Majority
the judgment of the Court of Queen's Bench for Lower Canada.
:-Sir Henry Strong O.J., and Taschereau, Gwynne, edgewick and King JJ.
This was a motion by way of appeal from the deof Mr. Justice Taschereau confirming the ruling of the registrar in chambers on an application made by the appellant.
The facts and proceedings in the case are as follows: On the 22nd August, 1877, the defendants engaged the plaintiff as teacher of a separate girl's school in school district no. 4 of the city of Three Rivers. resolution adopted by the defendants on the subject was to the effect that the plaintiff should keep the said school at the same salary and upon the same conditions as the Reverend Sisters of Providence, who taught it before her. This was for a salary of $144 a year with lodging and heating.
The plaintiff kept the school from August, 1877, until July, 1891, fourteen years.
The plaintiff alleged that during this period the monthly fees payable on account of the children attending the school belonged exclusively to the plaintiff, but that the School Commissioners received these fees and refused to render any account of them, or to pay them over; and she brought her action to compel them to make such payment.
It was admitted by the parties that the plaintiff was engaged at the same salary and upon the same conditions as the Sisters of Providence, viz., $200 per annum, when they themselves provided lodging and heating, and $144 per annum when the Commissioners provided lodging and heating.
But the plaintiff contended that she was entitled to the monthly fees over and above the salary mentioned, and she based her action on sec. 68 of ch. 15 C. L. C. which enacts as follows :- " The monthly fees payable on account of children attending a Model School, or a separate girl's school, or a school kept by some religious community forming a school district, shall form no part of the school fund; but such monthly fees, to the amount established for the other children in the municipality, shall be payable directly to the teacher, and be for his or her use, unless different monthly fees have been agreed upon." SHE The defendants by their pleas alleged that the plaintiff had no right to these fees, because the Reverend Sisters never pretended to have any right to receive them;
because the plaintiff received her salary each year without reserving any right to receive these fees;
because on the 4th January, 1892, she sued the defendants for a part of her salary and did not include any claim for those monthly fees and she must be considered as having abandoned her right to those fees;
because her salary of $144 constituted a different monthly payment or agreement (une retribution ou convention diffirente) which deprived the plaintiff the right to claim the monthly fees, even assuming she would otherwise have the right to them.
The defendants also pleaded a plea of prescription which need not now be considered.
The Superior Court dismissed the plaintiffs action for the reasons set out in the pleas of the defendants above summarized, and this judgment was confirmed by the Queen's Bench.
A bond has been filed to the form of which objection has been taken by counsel for defendants.
The registrar, before whom the application came in the first instance, held that there was no jurisdiction to entertain the appeal as no rights in future would be bound, and he referred to Bank of Toronto v. Le Curt, 4c., de Ste Vierge (1) ; and Gilbert v.Gilman Ritchie then made a motion by way of appeal from the above decision of the registrar in chambers before Mr. Justice Taschereau who refused motion.
Thereupon an application was made to the Supreme Court of Canada.
Ritchie was heard for the appellant, and McDougall Q.O. for the respondents.
Per Curiam: The position of school mistress is not an office within the meaning of section 29 (b) of ch. 135 R.S.C.
Even assuming it were an office the appellant having ceased to be in the employ of the respondents no rights in future were bound.
The words " where the rights in future might be bound," in subsection section 29, govern the preceding words " any fee of office, .&c."
See Chagnon v. Normand (1); Gilbert v. Gilman
Motion refused Toith costs. appropriation-Unwhich report disallowed items acconnts prepissed the Probate Court, will reconsider the items dealt with, two conrts for work-Suspen- previously exercised judicial discretion of for 289 being involved.
injuries plaintiff esse-Death plaintiff-Subsequent
Act-Material issues-Evidence to'' line-Charter ofifali- 45'i-Pet ofthe charter For performance-Agreement ofthe city anyperson intendingto erect veyintres mine-Dismissal of action-Subse-a part andoctin erlocate cation ;and building erected upon line without such certificate having obtained the Supreme Court, ora thereof, ADMIRALTY-Collision- Steamship -Detecpetition recorder, cause it apparatus-Negi ence-Question removed.
appeal the decision the fact.
145, Supreme Court Nova Scotia reversing the 4-Judicial jection was taken to the jurisdiction the of under-Protocol of Court Canada the ground that of petition having presented ajudge of-Presence chambers matter did not originate a of superior court. liability-Evidence-Question offact that court had jurisdiction. CanadianPacific Can. S.iR. and Can. S.C.R. dis- AGENT--of creditor-Obtaining from debtor-False Fraud-Ratification-Indictable
4--Action rights-R. (b)-56 ]
an goods-Sale brokers-Au- the plaintiff sought have servitude 682 the defendant declared non-existent, nder 1, amending R.S.C. APPEAL-riminal trial-Motion for was appealable question APPEL-Cimial tialM~ton fr rseredcontroversy relating matters where rights case-Unanimity of mightbeboind. Where the court appealed has the Can. CR. distinguished.
trial two grounds, and unanimous to one grounds but not to the other, the Su- 5--Expropriation-35 7 (P.Q.) -Inteierenee ofarbitrators.] a sideration the ground of motion in which there matter ofexpropriation the decision ofa majority was dissent.
180 arbitrators, of than ordinary APPEAL-Continued.
ARBITRATION AND AWARD-Exproprianess experience. question merelyo tion-33 7 (P.Q.)-Inteference nssl not of In a matter ould mterfered with onappeal.
expropriation the decision majority of arbi- CITY
1390 trators, men of more than ordinary bu4ness -Pleadings- Objectionfirstraisedfonappeal.]
a declaration will notbe entertained when taken that of was sufficient.
458 franchie
---- -- - 7-Cross-appeal-Rules an 63-Comphlince apopriation Award Adcross-appeal will disregarded 3-Ralaytprpit
Aado and the title-Railway Contract-Agreement for arbitration appeal-School mistress-Fee ofright ofaction righte-R.S.C.
68-R art.
TAXES-Street Railway her Co.-Repair of roadway-Local sec. C.SL .C. which collected Termination of franchise.] Street riailway the school commissioners of the city Three Toronto was to assessed respect Rivers, while was employed them.
At repairs to roadway trave:sed the railway the time of the action plaintiff had ceased as local improvements which, the their employ. Court ofQueen's Bench pal Act, constitute a lien upon the property for Lower Canada (appeal affirming the assessed but not personal liability judgment the Superior Court, dismissed the owners or occupiers after they have to action.
motion the Supreme Court of
Ileld, that after the termination of its Canada allow bond appeal, the franchise the company was not liable for these having refused judge of the court rates.
the registrar of the Supreme Court and Ry.
- ---judge chamhe:s, the ground that the
And 2.
was appealable: Held, that the matter in controversy did not relate to any 2- Street Railway contract with municipal corwithin the meaning of (b) the poration-Tazes.) By by-law the City Supreme and Exchequer Courts Act, C. tax was imposed upon 2. Even assuming it no rights working horse the city.
future would bound and the amount dis- appellant's charter it stipulated that each pute being less than the case was not employed the company shall licensed appealable.
words " where the rights numbered, etc., which the company shall future might bound " subsec. (b) ofsec.
" over and all other taxes, the govern the preceding words "any
:20 each two-horse car, and Slo each Chagnon Normand
Can.
car."
the judgment S.C.R. 661); Gilbert v. Gilman Can. S.C.R. of court below, that the company was liable Bank of Toronto Le Curd &tc. St- for the tax of each and every its Can. S.C.R. ; referred
SCHooL
REvERS----- ------------- Drainage-Adjoining Municipalities--Findoutlet-Petition.] Question offact-Interference 145 of finding an outlet without any petition the owners of land such adjoining township Finding ofjury-Interference with-Ques- to thereby, and such owners may tion offact----- 164 assessed for benefit.
Stephen v.McGillivray (18 11-Questions of fact-Unsatisfactory findings of jury-Interference with- Second appellate
- -- -- - Fraudulent appropriation - Un- CASES- Continued.
Can. BETTING- Criminal Law-Betting election.
-Stakeholder-R.
R.S.C. c. 7-Action for money stakedfollowed- - - - - Parties in pai delicto.j C. c. 9 pro- S inter alia that 'every one who
Can. staked, any political municipal election
* * * is guiltv a misdemeanour" and subsection says aoply
*
*bets between individuals."
feld, Q 1L referred versing the decision of the Court of Appeal,
Taschereau J. (dissenting)
, that the subsection not to construed as meaning that the main
Out. P. overruled section not apply to depositary of money-695 bet between individuals the result of an tion; such depositary guiltyofa misdemeanour.
and the bettors are accessories to the and liable principal
R.S.C. c.
Reg. Dillon Ont. overruled
Out. distinguished paid to the winner of the bet, the loser cannot recover the stakeholder the amount deposited the parties being in pari delicto
Can. 5CR. the illegal act having performed.
distinguished
BORNAGE- Action en-R. Q. arts.
Can. 5CR. distin- 4155-Crown lands
225 guished-340
BOUNDARY-Action bornage-R. S. Q. arts. OR. 4155-Straight tinguished dispute to the boundary line between two lots granted patents the crown, and line but certain points have recorded followed-101 in the Crown Lands Department, proper course run a straight line between the two certain points.
5CR. 225 tinguished-371
Rates consumers-Discrimination in rates- CASE RESERVED- Motion for refused-Refusal affirmed - Unanimity of grounds Appeal Fraudulent appropriation- Bailee or trustee- Unlawful receiving-Simultaneous acts
-- 49Y2
CERTIFICATE-Contract for public work- Extras-Final certificate-Pleading - Condition against assigning policy-Breach - 32 2-On goods insured-Condition against sale, title-Breach
CIVIL CODE-Art. [Ownership pro- CONSTITUTIONAL LAW-Continued. foreshore taken.
North merca 92- Pardoning (0)-Act 243, 530 Province- Provincial local 2.latures
CREDITOR 2.and imprisonment Art. [Proof writings]
243 sanction laws which they power enact.
B. Act, 92,1 15.-The Lien- Governor ofa province much Art. [Forced sales]
71representative r the fr Co-RTO ofte Arts222, 220
[rescipton]243
Government.-Inasmnuch the act 51 5 wthin thejurisdiction OF CIVIL PROCEDURE-Art.
the Governors Lieutenant Governors tenant Governor that province, if there is Will-Revocation-Revival-Intendate-Removal (0 Executor-Statute powers mistake-Ontario c. 2 c. (Imp.] will which has been Governor unconstitutional-Quree: the Wills Act 0. c. revived representative of crown, Colonial Parliameit
?-Gwynne J. dissent- (0.), CONTRACT-Petition Right-46 (P.Q.)-Final engineer-Extrasit.-Held, the construction three the extras and reduc- LAW-Foreshore of was bour - Property in - V. c. 1 (D.)- Comiissioner Public Works matters dispute upon Jus tIng statute. 1, gave the Works, after hearing panics, right to take and use land that nothing was the contractors, high water mark any stream, lake, and engineer charge, ceriifletc.. far required the purposes the cate, declared that balance rail
Held, that the right of the public tontract and extras. to a barbour, foreshore of which suppliants their petition right claimed had taken the company under this act, inter alia due extras.
was subordinate the rights to the pleaded general denial and payment. pany thereby and the latter could prevent perior Court granted the suppliants the interference with amount declared under the tificate the engineer.
appeal the Court track long the franchise the company to of Queen's for Lower Canada (appeal the said streets extends."
agreeincreased the amount to with mentprovided thatitwasnottoaffectthe rights interest and costs. Held,reversingthe judgment ofeither party respecttothe arbitrationto the court below, and restoring the judgment had if the city took over the railway, of the Superior Court, that the suppliants matters not specifically dealt with therein, and bound the certificate given the engi- was not to have any operation "beyond the neer under the terms of the contract -Per which the aforesaid francise Fournier and Taschereau JJ., dissenting, that: extends."
This agreement was ratified the certificate had not set the I act legislature passed which also pleadings bar to the action, and there was provided for holding the arbitration, an admission of record the crown that the which having entered thecity claimed contractor was entitled to per cent the rates upon the company extras ordered and received, evidence construction of permanent pavements justified the finding the Court of Queen's which debentures had issued payable that the commission of per cent was the termination ofthe franchise.
The arbitrastill and unpaid of said extra having refused to allow this claim an action was brought the city to recover the amount.
Held, affirming the decision the contract-Street railway- Court of Appeal, that the of the city pavements-Arbitration not allowed; that the agreement The Toronto Street Railway Company was in- charged the company all liability respect corporated and its franchise was last construction, renewal, maintenance and thirty years, at the expiration which period pair the said streets; and that the clause the city corporation could assume the ownership viding that the agreement should not of the railway and property of the company rights ofthe parties respect to arbitration payment of the value thereof to etc., must considered inserted arbitration.
The company was to keep the majori cauteta and not away with roadway between the rails and eighteen I the contract to the company inches outside each rail paved macadamized liability-Held further, that act and in good repair using the material passed and by-law made pursuance that the remainder the street, but per- thereof, the company was only assessable manent pavement should adopted the local improvements which, the Municipal poration thecompany was not bound to construct Act. constitute lien property assessed like pavement between the rails, etc., but but not liability the owners only pay the cost price the same, not to occupiers after they have such; per yard.
The city corpor- therefore after the termination the franchise ation laid upon certain streets traversed the the company notbe liable rates. company's railway permanent pavements
CIY .
cedar blocks, and issued debentures the Co.-198 whole cost of such works. A by-law then
Plat-Reference court-Adoption ofr courts-Appeal bitration centrec -Municipal Act for local improvements.
The -ight of action.) Royal Electric company paid the several rates assessed up to pany having the city Three Rivers the year but refused pay subsequent contract price the installation years the ground that the cedar pave- plete electric plant, which under terms ment had proved to no means permanent, contract was put in operation at but defective and wholly insufficient streets least paymeutofthe price could upon which the railway was operated.
court referred to experts action having brought the city for these question whether contract had rates, it was that the company was only substantially and found thatowiug liable to for permanent roadways and certain contract had not reference was ordered to determine, among other satisfactorily completed.
Superior Court things, whether or not the pavements the adopted finding fact the experts and city permanent. This reference was not dismissed the action.
Court proceeded with but agreement was entered for Lower Canada (appeal side) into which all matters dispute to the end appeal the judgment the Superior of the year settled, and thereafter the Court and appeal Supreme Court company was to pay annually per Canada
Held, affirming the judgments mile of all claims account deben- the courts that it being that the tures maturing after that date, and lieu of' appellants had not their contract within the company's liability construction, ,the delay could not recover-Held newal. maintenance and repair respect of all that when contract provides the portions streets occupied bythe company's ;payment shall until work satisfactorily completed a claim for extras, contractor for damages caused delay under the contract, not exigible having the timber inspected.
prior contract.- Qusere: Whether right ofaction exists although contract contains clause that all matters 7-Crown domain-Diputedterritory-License dispute between the parties shall referred to cut timber-Implied warranty of title-Breach arbitration.
Street Railway Company of contract-Damages.] claimant applied of Q R referred to. the Government Canada
CORPORATION timber timber berths situated ter 289 ritory lately dispute between that Government and Government Ontario, Action garantie-Contract-Sub-contract application was granted condition that -Legal connection (Connexite)] The appellants, the applicant would pay certain ground-rents had contract with the city ofThree Rivers bonuses, make surveys fnd build mill. and set a complete electric plant, claimant knew of dispute which sublet the respondents the part of their at and public.
paid the rents gagement which related steam engine and bonuses, made the surveys and enlarged a The original contract with city of millhehad previously built, which was accepted Rivers embraced conditions of which the equivalent building defendants had knowledge, and included the pute was determined adversely Governsupply other totally different plant that ment Canada at leases licenses which they subsequently undertook to supply current, and consequently Government the appellants.
appellants, upon not renew leases granted works, having the city ofThree under sections of and Rivers for the agreed contract price, the city the regulations made under the act pleaded that the work not completed, and provided that "the license renewed set up defects steam engine and boilers, another year subject revision the and the appellants thereupon brought action annual rental royalty paid therefor garantie simple against the respondents. the Governor Council." Held, affirming judgments of the courts claim for damages licensee, Held, 1. low that there was legal connexion Orders is Council issued pursuant existing between the contract of and authorizing the Minister defendant and that of the plaintiffs with the the Interior grant licenses cut timber city of Three Rivers, upon which the principal not constitute contracts between the crown and demand was based, and therefore the action proposed licensees, orders council yarantie simple properly dismissed. revocable crown until acted the 298 granting oflicenses under them.
2. right of renewal of the licenses optional with the 5-Interest in mine-Agreementto transfer por- crown and claimant entitled recover tion of proceeds of sale-Statute of Frauds.] Government only the moneys paid to agreement the owner of an interest in gold them ground rents and anoter, consideration ofservices performed working the a portion of such owner's share the proceeds when it was sold not contract for of interest land within the Statute of Frauds.
Contract-Public work-Authority of ernment engineer vary terms-Delay.]
contract with the Dominion Government building bridge, the specification of which called timber special kind which contractor could only procure North Carolina, the Government was not obliged, the absence special provision therefor, have timber insl ected at that place and was bound the act the ernment engineer agreeing such inspection, the contract taining a clause that no change its teims would binding the crown unless sanctioned order council.-A provision that the contractor should against the crown reason of delay the progress work arising the acts of any of Her jesty's servants, was also answer a suit
8- Sale of goods sample-Place ofinspection -Delivery - Sale through brokers - Agencythe place of delivery the absence a special agreement to the contrary, the place inspection the buyer, and refusal inspect there when opportunity therefor afforded a breach of the contract purchase-Evidence to affect the construction contract sale of goods unless such custom general. Evidence of usage Canada will not affect the construction of contract for sale of goods in parties domiciled there unless the latter are shown to have cognizant of it, and can presumed have made their with reference it.-If parties Canada tract to purchase goods York through brokers, first telegram and letters, and pleted exchange bought and notes signed the brokers, the latter may regarded as agents the purchasers Canada; but if not, if the purchasers make objection to the COVENANT-Lease for year-Dominion timber- Warranty of title-Quiet form of the contract want of authority enj toyment ty the brokers, and after the goods arrive refuse to e
-- -- --accept other grounds. they will
OwN 1.
to have ratified the contract.
CRIMINAL LAWofcompany-Sale
Fiduc'ary relationship-No Fraudulent tors-Rescision
644 receiving-R.S.C.
10--Construction ofagreement-Guarantee-670 appeal the Courtof Queen's (appeal decision the trial judge Of'such but not the other, appeal ing-up-Sharespidjor propertyn-Promn to there dissen t-A company-Trust-Fiduciary ot the Larceny Act, might have convicted criminal breach trust under 65.-A fraudulent appropriafor laud- tion principal, and fraudulent accessory, take place at ance-Duty act.-Two tract purchase of land that the purchase ment presented against and B. under paid conveyance ses and Larceny Act.
P delivery not alter rule that count each was charged with having unlawfully the conveyance should prepared the pur- and with intent defraud taken and approchaser.
Fournier and Tascherean disentrae ohsonue$i00blnigt h ing.STEVNSO
- - 629heil's deprive them their interest the same.
second count 2--Conatract for land- charged (the appellant) with having unlawance-Objrctian to-Delay-Default full received property the which had then unlawfully PUCHAER .
1obtained and taken and the taking and receiving iiderneanour COURT--Jurisdiction-Action for at -Foreign lands-Lez ite-Action sonam.] An Ontario court will not grant ecutor 0.'s estate, and was the custodian for redemption ofa mortgage lands the money, pleaded guilty charge the Ontario at suit of a judgment creditor first count.
pleaded not guilty, was acquitted gagor, judgment being registered the charge the first count, but statutein Manitoba, acharge lands. guilty of unlawfully receiving. the question judgment creditor and mortgagee both having submitted, reserved w hether domicile Ontario-The only locus standi found guilty unlawfully receiving judgment creditor would have an Ontario who custodian the court would to have direct reliefagainst the ecutor, the Court for Lower land means of sale which relief would Canada appeal), Sir Lacoste J. restric:ed such case in suit the senting, held the conviction good.-At the trial courts Manitoba and sale would it was proved that and agreed appiohave unenforceable the latter province.- 'priate the money and that when drew the court equity will, where persoual equities money purchased ticket the exist between two parties over whom it has United States. a parcel of the took jurisdiction though such equities may refer to it to B.'s store, and handed it saying: foreirn lands, give relief operating " the boodle; take good care of not irectly upon lands but directly in per- the evening, absconded to sonam. such relief will never extended appeal to the Supreme Court of Canada: far decreeing sale the nature equit- Held, affirming the judgment the court approtiation Jurisdiction xnrec JursditionAc-previously. properly convicted under trustees-Resjudicata
LAW-Continued.
2-Betting election- Stakeholder-R. S.
c. 8. 9-Accessories-R. S. c. 8. 7 ]
depositary of money staked two dividuals result an election for the
Commons guilty of misdemeanour under C. s. 9 (Crim.
and the bettors are accessories the commission c. s. 7. V.
Ont. P. overruled.
3-Debtor and creditor-Pretended agent of creditor-False representations-Fraid-Bat ifcation-Indictable
CROWN-Crown lands-Dominion license timtber-Implied covenant-Warranty of title- Quiet enjoyment.] Licenses granted and actually current and conferred upon the licensee "full right, power and license take and keep exclusive possession of the said lands except as thereinafter mentioned for and during the period of year December, to December, and no longer."
Quere. Though this was in law a lease for year the lands comprised the was the crown bound any implied covenant to read into the license for good right and title to make the lease and for quiet enjoyment?
2-Foreshore of harbour-Title to-Grant railway ofuser-Interference with to--Jus publicum - - - - - - 3-Petition of right-Contract for public work
-Extras-Final certifcite
4-Construction of public work-Interference with public riqhts-Intjury private owner- 5-Public work- Terms of contract-Authority of Government Engineer vary-Delay - -Government buildings-Supply of water to- Water rates-Discount for prompt payment-Refusal
LANDS-Disputed territory-License cut timber-Impled warranty of title-Breach of contract-Damages.) The claimant applied to the Government Canada licenses timber ten timber berths situated the territory lately dispute between that Government and Government Ontario. The application was granted the condition that the applicant would pay certain ground-rents and bonuses, make surveys and build a mill.
The claimant knew of the dispute which at the time tinuel.
and public. ie paid the rents and bonuses, made the surveys and enlarged mill had previously built, which was accepted as equivalent building new dispute was determined adversely the Government Canada at the time leases licenses were current, and consequently the Government not renew them
The lease was granted under sections and of Vic. and the regulations made under the act of provided that " the license may renewed another year subject to revision of the annual rental and ro-alty paid therefor the Governor Council." claim for damages the licensee. Held, 1. Orders Council issued pursuant to Vic. sees. and authorizing the Minister the Interior grant licenses to cut timber, not constitute contracts between the crown and proposed licensees orders council being revocable the crown until acted upon the granting of licenses under them.
2. The right of renewal of the licenses optional with crown and the claimant was entitled recover the Government the moneys paid for ground rents and bonuses. The licenses which granted and actually current in and conferred the licensee " full right, power and license take and keep clusive possession of the said lands except as thereinafter mentioned and during the period of year the 31st December, the December, and longer " QuTre. Though this was law lease for year the lands comprised the liense was the crown bound any implied covenant read into the license good right and title to make the lease and quiet enjoyment?
2-Action bornage-R.S.Q. arts. -- --- CREDITOR-Payment pretended agent-False representations as auth ority -Ratification creditor-Indictable Where payment obtained a debtor who falsely represents that agent of the creditor, whom a fraud thereby committed, if the creditor ratifies and confirms the merit adopts the agency of the person receiving themoney and makes the payment equivalent to to authorized agent.-The payment may ratified and the agency adopted, though the person receiving the money has, his false representations, committed indicta- 2-Insolvency-Knowledge of, creditor- Fraudulent preference-Pledge - Warehouse receipt-Novation-Arts.
DEBTOR CREDITOR- tinned.
DEBTOR CREDITOR-Contined. and Elliott, Finlayson & wine merchants, the snbstituted notes ofElliott, Finmade judicial abandonment the layson & fraudulent prefercuce. gust, business
Both had Art. 0.0.
Gwynne JJ. (dissenting)
. kept their accounts with the Bank of Commerce. reversing the judgment of the Court of Queen's The bank discounted Elliott & Co., Bench and restoring the judgment the Subefore departure England the 30th perior Court, that legal of trans- June, a note of 1st October, signed action Asgust was release the John Elliott & and indorsed pledgd barrels of'oil, and that Elliott & and Elliott, Finlayson & and immediately the property the insolvents the 5th July took, as collateral security creditors and could not held bank Finlayson, who was also Elliott's agent collateral security Elliott, Finlayson & Co.'s during his absence, warehouse receipt for substituted notes. Arts.
0.0. barrels and the discount credited I Gwynne and Patterson JJ. dissenting. -July barrels and the proceeds, I note-Security for, the July McDougall, Logie & failed and was involved the failure the tent which amount the bank held DEDICATION-Ofpublic street-Exising truction-ligkt agent for left with the bank sation.
lateral security against E's indebtedness of the paper of DEED-Ofland adjoining counties-Posses- -sion-Title upon which the bank collected and still kept note of J. & unpaid of fobligation
Elliott for note-Novation-Prescripviously discounted became due at tion
Elliott their joint paper, of
The note of Ist October, DOMINION and the of were signed John
Elliott & and the August placed two notes signed Elliott, Finlay- MTJEL-By marriage contract Prous barrels of oil. indorsed over B. to bank.
respondent, curator for the estate
DRAINAGE-Adjoining nicipalities-Defecscheme-Tortfeasors-Drainage July
51-Powers ofreferee-Negligence-429 bank, fraudulent preferences. 1 Superior
Court held that the bank had knowledge
E.'s insolvent condition or about EVIDENCE-Pa usdation for secondary that ofagreemest-Leches-Righttoreluef fraudulent Ireferences receiving E.'s inconsistent with claim.] the hearing customers' notes and barrels but the equity suit secondary evidence of document Court Appeal. rever'ing the judgment was tendered proof that its proper custodian of the Superior Court, held that the pledging of out the jurisdiction and supposed the barrels of Elliott, Finlayson & Scotland; that letter had to the August not fraudulent prefer- asking and sister and other peran appeal and cross-appeal the connected with inquiring Supreme Court :-Held, that the finding of whereabouts, but information was not obtained. thecourts below ofthe fact that the bank'sknow- Held, the decision Supreme ledge ofW. Elliott's insolvency dated Court of'New Brunswick, that this not a the July, was sustained by evidence the foundation secondary evidence case, and there had therefore fraudulent that letters should have stated that this preference given to the bank the insolvent paper wanted that an independent transferring over it all customers' paper person should have employed make not yet
Art.
Gwynne J. inquiries Scotland custodian the senting.
that additional security given document, and ask it ifhe had been found; to the the August barrels land that commission might have EVIDENCE-Continued.
EVIDENCE-Continued.
Court Session in Scotland, and owner or master rebut positive evidence appointed that court procure the that not there employed in attendance the custodian and his examination contravention Seal Fishery (Behring'. a witness.-The suit per- Act, & (Imp.) 1, formance agreement of the
Held, reversing the judgment beneficiaries under will vesting the testator's ofthe court that there was positive and estatein trustees for division among her children, clear evidence that the ''Oscar and Hattie'' lands of the estate Brunswick to not empioyed at the plaintiff P.; and the docum-nt which contravention of54 & c. secondary evidence was was alleged 1, subsec. 5. agreement trustees and other beneficiaries convey the said lands C. The evidence was received, but only established the execution 4--Seal Fishery (North Pacific) 56 4-Judicial aid counciltIereunder-Protocolof ary evidence bill. of-Presence z,'ne-Bonafldes-Statutory would not establish the plaintiff case; that the biiitt-Evidence-Question offact.j
Admialleged agreement, not being both the ralty Court bound take judicial notice trustees, could convey estate. legal equit- order council curtderives C.; and that the proof its contents Iits jurisdiction, issued under atthority not satisfactory.
HALe
265 act Imperial Parliament, & Fishery (North Act, 2--Action for Russian cruiser manned in pay gence-Examination of
Russian Government and command ofjplaintiff-Action Lord the Russian navy war Act-Admissibility set tyithin the meaning said order first action-Rights of third arty.] council, and protocol examination of an action given Lord Campbell's offending British ship cruiser signed Act the benefit of the widow and childien of command admissile evidence whose death results injuries proceedings taken Admiraliy Court through negligence different that an action condemnation under said Seal which the deceased had his lifetime, yet the Fisher ' (North Pacific) Act, ani proof material issues are substantially the contents-The ship question this both actions, and the widow and children are having teen within prohitited waters claiming through the deceased. There.
thirty round Komandorsky when an action commenced by Islands. equipped atd manned sealing, injured which his evidence taken not failed to onus cast and the defendant has a right of proving that was not employed examine such evidence admissible sub- it killing attempting kill auy seals within sequentaction taken after his death unde: the seas order council, lut the act. Taschereauiand Gwynne JJ. dissenting.evidence was prove that was admissibility of evidence against guilty an infraction ofthe statute atd the original defendants, municipal corporation council.
iniuries caused by falling into exca--478 vation public street, not affected the fact that they have caused third party added defendant the person was really responsible such excavation, and that such third party not notified of the nation the plaintiff the first action,
Taschereau and Gwynne JJ. (dissenting)
.
trial-Improper ofgoods-Place ofdelivery-Inspection utage-Contract abroad-682 will-Intention
British for sea-Onus probandi-Lauful trustee-Accounts-Jrisdiction ofprocourt-Resjudicata
Harbour, Behring Sea, while
J.
taking supply of water.
Held, the judgment of the court bJow, that when EXPROPRIATION
Railway expropriation-- Awarl-Additioral oftitle -Diligence-The petition the Superior Court, the plan deposited the of the Minister prayinv that railway company ordered Railways, thejsspublicumto get access to pay into the hands the prothonotary of the water at the foot Avenue is Superior Court sum equivalent six per cent subordinate to the rights given to the railroad the amount of an award previously deposited company the statute c. 1, a) court under the Railway Act, and the said foreshore, and therefore the injuncpraying further that the company should tion properly granted.
of title with view to the distribution of money, the company pleaded that the company PREFERENCE-Insolvencyhad power grant an order and that Transfer of insolvent's property creditorthe delays proceeding to confirmation of title Knowledge of creditor-Arts.
had caused the petitioner who on--530 successfully appealed the higher courts for increased amount. Held, reversing the judgment of court below, that the terms LAWS-Province of Quebec-Game offars-Search judgment that rant-Justice Peace-Jurisdictionprohibition-IS.Q that jurisdiction, until determination of the
S troversy the amount to distributed the railway company could not said to guilty negligence not obtaining a judgment GUARANTEE- Construction agreemetconfirmation of title. Railway Act,
Guarantee.]
wholesale merchant, had Fournier J. (dissenting)
. & supplyin goods & coming doubtful their credit, their account being reducetl to on-Award majority-Inter- security further credit.
who had ference thereupon gave guarantee in a letter,
18-Powers prepared furnish & with stock extnt foreshore-49
'.)-City guarantee any amount beyond that couver-Right
Jus publicum-Implied consented responsible you any statute-Injunction.] loss sustain any amount upon your " have the right to take, and hold the thousand, but the total amount not and land below high water mark, in any stream, eight thousand dollarsincluding your credit lake, navigable water, gulf or sea far of thousand, unless sanctioned further the same shall vested in the crown and shall guarantee.'' then continued not required the crown, to such extent supply C. & with goods, and action shall required the conipany for its rail-by this guarantee eld, way and other works shall exhibited decision the Court Appea, Gwvnne dismap or plan thereof deposited in the the canting, that there could liaiity this Minister ofRailways." & Vie.c. sec.5, guarantee unless indebedness C. & the location of the company's line of railway to should the $5000, and at tween Port and the City of Westminster, of action brought such indebtedness including the foreshore of Burrard Inlet, at the having reduced payments & foot of Avenue, Vancouver City, was rati- and dividends their insolvent estate toless and confirmed.
The act incorporation than such had action. (B.C.) vests the city all streets, highways, and the city began the construction WIFE-Partnership-Diso- Coitestation-Priority barhour at water.
an application the the city corporation proceeding with their mutnel-Property judgment marriage-Resiliatioa for value-Right that part required the railway company, shown I
INSOLVENCY-Right FIRE-Continued.
of oie heir-Sale partitionthe policy. Held, affirming the decision Supreme Court of Nova Scotia, that the insolvent-Knowcreditor-Fraudulent preference-Arts.. 530 amount insured in of loss.
policy-Change FIRE-Condition insured-Chattel Particular loss-Failure furnish- Findingofjury-Evidence.] ance against required that of loss tie property insured the liability of the company insured should, within fourteen days, furnish should thenceforth cease; that the policy should particular an account of the property destroyed, not assignable without the consent the as the nature and circumstances of the case pany indorsed thereon;
and that all encumwould admit The property of insured brances effected the assured must notified this policy, was destroyed and in lieu within days therefrom.
feld, reversing the required account delivered the agent decision of the Supreme Court of Nova the insurers an affidavit which, after stat- Scotia, that giving chattel mortgage ing the general character of the property property insured was not a sale or transfer swore that invoice book had within the meaning this condition, but it was burned and had adequate means esti- "change of title" which avoided the policy. mating exact amount of his loss, Ins. had made careful an estimate the nature distinguished. leld, further, that it was and circumstances of case would admit of, incumbrance even if the condition meant an and found the loss to between and cumbrance the ground of non-compliance with said con- LIFE-Condition inpolicy-Note for premium-Non-paynent-Demand not could have made tolerably complete policy of insurance provided thatif list contents store immediately premium, note, etc., given therefor was not the and whether not delivered paid when due the policy should void Held, particular account, &c. in condi- affirming the decision Court Appeal. not answered.
The trial judge gave that where note given for a premium under judgment favour which the court en said policy was partly paid when due and untered the company. Held, affirming the paid at the death the assured, the policy was decision of the court that Held further, that a demand for payment conclusively showed that with the after the maturity of renewal was not a assistance of clerk, could have made waiver of the breach of tle condition so tolerably correct list of the goods lost the keep the policy in
Held, that under the evidence jury have answered the questions they to MARINE Marine was unneces- '-Repairs judgment roperly vessel-Changeofname-Register.] company.
insurance risk resisted the Co.-ground misrepresentation it ought to made very clear that such misrepresentation was policy-Breach ofcondition.] condition in deceive vitiates pulicy however trivial honestly the policy any interest therein should le made it only vitiates when material and assigned, parted with in any way encum- stantially incorrect.-Representation marine bered the insurance should absolutely void, policy that the insured was built obtained and indorsed the policy.
the tensively repaired and given name and chattel mortgage, all the property insured and boiler and machinery with the all ofinsurance thereon and all renewals material, misrepresentation and avoids thereof to creditor. At the time such policy whether made with intent to deceive signment had other insurance said not. Taschereau J. dissenting
[S. C. R. VOrL. XXIII. MARINE-Continued.
JOINT STOCK COMPANY-Continued. vessel-Joint -Abandonment-Salvage.]
partly lationship.
If sells, for instance, through sured, was wrecked and the slip's husband the medium of board of directors who are abandoned her the underwriters, sold independent the contract may her and her outfit The sale was after- scinded provided the property remains wards abandoned and the underwriters notified position that the parties may restored to the ship's husband that she was not total their original status.-There may loss and requested him take possession.
I which the property may regarded paid attention tothenotice and the vessel was bound a trust either ab initio or libelled for salvage and sold under decree quence of post facto events; if promoter court. The uninsured owner brought 1 purchases property from vendor who to action against the underwriters for conversion paid the company when formed, and a of her interest. Held, affirming the decision of secret arrangementwiththevendora part the the Supieme Court of Brunswick, that the i price, when the agreement carried out, ship's husband was agent the uninsured into the hands of the promoter, that secret owner respect of the and his conduct profit which cannot retain and if any part precluded bringing the action; that of such secret profit consists paid-up shares might have taken possession before the vetsel the company issued part of the purchase price was libelled; and that the insured owner of the property such shares may, winding-up not deprived of her interest any action of the proceedings, treated, if the promoter, underwriters but decree ofthecourtunder unpaid shares for which the promoter may which was forsalvage.
V. UNION made
- -- -- INTEREST-Expropriation railway-Award oftitle-Dili- I Building line-Petition obtaining-Railway removal-Variance
- --- MUNICIPAL 2. 2-Vendor pay JURISDICTION-of interest-Delay-Default trustees-les judicata 3-Contract for land-Agreement of vendor-Deposit 2-Aetionfor 629 stw-Action
Patent of- Finding of-Question paid for JUS PUBLICUM-Etinction of-44 (D.)-Foreshore ofharbour- C.P.I. company-Trust-Fiduciary paid for money money's worth and it
Obstruction-Dedicationtreated act to inquire into the adequacy the consideration with to placing the holder the list of JUSTICE OF THE PEACE-Game laws-Come offurs-Jurisdica trust for a company of property acquired tion-l.S.Q.Arts. l405-1409-Tlrrit proksbiand the fiduciary relationship engendered the promoters, between themselves and the pany, which exists as soon the latter formed.-A LACSES-Equity suit-Specific with the intention selling it a company to land-Possession.] a suit formed not necessarily hold such property performance an agreement the trust for the prospective company, but devisee land to convey P. it appeared that stands a fiduciary relation to the latter and the agreement was executed if sells them must not violate any of the and the suit was not instituted until four years LACIES-Continued.
later. P. was possession the land during husband under a of donation excluded the interval.
that as the evidence clearly the mutuel, and subsequently showed that P. was only possession as agent question absolute property of the of the trustees under the will and caretaker of father, donation having resithe land, and the terms of the agreement hated for it held that reason time was the essence of the contract, resiliation husband acquired inthe delay was sufficient answer to the suit. dependent title the and it thereby 265 tecame charged the amount under LEASE-Dominion timber-Disterritory-Implied respondent this was entitled, until a title-Quiet
488 had made the deceased's 1.estate, retain farm. Taschereau and Gwynne JJ. dissenting. aARTIN- LICENSE-to ca-Paymentfor meat-Negligence-Questions fact-Finding jury engaged laying timber-Disputed territory-Domin- plumber services license-Orders-inCouncil-Warrantydoftitle such work, and engaged thereon 488 injured negligence ofthe servants aeon affirming decision of Supreme
Queen-Provincial evidence the trial negligence against the tenant Governor province much the rompany was sufficiently proved.
eld, trther, representative rajesty for all purposes of provincial Goverumnentas the Gover- ployment between and servant the nor General himself all purposes the company question fact, and it having negatived finding the jury, and evidence warranting ft
IM1NOR-U'niver.al tee-Succession-Acceptaction-Operation
SeSee
-British 92-Act MISREPRESENTATION-1farine insurance- Province-Provincial
Loal Legislatures have the rigtand power land-Sale mortgagp-]adennity vendor-Special areemeat-Purchaser third . others half
ACT-Action under-Previous
Identity and completed such first action-Subse- company incorporated 352 member receiving stock art consider- MARINE
344: gave formal conveyance. action having brought against to recover interest a mortgage against the property 0.F.wasbroughtin riage-Resiliation for mutel MORTGAGE - Continued.
MUNICIPAL CORPORATION-Continued. that the sale was not to C. F. a chaser affirming the judgment of court that his own behalf but the company and the th- foreshore part the land required company and not C. was liable to indemnif the railway company, shown the plan the vendor.
791 deposited Minister Railthe jut and note-Security for and t the ig t copn partners business, borrowed money C.by rh gie
. giving him security their joint and several promissory note and mortgage partnership foreshore, therefore the injunction property.
The partnership having I properly granted.
solved assumed all the liabilities of the I on-Building ''upon' a(fur 455-Petition his and afterwards brought an action tion-Jadqment on-Variance.] the against the promissory note. Held, charter the of Halifax any person intending the decision of the Court Appeal, that w erect abuilding line the note having given the mortgage street must cause suh located debt not recover without being pre- City Engineer and obtain certificate pared, upon payment, to convey to the mort- thelocation; and ifa building erected upon gaged lands which had incapacitated himself I the line without certificate having doing. Held, also, that the terms obtained Court, judge the dissolution of partnership the relations thereof, may, petition the Recorder, tween and were changed to those of prin- it removed. petition was presented a cipal and surety, and it having been found at under this section, asking for the removal the trial that C. had notice such change his porch built ofthe release of the principal, discharged the streets the city which, petition alleged, surety, the liability for the debt.
upon the the street. A porch had 635 erected the site for redemption-Foreign lands-La while it the portion personam-Jurisdiction ofit, and removal the portion had a public sidewalk; hearing the petition CORORAIONCityof an-the original the street bit thejudge held that it to line couver-Rightt railway-Jut publicum-Implied S statute-Injunction--44
Ourto
Scireersed 18-Powers of Pacific Canada:
held, that evidence would have foreshore-49 justied the judge Pacific Railway Company "have the right
~gteln u aighl hti
Pacific ~ th bel ach land ot line while petition only called for its take, and hold the ech and land belowit rder properly high mark, any stream. lake, navigable reversed.
CIY 340 water, gulf far as the same shall
Road-Riqht passage-Coveraof-B.
company its railway and other works and 1718-Arts. and as shall exhibited map or plan thereof proprietor land the parish deposited the or the Minister of Rail- Charleshourg claimed to have himself declared & Vic.c. sec.5, the location of proprietor ofa heritage purged servitude the company's line railway between Port being right passage claimed neighand the City of Westminster, including hour, the efendant.
road was partly built the foreshore of Burrard Inlet, at the foot aid Government and municipal Avenue. Vancouver City, was ratified and but indemnity ever paid the confirmed.
The act of incorporation of the City plaintiff and privilege passing said of Vancouver, Vic., c. private road granted bynotarial agreement vests in the city all streets, highways, and the plaintiff certain parties otherthan the the city began the construction works defendant.
Held, reversing the judgment ofthe extending the foot of Gore Avenue, with Court of Queen's Lower Canada the avowed object cross the railroad track at (appeal that the granting and spendlevel and obtain access the harbour at deep ing of money the Government and pany for an injunction restrain the city cor- road colonization within the mea poration with their work of art. Q. V. IER etrietion ana crossing the railway ;
[S. C. R. Vot. XXIII. CORPORATION-Continued. 4--Drainage-Action for horse-Charter -Drainage Co.-Payment for byreferee-Negligence-Liability reference of an action unaer
Drainage Trials Act Ontario and to make, his motion, all v. Towe
3-Action for injuries-Third justice under into claim damages arising under of the Municipal Act.-In drainage single township the NEGLIGENCE-Railway Company-Injury work may carried into lower adjoining out-a wit let without any petition from owners of land
.] hs was oyee such adjoining township to affected Co.,nwo duty iw to coupercarsin the thereby, and such owners may assessed o yar ofteio
In perfin tis benefit. Stephen McGillivray Out. dton ne nd tions R. and Nissouri Dorchester 0.R.f the conductor of egn aacdtoe distinguished.-One whose lands in the t eng rushed adjoining municipality have been damaged owing tothe ngine ci down a brign not, after the by-law has been appealed against befo touplinggs made. and and the lands assessed benefit, contend before referee to his action injury has referred under thecon- Drainage Trials Act that was not liable to such assessment, the matter having the draw bars lift out the coupling eluded the confirmation of by-law.-The was also contended that the conductor had has jurisdiction adjudicate to aoity to gi ir ao the moo the propriety the route selected the engijury agint bh neer and adopted by-law, the only remedy, was antimed Div. Court and Court if any, being b appeal against the project prothe by-law.--A municipality constructing drain cannot let water just inside or Sedgewick that though findings the anywhere within an adjoining municipality jury not satisfactory evidence a without being liable injury caused thereby temind
King t ith tolandsin such adjoining municipality -Where drainage work to constructed directions were must accepted uiidr avali bylawprovs dfecive iidtheas conclusive ; that the which the under at valid proves defective and theI work has not been skilfully and properly hug was not improper W. municipality constructing it are not right to rely the engine not being liable to persons lands are damaged in consequence such defects and improper properly perform the work nost struction, tort feasors, but are liable under tious war which it shown did; that the Act, daage duct6r was empowered directions construction of work or consequent thereto. at the mode ofding wrif,
-A tenant of land may !ecover damage during his occupation from construction could time and that injured drainage rights resting upon same conforming order dang foundation those of freeholder.
place, giving order being auilty V. HILES of negligence.
---- 42OWEEAR
5--By-law-Water supply-Rates 2-Drainage-Adjoining municipalities-Descheme-Tort to municipal corporations the rate rent drain cannot let water just to paid each owner occupant of inside anywhere wiihin adjoining municibuilding, supplied the corporation with I pality without being liable injury caused water, the rates imposed must uniform.
thereby tolands adjoining municipality. Patterson J. dissenting.-A by-law of the city -Where scheme drainage work to of Toronto excepting Government institutinI structed under a valid by-law proves defective the a discount rates paid and work not skilfullyand properly within a certain is invalid as regards performed, the municipality constructing it are exception.
Patterson J. (dissenting)
.
liable persons lands are damaged consequence of such defects and improper NEGLIGENCE-Continued.
PATENT- Continued.
construction, as tort feasors, but are liable under the carbonized leaf, about #half an Municipal Act for damage inch, was left without carbon and leaf was construction the work or consequent thereon. turned over means tlis Margin. 429 actio against infringement - --- .
their patent: Held, affirming the decision Court, that the evidence at the Collision at sea-Steamship-Defective steer- blank leaf without soiling finers to hav ing apparatus-Question of fact.
the patent
, & was 4-Master
Finding ofjury-Question offact tape, and that using the margin ofthe paper Co.
5-Actionfor personal injuries-Death ofplain- PETITION RIGHT
Contract for public tiff-Subsequent action under Lord Campbell's work-Extras-Final certidcate-Pleading Act-Evidence
NEW TRIAL-Action insurance policy- Findings of jury-Answers questions-Evi- ---- -- 2 -Improper reception and rejection of evidence
NOVATION- Unpaid note-Security for
-Interruption ofprescription-Art. 0. C.- PARDONING POWER--Representative ofcrown
-Conferring prerogative upon-Legislative au- Qumre:
Governor, the prerogative pardoning in the Imperial Parliament only, or, not, what legislature it reside?
PARTNERSHIP -Dissolution-Married woman
-Benefit conferred during marriage- Contestation- Priority of claims.
2-Dissolution- Terms of-Change of relations
-Principal and surety-Discharge of principal
PATENT-Patent of invention-Novelty-Inhalf being bound together and the other half folded fly-leaves, with a carbonized lear bound next the cover and provided with a tape across the end.
What was claimed as in this invention was the device, means the tape, turning over the carbonized leaf the fingers or causing it to curl up.
made and sold a similar check with a like device, but instead of the tape the plaintiff-Objection first taken appeal.] The plaintiff his statement of claim alleged a Held, reversing the judgment of the court below the date alleged or at any other time entered sufficient traverse plaintiff's allegation to that Held, thatan objection to the of the traverse would not entertained when taken for the first time appeal, the issue having been tried the assumption that the traverse was 2-Petition of rigbt-Contract for public work Final pleaded
- - - -- 3- Iefense fait-Status of plaintiff-Special denial-Art.
POLICY-of insurance against fire-Condition Particular account of loss--Finding of jury-Evidenee
2-ofinsurance against fire-Condition against assigning-Breach-Chattel mortgage - 3-Marine insurance- Alisrepresentation-In- 4-Life insurance- Condition-Note given for premium-Non-payment-Demand for payment maturity-Waiver
5of insurance against fire-Change of title- PRACTICE-Suit in equity-Alternative relief- PRACTICE-Continued.
Amendment- Variance from relief claimed I laws-Arts. B.5. (P.Q.)bill.] At hearing of suit P. to I performance of agreement the of I Jursisdcto of
Prohbitonwrtit of.]h land under a will to convey it to claimed Uner uidcin-Poiiin rto. entitled the event of the Udrart. read connection with art. made his bill failing, the ground that
O1409
ES.
game keeper is authorized mttedtnot rstd vacrdin tto furs board schooner, withthe wlawas ouNwBuswcad t search warrant, and have them brought bt antgnistic ru nd for justice of examination. therefore as against an intending pu'r- beeef chaser, han.
TER intert te
2. writ prohibition will not against ha ec ad sad to hitees an heatlad magistrate acting under the estate.
that a bill claiming title amith ation hefrs ths sized o under the will P. could not have relief based cla ry of his umristion ry camnthe proposition that the same will was void irreglarit theT sezue
5O against him, and amendment could per-men tsab e accodin mitted make not only at variance with, 5-Municipal corporation-Drainage Action but antagonistic to, that set out the bill, for damages-Reference-Drainage Trials Act, especially such amendment was not asked V. 51-Powers of referee.] reference until the bearing.
.
265 action to a referee under The Drainage Trials Act Ontario whether un- 2-Executors and trustees- -Ac ounts-Juridic the full power tion ofprobate dicat ]
court deal with the thinks aid to probate has jurisdiction over accounts make, motion, all necessary amendtrusteesunderawill, and the passingofaccounts ments to enable to according to the containing items relating the duties of both very right and justice the and executors and trustees not, far the vert the damages under said 11 latter are concerned, binding any other into claim tor damages arising under court, and court equity, suit to te Il
Acte lands the executors and trustees, may investigate such adjoining municipality have damaged canaccounts again and disallow charges the trus- not, after the by-law been appealed against which passed probate court, and and the lands assessed for contend the his action injury referred under the 3 -Public street-Encroachment on-Building Drainage Trials Act that not liable to upon" or " line-Churter of Bali- assessment, the matter having been 455-Petition obstruction eluded confirmation of law.-The alle t onVarine ste.
orch reeree has jurisdiction adj pedicate to charter the City Halifax any person intend- the propitofherueslcd the engito erect building upon the line y and dend ldains the aon t the street must first such line loca- ifse any be by-appal -Agtaint eojec pro-ma ted City Engineer and obtain certificate psecl
-law of lart a the location; and if building erected uponU.c.P. damae dur
-c tofrom construction of drainage work, rights lig been obtained the Supreme Court, or judge u thereof, may, petition of the Recorder cause freeholder.
HIS it removed.
petition presented the lCiOOnS judge, under this section, asking v.fense fait-Status of plaintiff-Special moval of porch built to denial-Art. P.] quality assumed of the streets of the city which, the petition plaintiff writ and declaration alleged, was upon the line the street. porch considered admitted unless it specially denied had erected the site and defendant.
fait not a removed while it stood the portion denial within the meaning of art. street outside it, and its removal the 00 P.
portion7-Ne trial-Improper reception and rejection lic sidewalk; hearing of the petition the
NwtilIpoe eeto eeto original line of the street could not proved' evidence-Nominal damages. but the judge held that it was to the
-- - the public and ordered its removal. PREROGATIVE-of crown-Pardoning Court Scotia reversed -Representative of crown-Legislative authority decision.
appeal to the Supreme Court confer - ---- Canada: Held, that the have' porch upon the line but having held that it PRESCRIPTION - Accounts-Action-Promisthe line while the petition only called for its; sory note - Acknowledgment and security by was properly re-, notarial deed-Novation-Arts and 340; C.C.-Onusprobandi-Art.1213 C.C.-Prescrip- PRESCRIPTION-Continued.
I PROBIBITION-Continued.
tion-Arts. C.
prescription of prohibition will not lie against a magistrate thirty years substituted for that of years acting under R.S. (P.Q.) only where the admission of the debt from the amination of the furs seized where clearly debtor results a new title which changes has jurisdiction and the only complaint irrethe commercial obligation to a civil one.-In gularity in the seizure.
an action of account instituted in the plaint if claimed inter alia the of
PROMISSORY NOTE-Transfr being the amount due under a deed ofobligation a.t.cPrescreemn
-te
24o and constitution
Ar'hypots.qu, executed and and which was given security for 3
Jip a nderlSeuithor motgae an antecedent unpaid promissory note dated idencel]
agreement between the maker stelaped te poonwas and payee promissory note that it shall payabl emsuaned continad only for a particular purpose, constiftutes an equity which, if the note is manner mentioned the said promissory note, violation that agreement, attaches to it the The defendants pleaded that deed did not hands ids holder for value who takes affect novation ofte debt, and that the amount it after dishonour. Strong C.J. and Tas1herea7 due the promissory was prescribed 2diontract forAuthor o gormn than note was not deeting.
duced at the trial.
Held, reversing the judg- 2-Security for deed-Novation-Arts. ment of the Court Queen's Bench for Lower and C.C.-Prescription
Canada (appeal side) , that the deed did not novation.
Arts. and
.
At most,, it operated an interruption 3-Joint and several- Security for mortgage prescription and a renunciation the benefit debt-Release of co-maker the time the
SC prolong it years if the note then overdue. Art.
And the onus was the plaintiff PUBLIC WORKS-Construction oo-onterferto produce the note, and had not shown that with public rights-Injury toprivate less than years had elapsed the ma- Tas turity of the note, the debt was prescribed 2-Contractfor-Authority ofgovernment engiyears. Art. C. C. PAr V. -243 neer vary terms-Delay
2-Right ofsuccession-Sale coheir-REtrait successoral-Art.
.C.
RAILWAY COMPANY-44 1 18- Powers Canadian Pacific Railway Compar take and foreshore-49 c. (B.C.)- PRINCIPAL AGENT-Sale of goods- City of Vancouver-Right streets Sale through brokers-Agency-Acquiescence.] water-Crossing of rlway-Jus pulicum-Im- If parties Canada contract to purchase goods plied extinction statute-Injunctionart1 in New York through brokers, first telegram and letters, and completed exchange bought and sold notes signed the brokers, aFORESHORE.
the lattar may regarded agenti the 2 -Injury employee-Vegliqence of purchasers Canada; but if not, if the pur-aiay o chasers objection the of the
Contract want authority in the brokers, jury-Appeal from and after the goods arrive accept them other grounds, they will to have ratified contract
RECEIVER-Of stolen property- Unlawful ap- 682 propriation
- Simultaneous acts-Appropriation bailee trustee
2-Agent of creditor-False agency-jObtaining paymentufrom debtor-f-tification-Fraud
277 JUDICATA-Different of Frauds.] of an alleged verbal agreement M. PRINCIPAL SURETY
635 to give him one-eighth of an interest of his, interest a gold mine but failed to recover the courtheld the alleged agreement to within PROHIBITION- Game laws-Arts. the Statute of Frauds. the hearing M. R.S. (P.Q.)-Seizure offurs killed of season denied the agreement as alleged but admitted -Justice of peace-Jurisdiction.] Under art. that had agreed to give one-eighth of read connection with art. interest the proceeds of the mine when (P.Q.), keeper authorized and it having been afterwards sold brought board schooner, without search another action payment of such share of the warrant, and have them brought a
Held, reversing the decision of the justice of the peace for examination.-A writ of Supreme Court of Nova Scotia, Fournier and RES JUDICATA-Continued.
SEARCH WARRANT-Seizure offurs without Taschereau JJ. dissenting, that was not es-Game law-Ju riic tion topped the judgment against him from bringing another action.
Held, also that the contract for a share of the proceeds not sale of an interest land within the Statute
384 SPECIFIC PERFORMANCE-Contractforpurof lad-Agreement pay interest-Delay 2- Court of Pro bate-Juriediction-Accounts -Default ofvendor and trustees
PUaCAsEa 2. 1.4.
STATUTE-Constitutional law-Local legila- RETRAIT SUCOESSORAL-Righ's ture-Powers of Lieutenant Governor-] Inassion-Sale co-heir-Sale curator act 5 (0.) declares that partition-Art. C-P rescription.] When Iin matters within jurisdiction the lezisco-heir has assigned his succession the province, all powers, which partition any other co-heir claim or exercisable the Governors share upon reimbursing the purchaser Lieutenant Governors of the several prothereof the price such assignment and such vinces Confederation shall vested imprescriptible long the and exercisable Lieutenant Governor not taken place. Art .- A sale that Province, if there proceeding curator the assets insolvent, dispute has attempted justified though authorized judge, which includes under 5 (0.), it impossible to an undivided share succession which ithat the powers exercised the act there has partition not deprive the Lieutenant Gover unconstltuthe other co-heirs their right exercise tional.-Owynne J. of'opinion that action against the purchaser thereof the 5 (0.), ultra vires the Provincial Legisretrait successoral undivided hereditary lature.
rights.-The heir exercising the retrait oral only bound reimburse the price paid bye a the original purchaser and not bound hisn action tender the moneys paid the pur- 2-Criminal law-Betting election-Stakebaser.
holder-B.S.C. .
9-Accessory-B c. R.S.C.
n.
9 provides inter alia R
SALEOFGOODSof succes-that "every the custodian -Joint owners-Marine insurancebandonment depositary any money
* stakedt -Salvage.]
joint owner of watered pledged the result any perty not amount, against co-owner, political municipal election guilty to conversion unless property destroyed of misdemeanour," and a subsection says co-owner deprived all that "nothing this section shall apply to interest.
0**bets between individuals. 'Held, versing decision Court Appeal, a urator ofmthe sespean
Place of Tasherea dissenting, that the subsection though authorie ansdectwio h nlues tn
51bic cnsrue (0)ais lea te main delivery.]
Where goods are sample the not exercise the sai delivery the absence of special section not apply depositary thremen tion buyer, and refusal inspect there
5e.)
dlrmie a Lisoppotunity therefor afforded breach nour, and the bettors accessories to the contract to purchase.
the and liable prin c offenders.
- 682 R.S.C. c.
Beg. Dillon Out. P. overruled.
s. OF LADSalroersoje on o lortgage- "-- of-Foreshore Propertin indemnity of vendor-Special agreement- ur- -Right C.dP. B. use-Jus publicumchaser trusteefor harbour
2-Cntractfor topay interest
~DlyDfuto edr esn dcso or
-Do yteful
4--Street Bailway.Co.-Agreement with munimjori cauteld
FISHIN-Imperial Act 4
Vio.
1, 3 and 4-Order in Council under- Judicial notice-Rusian cruiser- War vessel- OF FRAUDS-Sale of interest in Presence within prohibited
Burden of land-Agreement transfer proceeds of sale proof---------------478 mine----------------384
OF LIMITATIONS-Title land- Actual possession-Defective documentary title
- - - - - - Trustee under will-Disclaimer-Possession ofland
-- -- - OF MORTMAIN - Will-Revocation
-Revival-Codicil-Intention revive-Referdate--Removal of Executor-Statute ofMortmain-- Will executed under mistake--Ontario Wills
Act R. S. 0. c. 109-9 c. (Imp.)]
Held, that
Imperial Statute, 2 c. (the Mortmain
Act) force in the province Ontario, the courts of that province having held (Doe
Anderson v. Todd, 2 C. 82; Corporation of Whitby Liscombe Gr. and the legislature having recognized it in force cluding its operation from acts authorizing corporations to hold lands.
STATUTES-9 (Imp.) [Statute of
Mortmain] - - - - - & (Imp.) [Seal Fishery (Behring's
& (Imp.) [Seal Fishery (North
Paefic)
1 [Can. Pac. Ry. Incorporation]
- ---- R. LSupreme Court Act]
R. S. [Accessories]
R. S. [Betting and pool selling] - 695
R. S. [Larceny Act]
& ch. (D.) [ P. R. incorporation]
(D.) [Railway Act,
STATUTES-Continued.
& (D.) [Criminal ch. (D.) [Supreme Court] - R.S.O.
ch. 5 (Ont.) [Executive Administration] (Ont.) [Drainage Trials] C.S.L.C. [School Funds] (P.Q.) [Corporation of Montreal] R. Q. arts. [Colonization Roads]- - - -- R.S.Q. art. [School Funds]
R.S.Q. arts. [Boundary Lines] -225 (B.C.) [Incorporation of Van- - - - - - - STOCK-in company-Consideration- Transfer of property-Sale promoter company-Secret profit-Winding up-Contributory
- SUCCESSION-Acceptation of minor subsequent action-Operation of.]
The acceptation lite behalf of a minor universal legatee has 2-Sale of right co-heir-Insolvency ofcoheir-Sale curator-Retrait successoral-Art. 0. C.-Precription promissory note-Security for mortgage debt.] SURETY-Continued.
several promissory note and a mortgage partnership property.
The partnership having
A all the liabilities
TITLE LAND-Continued.
title ever had actual possession of land in Lunenburg Co.; that the of was never interfered with by the deeds exectd ad the and continued to carry on the business i having continued possession for than alone. After the dissolution gave dis- twenty years C. had a title to the land in charge of the mortgage, but without receiving Lunenburg prescription.
payment of his debt, and afterwards brought an
--- -action against the promissory note that the terms of the dissolution partner: TRADE Contractfor sale of goodsship the relations between and Place of delivery-Inspection-Evidence of merchanged to those principal and surety, and it cantile usage-Contract made abroad having been found at the trial that C. had notice such change his release of the principal, TROVER-Conversion of vessel-Joint ownersdischarged the surety, from liability for the Marine insurance-Abandonment-Salvage.] A debt.
- - 635 sale joint owner of property TAXATION
Street Railway "o-Repair of amount, against co-owner -to a roadway-Local improvements- Termina tion of version the property destroyed franchise---------------98 sale co-owner deprived all beneficial interest vessel,partly insured, was wrecked and the ship's husband abandoned her to the " 2.
underwriters, who sold her and her outfit to Street Railway Co.-Payment for horsesale was afterwards abandoned 2-SteetRaiwayCo-aymnt or and the underwriters the ship's buscars - Municipal by-law - Tax working band that was not total and requested horses-- -- - 259 to take possession.
paid no attention to the notice and the was libelled for salvage and sold under of court. The TENANT-D)rainage scheme-Injury land uninsured owner brought an action against the -Right recover damages
429 underwriters for conversion of her interest. Held, affirming the decision of the Supreme Court Brunswick, that the ship's TITLE TO LAND-Disseisin-Adverse posses- band was agent of the uninsured owner siaon-Paper title-Joint possession-Statute of respect of vessel and conduct precluded limitations.] deed executed purported her from bringing the action; that might land partly Lunenburg and partly have taken possession the Queen's County, of which the grantor libelled ; and that the insured owner was not had been in possession up to when deprived of her interest any action the unentered upon the portion in Lunenburg derwriters but decree of the court under which occupied until his death which was for salvage.
part of the land and in conveyed the whole to a son of then about years old TRUSTEE-Executors and trustees-Accountswho resided with from the time took pos- Jurisdiction of probate court-Res judicata.] A Both deeds were registered Queen's. court of probate has no jurisdiction over accounts son shortly after married and went to live of trustees under will, and the passing of acthe Queen's portion. diedin his counts containing items relating the duties widow, after living with for a time, married of both executors and trustees not, far P. and went back to Queen's
P. worked the latter are concerned, binding any other the Lunenburg land with for years court, and court of equity, in suit remove a dispute arose and left. afterwards, the executors and trustees, may investigate an intermediate conveyed the land in such accounts again and disallow charges of the Lunenburg his one occasion P. trustees which were passed the probate sent a upon the land in Lunenburg court.-The Supreme Court of Canada, apwhich was driven and no other act of owner- peal a decision that said charges were ship that portion of land was attempted properly disallowed, will not reconsider the until after C. had died, when P. entered items dealt with, two courts having preupon the land and cut and carried away hay. viously exercised a judicial discretion as to the In an action trespass C.'s widow for such amounts and no question of principle being entry the title to the land was not traced back involved.-A letter written trustee under a beyond the deed executed in Held, will the cestuis trust threatening in case ing the decision of the Supreme Court of Nova proceedings are taken against him to make Scotia, that C.'s son not having a clear docu- closures as to malpractices the testator, mentary title his possession of the land was which might result heavy penalties limited to such part was proved to exacted from the estate, such an improper actual possession and that of those claiming as to call for immediate removal through him; that neither nor his successors trusteest
- TRUSTEE-Continued.
TRUSTEE-Continued.
2- Under will-Infancy-Disclaimer-Pos.ses- 6-Fraudulent by- Unlawful reof land-Statute of limitations.] son ceiving-Simultaneous acts the testator and one of the executors and trustees named a will was minor when father died, and after coming of age never VENDOR PURCCASER-Sale of landapplied for probate, though knew of the will Sale subject mortgage-Indemnity of vendorand did not disclaim.
With the consent of the Special agreement-Purchaser trustee for third acting trustee went into possession a party.] agreed writing sell land to belonging the estate and remained and others subject mortgages thereon, over twenty years, and until the period of F. to hold trust pay half the distribution under the clause above set out to aud the other half to himself and arrived, and then claimed to have title under associates. When the agreement was made it was the statute of limitations.
Held, affirming the understood that a company was formed to decision of the Court Appeal, that held take the property, and the transaction was under an express trust the terms of the will completed company was incorporated and the rights of the other devisees could not F. became member receiving stock part barred the statute. - 498 the consideration his transfer. ied declaration that he held the property in trust 3-Joint
Stock Company-Shares paid for the company but gave formal conveyance. transfer of property-Adequacy of consideration action having brought against to -Promoter selling property company-Fidu- recover interest due mortgage against the ciary relation - Winding-up - Contributory.] property C. was brought third party to There a distinction between a trust a indemnify F., his vendor, against ajudgment pany ofproperty acquired promotersand after- said action.
Held, reversin the decision ward sold to the company and the fiduciary the Supreme Court Nova Scotia, Tascbereau lationship engendered the promoters, between and KIng JJ* dissenting, that the evidence themselves and the company, which exists showed at the sale was not to F. pur, as the latter formed.-A promoter who chaser behalf but company purchases property with the intention of selling and the company and not F. was liable to it to a company to formed not necessarily demnify the vendor.
-79 hold such property in trust for the prospective company, but stands a fiduciary relation to the latter and if sells them must violate any the duties devolving upon him in respect to such relationship. If sells, for instance through the medium a board of directors who are not independent him the contract may rescinded provided property remains in such a position that the parties may stored to their original status.-There may cases in which the property itself may garded being bound trust either ab initio in consequence of post facto events;
if promoter purchases property the pany from a vendor who is paid the company when formed, and secret arrangement with the vendor part the price, the agreement carried out, into the hands of the promoter, that a secret which he cannot retain; and if any partof such secret profit consists of paid-up shares of the company issued part of the purchase price the property such shares may. winding-upproceedings, treated, if held the promoter, as unpaid shares for which the promoter made contributory.
4- Purchase of land -Mortgage-ndemnity vendor-Liability of purchaser
- 5-Trustee-Administrator of Estate-Release to, next kin-Rescission of'release-Laches.]
2-Aqreement pay interest-Delay-Default of vendor.] Under contract of purchase real estate providing that "if from any cause whatever" the purchase money was not paid at specified time interest should paid from the date of the contract the vendor relieved from payment of such interest while the delay in payment caused the wilful default of the vendor in performing the obligations upon him.-A contract containing such provision also provided for the payment the purchase money delivery of conveyance prepared the vendor. conveyance tendeied which the vendee would not accept whereupon the vendor brought suit for rescission of the contract which the court refused the ground that the conveyance tendered was defective.
He then refused accept the purchase money unless interest the date of contract was paid. an action the vendee performance: Held, affirming the deci. of the Court of Appeal, that the vendee was not obliged to pay interest from the time the suit for rescission was begun until it was decided the vendor asserting the failure the contract and insisting that had ceased to bound it, and after the decision that suit was claiming interest to which was not entitled, and both cases the vendee was relieved from obligation to tender the purchase money.-By the teims of the contract the vendor was to remain possession until the purchase money was paid and receive the rents and profits. Held, that up to the time the vendor became default the vendee, agreement, was pre- VENDOR AND PURCHASER-Continued.
cluded claiming rents and profits and was not entitled to them after that time had relieved from payment interest and the purchase money had not paid.
- -- 3--- - 3-Contract of sale-Interest payable purchaser-Delay-Duty prepare conveyance.]
person in possession of land under a contract for purchase which agreed pay the purchase money soon as the conveyances ready for delivery and interest thereon from the date of the contract is not relieved from liability for interest unless the vendor is wilful default carrying out his part of the agreement and the purchase money deposited the vendee in bank or other place of deposit in an account separate general current account.-The vendor not in wilful default where delay caused the necessity to perfect the title owing to the vendors being infants nor tendering a conveyance to which the vendee took exception which was altered his satisfaction while still in the hands of the vendors' agent as an escrow and it was delivered.
Fournier and Taschereau JJ. (dissenting)
.-A provision that the purchase money to paid as as the conveyance ready for delivery does not alter the rule that the conveyance should prepared the purchaser. Fournier and Taschereau JJ.
dissenting.
WAIVER-Life insurance- Condition in policy
-Payment of premium note-Renewal of note
-Demand of payment after dishonour - WATER RATES of Toronto-By-law- Discrimination in rates buildings- WILL-Testamentary capacity-Art. C. C.- Weakness of mind-Undue influence.] In action was brought in capacity curator to an interdict, against order have a certain deed of transfer made
WILLr--Continued.
will of all those weakness of mind not allow them to comprehend the and consequences of the act which they perform. Held, further, that upon the facts and evidence the case, the will the January, was obtained at time when was s:ffering from senile dementia and weakness mind, and was under the undue influence of and should set aside.
2-Revocation-Revival-Codicil-Intention revive-Reference date-Removal of Executor- Statute of Will executed under mistake -Ontario
Wills S. 0. c. (Imp will which has revoked cannot, since the passing of the Ontario Wills Act 0. revived codicil unless the intention to revive it appears the the codicil either express words referring the will as revoked and importing such intention, or a disposition of the testator's property inconsistent with any other intention, or other expressions conveying to the mind of the court, with reasonable certainty, the existence the intention question. A reference the codicil to date of the revoked will, and the removal of executor named therein and substitution another his place, will not revive it. Held, per King J. dissenting. that a codicil referring to the revoked will date and removing an executor named therein sufficient indication of intention revive such will more especially when the several instruments are executed under circumstances showing such intention. Held, per Gwynne and Sedgewick JJ., that the Imperial Statute, 2 (the Mortmain Act) force the province of Ontario, the courts of that province having held (Doe Anderson Todd, 2 ; Corporation of Whitby v. Liscombe 23 Gr. and the legislature having recognized force excluding its operation acts authorizing corporations hold lands. Held, Gwynne that will rot invalid because it was executed pursuance of a solicitor's opinion matter of law which proved to unsound. .-- celled.
having died before the was 3-Construction-Devise children and their brought trial the respondent, M. i issue-Per stirpes or per cpita-Stltute oflimisented a petition continuance of the suit on tations-Posession.1 Under the following pro her behalf as one of the legatees of her moth-r vision of will "When my beloved shall under a will dated the November, have departed this and daughters shall This petition was contested who have married departed this . direct and based contestation a will dated the 17th requiremy trustees and executors to convert the January, (the same date as that of the whole of estate into transfer attacked the original action) where- and divide the equally among those the late bequeathed the residue all said and daughters may then of her property, to her two Upon living, and the children those said sons the merits of the contestation as to the validity and daughters have departed this life of the will the January, : Held, previousthereto": reversing theJudgment affirming the judgment the court below, that of the Court Appeal, Ritchie C.J. dissenting, art. which enacts that the testator that the distribution the estate should per must sound mind, not declare null capita and not per stirpes -A the testator only the will an insane person, but also the. and the executors trustees named WILL-Continued.
WINDING-UP ACT-Continued.
the will was a minor when his father died, and or money's worth and if paid for transfer after coming of age never applied for probate of property they must treated as paid though knew the will and did not disclaim. up; proceedings under the winding-up act With the consent of the acting trustee went the master has no authority to inquire into the into possession of a belonging the estate adequacy of the consideration with a view to and remained possession over twenty years, placing holder the list contributores. and until the period of distribution under the -If promoter purchases property for the clause above set out arrived, and then claimed pany vendor who to paid the to have a title under the statute limitations. company when formed, and secret arrange- Beld, affirming the decision of the Court of ment with the vendor a part of the price, when Appeal, that as he held under an express trust the agreement carried out, comes into the the terms of the will the rights of the other hands of the promoter, that a secret devisees could not barred the statute. which cannot retain and if any part such comoany issued part of the purchase price WINDING-UP - Contributory - Shares property, -uch shares may, in winding-up propaid for transfer of property-Adequacy of ceedin treated, if held the promoter, consideration-Promoter selling property to unpaid shares for which the promotor may pany-Trust-Fiduciary relation.] Shares made contributory.
joint stock company may paid in money