Hamilton Street Railway Co. v. Moran

Ontario, reversing the decision of the Divisional Court in favour of defendant company and ordering a new trial.

The plaintiff was a workman in the employ of thecompany and was injured by a car striking him while working on the track. His action was to recover damages for such injury, and the company defended on the ground that he could have escaped being struck if he had been reasonably careful in looking out for cars passing the track. The trial judge gave judgment for the company holding that plaintiff was the cause of his own misfortune and could not hold defendants liable therefor.

This judgment was affirmed by the Divisional Court but reversed by the Court of Appeal, which ordered a new trial.

the judgment of the the plaintiff, the defendant pleaded inter alaSuperior Court, that the defendants had that the action was premature inasmuch as paid the dation palement of the had got the money irregularly from the treas- movables, and that the defendants owed a urer of the province of Quebec on report balance of the plaintiff. Held, that distribution of the prothonotary before all the the pecuniary interest of defendants, affected contestations to the report collocation bad the judgment appealed was more than heen decided.

affirming the judgment of over and above the plaintiffs and the court below, that this defence was not therefore the was appealable under R.S.C. to the defendant, as it would giving the benefit improper and illegal proceedof-Petition R.S.P.Q.-R.S.C. sale-Cantre lettre-Principal agent-Construction of contract-Actio R.S.P.Q. which gives the right petition the Superior Court annul a manici- 3-Premature-Contract for I judgment Delivery-Time

607 judgment held that the by-law was intra vires. motion quash an appeal the Supreme Court Canada: Held, that the proceedings being in Rightof-Conditionprecedent--Signification oft ransfer-Issue the court had jurisdiction AFFIDAVIT-ofbonafides-Chattel under subsec R.S.C.

Can. distinguished. AGENT-of company-Carriage lines-Authority

546 [ch

29-Costs. 17held, that a judgment action ratepayer contesting valuation ajudguien appealable the Supreme Court wihAuthority

Canada under seciion 24 (g) Supreme gxier--------------------------------ad Courts Act, and relate to future rights within meaning of subsection section of Supreme and Exchequer controversy-Pecuniary

APPEAL-Amount in roll sought set aside this had ,nterest-R.S. 29-Contract letire-Principal agent-Construction art. (1C.) of contract.] plaintiff. who had acted the only matter dispute between the parties agent the late J. B. S.,brought an action for was question of costs, and therefore the for a balance account negotorum court would not entertain appeal. 1loir tors of J.

The defendants, addit:on S.C.R. followed; Webster Shergeneral denial, pleaded compensation for brooke Can. S.C.R distinguished. and interest. The plaintiff replied that v.

dispute-54 that the transaction was not giving pay- !

virtue s.s. ofe. of54 & APPEAL-Continued.

APPEAL-Continued.

V., determining the amount in dispute brought within month the date of the in appeal to the Supreme Court report, as required Cons. Rule it was Canada, the proper course to look at the late; that the report had the party amount demanded the statement of claim, appealing the appeal could brought, even though the actual amount controversy but the time could not enlarged his delay in court appealed was for than in filing it ; and that the refusal extend Thus where the plaintiff obtained time was exercise of judicial discretion with judgment in the court of original jurisdiction which this court would not interfere.

than and not take cross i or appeal upon the defendants appealing to the rig intermediate court appeal where t s ment was reversed, is entitled appea tenethisalcourt.

peoiin(iaCanrsswre8tin129 amended and c. (D), appeal and followed.

owynne J. dissent- Supremc Court Canada log.

e.

the judgments courts highest resort ~ the province cases where the 59amount controversy than 5-M-atters cedure-In the matter relates title to lands or teneappeal.) Decisions provincial courts resting ments, annual rents and other matters or things questions procedure will not the rights future might hound. interfered with appeal to the Supreme Court Held, that the words " other matters or things" of Cana except under special circumstancet. mean rights of property analogous to title to Procedure-Art. not personal rights; that 'titlev means a C.C.P.]

A judgment Court of Queen's vested right title already acquired though Lower Canada (appeal held the enjoyment may be postponed; and that the t venditioni the Superior riht mrried woman unnuity pro. peyhave

Cou rt of which court the record contestation opposition had should widow not right in future the Superior Court the district I which would authoreie an appeal action therville. art, was regular, her husband against her tar separation appeal the Supreme Court of Canada which ifjudgmnt went against the that question practice such this right to the annuity would forfeited. the courtw\ould not interfere.

Mayor of

GREGORY-------------661 saltum-Application for 'i-Evidence fact.)

l-Dismissedfor hearing- Strong though the might of non-suit was two courts

Act-Amount not interfered with.

Joint liability.

Co.

EXPfSt I CO.-7t6 for against-rotice

TAXES-Collection taxes-Delivery roll- Statute-Directory municipality damages injury property the negligent construction a ordered an

''for inquiry and report pursuant

ASSIGNMENT-in trust for creditors-Prior of Judicature Act and Rule thehe

High Court reportedIchtemoga that drain improperly constructed, and-----------------that was entitled $00 damages.

nicipality appealed the iv. Court ithe report, and the court that the appeal was BILL OF SALE-Chattel mortqge-Affidaeit late, notice having given within sttutoryfovnsand refused extend IChange of possession-Levy under executionappealing.

motion for judgment I the report to coart it was claimed behalf of the cipality that the should into BY-LAW-of municipal corporation-Connecthe evidence, which the court drain-Permission affirming the decision of Court Appeal, that the appeal not having Where by-law provided that connection district-Townships

Petition for drain-Withdraual quash-R. art.

Right appeal-R.S.C.

liquor-Cumulative taxes-Special

ACT-Application under-Incorporated froo perance

7-MAAYOu 8-Mote 10--SnnnaO.E MORTGAGE-Afidavitofbonafides for from of city, county," &C. chattel of Held, of shortly to Court of Brunswick, King dissenting, trustfor that within this took Held, affirming county all it any of of that there having municipal delivery the it of to institutions in county. of goods.-The Bills of Act, 329 existing affidavit the Act, by S. C. distinguished

622 Act; REED

59 2--Preference-lindering tors-Statute of 6-LocAL 47+

MORTGAGE-Continued.

CONSTITUTIONAL LAW-Continued. lo othvr persons amounting the aggregate to and order and built the railway the which debt was exceeded.

The accordance with Act & and persons paid not parties to nor the provisions Railway Act Canada, named the assignment Held, revers- ch. and they elaimed to entitled to ing the decision the Supreme Court Nova thesum balance said subsidy. Scotia, Taschereau J. dissenting, that as the Crown demurred ground that the creditors to paid the preferred creditor statute was permissive only, and exception not enforce payment from him or pleaded inter alia. that money had paid assignor who had parted with all his property, order council to sub-contractors they would hindered and delayed in the work necessary the construction road recovery their debts and the deed was, there- that the president had letter agreed accept under the statute of Elizabeth. an additional subsidy extension their 321 line of railway to settle difficulties and signed a receipt balance account CIVIL CODE-Arts.

86 the first petition right Fee that statute and documents relied did not create liability the 2--Arts.

part Crown pay the appellant company enforceable petition of Tascherean Sedgewick JJ. dissenting; but assuming it letter and receipt signed the president the company not 77 discharge the Crown such obligation to the subsidy, and payment Crown the sub-contractors' claim out the subsidy without the consent the company, misappropriation subsidy. RY.Co. QEEN

OF CIVIL PROCEDURE-Art. ,

Option Act-53 c. (0) (O)-Constituitiona'ly-Prohibiretail-Powers The (0) allowing, un- COMPANY-Winding-up Act-Sale der certain conditions, municipalities tor-Purchase ty of by-laws prohibiting the sale of spirit.ous Fiduciary relationship-R. lfquors vres Ontario legislature, appointment liquidator for 1 which explains pany being wound up under R. c. but rohibition extend to sale Winding-up Act) if the powers of the retail

In Local Option Act Out. directors are not continued provided approved.

Gwynne and Sedgewick JJ. of the Act their fiduciary relations to the dissenting.

HusoN v. pany its shareholders are at an end and sale

Towxsip to them the liquidator of the company is Noawict--145 valid.

348. 3-Reference Council-Consti- Prohibitory

LAW-51 &

British (l'.Q.)-Interpretation 92-Provicial jurisdiction-53 liscretionary (0)-54 (0)-Local option-Canada rightprovincial Isgis- Inture not jurisdiction prohibit the sae, council.] Where money granted the legis- either wholesale retail, within the spirituous, fermented other intoxiway to confer a discretion upon the Crown, cating liquors-Per the Justice and Fourno trust is imposed enforceable against the nier dissenting: grovincial legislature Crown petition of right.-The appellant rail- jurisdiction prohibit the within the way company alleged petition of right that vince of such liquors retail but not wholevirtue of & c. the lieutenant sale; and any statutory definition of terms governor in council was authorized grant wholesale and retail required, legislation acres land per mile miles of such purpose vested Dominion ap- Hereford Railway; that an order in council pertain ng regulation trade atd dated 6th August, the land subsidy was provincial legislature not converted into subsidy, the 9th section jurisdiction prohibitthe manufacture of said & enacting that " it liquors within, their importation into, the shall lawful," to convert; that the province.

Ontario legislature bad not company completed the construction their jurisdiction to enact the section the railway, relying the said subsidy Vie. explained . b. C. R. VOL. XXIV.]

LAW-Continued.

CONSTITUTIONAL LAW-Continued. The Chief Justice and Fournier J. dissenting. proprietor land the higher level, In ound drain thereon repair and not relieved liability for damage caused neglect ihe ignorance 4- Dominion Government-Liability action its the existence the drain for tort-Injury also, per Strong and Fournier J., that INon-feasance-39 V. c. (D)-R.S.C. c. a. dependently enlarged jurisdiction 6-50 c. (D).]

& c. ferred & Crown ss. and confers upon the subject a new or, liable damages the injury complained enlarged right to maintain a petition of right not tort hut breach its duty against the Crown damages respect of a owner the superior heritage altering its tort (Taschereau expressing opinion natural state injury inferior proprietor.

Exchequer Court given jurisdiction to alia:

5--Construction

British North against the Crown arising out any death America 115,116,118-36 c. injury to person, to the property, any

(D)-47 c. (D)-Provincial subsidiesflat-yearly payments-Deduction any servant of the Crown while acting the British North America within the of duties employment;

anada made liable the debt pro- Every against the Crown arising vine existing at the union.

Ontario der any law of Canada.

*

* *

In the and jointly liable Canadafor any Dominion Government became of the debt ofthe province Canada at property the city of Quebec which the the time over citadel situated.

years that chargeable with 5 per cent interest thereon drain had constructed through this and like provision the perty the Imperial authorities, the existence debts Scotia and Brunswick of was not known to the the ceeding eight seven millions respectively Dominion Government. and it was not and ifthe debts ofthose lrovincesshould covered at examination of premises than said amounts they are entitled the city engineer of and others. half-yearly payments advance, this drain had became choked interest at rate ofsper cent thedifference. and the water escaping gradually loosened the after providing annual payments earth until, large portion the rock the several provinces support fll from the cliff into street the city below. oftheir governments, and additional causing great damage, for which compensation head ofthe population, enacts that "such gints was claimej the Government.

Held, par shall settlement of futire demands Taschereau, Gwynne and King JJ., affirming Canada and shall paid half-yearly advance the decision of the Exchequer Court, that as the each province, hit the government Canada injury to the property the city did not occur shall deduct such grants, against upon a public work, subsec. (c) above Act province, all chargeable interest the not make the Crown liable, and, moreover, public debt that province of there was evidence that injury was caused several amounts stipulated this Act.' the negligence of any or servantofthe i ofthe province Canada at the union Crown while acting within the of I the mentioned and duties or employment. Held, per Strong C.J. appeal the award of arbitrators appointed and Fournier that while subsec. (c) of the adjust the accounts between the Dominion Act did not apply the case, the city was and provinces Ontario and held, tit:ed to relief inder ; that the words said award, that the subsidy "any claim against the Crown"

that sub- provinces under payable without the additional words, would ofJuly, hut interest the clude for tort; that the added words debt shoild not deducted until January, "arising under any law of Canada" not that unless expressly provided interest necessarily mean prior existing law or never le paid it accrues due; and that statute law of the Dominion, but might in-,there express provision British North terpreted meaning the general law any America Act that interest shall deducted province of Canada, and even ifthe meaning advance ofdebt iindersec. restricted the statute law of the Dominion c. it was declared the & c. to that the debt of the province Canada at the instate the provision contained of the was then ascertained repealed Act R.S.C. c. which givesa remedy and that the subsidies should thereafter for injury to property like the present; accordinz such amount.

that this shoild decided according it provided that accounts between the law of Quebec, regulating the rights and the Dominion and provinces should duties ofproprietors situated different culatedasifthelastmentionedActs directed levels ; and that under law Crown, that such increase should allowed LAW-Continued.

coming into of the British North America 2

Act, it also provided that the total amount s of half-yearly payments which would have f made on account such increase I

July to January Ist, with interest s at 5 per cent the day which it would t paid to July Ist, should t capital owing to the respective provinces bearing interest at 5 per cent and payable after

July Ist, part of the yearly subsidies.

Held. affirming the said award, Gwynne J. dissenting, that the last mentioned Acts did authorize the Dominion to deduct interest in advance the subsidies payable to the provinces half-yearly but leaves such deduction as it under the British North America Act.

CONTRACT-Contract sale-Contre

Principal agent-Construclion of of property was controlled writing the nature of contre letire, which it agreed follows: "the vendor inconsideration of makes and executes thisday clear and valid favour ofthe purchaser certain property (therein described), and the purchaser for the term three years to the vendor have control of the said property, to manage well, safely and properly would if said property was his and bargain and sell the said property for the price that had for the same, and pay the rent, interest and purchase money wh'n sold, and all the avails the said property to the purchaser to the amount of and interest at rate of eight per cent per annum the date these presents, and then the said purchaser shall re-deed to the vendor any part the property that may remain unsold after receiving the aforesaid amount and interest."

vendor was at the time indebted to the purchaser the ofs2,941. two documents registered.

The vendor had other properties and gave the purchaser power attorconvey all his real estate in the locality.

The term three years mentioned in the contre letire was continued mutual consent.

vendor subsequently paid amounts account of general indebtedness purchaser. It was only after the purchaser's death that the vendor claimed from the heirs the purchaser the balance, above mentioned, owing the management his erties.

Held, reversing the judgment

Court Queen's and restoring the judment the Superior Court, that the proper construction of the contract was to gathered both documents and dealings of the parties, and that the property having security it was not an absolute sale and that plaintiff was not 21. S.'s agent in respect of this property. Held also. that the only action plaintiff had the actio mandata aU.1T ervices-Relationship of ather's death at the age three years, went to with grandfather who sent to chool until was sixteen years and then him into store where continued cleik eight nine years when lied and died later.

Both having intestate the administratrix estate brought an action against the representatives W. the value such services rendered trial there was evidence statements V. during the time such service to effect that died without having will 21. would have wages and if made will would leave the business other property

Held, reversing the of the Supreme Cout Scotia, Gwynne J. dissenting, that there was evidence agreement between 21. and that the services the latter were not gratuitous but were remunerated payment wages gift will overcome the presumpt to the contrary arising the fact that stood towards M1. There having been gift will the estate therefore liable for the value of the serestimated the jury.

McGugan Smith Can. followed. lca- 3--Construction rights-Oplion working-Transfer sold the phosphate mining rights of certain land, the containing provision that " in the said purchaser working the said mines should other minerals of kind shall have the privilege buying same from the said vendor or representative by paying the price set upon the two arbitrators appointed the parties." worked the phosphate mines years then discontinued it. years later his mining rights the land and various conveyances they finally transferred to each assignment purporting to convey all mineral' and mining rights already or which may hereafter " said land. A vear after the transfer the original vendor, 21 , granted the exclusive right to work and veins of mica said land to proceeded to develop the mica. then claimed an option to purchase the mica mines under the original agreement and demanded an arbitration to the price, which was refused, and brought an action compel M. to appoint an arbitrator and damages. affirming the decision of the Court thatthe option purchase other minerals could only exercised respect to such found when actually working the phosphate. which was not the with the mica to which claimed option. manufacturer of glassware, entered into con- agents that it was advisable to have French tract with two companies the same trade Canadian on the staff. commission which, in consideration of certain quarterly was entitled privilege such examinapayments, agreed to discontinue business tions as should assigned to or or years.

The contract provided that if at quired during the absence, disabilityor unavailany time during the years any furnace ability of, the chief examiner. After had should started other parties for the manu- served for four years it was found that facture of glassware, either of the said methods holding examinations were panies could, if it wished, written notice to acceptable to applicants, and was requested ., terminate the agreement on the first to resign, which refused and another day which glass has made the said French Canadian was appinted an additional furnace" and the payments to should then alternate examiner, and most the applicants unless could show " that said furnace thereafter went to the latter. then brought or furnaces at the time said notice was given action against the company damages could not have a production of more than of the business and injury professional hundred dollars per day. Beld, affirming the reputation refusal to employ claiming decision the Court Review, that under this that appointment the general manager agreement was only required show that had promised all the examinations ofFrench any furnace started not have an actual Canadian applicants for insurance. also output worth more than per day an alleged that had been induced to insure his average for reasonable period and that the own with the companyon the understanding words could not have a production of more that the examination would than than hundred dollars per day"

not sufficient to pay the premiums, and asked mean mere capacity to produce that quantity repayment of amounts paid him for whether it was actually produced not. Insurance. feld, affirming the decision of the -490

Court of Queen's that the contract 5-Railway Co-Carriage of/goods-Carriage tines-Contracti or-Authority agent.] Br. being about to purchase appoint other examiners at their goods in Ont. signed, request of the pleasure; that manager had aubority freight agent of the Northern Pacific Railway contract with any employment other Company British Columbia, letter commission ; and that asking to goods via Grand Trunk Railright act for repayment of Chicago & Northern Pacific it being condition employment way at

St. Pau.

Ti eter wafor that should insure and there being Railway at St. Paul.

This letter was connection between the contract insurwarded the freight agent of the Northern andnecatnfotweenlhementrat Pa-ifi Ralwa

Copan alTornto set ance and that for employment. THm Pa, Railway Company Toronto, sent it and wrote " you card of advice and if you will kindly it when

7--Sale oftimber-Deliver y-Tiinefor trace and hurry them through and advise you -Premature action.] agreement writing of delivery to consignee."

shipped the 1. agreed to and the V. to purgoods suggested in this letter deliverable chase timber delivered " charge his order British Columbia. Held. where they now within ten days from the affirming the decision of the Court of Appeal, time the ice advised clear out the barthat arrival the goods at 6t. Paul hour that the timber may counted * * * Northern Pacific Railway Company bound Settlement finally made inside thirty accept delivery of them carriage British days cash 2 per cent the dimension Columbia and expedite such carriage; that timber which at John's Island. "feld, they were in the care of said company St. ing the detision of the Court Appeal, that Paul to British Columbia; that the freight the last clause not give the purchaser thirty agent at Toronto had authority to the days after delivery for payment; that procompany; and that the company liable to vrder divery by for the value the goods which were purchasers within thirty days date livered to at British Columbia without an the contract; and that purchasers accepted order and not paid for.

the timber after the expiration of thirty days contract, an action for the price could brought Co.-Appointment of aminer-Breach contract-Authoritf

The medical staff of the Equitable Assurat

Building of engine-Time for -referee, a chief medical examiner and two or for

CONTRACT-Continued.

DEBTOR CREDITOR--Continued. transaction-R.S.C. S.

borrowed Breach-Rescission

295 savings bank which agreed to th interest, transferring I colfa teral security letters credit 10-Railway having liability-Railway its claim for amount oftheloan, with interest, with the curator the estate, and appeal the appellants, of L., contested ground that the Partnershio-Winding-up-Extra said securities were not the class menioned of partner-Remuneration for

665 Act relating savings banks (R.S.C. and the banks act making nwspper-ngaemen ofloan was

12-Proprietor having received and valid consideration editor-Dismissal-Breach for promise to repay the loan, could not, nor the appellants, creditors, had COSTS-Solicitor client-Fund other rights than debtor himself had, Lien-Priority

656 pugn the contract of loan, or admitted to assail the pledge of securities.

Assuming that the act the bank lending the money, the pledge of such securities, was al:hough this might the pledge regards devisee take under the will of testator third paris interested the securities, it was whose death has caused the criminal not, itself and ipsofacto, radical nullity and felonious act the devisee himself, and in public order of character disentitle applying this rule no distinction can made bauk u'der arts. and CC. between death caused murder and claiming back the money with interest. Bank caused manslaughter.

Taschereau J. dis- of Tronto Perkins (8 Can. S.C.R. senting.

650 tinguished.

CROWN-Grant land- 2-Assignmentfor Preference-Hindering and delaying-Statute of Eliza- Public canal-Use

3-Crown lands-Patent for-Reservation ionminerals.

-Half yearly payment of subsidies-Deduction interest B.N.A. Act 4--Railway suhosidy-Application-Dicretion (D)-47

Trust -Peition for tort-Inury

4-Purchase woman-Re sale-Garnishee on-Debt band-Statute Eliza h-Hindering 6-Government ofoension-Interesttofwife-Tronsfer

DEED-Description of land-Extent-Terminal ofrods-Railay strip of land twenty-five running sent-Los for engine-Conof- for containing less." J. that car-Consequent

570 length, but extended McPute ostrucion land-Unbank-Pledge for-Validit dcript ion-Evidence of accpiuntur DEED-Continued.

tion of-Patent ambiguity.] . grant of land they also signed and registered declaration bounded the bank of navigable river, new partnership under the same name, international waterway, not extend ad' prising the plaintiffs only.

At the trial the medium filae as the of a non-navigable plaintiffs tendered oral evidence prove that river. If in a conveyance land the descrip- these declarations incorrect, and that J. tion not certain enough identify the locus was member of the partnership at the it to construed according the language time his death. Held, affirming the judgment of the instrument, though it may result the the court below, that such evidence was grantor assuming to convey than his title admissible. Art.1835 C.C and C.S.L.C. warranted.-The intention of the parties v.

of consequences.

trial-Objection to-Relevancy. rule arriving at the intention Fisu and not authorize the court override it part for lives-Renewal-Insertion of life-Evidence of insertion-Duration general description will rejected as false demontratio.-Where

Building-- repair- Damages-Art C.C.-Trustees-Personal liability of-Executors-Arts. in favour either party.-Where a description Procedure.] The owner ofproperty abutting on that the Point of commencement cannot highway undera positive dutyto keepitfrom ascertained it cannot determined at the beingacause ofdanger to thepublic reason 67 management. which reasonable care can guard 3.-Construction of-Sale agIns.Dm

..

se

..

adMW personally well their quality testaworkng-xercse t opion416

,entary executors and trustees the will of the working-Exercise a of her husband who was killed a window falling the third story building, DEVISE-Forfeiture-Death of 650 had the said J.F. and M.W.F. also trustees. judgment of the courts below held the WATERCOURSES-R.S.O. pellants liable in their capacity of executors of 220-Requisition for drain-Owner land-Afeaning the damages resulting from their negligence not keeping the building repair as well personally as their quality of trustees (d'h6ritiers for drain-With- the of F's children, not liable executors the general Gisox estate.-Where parties are the court EVIDENCE-Absolute transfer-Commencement I summoned trustees an amendment to that of proof writing-Oral evidence-Arts. suffcient and new writ of summons contradict absolute notarial transfer GAR.ISHEE-Husband and wife-Purchase where commeneement proof fpurchse writing. Art. C on-Debt of Partnership declaration-Art.

C.-C.

1-Oral

-Patent of invention-Business an under-Letter of guarthat antee-Failure ofg,arantor.] McL., the partners, had accidentally The chief object of an agreement between A. drowned.

After -the policy was issued the and was the profitable manufacture and sale plaintiffs signed and registered a declaration to of wares under a patent of invention issued to the that the partnership of & and in consideration of advances to had dissolved mutual consent, and an amount not exceeding G. a letter LEASE-Continued.

of guarantee "agreed to become a surety to presumed dead. In purchaser for the repayment of the within months the assignees the reversion entered ioto from the date of the agreement if it should session, an action wai brought transpire that, the reasons incorporated persons claiming through the recover said agreement, it should not carried out"

and acconnt of profits. action brought againstt. for the trial counterpart the lease, it proved at the trial that the manufactur- among the papers the devisee lessor, Ing broke down through defects the was received evidence, which was invention.

Held, affirming the judgment the indorsement dated and signed court below, that 0. was liable for the amount devisee, which was inserted guaranteed letter.

UIsoN place of the original lives receipt 104 the renewal was acknowledged. for creditors-Sale affirming decision of Supreme Court wife-Guarantee

Nova Scotia, that words renewable for v. DERSONever' babendum, taken conjunction the lessee's covenant pay for inserting new place of any that should WIFE -Government of conferred right renewal perpetuity bec-Retired notwithstanding there covenant the lessor reew; that indorsernent was operative instrumet, though fonndin possession of the owner the reversion, at all events land vi/e-Re-sale-Gar- was an admission their predecessor title binding defendants and entitled plaintiih to Hindering renewal for new inserted, but the right 683 to further renewal was gone, exact compliance with the requirements the lease the ment being essential and evidence LIFE-Partnership

Insurance having shown that original was dead, declaration-Evidence and proper assumption being that hisbrother, contradict-Art. C.C-C.S.L.t'. the third was married

263 "as alto dead in lease itself bad not prodded that death would in default of proof to contrary.

Gwynne dissenting, that the granted examiner-Breach wasforthejointlives ofthe three lersons named and falling ofany onelifewithout renewal as provided; and the fines not having paid deth and INTEREST-Debt of Province of Canada Do- brother there was a forfeiture which entitled minion-Subsidies-Half-yearly deleudants enter-The duction of interest-B.N.A. Art pleaded that was purchaser value with- 118-36 (D)-47 c. 4 out and entitled to the benefit 498 Registry Act N. 5th 5that memorandum indorsed thelease was S, not within the Act, lease within ; that speculative purchaser INVENTION -Patent of-anufacture and sale'having just such an estate as conveyance under-Guarantee-Failure

104 gave person pt would not that there LEASE-Lease for lives-Renewal-Insertion section the Nova Scotia Act of insertion-Counterpart 5th applies leases for years life-Presuopindenture made F.

for the lives LEGAL MAXIMS

Application- fortisn profereatem-Patent Theinmonths, insert and pay renewal must govern regardless consequences. sles otherwise right renewal the life fallen sayis valeat qan pereat only rule to in forfeited, and if any question should arriving at the intention and not authorize arise it would incumbent the the court to override it-Where there terested premises to prove the person ambiguity the incapable death term made terminable to beingexplained byextrinsievience default such person would Liability Act-Inury man-Evidence-New trial. of-Sale liquor- Prohbtlon-53

(0)--4 infactory-Accident-Vegligence ofmaster-Eidence

2-Powers of-Prohibitory laws-Sale work-Neglience of -Local option-Canada

Crw-omnemployment-Law LICENSE-Sale of liquor-Charter

5-Workman factorytaxes-Special tax-Validity machinery-Orders LIQUOR-Sale of-Prohibition-Sale MINES MINERALS rights-Option working-Exercise lature-Local option-Canada

Lawe-55

26-City Sher- -55

55virtue the first clause by-law passed under & Act the charter of SERVANT- Contract-Pro- the appellant taxed MASTERAND

SEVANTofac edito- dollar the annual value the prehich occupation Dismissal-Breach of contract.] and C.

dealer spirituous liquors, and addition by-law, joint owners entered into a agreement w which A. B. assumed payment all the debts as te p cial tax of tl the business and became that time Act & enumerates subsecproprietor the paper, binding himself tinue its publication, and, wished to k s t authori sell out, give C. the preference.

The tobiiosed, usec. altradeng theupaagreement provided that: 3. Le dit Charles tbagrdvet ec or ietu based the annual the elanger devient, d partir jour. directeu premises, and (g) providing tax dit journal.

mn paraitre directeur tite du ditjournal, t et pour services et son influence tel,0 sbject ti the Aa nn povisions the License Act." piastres par annIe, tant par impressions, annon-Quebec License Act (art. R.S.P.Q.) limits qu'en argent jusqu'au montant cette thepowers taxation foranymunicipal council et dit Arthur B6langer pourra mettre cet engagement sans consentemeut aity

2uponh icenses. tda dit Charles Bilanger.

The paper was published jdgen below, t for time under this agreement a suand porter of the Liberal party. when wit imultie the eil ta intrx resn dhen si sCe G ridacteur

2-Ditchesand atercouresAct. Queen's

Jar drain-Owner landof the the employee of the owner the paper; Ditches and Watercourses Act Out. that had right to change the political c. any owner of land to benefited colour the paper without the owner's consent; thereby may with clerk mniciand that wa- rightly dismissed for doing. palityarequisition drsin ifhehas obtained 678, assent writing thereto (including MUNICIPAL CORPORATION- Continued.

MUNICIPAL CORPORATION- Continued. himself) a majority of the owners affected or cision of the Court of Appeal, that the provision interested.". Held, affirming the judgment of to delivery the roll to the collector was the Court of Appeal, that "owner " in this imperative and its non-delivery was a tion not mean the assessed owner; that answer a suit against the collector failure holder of any real or substantial interest an to collect the taxes.

Held also, that such "owner affected interested" ; and that a livery was necessary in the of the roll tenant at will can neither the municipal taxes provided for the previous tion included the majority required. section well as to that provincial taxes. Quere.-If the person filing the requisition Tows

Statute-Construction Co.-Erection without him? Towssuir

Consent turnpike road Negligence-Repair street-Accumulation of ice-Defective sidewalk.] brought an tolls therefor when an Act was passed the action for damages against corporation of Quebec Legislature, C. forbidding the town of 0. for injuries sustained falling any company to place toll other gate sidewalk where had formed and within the limits of town village without allowed to remain for length of time.

Held. the consent of the corporation.

Section 2' Gwynne J. dissenting, that the evidence at I said Act provided that " this Act shall have the trial of the action showed that the sidewalk, retroactive which section was repealed either from improper construction or from age in the next c. After and long had sunk down to allow Vic. was passed, the company shifted water accumulate upon it whereby the its toll gates a point beyond the limits causing the accident was formed the corporation the village, which limits subsequently was Held, per ,Tashereau J., allowing tended bring said gate within them. the to form and remain the street corporation took proceedings against the breach the statutory duty the streets company. contending that the repeal of 2 in repair for which the corporation was liable. of c. made that Act retroactive and 301 that the shifting of the toll gate without the consent of the corporation was a violation 4-Canada 'Act-Application under-Incorporated town-Separate order in never retroactive unless made express council made in neptember, it provided terms, 2 had effect and its repeal could that "all penalties forfeitures recovered not make it retroactive ; that the shifting of the or under the Canada Temperance Act, toll gate was not violation of the Act, which and amendments thereto, within any city only applied to the erection gates, or county or any incorporated separatedfor that the extension of the limits of the village municipal purposes from county

*

.

* could not affect the pre-existing rights of the shall paid the treasurer the city, incor- company.

the decision of the Supreme Court of CO.---wick, King J. dissenting, that to within

Petition for drain-Use drain drain-Auisance-Liabilpurposes; it includes any town having munici- ity of householder.] petition ratepayersof pal seif-government though it contributes a township under the Municipal Act to the expense of keeping certain institu- Ontario, asked for drain to constructed tions the county.

or draining the property described therein. township was afterwards annexed to the Statute-Directory roll lector-55 the preparation every year the of each municipality of a "collector's roll"

containing statement of all assessments to made municipal purposes the year, and provides for a similar roll with respect to taxes payable to treasurer of the province.

At the end the following : "

clerk shall deliver the roll, certified under hand, collector or the first of October."

ing city and the drain was thereafter a. sewer, it being as constructed fit that purpose.

In an action against householder, had connected the sewage hous" with said diain, nuisance occasioned thereby at its outlet : Held, affirming the of the Court of Appeal, Taschereau Gwynne JJ. dissenting, that authorizing the construction of drain " for draining the property " empowered the township struct drain for draining not only surface water, but sewage generally, and the holder was not responsible the consequences ofconnecting his with said drain permission the city.-Where by-law provided [S. C. R. VOLs. XXIV. MUNICIPAL CORPORATION- Continued.

that connection should made with a sewer, except permission the city engineer, a resolution of the city council granting an application such connection terms which were complied with and the connection made was a sufficient compliance with said by-law.

district-Townships

By-law-Petition annul-R. SQ.

4389-Right appeal-R.S.C.

10liquor-Local option-53

(0)-54 (0)-Powers well of the elevator which was undergoing pairs.

Workmen engaged making such pairs present at the time with one of collided at the opening, but a bar usually placed across the opening was at the time. an action against his employers in quence such accident. Held, affirming the ecision of the Court of Appeal, 6trong' C.J. Taschereau J. dissenting, that there was evidence negligence of the defendants which the accident could attributed was properly non-suited at the trial. Held, per Strong that though case might properly have left to the jury, the judgment non-suit was two courts it should not interfered with.

3-unicips corporation-Repair of streetf. snow-Street brought action damages against the poration the town C. for injuries sustained falling sidewalk where had drain-Action for damages'and allowed to remain for alengthoftime. report-Con- Gwynne J. dissenting, that the evidence 622 at trial the action showed that walk, either construction or from Seerepai age and long had sunk down allow NEGLIGENCE-Building-Want of repair-water accumulate it whereby the Damages-Art. C.U.-Trustees-Personal causing the accident was formed, corporaliability of-Executors-Arts. tion liable.

per Tascherean The owner of property abutting highway Allowing the and remain the under positive duty to k-ep it from being street breach of the statutory duty to cause of danger the public reason any keep the streets repair which the corporadefect, either in structure, repair, or and tion liable.

management. which reasonable care can guard ctnE-301 against. Dame J. and M.

4-Crown-Aregligence Law the late J. F. claiming damages for the c. (c).]

petition right death of her husband was killed brought recover damages for the death dow falling the third story of caused negligence servant& building, which formed part of the general the Crown while engaged repairing estate the late J. F., but which had Lachine Canal.

Held, affirming the decision specifically bequeathed to one G. F. and the Exchequer Court, Taschereau J. dissenting, children for whom the said J. and M. that the Crown was liable under & C. were also trustees.

The judgment the courts a. ; and that it was answer to the below held the appellants liable their capa- petition that theinjury a city of executors of the general estate and trus- fellow servant of deceased, the tees under the will.

Held, that appellants governed law the province were responsible for the damages resulting which tbe doctrine employment the:r negligence in not keeping the building has repair well personally their quality of 5-Street railway-Wrongful from hritiers

F.'s children; but not liable as tors of the general estate.

amages-emoteness of cause.] In an action Ni~a-------------------------------or damages being wrongfully ejected a street illness resulting exposure infactory-Evidence-Questions cold consequence ejectment, offact-Interference damages; workman in factory, to get the room where evidence was that person ejected was proworked to pass through a narrow passage lerly br protection against the severity and at certain point'to turn to the left while ofthe weather, but wa ofperspiratioa the passage was continued straight line an altercation with the conductor when elevator.

In going to his work at an early left car and liable to take the jury hour morning inadvertently walked were justified finding that an attack rheustraight along the passag and into matism and bronchitis which ensued was the natural and probable result of the ejectment, The shaft was seven feet the and and awarding damages therefor. Gwynne it was what called which could dissenting. Ry. - 570 moved along it wheels. Depending from the speed-Contributory Per- which was inserted drill secured a screwf and attached huggy lever crossing the stn et railway tracks over Net long. 0. directed the entitled assume that the cars running will driven moderately and prudently, tried buggy means the lever hot found not. then went and if accident happens through car going round to the back the spindle and not at rate street railway able then round the company responsible.

driver cart struck car crossing track not guilty front, put his two hands a jacket around contributory negligence because not spidle and put weit body te ofa apprtohi

, tagainstit; it then and stepped forthe eidce g aoh nn wch ward to recover balance, screw it was far enough away enable te dluau ht r o if if proceeding mderately and proe securing gW

. dently.

position thai if t ody and was seriously injured. looked that there to action against employers damages cross.

Gwynne J dissenting.

shown that 0. experience the moving the buggy and that the screw vs should have been guarded.

ofstreet-Accumulation decision Court of Appeal, Gwynne J. dis- -Question effact-Finding of jury.] action thae t that the jury warranted brought against the city Toronto tat v. Sco ee - h damages injuries incurred reason screw guarded ; that the foreman knew that 0. had experience the ordinary mode and street railway company was brought doing what was told, was justified third party.

evidence that the using any reasonable mode; that within the sidewalks was placed the his instructions in using roaday imedateth adjoininftby wservn that could; and that under the evidence the city and snow from the railway tracks was' ordinary care.

placed servants railway company upon the roadway immediately adjoining track I

-Employers' Liability Act-Injury Evidence-New trial. n accident occurred, to about twentyFIS that the' infantdisrepair street the act the railway

11-Maritime, that, 12-Street HR.

happened, and that this was the of'I the accident.

Re. 14-- by servants of Crown--Injury pro- 589 work-Liability 8- Use of dingerous machinery -Orders

0. employed rivets: 15-Railvay Carriage liability-Railway NEW TRIAL-Employers' Liability Act-In- 'ury man-Ev horizontal shaft of the drill and called the attention the foreman of the machine shop it and the fact that the shaft was full said "1Run her and at trial-Relevancy.

down times and it will thaw her off:'"

PENSION RETRAIT-Continued. Equity suit-Construction of statute-Per- contributed bin the fund sona designata - V. (N. B.) ofthe legislation in arts. add make right retired to 3penion inalienable government; 4that

D.'s had vested interest jointly with Shim during the and PARTNERSHIP -Dissolution- Winding-upmaintain proceedings conserve it; and thererNesHIP-Dissolti-ontatt that the surrender the should partner-Contract paycaeld.DON.THQUE for.] If the business of winding partnership concern apportioned between the part- PETITION OF RIGHT-RaiwOI subsidy-Apallotted to him, one of them cannot afterwards merely for the reason that his share of the work PLEADING- Signification of transfer- Issue has been laborious difficult than that

Dfense asfonds enfait.] the want signiperformed his co-partner, in the absence of tcatin transfer sale debt bar any express agreemeut to that or to action transferee put issue by implied from the conduct of the parties.

2-Rtird ofConinunc-PRACTICE- Set-off-Judgment partner-Liability of-Continuanc- cause-Prte-nom.] defendant cannot ofup compensation claim due 3-Insurance of laintiffa judgment (purchased subsequent to tion-Evidence the date ofthe action) against not a 1 party to the cause, and for-whom the plaintiffis partnership lands-Dealings I alleged partners-Laches

-Amendment-Summoning capacity-New Where parties court executors and parties should summoned trustees amendtransfer-Condition right ment that writ ofresiliation ofsummons not necessary.

Tit- SbyhFCAvOth.

f t PATENT-of lends-Reservation suit-New trial-Conto-Persona designata-53 &

V.c4

5(.B.)] invention-Transer noegiven for-Bills the judge the trial of the I Supreme Court of Brunswick, Tasbhereainvention-lenufacture under- J. dissenting, that application need not Failure patent-Guarantee individual beforewhom trial was had but to ajudge exercising the jurisdiction.

Therefore, where the RERAIEI tried resigned RIGHTailwa

Transfer cesion-R. P. Q. Arts, 676to application for trial retired employee of the ofQPereceipt a pension under arts. and. followed.

Reerence-Report against-Notice of the surrender cancelled.

of R. P. Q. the pension or half pension is; lapse oftime.] In action against a neither transferable nor subject seizure, and municipality damages injury property art. death would the negligent construction drain a have entitled allowance equal ordered referee half of pension. Held, reversing decision inquiry and report pursuant of the of Court Strong C.J. and Sedge- Judicature Act and rule the High Court wick dissenting, that t.

after retirement Justice."

The reported that the drain was not permanent of the Government improperly constructed, and that and the transaction not there- entitled to damages. municipality apresignation of and return pealed tothe Div. Court the report, and the government, under art. of the amount, the court held that appeal late, PRACTICE-Continued.

PRACTICE-Continued.

notice having been given within the time that transfer of land D's was required Cons. Rule and refused to voluntary and void under statute Elizatend the time for appealing.

motion for beth, and that she therefore held land and judgment the report also made to entitled the purchase money the the court on which it was claimed behalf of the trustee D. Held, reversing the municipality that the whole should decision Supreme Court the North-west into upon the evidence, which the court refused Territories, that under evidence given to Held, affirming the decision of the Court the original transfer of of Appeal, that the appeal not having been was fide; that for land with brought within month the date the her money and bought her use; report, required Cons. Rule it was too and that if was not the Supreme late; that the report had to the party I Court the Territories, though exercising the appealing before the appeal could brought, functiois and possessing the povers formerly but time could not enlarged his delay exercised and courts equity, in filing it; and that the refusal extend the could not, these statutory proceedings, grant time was an exercise of judicial discretion with the relief that could have obtained a which this court would not interfere.

Held suit in equity.

Held further, also reversing the also, Gwynne J. dissenting, that the report hav- judgment appealed that the proing confirmed lapse time and not ap- ceedings not the garnishee propealed against, the court the motion ceedings not properly tacen ; that the judgment was not at liberty go into thewhole purchase money was paid case the evidence, but was bound adopt delivery transfer, and the vendor the referee's findings and to give the judgment never undertook to treat debtor; that which those findings called for.

Freeborn if there was debt it was not which the Vandusen Ont. P. approved of and judgment debtor against the garnishee followed.

proceedings were taken, could maintain an ...

...

622 action rightand exclu- 5--Administrationproceedings-Jurisdictionof benefit; that Ds not precluded, referee-General directions.] referee before having assented issue and the whom administration proceedings are taken has being paid into court, claiming that no authority to make an order depriving could not attached proceedings; and solicitor of lien for costs fund court t only relief possible an indepenthe ground that adverse parties had a prior claim suh fund for costs which raid solicitor's 7-Action annul will- Parties. client had personally ordered to pay, the administration order not having directed

8-Opposition from -Appeal tor's facie right to the fund.

the0tansfr5oftheandoDswia6

6-Hus wife-Purchase PRINCIPAL AGENT-Contract sale- Contre lettre-Construction contract-Deed- -Debt husband-Statute ofElizabeth-Hindering or delaying creditors.] having entered wasto agreement purchase land had the conveyance made paid the pur-. PROHIBITION-Sale of liquor-Sale retail and obtained certificate of (O)-54 (0)ownership the registrar of D. hay- option-Powers ingTtransferred to her all his interest deed.

COtStIudet Lw 2.

Shh the land o.

and executed transfer acknowledging payment the purchase money, PROMISSORY NOTE- Consideration Transtransfer way into the fer right- Bills possession M's solicitors, had it regis- c. (D).]

& partners tered and certificate title issued in the manufactu certain articles nder a favour though the purchase money was patent owned creditor ofF. debt not, fact, paid.

solicitors also prior to the partnership induced pursolicitors certain judgment creditors D half interest the patent and and judgment haviug obtained their join with promissory note debts the purchase of said transfer was favour creditor who an inducegarnisheed the hands and an issue was meat to the half interest, gave the aireted as between judgment creditors and latter for personal action the d-termine the title the against this note Held, reversing the under the garnishee order, and the money decision of Court Appeal, J. consentb paid into court.

judg- dissenting, that the note given C. ment creditors claimed the money the ground purchase the interest the patent and not NOTE-Continued.

having the words " given for a patent right"

printed across its face it was void under the

Bills of Exchange Act. Vic. c. s.s. 4 trial. NOVA ofliability.

name-Liability of partner.

Injury of canal-Evidence of on-Liability for tort.-50

RAILWAY COMPANY- .

R.S Q.-Railway subsidy-Discretionary

Council-Petition the legislature and its application prescribed in such a way as to confer discretion upon the

Crown trust imposed enforceable against the Crown petition of right.-The appellant railway company alleged petition right that virtue & the lieutenant governor in council was authorized to grant acres of land per mile for milesof the Hereford Railway; that an order council dated 6th August, the land subsidy was converted into money subsidy, the section of said & enacting that "it shall lawful,"

to convert;

that the company completed the construction their line of railway, relying upon the said subsidy and order in council, and built the railway in accordance with the Act & Vic. 91 and the provisions of the Railway Act of Canada,

Vic. and they claimed to entitled to the balance said sidy.

The Crown demurred on the ground that the statute was permissive only, and tion pleaded inter alia, that the money had paid order council to the sub-contractors for work necessary for the construction of the road; that the president had letter agreed to accept an additional subsidy an extension of their line railway to settle difficulties and signed a receipt for the balance due account of the subsidy.

The petition right was dismissed.

Held, that the statute and documents relied did not create a liability the part of the Crown to pay the money voted to the appellant company, enforceable petition of right; Taschereau and Sedgewick JJ.

dissenting; but assuming it did the letter receipt signed the president of the company did not discharge the Crown from such gation to pay the subsidy, and payment the

Crown of the sub-contractors' claim out of the

RAILWAY COMPANY-Continued. subsidy money, without the consent of the pany, was a misappropriation of the subsidy. 2-Agreement Co.-Lease of for ofyears-Transfer of rights.] The Canada Southern Railway Co., its charter and amendments thereto, has authority to enter into an agreement with any other railway company with respect to traffic arrangements the and working of the railway any part thereof, and the Dominion Railway Act it authorized to enter into traffic arrangements and agreements for the management and working its railway with any other railway company, in Canada or elsewhere, for a period of twenty-one years. Held, reversing the decision the Court of Appeal, that authority to enter into an arrangement for the "use and working" " management and working" of its road conferred the company larger right than that of making a forwardsng agreement or of conferring running powers; that the could lawfully lease portion of its road to foreign company and transfer the latter all its rights and privileges respect such portion, and the foreign company such case would protected from liability for injury to property occurring without negligence in its the road leased, the same extent the Canada Southern Railway itself protected.

3-Carriage lines-Contract Jor-Athority Br. Col., being about purchase goods Ont.. signed, request of the freight agent of the Northern Pacific Railway Company in British Columbia, a letter to asking to ship goods via Grand Trunk Railway and Chi- & W., care Northern Pacific Railway at St. Paul.

This letter was forwarded to the freight agent the Northern Pacific Railway Company at Toronto, who sent it to wrote to enclose you card of advice and if will kindly it when you make the shipment send it to I will trace and hurry them through and advise you of delivery to signee."

shipped the goods suggested this letter deliverable to own order British Columbia. Held, affirming the decision of the Court of Appeal, that arrival of the goods at St. Paul, the Northern Pacific Railway pany was bound to accept delivery of them carriage British Columbia and to expedite such carriage; that they were in the care said company St. Paul to British Columbia; that the freight agent at Toronto had authority to bind the company; and that the company was liable to the value of the goods which were delivered to at British Columbia without an order from and not paid for.

Ry. RAILWAY COMPANY-Continued.

SIGNIFICATION-of transer- Condition preceill Ac, right of action-Partnership trasaction Construction of statute-Railwa iny

Act, e s. (3)-Carriage of goods-Special contract

-Negligence-Limitation liability for.] By signification transfer debt (3) Railway Act, Vic c right action tionsree [D]), "every person aggrieved any neglect riht acto oth tanee puch or refusal in the premises shall have action therefor against the company, from which signification not removed proof of knowtion the company shall not relieved anyledge the debtor the transfer sale-The notice, condition declaration, if the damage want such signification put a arises from any negligence or omission of the aufonds enfait.-M. and entered into company or its servants."

Held, affirming speculation together in the purchase real the dec.sion of the Court of Appeal, that this o provision not disable a railway company wa aue from ofpurchase money entering into special contract for the brother whom carriage goods and limiting its liability gave obligation therefor and transferred to amount of damages to recovered loss half interest the property. As injury to such goods arising negligence.

subsequent instalment purchase money scgd aiing fo due suit was taken the vendor against S..R.612), and BatekCRaia Co and the judgments suits well the S.U.Rpp andBat)v distinguished.

obligation the instalment were transway Ont.

.

ferred but without any signification R. a horse to carried over its line, and the i resiliation and M. annulled the transfer the agent of the company and signed contract half interest the property to for such carriage which contained this pro- and vision: "The company shall in case forly reliv fo further obiation responsible for any amount exceeding hun- aswproprieoraparcisddeis forefurhernadvance dred dollars for each and any horse," &c. Held, alance t endr an tr affirming the decision of the Court Appeal: Held providn entire that the words " shall no case responsible "

affirmngh judgment ofpte Cout)o were sufficiently general to cover all cases that act resiliation and the replacement loss however caused, and the horse having been the title which it into the name killed negligence of servants of the company, virtual abandonment the part could not recover more than though all previous investments him the the value of the horse largely exceeded thatI amount.

Ry. property the elaims others against that Co.611 poperty which may have taken transfers. BY for costs-Fund in courtofideed-Benefit ofRegistry Act-Purchaser Priority of payment-Set-off-Jurisdiction -Notice-R. S. N. S. 5th c.

385 master-General directions.] will and administration LEASE.testator's estate, where the land the estate of-Signification -Condition precedent right of action - 668 J. beneficiarynderthe will and entitled share said was ordered personally to pay certain other beneficiaries. SALE GOODS-Sale of timber-Delivery- Held reversing the decision the Court of payment-Premature action

-Terina poit-Nmbe ofrd8

65administration proceedings pending had authority to an order depriving the Sale auction-Agreement as titlesolicitor lien, not having directed Breach-Resciesion solicitor's primal facie right the fund. BANK-Loan by-Pledge

Validity of pledge-R. 8. for SHELLEY'S CASE - Rule in - Devise of life services-Remuneration-Relationship of parties estate-Remainder injee

STATUTE-Continued.

Laws-55

26-City ments for the management and workin its Oharter-55 & r

Powers of taxation.] virtue the first clause Cad a l her raiod of t n by-law passed under & Vic. an onas.

eldwreer eii of te Act consolidating the charter of the city that authority tonter to of Appeal,

Sherbrooke, the appellant was taxed five cents agreement for the "use and working" the dollar the annual value of the

"management and working" its roa ises which carried occupation a ferred upon the company larger right than dealer in spirituous liquors, and in addition that making a forwarding agreement thereto, under clause three of the same by-law, was taxed a special tax of two hundred dollars ring runnin powers tha to ould also for the same occupation.

of the company and transfer to the latter all rights Act & Vic. enumerates tions a to j the kinds taxes authorized priige in r potion, and to imposed, (b) authorizing th thimg cr ni sc aewol epo to be usesse alltrazds, the tected from liability injury to property position business tax on all trades, occupa- occurr tions, based the annual value of the road in witot neglieen is premises, and subsec. providing forSouthern

Railway itself protected. persons, among others, of the occupation of the petitioner. At the end subsec. the following: " the whole, however, subject to the provisions suit-New trial-Conto-Persona designate-SI the powers of taxation any municipal council V.c. (N. B.)]

c. a. city to upon holders of licenses. Held, (NB.), relatng proceedings equity, pro affirming the judgment of the court below, that that in equity suit "either party may the power granted & Vic. to apply for new trial to the Judge whom impose the several taxes was independent and t t cumulative, and the special tax did not of the Supreme Court Nev Brunswick, the of the by-law was intra vires, the Tsschereau J. dissenting, that such application proviso at the end subsection not applying need made individual before the whole section. Tasehereau and Gwynne the trial had could a JJ. dissenting.

Cvvror judge exercising the same jurisdiction. There- 268 where the judge equity who had tried a resigned application 2-Municipal corporation-Ditches trial could made to successor. 220-Requisition a. land-Meaning

Boan

" owner."] see. (a) the Ditches and law-Dominion -Liabilityto actionfor tort-Injury for drain if has obtained " the assent (D)R.S.C. 6-50 1 c. (D). writing thereto of (including himself) majority & and upon of the owners affected interested."

Held, the subject new enlarged right to maintain affirming the judgment of the Court of Appeal, a petition of right agnst the Crown damthat "owner"

this section does not mean ages respect tort (Taschereau J. expressthe assessed owner; that the holder of any real Ing opinion this point).-By & substantial interest an owner affected or c. a. the Exchequer Court given interested"; and that mere tenant at will jurisdiction hear and determine, inter alia can neither the requisition nor included Every claim against the Crown arising the majority required.

Quare.-If the per- under any law of Canada filing the requisition not owner within per Strong C.J. and Fournier J., that words the meaning of that term are the proceedings "any against the Crown" in subsec. (d) valid if there is amajority without him? without the addiiional words would include a 282 claim tort; that the added words "arising under any law Canada" not necessarily any prior existing law statute law of years-Transfer the Dominion, but might interpreted as corporate riqhts.] The Canada Southern Rail- meaning the general any province way its charter and amendments thereto, of Canada, and if the meaning rehas authority to enter into an agreement with stricted to the statute law Dominion the any other railway company with respect the & reintraffic arrangements or the and working of 1 state the provision contained in 6 the the railway or any part thereof, and the repealed Act R.S.C. gives remedy Dominion Railway Act of it authorized injury to property a like present. to enter into arrangements and agree- Ta

STATUTE-Continued.

I STATUTE-Continued.

Directory or imperative requirement-Muni- Canada made liable the debt of procipal corporation-Collection of taxes -Delivery iyce existing at the union. Br Oarario of roll collector-55 (0).]

and jointly liable to Canada ry the Ontario Assessment Act c. the debt of the prorl~ce Canada provision made for the preparation every the the union over and year the clerk each municipality chargeable with 5 per cent interest thereon. "collector's roll" containing a statement of all and make a like provision the assessments to made municipal purposes debts of Nova Scotia and Brunswick arin the year, and provides for similar ceeding eight and seven millions respectively, roll with respect to taxes payable to the and if the debts those provinces surer the province. At the nd of should than said amounts they the following: "The clerk shall deliver the roll, titled to receive, half-yearly payments certified under hand, to the collector or advaice, interestat the rate 5 percentonthe the first day of October."

after providing for annual Held, affirming the decision of the Court of payments of the several provinces Appeal, that the provision as to delivery the for support of their governments, and an addiroll to the collector was imperative and its non- tional per head the population, enacts delivery sufficient answer to a suit against that "such grants shall settlement the collector for failure to collect the taxes future demands Canada and shall Held also, that such delivery was necessary half-yearly in advance each province, but the the of the roll for municipal taxes provided government of Canada shall deduct the previous section well as to that grants, against any province, all provincial taxes.

chargeable as interest the public debt that 474 province excess the several amounts stipulated this Act."

debt of province Canada at the union exceeded the men- Construction of-Retroactive effect-Muni- tioned and appeal the award cipal corporation-Turnpike Road Co.-Erection of arbitrators appointed adjust accounts of toll gates-Consent of corporation.] turn- between the Dominion and provinces pike road company had in existence for Ontario and Held, affirming said award, number of years and had erected toll gates and that the subsidy the provinces under collected tolls therefor when Act was passed was payable the July, but the Quebec Legislature, Vic. forbid- terest the debt should not ding any such company to place toll or other ducted until January, that unless gate within the limits of a town villagewith- expressly provided interest never paid out the consent of the corporation.

Section 2 it accrues doe; and that there ofsaid Act provided that " this Act shall have no express provision the British North America retroactive which section was repealed Act that interest shall deducted in advance in the next session Vic. c.

After the debt under 118-By 36 Vic. c. was passed, the company shifted Vic c. (0), passed it was declared of its toll gates to point beyond the limits of that the debt ofthe provinte Canada at the the village, which limits subsequently union was then ascertained extended to bring said gate within them. and that the subsidies should thereafter paid The corporation took proceedings against the according to such amount.

company contending that the repeal of 2 of it was provided that the accounts between Vic. c. made that Act retroactive and the 'Dominion and the provinces should that the shifting of the toll gate without the calculated as if the last mentioned Acts consent of the corporation was a violation directed that increase should allowed said Act. Held, affirming the decision the from coming into the British North Court of Queen's that statute America Act, and it provided that the total never retroactive unless made express amount of the half-yearly payments which terms, 2 had no and its repeal could would have been made account innot make it retroactive; that the shifting of the July January toll gate was not a violation of the Act, which with interest at 5 per cent the only applied to the erection new gates ; and which it would have paid to July that the extension of the limits of the village should capital owing the could not affect the pre-existing rights of the respctive provinces bearing interest at 5 company. cent and payable after July part theiryearly subsidies.

payable the provinces half-yearly, but leaves V. c. (D)-Provincial subsidies-Half- such deduction it was under the British yearly payments-Deduction of interest.] North America Act.

section of the British North America Act tPOVINimE

Continued.

OF LIMITATIONS-Continued. 9-Construction of-Railway Act, reversing the decision of the Court Appeal (3)-Hailway Co.-Carriage of goods-Special and restoring the master's report, that K.'s contract - Negligence - Limitation of liability claim could not entertained; that was, for.] (3) of the Railway Act, not absolute evidence at least presumption any neglect refusal the premises shall presumption should not rebutted the have an action therefor against the company. evidence the two partners considering their which action the company shall not relationship the apparent concert between relieved any notice, condition declaration, them.

if the damage arises from any negligence omission of the company of its servants." STATUTES-l3 Rliz. c. 5 (Imp.) [Fraudulent Held, affirming the decision of the Court deeds]-321

Appeal, that this provision not disable railway company from entering into special 2

B N. Act, contract for the carriage goods and limiting its liability amount of damages to re--498 covered loss injury such goods arising from negligence.

Grand Trunk Railway Can. S.C.R. and bate Canadian Pacific Railway Ont.

distinguished.

R.S.N.S. 5th ser. 92-Bills of sale

4-39 c. 27(D) [Petition of Right] Statutory form-Compliance with

5-42 T' [Consolidated Railway Act] (0)-54 V. c. 46(0)--- -309

Constitutionality-Powers of local legislature

L~ 2.6-47 c.4 (D) [Prosvincial subsidies]-498 R.S.N.S. 5th ser.c. 84-Registry-Indorsement onlease-Leaseforlives-Protection - STI of Elizabeth-Hindering or delaying credi- 7-R.

683 8--R. C. c. [Canada Temperance Act] u329 OF LIMITATIONS - Partnership dealings--Laches and acquzescence-Interest in partnership lands.] judgment creditor of J.

latter's interest in certain lands the legal title to which was a brother-in-law and former partner of J. An order was made a to

9--R. S. c. [Savings Banks]--405 10-R.

S. [ Winding-up Act] - 11--R. S. c. [Supreme Court] -- --- 52, 55 12--R. S. [Supreme Court] -- 36,55,661 1, 9.

c. [Exchequer Court] - - - - - - 420,484 "

14-- (D) '[Bills of Exchange) - - - - -278

STATUTES-Continued.

16-54 & a. 3 (D) [Supreme Court]- 17-56 c. (D) [Supreme Court] - 18-R.

0. c. [Municipal

Act]

--- - 21-54 c. (0) Local Option Amendment

Act]

Act] - 23-C. L c. [Partnerships] - STATUTES-Continued.

34-53 (N.B.) [Supreme Court in Equity]

Patent of invention Manufacture and sale under-Guarantee-Failure of patent - TITLE LAND-Sale auction-Agreement as title-Breach-Rescission of contract-295 2-Devise of life estate-Remainder issue in fee-Intention-Rule in Shelley's - Conveyance - Uncertain description - Boundaries-Navigable river - - Boundaries - Evidence - Prescription. grant

6-Boundaries - Road allowance - Evidence. TRADE MARK-urisdiction of court restrain S. Q Art. [Interpretation] - 1 infringement-Effectof-Rectification of register.] In the certificate registration the plaintiffs' trade-mark was described as consisting of "the 25--R. Q Arts. Public Qfficers]

J. & & Son, Rotterdam,

& per the annexed drawings and application."

In the application S. Q. Art. [Municipalities] - 52 the trade-mark was claimed consist vice representation anchor inclined from right to left combination with letters 27--51 & c. (P.Q.) [Railway "J & the words "John DeKuyper, Subsidies]

This label was white and - - - -268 the heartwith an ornamental border of the same shape, and on the label was printed ~TATDTEthe device representation the anchor with letters "J. & and the words & (P.Q.) [Incorpora- "John DeKuyper & Rotterdam," and also tion City of Sherbrooke] - - - 268 the words "Genuine Hollands Geneva' which was admitted were common to the trade. The ~ defendants' trade-mark was, the certificate "registration, described as consisting of an eagle R. S. N. 5. 5 ser. c. [Reyistry ofDeeds] having at the feet "V. D.W. & Co.," above the 385 eagle being writtenthe words "FinestHollands Geneva;" each are the two faces a underneath scroll name of the R. N. S. 5 ser. s. [Bills of Sale] Dulken Weiland & Co." and the 69 word

Schiedam," and lastly at the bottom the two faces of a third medal, the whole a TRADE MARK-Continued.

PURCHASER-Continued. label in the shape of a heart tout sur une having repudiated the agreement, being 6tiquette forme

The colour the entitled title clear of encumbrance, label was white. Held, affirming the judgment and not bound the equity redempof the Exchequer Court, that the label not tun, could at treat the contracc rescinded form an essential feature of the plaintiffs' trade- and recover deposit.

tiffs' prior of the white heart-shaped label

Canada, the defendants had no exclusive

Ssle oftimber-Delivery-Time forpayment right to the of the said label, and that the

Premature action.] agreement writing entry of registration of their trade-mark should 1. agreed and V. L. to purrectified to make it clear that the heart- timber to delivered "free charge shaped label formed part of such trade-mark.

ie ce out tb Taschereau and Gwynne JJ. dissenting the brst timer ay ounte ground that the white heart-shaped label withSettlm t the made ind tiy the scroll and its constituents was the trade

2 cente dimension mark which was protected registration and cash le that the defendants' trade-mark was an infringe-timber which at John's Island." rad-mak.

ifrige-affirming the decision the Court of Appeal, that the last clause not give the purchaser thirty after delivery payment; that for delivery by vendor and payment TRUST-imposed Crown-Railway subsidypurchasers within thirty days the date Application-Discretion

86 brought immediately after the acceptance. Co.v. Director of company-Sale to-Fiduciary 3-Contract of sale-Contre leltre-Absolute relationship-R.S.C. c.

U--R e36 sale of assets-Account for profit.

4-Power borrow money-Exercise of power

-Promissory note-Charge estate.

----- VENDOR PURCHASER-Sale land- Sale auction-Agreement as title-Breach of

-Determination of contract.] bought property at auction signing purchase which agreed pay per cent of the price down and the balance delivery the

The auctioneer's receipt for the cent paid stated that the sale was the understanding that good title in simple clear all encumbrances up to the first of the ensuing month was to given to W., otherwise his deposit to returned.

After the date so

W., not having tendered which would accept, caused the vendor notified that considered the sale and manded repayment deposit, in reply to which the vendor wrote that all the auctioneer had instructed to sell was an equity demption in the property ; that was aware that there was a mortgage it and had made arrangements to assume it; that a the equity of redemption had tendered to and that was required to complete his purchase.

In an action against the vendor and auctioneer for recovery of the amount deposited

: Held, reversing the decision of the Supreme Court ef Nova Scotia, that the vendor

4-Purchaser of lease for lives-Registry Act- Protection ----- WILL-Devise of life estate-Remainder issue in fee simple Intention of testator Rule in Shelley's testator the third clause of his will devised land follows: " my J. for the term of his natural and and after his decease the lawful issue of said J. hold simple." In default such issue the land was to go to a daughter for life with like remainder in favour of failing which brothers and sisters and their heirs. Another clause of the will was as follows : intention that upon the decease of either of children without issue, if any other child then dead the issue of such latter child (if any) shall at take the simple of the mentioned the second and third clauses of this will."

decision of the Court of Appeal, that if the limitation the third clause, instead of being the issue to hold simple had been the heirs general of the issue, the J., under the rule Shelley's would have taken aa estate tail; that the word ' ' though prima facie word of limitation equivalent " heirs of the body " is a more expression than the latter and more easily diverted context or superadded limitations from its primd facie meaning; that it will interpreted to mean "children"

when such limitations or contxet S. C. R. You. XXIV.]

WILL-Continued.

WILL-Continued.

it; that S-Capacity of-Action expression of known legal import admitting of annul-Parties.

secondary or alternative meaning and must WINDING-UP ACT-Sale liquidator-Purbydirectorofinsolent company-Fiducior fluctuating meaning; and that must t given to the manifest intention the testator appointment of liquidator company that the issue should take wound under t.S.C. c. (The Winding- 356 Act), if the powers the directors not continued provided the Act their Devise-Death fiduciary relations the company share- Felonious act.] No devisee can take under the holders at an and to them the will testator whose death has been caused liquidator the company valid.

the criminal and felonious act the devisee

2-Appeal can made between a death caused murder in contra ersy-Joint or separate liability. and caused manslaughter.

Taschereau eNs re J. dissenting.