that if P. survived and performed certain conditions intended for the support or advantage and security of which by the convenanted to perform, the trustees should convey the property to P., and it should reconveyed to in case survived.
trust was declared in the event of P. surviving and failing to perform the conditions or failure in the lifetime both parties. In action have this set aside the trial judge held that when executed it was ignorant of its nature and effect and set it aside that ground.
The full court, appeal, dissented this finding of fact, and varied thejudgmentby directingtbatthe trusteesshould reconvey the property to on the ground that
TRUSTEE-Continued.
P. had failed to perform the conditions had agreed the deed.
appeal to the Supreme Court: Held, affirming the decision the court below, that the conditions to perform- P. were conditions precedent to right conveyance the property; that failure to perform them the trust in favour lapsed, and the grantor, being the only person to benefited the trust, could revoke it at any time and demand a reconveyance of the property. BRUi
2-Transfer of stock-Shares Duty of transferred to brokers as security for a loan certain shares a joint stock company, the transfer expressing its face that it was in trust. brokers pledged these shares with other stock to a bank security for advances, and time to time transferred them to other financial companies, each transfer on its face purporting to trust."
Eventually, the Federal Bank being the holders assigned D.'s shares, and others pledged the brokers, a transfer signed " manager in trust," to the manager the respondent company, who accepted the transfer trust." brought an action to them on payment of the amount the loan to from the brokers. Held, reversing the decision of the Court of Appeal, Taschereau and Patterson JJ. dissenting, that the of the transfer to the loan company was sufficient to put them inquiry -to the nature of the trust indicated, and they were entitled to hold the shares of subject to payment of the amount had borrowed them. Bank of C.R. Cas. followed.-Held, Taschereau and Patterson JJ., that "manager trust" the transfer to the company only meant that the manager the stock trust for his bank. and that the transferree had right to regard it and was not put on the inquiry, even if such inquiry would have possible in view of the shares not being numbered or identified any way which they deed-Parol of-Enforcement-Findings land-Undisclosed trust-Deed third party
WAIVER-Insurance notice-Refusal pay RIGHTS--Land under-Riparian owners-Riqht of Proof of of grant.] Columbia Land Ordinance, contains the WATER RIGHTS-Continued.
following provisions:-44 "Every person lawfully occupying and bonifide cultivating lands, may divert any occupied water the natural channel of any stream, lake, or river adjacent to or passing through such land, for agricultural and other purposes, upon obtaining the written authority of tie Stipendiary Magistrate of the district for the purpose, and recording the with after due notice, hereinafter tioned, specifying the name of the applicant, the quantity sought to diverted, the place diversion, the object thereof, and all other particulars such magistrate may require."
"Previous to such authority being given the applicant shall post up a conspicuous place each person's land through which it proposed that the water should pass, and the
District Court House, notices in writing, statin intention to enthr suth land, and through and over the same to take and carry such water specifying all particulars relating thereto, including direction, quantity, purpose and term."
action a grantee of water under this ordinance for interference with the of the same: Held, affirming the judgment of the court below, that the ordinance not passed for the benefit of riparian owners only, but any cultivator land could obtain a grant of water thereunder -Held, further, that the water of a stream, may occupied under the ordinance though there may ariparian proprietor upon a part of it.-Held, also, Ritchie
C.J. and Strong J. dissenting, that proviof are merely directory but if imperative a grantee of water under the ordinance who has the watergranted for several years would not required, in action damages caused interference with such user, to prove that gave the notice required that section it would presumed that the were given recording the grant.-Held,
Ritchie J and Strong J., that the water records in evidence imperfect and the grant plaintiff was not proved thereby, and having failed to authority the magistrate to divert the water riparian rights either at law under the ordinance were not established and the action failed.
- - - -- WILL-Construction of-Transfer-Efect of- Sale of rights-Mandatory-Negotiorum gestor- Parties suit for partition-Art. C.C.P- Purchase curator-Art.
U.Z.D., one of the institutes under tbe will of died without and will made thedefendant his universal legatee. Plaintiff claimed his share in the estate of under a of assignment made defendant to plaintiff of all right, title and interest in the estate. Held, that the plaintiff did not acquire the of the defendant's title or interest in any portion of C.Z.D.'s share under the will of
Held further, that under the the late C.Z. .'s share reverted either the surviving institutes or to the substitutes and that all defendant took under the will
WILL-Continued.
was the accrued interest the capital the share at the time of death.-By the judgment appealed from the defendant was demned to render an account of his share the estate which transferred plaintiff notarial deed in and also an account of D.'s share, another institute who transferred rights to the plaintiff. The transfer made the defendant was in his capacity co-legatee of such rights and interests as had at the time of the transfer, and had at that time received the sixth ofthe for which was to account. Held, reversing the judgment of the court below, that the plaintiff nothing regards these sums under the transfer, and even if was entitled to anything, the defendant would not liable in action to account the mandatory or negotiorum gestor the plaintiff. That F.D. and having acquired an interestin C.Z.D.'s share after they had transferred their share to plaintiff in the plaintiff could not maintain action without making them parties to the suit. Art. C.P.C.-Per Taschereau J.-Qunre: Were not the transfers made the institutes F.D. and to the plaintiff while was curator the substitution null and void under art. 0.0. ? v.
WINDING-UP ACT-Joint and several debtors -Insolvency-Distribution of asses-Privilege ch. 62-Deposit .with bank after suspension.]
Held per Ritchie J., and Taschereau J., affirming the judgment the court below,
Strong and Fournier JJ. contra, that a creditor not entitled to rank for the full amount of claim upon the separate estates of insolvent debtors jointly and severally liable for the amount the debt, but is obliged to deduct his claim the amount previously received from the estates the other parties jointly and severally liable therefor.-Per Gwynne and Patterson JJ., that a person who has realized a portion debt upon the insolvent estate ofhis co-debtors, cannot allowed to rank upon the estate (in liquidation under the Winding-up Act) of other co-debtors jointly and severally liable without first deducting the amount has previously received from the estate of his co-debtor. The Winding-up Act. Held, also (affirming the judgment of the court below) that a person who makes a deposit with bank after its suspension, the deposit consisting of cheques third parties drawn on and accepted the bank question, is notentitled to paid privilege the amount of such 2-Action for call-Appeal-Future rights- Supreme and Exchequer Courts Act 203 3--Insolvent bank-Lien assets-Prerogative-Claim of Provincial Government-Priority.