The Queen v. Robinson

of Canada (1) in favour of the suppliant awarding him damages for injury to his wharf property in St. John, N.B., by the extension of the Intercolonial Railway. The appeal was dismissed with costs after counsel for the suppliant had been heard.

abandonment-Dissolution- Composition- Sub- action has taken against the warrantee, rogation-Confusion of rights-Compensation- and the warranted not get the costs of the Arts.

and C. C. P.] partner a action in warranty included in the judgment commercial which made ajudicial abandonment was indebted to the at the time of the dimif ationag princpa and carried out a composition with the creditors of the and with the approval of the court 2--Ngliqence

Risk voluntarily incurredthe curator transferred to him, an assignment "

non fit injuria"] trial of in authentic form. "all the assets and estate action for damages consequence an generally of the said late asloyee of the umber company being killed a they existed at the time the said curator was oaded car which was being shunted the jury appointed."

At the same time the creditors discharged both him and his partners all had found that the deceased voluntarily liability respect te partnership. Held,epted the risks shunting,' and that the liailiy i repec ofVicparnerhip

Heddeath deceased was caused defendaffirming the decision of the court below, that ant's negligence shunting, giving the of the judicial abandonment was toostrongapush.

Held, that the verdict meant transfer to the curator not only the partnership estate, but also the separate estates of each tte partner well the partners' individual rights aendig as between themselves. Held, reversing the deci-skil ner, ad tha of the court below, the Chief Justice and

B

Taschereau dissenting, that the assignment th

R8 . apliedthe creditors, taken together, had the effect releasing all the partners the debts, 3-Bar action-Foreign judgment-Bstoppel but vested all the rights which had been transjudgment obtained after action R.S.JiS. ferred the abandonment the transferee personally and could not revive the individual rights of the partners between themselves, and that consequence, any debt owing the transferee the partnership at the time of the abandonment became extinguished confusion. 4--Title land- Action bornage-Sur- 225 veyor's report-Chose jugie

ACCRETION TO LANDS-Description of lands

-Falsa demonstratio- Water lots-After acquired 5-Liitation of-Commencement of prescriptitle-Contribution

368 tion-Torts-Liability o/employee for act o/con. tractor-Continuing damages-Public ACTION

In warranty

Proceedings taken warrantee judgment principal demand ] It only regards the principal action that the action warranty an incidental demand. Between the warrantee and ADMINISTRATORS-Fraudulent conversionthe warrantor it principal action, and may Past bonds-Securities transferable brought after judgment the principal livery

Estoppel

Implied notice Innocent action, and the defendant warranty has holder/or value-Commercial paper interest object to the manner which called in where question of jurisdiction arises and no prejudice thereby.

But if a 2--Nova Scotia Probate Act-R. . warrantee elect to take proceedings against his icr.) c. and (N. c. 26- License warrantors has himself condemned sell lands -Estoppel-Res judicata at his own risk, and if an unfounded

APPEAL-Continued.

the award, shall pronounce such iudgment the arbitrators should have given, the statute *APPEAL-Costs, for, lies-Action sufficient notice an appellant what the in warranty-Proceedings taken warrantee court may do, and cross-appeal not necesprincipal lie yet where there has been mistake upon matter of law, of principle, which the party 6--Master and servant-Negligence of servant appealing has an actual interest in having -Deviation from employment-Resumptionviewed, and which governs or affects the costs, Contributing negliqence-Infant--Evidence.] the party prejudiced entitled to have the tried without ajury, evidence has benefit of correction appeal.

improperly admitted, Court of Appeal reject it and maintain the verdict if the remainlg

2- By-law -Petition quash-Appeal

Queen's Bench-40 (P.Q.)- ARBITRATION AND AWARD-Appeal from c. (P.Q.)-Judgment quashing-Appeal award-Increase of damages-Cross-appeal 551 Supreme Court from-R. S. c. 8. (g).

of-Inconsistent Cunbgonde ditions-Dismissal contractor-Architect's to read forming a part of it and powers-Arbitra tor-Disqualiication of-Probbias-Rejection evidence-Judge's judgment of petition quash a by-law presented under said charter. - Where the Court of has quashed such an appeal for want jurisdiction, appeal lies to the Supreme ARCHITECTction of-Incon conditions-Dismissal power,-Arbitrator-Disqualification bias-Rejection of 3--Questions fact-Reversal, of of fact against the concurrent findings of two courts.

rpin

ASSESSMENT TAXES-Special tax-Ex Schwersenski Can. 243)~

N ANDt TAeES-Speoal t~ran] Aeen and City of ontreal Lemoine CanS nt rolls were made by the City of"Montreal under ditnuihd and apportiouing al- costof local lands 4-andamus -Judgment of Court of and the other was lost. The corporation & c. (D).]

& c. (D) obtained power from the legislature two Court of Canada decision of the Court of time the property question had sold and Review case where the judgment of the conveyed.

rolls were made assessing the Superior Court reversed and there appeal lands the improvements and the purto the Court Queen's Bench.

Danjou chaser paid the taxes and brought suit en Marquis (3 Can C. and McDonald garantie to recover the amount

202 that both exist for the same pur- Increasing damages without cross-appealat the same time, and the rolls made after Rule Supreme Court Rules-Special statute.

the sale were therefore the only rolls force, Underthe Ontario Judicature Act, R.S.O. not axes for the local improvements had c. and the Court of Appeal has legally till after the vendor power increase damages awarded to respond- owner of the lands, and that the vendor was not ent without cross-appeal, and the Supreme, obliged her warranty and declaration that Court has the like power under its rule taxes had paid reimburse the purchaser Taschereau dissenting.

Per Strong U.- j the payment of the special taxes apportioned Though the court not against original proceedings arbitration under -- Municipal by-law - Special assessmentsa statute providing that the court, appeal I Drainage-Powers of council as additional [:S. C. R. YOL. XXV. TAXES-Continued.

works-Ultra resolutions-Executed contract.] Where the municipal by-law authorized the construction of drain benefiting lands an adjoining municipality which was to pass under a railway where it was apparent that culvert carry the water brought down the drain and prevent the flooding of adjacent lands would an absolute necessity, the construction of such culvert was matter within the provisions of the Municipal Act (R.S.O. c. and a new by-law authorizing it was not necessary.

.

fire-Condition ofpolicy-Fraudulent statement-Proof ofyraud

-Presentation-Assignment ofiolicy-Fraud assignor-for of

Judicial Subrogation-Confusion rights-Compensation-C.

BANKING-" Credit"'instrument-"Bills of

Bank Act"-Powers cillors-Ratification cannot deal in securities as "letter instrument-" Bills

1890"-'

Act of or the Bank Act,

LADING-Contract-Correspondence goods-Transportation Co.-Caraccepts what purports a bill lading, under circumstances which would lead him to infer that it forms a record of the contract shipment, cannot usually, the absence fraud mistake, escape from its binding operation merely upon the ground that did not

45J

LADING-Continued.

read it, but that conclusion not follow where the document given out of the usual course of business and seeks to vary terms of a prior mutual assent. Taschereau J. dissented the facts.

W. BOUNDARY-Title land-Action report-Judgment on-Acquieseinjudgment-Chose

BY-LAW-Construction of statute-Special Act-Repeal fortiori statute passed at the time) not abrogate an earlier special Act mere implication. law not allow an interpretation that would have the of revoking altering a special enactment the construction general words, where the terms of the special enactment may have their proper operation without such 2--Petition quash-Appeal Court-R.S.C. s.24 3-Construction of rights-Statute 4-Registration of- R.S.O.

5-Special tax-Local 6-Municipal works-Ultra resolutions-Exewarrant-Magistrate's legis- Estoppel-Res judicata.] warrantissued under" The Canada Temperance and if it has been issued competent authority and valid its it will justification to the executing it in either criminal or civil proceedings, notwithstanding that it may bad fact and may have quashed set aside .- Taschereau J. dissenting.-The 6g5 CASES-Continued.

statutory form does not require the ptemises 9ontreal, City Lemoine Can. S.C bounds otherwise.-A judgment certiorari quashing the warrant will not estop the fendant justifying under it proceedingsI to replevy the goods seized where was not a 10-llDonald v. Abbott Can. C.R. party to the proceedings to set the warrant followed-202 aside, and such judgment was judgment inter partes only. Taschereau J. dissenting.

620 11-Me Can. SCR. 371)folloieed

CARRIERS-Contract - Correspondence - Carriage ef goods-Transportation Carriage connecting lines-Bill of lading.] ship- 12-Oriental Commercial Bank, exporte. In re ping agent cannot bind principal receipt European Bank (5 Alp. 358)followed--272 bill of lading after the vessel containing the goods shipped has sailed and the bill of lading received not record of the terms 13-Ross Hunter (7 Can. S.C.R. dis. which the goods are shipped.

Where ship- tinguished-237 per accepts what purports to bill lading, under circumstances which would lead him infer that it forms record of the woutract shipment, cannot usually, the absence of 14--Schwersonski Vineberg Can. S.C.R. ation merely the ground that did read it, but that conclusion does not follow where the document given out the usual

Fira 2.

course business and vary terms of a prior mutual assent. Taschereau J. dissented 15-Smith Baker appliedfacts.

N.

CASES-Arpin Can. S. R.

Cas. distinguished - 3-Bank of Toronto Lambe Cas.

4-Danjou Marquis Can. S.C.R. 251)fol- --- - - 5- The Delta (1 P.D. distinguished- 69

6--European Bank in Exparte The Oriental

Commercial Bank (5 followed - 7--Gardner

-- - -- 8-Hussey Horne-Payne Cas.

followed

CE RTIFIC ATE- Contract-Public work- Final certsicate of engineer-Previous decision follow

CHATTEL MORTGAGE-Construction of statute-55 2 and (0.)-Chattel mortgage-Agreement not register-Void mortgage-Possession creditor.] the Act relating to chattel mortgages (R.S.O. a mortgage not registered within days after execution " void as against creditors," and c. 2 (0.) that expression extended to simple contract creditors the mortgagor or bargainor suing behalf themselves and other creditors, and to any assignee for the general benefit of creditors within the meaning the Act respecting assignments and preferences (R.S.O. c. of c. a mortgage shall not, subsequent possession the mortgagee of the things mortgaged, made valid ''as against persons who became creditors * * before such taking of possession."

Held, reversing the decision of the Court Appeal, that under this legislation mortgage void void against all creditors, those becoming such after the mortgagee has taken possession before, and not merely as against those having executions the sheriffs hands at the time possession taken, simple contract creditors CHATTEL MORTGAGE-Continued.

I LAW-Continued. who have commenced proceedings set aside la "Liste des terres la Couronne, and an assignee appointed before the mortgage depuis jusqu'au dkcembre was given; that the words "suing behalf of' dont je vous l'impression dans une themselves and other creditors," the amend- lettre date du janvier " Cette ing Act, only indicate the nature proceedings mille piastres sera pav6e pornecessary to set the mortgage aside, and that teur la pr6sente lettre, revdtue votre the sametwill enure the benefit of the gen- endossement.

indorsed the letter to bank eral body of creditors; and that such mortgage security for advances to enable to the will not made valid subsequent taking of work. Held, affirming the judgment of the possession.

Held, per Strong C.J.. that where Court of Queen's that the letter constimortgage given pursuance an agree- tuted no contract and the government that there shall neither registration ment; that the Provincial Secretary had nor immediate possession such mortgage power to bind the Crown signature to grounds of public void ab initio.

document; and that subsequent vote 96 legislature 'liste terres la Couronne,' etc., was not CIVIL CODE-Art. 7 (Form of instruments ratification of agreement with the money though authorized to do and the vote containing reference the contract with 2-Arts. (sale). Arts. (fraud) nor to the said letter credit. Held also, thata letter credit which dependent the vote of the legislature and therefore not a negotiable CIVIL OF PROCEDURE-Arts. instrument within the Bills of Exchange Act COMPENSATION

Judicial 2-Powers of leqislatures-Direct 225 of Q.)-British North Americe

The provisions the Quebec statute, & c. amended CONFUSION

OF RIGHTS-Compensationc. do not involve a regulation ,Judicial 225 intra the legislature.

license required incident the collection of the tax and not alter its character. Where tax has been imposed CONSTABLE competent legislative authority the want .iurisdiction-Jus- uniformity equality apportionment tiication custodiI the tax a ground sufficient to justify the legis-Reptevin-Estoppel-Res judicata-Judg- it Bank - - - - - 3-Province of Canada-Treaties LAW-Powers dians-Surrender Indian lands-Annuity councillors-" credit"-Rat ifca- Indians-Revenue from tion legislature-Obliations annuity-Chargeuponland-B.NY.A. Acts. province-Discretion expenditures-Petition of strument-"' BillsofExchange

Bank Act," R. C.

The Provincial the Indian lands were surrendered to the Secretary Quebec wrote the following letter government of the province in consideration to with the assent of his colleagues, but not certain paid down and annuity to the being authorized order in council:-J'ai tribes, with provision that "should all the Phonneur vous informer que gouverne-, territory hereby ceded the Indians at any ment fera voter, dans budget supplemientaire I future period produce an amount item mille piastres qui the government this province, without vous seront payees imm6diatement aprks la incurring increase the annuity hereby session, et cela b titre d'aompte surl'impression secured to them, then, and in that case, the CONSTITUTIONAL LAW-Continued.

Continued.

shall augmented time to time."

the sent-"Bills of Exchange 1890"-" Act the Dominion of Canada assumed Bank Act," ].S.C.

Provincial the debts and liabilities of the province ofl Secretary wrote following letter Canada, and that Act provided that with the assent ofhis colleagues, but all lands, belonged the several provinces being authorized order council Jal which the were situate " subject any ihonneur vous informer gonvernement trust existing respect thereof, and to any fera voter, dans budget supplbmentaire interest other than that of the province the item mule piastres qui same."

The lands surrendered are situate in seront paykes immdiatement aprbs la session, the province of Ontario and have for years et cela titre daccompte limpression produced amount sufficient for the payment

Liste terres de Couronne conc6dbes of increased annuity to the Indians.

The depuis jusquan dbcembre dont Dominion Government has paid the annuities Iimpression dans lettre since (from at the increased amount) date janvier

Cette and claims reimbursed therefor. Held, six iille piastres sera porteur reversing the said award, Gwynne and King prbsente lettre, revdtue votre endossement." JJ. dissenting, that the provision the treaties indorsed the letter bank security increased annuities had not the of advances to enable to the work. burdening the lands with " trust respect affirming the judgment Court Queen's thereof" or " an interest other than that of the that the letter constituted contract province the same," within the meaning of between and the Government; that the Prosaid and therefore Ontario held the vincial Secretary had no power bind the lands any trust or interest, and was Crown by his signature document; not solely liable repayment to the Dominion and that subsequent the legislaof the increased annuities, but only liable ture for printing I liste jointly with Quebec as representing the province terres Couronne," was not a Canada.

TiE ratification the agreement with Government not being obliged expend the IN re

434 money though authorized to and the vote containing to the contract - Correspondence - Carriage of with nor the letter credit. goods- Transportation Co.-Carriage con- -84 necting lines-Bill of lading.] Where a court has to a contract correspondence, and not 3--Insurance against fire- Mutual Insurance particular note memorandum formally Conpany--Noticerejectingapplication-Stateory signed, the whole of what passed between conditions- R. S. 0. c. 167- Waiverthe parties must taken into consideration. Estoppel-Evidence.] B:appliedtoamutualcom- Hussey Horne-Payne (4 Cas. panyfor insurance property fouryears lowed.-A shipping agent cannot bind his prin- giving an undertaking to pay amounts receipt of a bill of lading after the quired from time time and four mouths' note containing the goods shipped has sailed, and first premium. received receipt the bill of lading received not a record of I ginning follows: "Received an the terms which the goods are shipped.'dertakingforthesumof$46.Oobeingthepremium Where shipper accepts what purports to a for insurance to the extent $1,560 bill lading, under circumstances which would property described application of this lead to infer that it forms record of the date," and then providing that the company contract of shipment, cannot usually, the could cancel the contract at any time ithin absence fraud or mistake, escape its days notice mailed to the applicant and binding operation merely upon the ground that that non-receipt of the days, not it, but that conclusion not or without notice, should absolute follow where document given out of the dence rejection the application. notice usual course of business and seeks to vary terms i of rejection sent and policy was of prior mutual assent. Taschereau dis- issued within said which expired sented the ground that the correspondence 4th,

April B3. received a the case did not contain the contract relied letter the manager askiig remit and that the injury the goods for which the funds pay note maturing action was brought took place while they were did and letter remittance crossed annot under the control of the company.

other from the manager, mailed at Sound April stating the rejection applica- Ratifcation telraph vince-Discretion of penditure-Petition of right-Negotiable instra- again returned.

then brought action which was dismissed at the hearing and trial ordered the Divisional Court and the Court of Appeal. -Held, affirming the decision of Court of Appeal, Gwynne J. dissenting, that there was valid contract the company with for insurance for four years;

that the statutory conditions the Ontario Insurance Act S. 0. governed such contract though not the policy;

that the provision as to non-receipt of a policy within days was variation of the statutory conditions it was ineffectual non-compliance with condition requiring variations to written a different coloured ink from the rest of the document, and if it had printed the condition was unreasonable; and that such provision, though the non-receipt of the policy might operate as a notice, was inconsistent with condition which provides that notice shall

* operate until seven days after its receipt. Held also, that there was evidence the jury that the company, demanding and receiving payment of the note, had waived the right cancel the contract and were estopped from denying that was insured.

-contractor without the consent writing the Committee.-At the trial, the plaintiff tendered evidence to show that the architect had acted maliciously in the rejection of materials, the trial judge required proof to first adduced tending to show that the materials had wrongfully rejected, reserving until that should established the consideration of the question whether malice necessary proved and if necessary what evidence would sufficient establish it. this ruling plaintiff declined to any further evidence, and thereupon judgment was entered the defendants.

Held, that this ruling did not stitute a rejection, but was merely a direction as to the marshalling, of evidence within the discretion of the trial judge.

creditor-License session-BonO city-Replevin-Conversion.

6-Vendor purchaser-Sale of-Executory over-Defeasible title-Rescission of-Inconsistent

-Arbitrator r'jection of-Judqe's 7-Contract-Public work-Final struction public work contained the follow- follow.

ing clause: case the works are not carried with such expedition and with such materials

8-Municipal by-law-Special works-Ultra resolutions-Exeforce or material the opinion of the said

COSTS-Appeal Though appeal the said architect to dismiss the said contractors and to employ other persons to the work.' nt ireec costs onlymetmwere The contract also provided that " general law of principle, which the party appealiug conditions are made part of this contract (except has'an actual interest having reviewed, and far inconsistent herewith), which case which governs costs, the party the terms of this contract shall govern."

The prejudiced entitled the benefit first clause the " general conditions " was tion by app follows:

In case the works the want cr

CROWN-Constitutional law-Powers councillors-"

enpower at his discretion (with the consent in mBll exchanue

Act

-tren may without process suit at law, take the work any part thereof mentioned such notice out of the hands of the contractor."

, that this last DUTIES-50 & items from rails for railways-Application architect therefore had power dismiss The exemption duty in & c. item DUTIES-Continued.

DEBTOR CREDITOR-Continued. of " steel rails weighing not less than J. that there conversion either. twenty-five pounds per lineal yard, for Held also, affirming decision, (lwynne J. railway tracks," not apply to rails to dissenting, that if M. & an honest for street railways which are subject to opinion that was incapable opinion must duty as "rails for railways and tramways of govern, though mistaken point oflaw or fact, any " under item Strong C.J. and King illogical orinconclusive; thatthey justified J. dissenting.

lieving his business methods. 24 waste of time over small matters, financial embarrassments, and acting under direction Liability for loss- Measure of creditors, that was down worryand generally unfit business; thatthe tact that the notice would not have given if certain demands of T. M1. & had Appeal-Cross-appeal-R.S.

not necessarily and that change & not vitiate notice the original clearly the opinion, if was Public work-Wharf formed, and conveyed it to

DEBTOR CREDITOR-- DEED-Ort estate-Equity estate-Equitable deed-Descrpton oflands- alsa of-Replevin-Conoersion.] F., lots-Accretion landl-After trader, having insolvent, and heg title-Contribution ofmrtindebted, among others the of M1.& gage-Parol deed-Estoppel and arranged pay dissolution of the ofA. other creditors per cent their claims, & retirement of the business & indorsing his notes securing was carried the remaining partners payment, they paid full but pay- the ment postponed until future named day. property the continuing partners p.

& were secured indorsing agreeing to pay a mortgage thereon agreement under which it was agreed ofthe firm's debts.

neglected pay that should at any the opinion and the property was the sheriff under a Co..or either them, incapable forelosure they purchased and of attending business, debt M. took a describing lads as & should at due and they mortgage, being bonnded "the take of stock trade, hook windings shore", Sydney Barbour, debts and property of and the for and including ''Iwater lot," part which was their having first served notice known "Stone ballast hea," front writing, signed the stating that the shore lands.

immediately re-morttheir opinion incapable; and that gaged the lands the'same description adding change )1. & the agree- further alternative description and, at the ment should the the following words -'Also all and changed it assumed the liabilities and took gular the water lots and docks front ofthe T.'s indebtedness the oldfirm.

ar- said lots,"-although fact they owned covered the description the payment to & payment the from the and they gave at the not having bank which time collateral bond the mortgagees indebted failed, and

. & then consist- amount of their mortgage.

then ing and having retired, persuaded conveyed the equity to D. giving a F. assign debts them, and after- I bond indemnity against the they wards noticeas required the had exected.

afterwards agreement, took possession of of, and acquired grant certain other water business and stock.

then agreed to act for lots front of the mortgaged property and i1. & until certain day alter, and and occupied them part of their business resumed possession, but & premises along with the mortgaged lands. taned said day disputed their right and the equity ge redemption subject ejected the premises. days after 'the mortgage, and and settled assigold assignee the benefit their obligation under the indemnity a of all creditors, and & issued with the assiguees A., writ teplev the goods and the paying and obtained their discarge. assignee.

affirming decision proceedings being taken assignees Court Queens Gwynne J. dissenting, the morigagees to te mortgage, that F. and assignee were guilty a joint and against and collateral conversion the property replevied.

Gwynne bond, and paid amount and DEED-Continued.

the foreclosure proceedings were continued their benefit.

Held, that the liability mortgagors was fully satisfied and discharged the compromise, and as they afterwards obliged to pay the outstanding encumbrance they were entitled to take an assignment and enforce the mortgage foreclosure proceedings against the lands.-Per Gwyone J.

mortgagors were only entitled to closure for the realization of the amount actually paid them compromising their liability under the indemnity bond.

Held further, that as construction the mortgage depended upon the state of the property at the time it made parol evidence would admitted to plain the ambiguity the description the lands intended to affected : that as there were no descriptions recitals tending to show that any other property tended to covered the mortgage beyond what would stisfied including the wate lot described the -Stone ballast heap,'' after-acquired water lots would not charged or liable to contribute ratably towards redemption the mortgage ;that admitting that description was sufficient to include the after-acquired property, such property was not liable to contribute towards payment the mortgage debt.

actum-Lex domicilii-Lex sitae-Form

LANDS-Mortgage estate-Equity running estate-Equitable deed-Description lands-Falsa lots-Accrelands-After-acquired mortgage-Parol dence explain deed-Estoppel - DRAINAGE-Municipal by-law-Special ments-Powers sary works-Ultra contract

-- - -- Damages-Equitable interest-Municipal by-law-Registration-Notice judgment- judicatabegun-R.S.N.S.

Fire

Contract-Termination- Notice-Statutory

ESTOPPEL-Continued.

3-Trustees administrators-Fraudulent conversion-Past bonds-Debentures transdelivery-Equity of notice-Innocent for Act-Search jurisdiction

Justilegis-Replevin-Res judicata-Judgment Probate Act-R. 26-Exadministrators-License lands -Res ju dicata

Bar

Judgment-Est oppel-Resjudicata-Judgment begun-R.S.N.S.(5 rule The provision of (5 order rule that evidence of a judgment recovered foreign country shall not clusive, in action such judgment Scotia, its correctness, but that the defendant may defend such suit as fully if brought the original cause of action, cannot invoked favour of the defendant in Nova Scotia who has brought an unsuccessful action in foreign court against the plaintiff.

servant-Devidtion from ployment-Resumption-Contributory -Infant.

If a case tried without jury evidence improperly admitted Court Appeal reject it and maintain the verdict if the remaining evidence warrants it. 3-Contract, of-Inconsistent powers-Arbitrator-Disqualification- Probable bias-Evidence, of-Judge's construction of public work contained the lowing clause: "In case the works are not carried with such expedition and such materials and workmanship the architect clerk of the works may deem proper the architect shall at liberty to give the contractors ten days notice writing supply such additional material the opinion the said architect necessary, and if the contractors EVIDENCE- Continued.

'EVIDENCE- Continued.

supply the same it shall then lawful justify the learned judge assuming that the said architect dismiss the said produced the documents destroyed would have tractors and employ other persons to St. L.'s accounts, the evidence the the work."

The contract also provided that trial showing instead that the accounts would " the general conditions are made part of this corroborated.

Louis contract (except far as inconsistent here- 5- Fire insurance

Contract termination with), which the terms of this contract Notice-Waiver-Edoppel shall govern."

The first clause in the "g conditions" follows:

thevorks the want of sufficient proper workmen necessary despatch, then the architect may give 6-Fraudulent ment-Proofolfraud-Pre. ten days notice to what necessary, upon the contractor's failure to the architect shall have the power at discretion (with signor-Reversal questions offact consent writing of the Court mittee, Commission the may without process suit at law, to take the work or any part thereof mentioned such notice

Public work- Wharf property iniuriously out of the hands of the contractor."

affected-Damages. V. Sedgewick and Girouard JJ. dissenting, that this last clause was inconsistent with the above EXECTOR-Trusteesand executors--Legacy in clause of the contract and that the latter trust-Discretion of trustee-Vagueness uncergovern.

The architect therefore had power to tainty beneficiaries-Poor relatives-Public dismiss the contractor without the consent Protestant charities-Charitable uses--Persona writing of the committee.-At the trial, the designata-307 plaintiff tendered evidence show that the architect had acted maliciously the rejection of materials, but the trial judge required proof 2--Nova Scotia Probate Act-R.S.JKS. (5 to first adduced tending to show that the ser.)

26materials bad wrongfully rejected, reserv- License sell lands-Estoppel-Res judicataing until that fact should established the consideration of the question whether malice was necessary to proved and if necessary what evidence would sufficient to establish EX POST FACTO LEGISLATION--Special it.

this ruling plaintiff declined to taxes-Warranty-Montreal local improvementsany further evidence, and thereupon judgment-289

Held,that ruling did not constitute a rejection, but was merely direction the marshalling, FISHERIES-Three-mile limit-Fishing without evidence within the discretion the trial judge. license-Forfeiture-Burden ofproof-R.S.C. c. - 4-Evidence Presumptions-- Omnia priesumuntur contra spoliatorem.1 St. peti- FOREIGN JUDGMENT- Action

Bar totion right to recover the Crown the Estoppel iudicala

Judgment obtained balance alleged to due a contract for after action

R. N. (5 ser.) c. 1 certain public works.

the hearing it was a. s.

orders and rule 2 order shown that certain time-books and the original rule judgment court dobuments which his accounts had having the judicata the foreign made also books account had dis- country has the like Canada-Unless appeared.

The judge of the Exchequer Court prevented rules pleading judgfound fact that these books and documents meat made available to bar domestic had destroyed in view of proceedings action begun judgment a commission appointed time prior to tamed.

The Delta (1 PD. distinguished.the filing of the Petition of Right to inquire into combined of orders and rule 2, the manner in which the works done under the and a. s.s. 7 R.S. N. S. 5ser. contract had been carried and dismissed permit this done Scotia-The the petition.

Held, reversing the judgment of provision ofR. N.S. 5 ser order the Exchequer Court, that the evidence did not rule that evidence judgment recovered warrant the finding that the documents had a foreign country shall not conclusive, been destroyed with a fraudulent intent and to an action such judgmznt Scotia, prevent inquiry; that all that could have its correctness, but that the defendant may proved what was destroyed had sup- such suit fully if brought the plied other evidence; and that the rule original cause action, cannot invoked omnia prmsumuntur contra spoliatorem not favour the defendat Scotia FIRE-Continued.

brought action foreign the applicant and that non-receipt of policy court against the al. within the days, with without absolute evidence of rejection apication.

rejection was sent FRAUD-Fraudulent statement-Proof of fraud and policy was within the said -Presumption-Assignment ofpolicy-Fraud hich expired 4th.

April assignor-Reversal offact received aletterfrom themanagerasking him remit funds pay note maturing did and letter ofremittance crossed another from the manager, mailed at Owen Sound April stating the rejection administrators- application and returning the undertaking converion-Past bonds-Negotiable and note.

April insured property paper-Debentures was destroved the manager delivery-Equity of holders-Estoppeltg and April the latter wrote factors-Pledge for value-Principal ward ntit mng

22agai

B. then brought action which was dismissed at the hearing and trial was ordered the Divisional Court and the Cotirtof Appeal. Held, BIGHWAYS-Public the decision the Court Appeal, Gwynne -Dedication-User-Statute, dissenting, that there was valid contract the statute-46V. (0.)-Estoppel.] company with for insurance four years; right statttory c. (0.) to convert into public highway Insurance Act 0 governed a road laid out private person his prop- such contract though not the a erty, can only exercised respect to private policy; that if the provision non-receipt roads, to the which the owners prop- policy within fitty days a variation erty abutting thereon were entitled.

the statutory conditions it was ineffectual non-compliance with condition requiring variations written different coloured INDIAN TREATIES ink the rest the document, and it had Canada-Surrender Indian printed the condition was unreasonable; -Annuity

Indians-Revenue Indian that such provision, though the lands-Increase annuity-Charge policy might operate was -British North America 434. consistent with condition which piovides that notice shall until seven days after its receipt.

eld that there sas INFANT-Negligence evidence jury company, t masding and receivin payment note, negligence.]

naived rigt cancel the contract ligence not apply infant of teder to ningth t age.

F. & followed, insd

B.ina AocE

-Fraudulent Proof fraud-Prefor company-Dismis- policy-Fraud or]-W~here insurance policy feited the claim respect fraudulent INSURANCE, FIRE-Insurance fire- not essential that the fraud should directly Contract-f iproved it aD clear etabpresuptioui, ifeeiice. conditions-R.

.B. applied circumstantial evidenc.

assigne the ( muta 167-any foainrnc onppe policy cannot recover it iffraud iscestablished against assignor.

four years giving an undertaking pay amounts required from time time months' note the first premium.

received- receipt beginn follows:

INTERVENTION

B.

ing the uncertwinth

Poor being the premium ovr insurance relatives"-" Public Protestant charities"-Chaextent of the property described ritbleuses-PersonaRdesEgnaa.] R his application of this date," then providing merchant of whilst temoraiily in that the company could cancel contract at made holograph will follows : any within days notice mailed hereby will and bequeath property, S. C. R..Vor,. XXV.]

703o assets or means any kind to brother Nova Scotia broughtan unsuccessful Frank, will one-half of them public action foreign court against the plaintiff. Protestant charities and Caruke, say the Protestant Hospital the French

Canadian and amongst poor relatives JURY-Railway company-Loan of carsmay judire best, the other half himself Ieasonable care-Breach of duty-egligenceaction have the will declared invalid interventions College, higher branches of learning, and especially young intended for the ministry of the 2-Answers questions-Railwau Co-egli- Presbyterian titled receive general and theological education, and are assisted scholarships bursaries to complete their education; the

Finlay Asylum, corporate institution the LEGAL MAXIMS-" Locus regit actum''-Lex domicili-Lex rezsitoe-dolograph communion the Church of England: and abroad-Form of will.]

In J. a 1. first cousin of the testator claiming merchant, then and at the time ofhis death a relative.

Held, that College miciled the city whilst temporarily not within the description of charitable the city of York made following will institution according the ordinary meaning accordance with the law relating boof the words, and had therefore locus standi graph wills Lower Canada:

; but and bequeath all property, assets means that Finlay Asylum caine within the terms of any kind to brother Frank, will the will one of the charities which F. C. one-halfof them public Protestant charities might select beneficiary, and this gave it Quebec and Carluke, say the Protestant a right to intervene to support the will. Held, Hospital French Canadian and further, that in the gift ' poor relatives " the amongt poor relatives judge best, word "poor' was too vague and uncertain other half to himself and have any meaning attached to it, and must excepting to therefore rejected, and the word "relatives'

Frame, Overton Fati.' and others, should construed as excluding all except heirs at law the testator, brought action those the law, the case of intestacy, have will declared invalid. recognized the proper class among whom to Taschereau J. dissenting, that the will divide the property of deceased person, and valid.

Held, further, Fournier and Tnschereau not coming within that class his inter- JJ. dissenting, that the rule locus regit actum vention should dismissed. Held, per Fournier was not the Province of the and Tasehereau JJ., that the bequest to poor nor since under the itself (art. 7), relatives" was absolutely null for uncertainty. imperative, but permissive only. Held Tasehereau J. dissenting, that the will valid even if the rule locus actum JUDGMENT-Action-Bar to-Foreign judg- apply, because it sufficiently appeared the ment-Estoppel-Res judicata evidence that of the State of begun-R.

the will would considered as s.s. 7; orders and rule 2; order movables wherever situated, having rule judgment of foreign court having cuted according the law testator's the judicata the foreign country and immovables in the has the like force Canada.-Unless prevented Province of having executed rules pleading foreign judgment can according the law the situation those made available bar domestic action begun immovables.

Ross Ross before judgment was obtained.

Delta (1 P.D. distinguished.

The 2-"

Volenti non fit injuria"-Reasonable care bined orders and rule 2,and s. -Breach ofduty Risk voluntarily incurreds.s. 7 of c. ser. will permit this negligence-205

Nova Scotia.-The provision of

R.S.N 5 ser. c. order rule that an such judgmentin Scotia. its correctness, but that the defendant may defend such suit

Omnia prTeumuntur contra spoliatorem-- Evidence-Presumptions tion, cannotbe invoked favour the defendant

4--De of councillors-"

legislature-Obligations province-Discretion expenditures-Petition right-Negotiable strument-" Bills 1890"-'

Bank R.S

DOMICILII-Will, form of-Holograph abroad-Quebec art.

actum-Lex rei

SITAE-Form of will-Holograph abroad-C.C. (art.

"-Form abroad-C.C. (art.

domicilii-Lex

LICENSE-Continued.

received the same knowing the moneys to have proceeds of the sale of the lands. wards the judgment creditors, still claiming the license to null, issued execution against the lands, and the purchaser brought action to have it declared that the judgment was not a charge thereon.

Held, that the judgment the motion to set aside the license was conclusive against the judgment creditors and they precluded thereby from taking collateral proceedings to charge the lands affected, grounds invoked which might have invoked upon the motion.

Held, further, that judgment creditors, receiving payment the proceeds of the sale, had elected treat the license having regularly and were estopped attacking its validity answer the action.

3--License Trespass-Damages interest-Municipal warrant-Magistrate's jurisdiction-Constable-Justification judicata-Judgment

LICENSE-Constitutional law-Powers legislatures-Direct

Manuacturing

MARITIME LAW limit-Fishing British -within-License-Forfeiture-Burden -R.S.C.

MASTER SERVANT-Negligence intra vast-Deviation from seglience-Inlant-Eidence.] the statute merely an incident to the tradesman's teamster, sent out deliver lection of the tax and not alter its char- parcels, went sapper completing acter.-Where a tax has been imposed the delivery.

afterwards started to competent legislative authority, the want work and doing ran and injured uniformity or equality in the apportionment ffirin the tax not a ground sufficient justify the Supreme Court Brunswick, courts in declaring it unconstitutional. Bank the moment had started complete the of Toronto Lambe Cas. business which had engaged was Insur- just ance Cas.

distinguished. to his master's store and mate a fresh start lands-Nova Probate

Act-Public Act-R. Liability

26-Executors

Resjudicata.] vroperty Probate Court a license sell real estate of a contractor borrowing earth for embankments deceasel testator the payment of his debts. place, and manner, not authorized Judgment creditors of the devisees moved to set the contract.

aside the license, but failed on their motion and

----again in appeal.

The lands were sold under paid part company-Loan of cars-Reasonjudgment of duty-Negligence-Risk MORTGAGE-Continued.

incurred-" fit injuria."] lumber company had railway sidings laid in for the amount of their mortgage.

then their yard convenience shipping lumber conveyed equity to C. giving him a over ihe of railway with which the switches, bond of indemnity against the mortgage they connected, and followed the practice of pointing executed.

time afterwards out to the railway company the loaded cars and acquired grant certain other water removed, the railway company thereupon lots frontof the mortgaged property sending their locomotive and crew to the re- and occupied them part of their business spective sidings the lumber yard and bring- premises along with the mortgaged lands. ing away the cars to despatched from their sold the equity of redemption subject to depot as directed the bills of lading. Held, the mortgage, and and settled their that the absence any special agreement obligation under the indemnity bond such the railway company's servants promise with the assignees of paying while engaged not the employees of the $8,000, and obtained their discharge. lumber company, and that the railway company p.oceedings being taken the assignees the remained liable for theconduct of the persons mortgagees foreclose the mortgage, charge of the locomotive the moving against and upon the collateral the cars; and that where lumber con- bond, and B. paid the amount due pany's employees remained car lawfully pur- the foreclosure proceedings were continued suing their occupation there, the persons their benefit.

Held, that the liability the charge of the locomotive them the duty of mortgagors was fully satisfied and discharged using reasonable skill and care moving the the compromise, and they afterwards car with it, as to avoid all risk and I to pay the outstanding encumbrance injury them.

I they were entitled take an aseigninent and Huansus

-05 enforce the mortgage foreclosure proceedings against the lands.-Per Gwynne J.-The mort- 4-Insurance Co.-Employment for compromising their liability under the indemnity bond. Held, further, that as the con- MONOPOLY- Construction of statute-By-law struction of the mortgage depended upon the satut-Bylawstate the property at it was made rights-Statute ing-Exten- ao of privilege-C.S. c. 65-45 (PQ.

paro eine udeamiptte to texlain-h ambiguit ntedsrptno ad n tended to effected;

that there was descriptions or recitals tending to show that any other property was intended to covered the mortgage beyond what would MORTGAGE-Nortgage of trust estate-Equity satisfied including the water lot described estate-Equitable recourse-Conof deed-Description lands-Falsa acquiredtitle-Contributionto redeem-Dis- that that mortgage-Parol deed-Estoppel 1b the dissolution of quired property, such property was not liable to the of & the retirement of C.

contribute towards payment the mortgage the business was carried the remaining debt.

partners and on the same premises, which the property of 0. the tinuing partners agreeing pay a mortgage thereon one of the firm's debts.

They MUNICIPAL CORPORATION- Appeal-Bylaw--Petitiontoquash-AppealtoCourtofQueen's the sheriff under foreclosure when they Bench-40 V. (P.Q.) (P.Q.)from-R.S.C.

" the windings of the shore " of Sydney Har- Town Corporations Act P.Q ) not hour, and including "water lot," part of having excluded the charter of the city which known the "Stone ballast heap,"

of Ste. Cunbgonde Vic. c. to read front the shore lands.

They immediately as forming part it and prohibits appeal re-mortgaged the lands the same description to the Court Queen's Bench from judgment adding a turther alternative description and, of the Superior Court petition to quash a at the end, following words:-'*'Also all and by-law presented under of said charter. singular water lots and docks front of the Where the Court of Queen's Bench quashed said lots,"-althotugh fact they then owned such an appeal for want jurisdiction appeal none except those covered description lies to the Supreme Court of Canada from its the the sheriff, and they gave at the, decision.

MUNICIPAL CORPORATION-Continued. of statute-By-law-Exclusive right by-Statute Q.)-C. In municipal by-law of bt. lya- easement or license which has cinthe granted company incorporated under irrevocable, and if there has been by-law a general Act (C. c. the exclusive authorizing the land taken such interest privilege twenty-five years of manufacturing under said section, invalid against a and selling gas said city, and said registered executed an assignee of the company obtained special Actofincorporation owner, a purchaser for value without notice. V1. c. 5 of which provided that Ross Hunter (7 Can. 0. distin- " all the powers and privileges conferred upon guished.

CITY V. JARviS-237 the said company, organized under the plan-Dedication-User-Statute, of-Retrospeccity of St. Hyacinthe, are hereby reaffirmed and statute-46. (0.)-Etoppel.] The confirmed to the company incorporated right vested municipal corporation der the present Act, including their right (0.) to convert into public highway break the streets

.

.

* and road laid out private person propaddition it shall lawful for the company, erty, can only exercised respect to private substitution for gas or connection therewith, roads, the of which the owners propor addition thereto, to manufacture, and erty abutting thereon entitled. and manufacture, and beat motive power derived either from gas other

5---Special tax-Ex legislation--Warand convey the gas other- runty.] Assessment rolls made the wit yigiseor city'of Montreal under & and sbetto liabilities, aplcbe29 and appoitiontug the cost subj aufuruetn dsoappf ,licable- cartain local improvements lands ating gas under provisions this Act.'' therb.Oeothrlswastaidasnl

Held, affirming decision Court and the other was lost.

The corporation Queens that the above section did not power the legislature by two special company the exclusive rightfor twenty- Acts make but meantime the property in question had sold and light; that the right make and sem electric deed

Uith warranty containing a light with the privilege was applicable declaration that all taxes, both special and gento gas not confer such monopoly but gave eral, paid.

rolls a new privilege electricity entirely ncon- seqently made assessing the lands the nected with the former purloses the improvements and the purchaser paid the pany; and that the word arivilege there taxes and brought action against the vendor to used could referred the right break recover the amounts paid.

streets and should not, therefore, construed the judgments the courts below, Gwynne to the exclusive privilege claimed. Held dissenting, that to taxes could not both g sat it was private Act notwithstandin exist for the purpose at same and as doain thru it t p the rolls made after the were therefore the act, and the city was not party or any pnrolsifocntaefrthlclim assented to it; and that construing it had legally till after tevendor had owner the lands, and the court would treat it contract between the promoters and legislature and apply the the warranty and declaration vendor maxim not oblige to reimburse the purchaser especially where exorbitant powers tepayment the special taxes apportioned ferred.

against the lands subsequent to the sale. 168'

Trespa ss-Damage.--Easeaent -Eq uitable

Where municipal by-law Notice- fiS.O.

R.S.O. authorized the construction benefit. a. providing that lien, ing lands an adjoining municipality which. charge or interest affecting land shall valid was to pass under railway where it as against registered instrument executed parent that culvert to carry the water the party, heirs assigns, not brought down the drain and prevent the stricted to interests derived under written flooding of adjacent lands would an absolute instruments susceptible registration but necessity, construction such culvert was a applies interests-If owner laud matter within the provisions the gives permission the municipality to construct

Act (R.S.O. and a a drain through it municipality, after the by-law authorizing it was not necessary. MUNICIPAL CORPORATION-Continued.

NEGLIGENCE- Continued.

Taschereau

J. dissenting.

precautions the of the security guilty of negligence, and if value the - - - - - 608 security proves than amount invested liable principal the NEGLIGENCE - Action in warranty - Joint casioned thereby-The measure damages speculation - Partnership or ownership par not amount loaned with indivis.j and D. entered into joint interest, but that amount estate; value of the land.

Taschereau looked after his individual interests the and Gwynne JJ. dissenting.

at. power of attorney or authority given enable one act the other, and they did not 3-aster and servant-Neglience ofservantconsider that any such authority existed Deviation from employment-resumption-Convirtue of the relations between them; all tributary negligence- Infant- Evidence.] A veyances required to carry out sales tradesman's teamster, sent out deliver parexecuted each for his undivided interest. went to supper completing the the death of and the business was delivery.

afterwards started to his continuel their representatives the work and doing ran and injured a footing, and the representatives V. subse- child.

Held, affirming the decision of the quently their interest to who pur- Supreme Court Brunswick, that chased behalf of, and to protect, the moment had started to complete the legatees of without any change being made husiness which had engaged was the manner conducting the business.

master's employ just if had returned start.quired the various interests, with instruc- doctrine contributory negligence tions pay the moneys received at the not apply an infant tender age. Gardner the co-proprietors into bank, whence they Grace & followed.

bearing joint signatures of parties interested, and the profits were divided equally between the repre- abe ailway company-Loan cars-Reasonsentatives of parties interested, in care-Breech of duty- Risk voluntarily cash, but generally cheque drawn icurred-" Volenti non fit bniuria similar way.

M. who looked after the diligent attention the interests to

J. who acted the interest, 5-Tury-Ansuersto questions-Railway Coof incorporation-Change of name. which represented part of the share of the profits coming to representatives

In NEGOTIABLE SECURITY-Fraudulent an action brought the representatives of version-Pastduebonds-Debenturestrasferable to make the representatives of bear a share bydelivery-Equityofprevious holders-Estoppel of losses: Held, affirming the judgment -mplied notice-Innocent holder for valuethe Superior Court, and the Superior Court C Arts. and sitting in review, that the facts did not estab- fide holder acquiring commercial paper after lish partnership between the parties, but dishonour takes subject not merely to the mere ownership par indivis, and that the repre- equities of prior parties the paper, hut also to sentatives of D. were not liable to make good all parties having interest therein. any part of the loss, having proper vigilance In European Bank. Ex parte, Oriental and prudence obtained only the share which iercial Bank (5 followed. existed, there would none the moneys

DEs

E.-------------------------------- TRIAL -Jury-Answers questions- V.Railway

Co-egligence-Act of incorporation 2--Principal and agent - Negligence of agent -Change ofname.

DOMIi for principal

Financial brokers

Li,bility for

Measure

OWNERSHIP-Joint speculation-Partnership for a client are agents in the transaction if or ownership par indivi terest though their remuneration may from the borrower.-An agent who invests PARTNERSHIP--Joint speculation-Partnermoneys principal without taking proper, ship or ownership par indivis.] and thatany reversing decision court existed virtue the relations between them ; the Chief Justice and Taschereau J. dissenting, all conveyances required to carry out sales that assignment of estat the curator executed each undivided interest. and discharge creditois. taken todeath W. and the business was gether, had the ofreleasing thepartners continued their representatives the same the debts, but all rights footing, and the representatives of subse- which had transferred abandonquently sold their interest purthe transferee personally and could chased behalf and to protect, some of the revive the individual Tights the partners legatees without any change being between themselves, and that, consequence, in the manner of conducting the business.

any debt owing the transferee partnerbook-keeper employed the books ship at the time abandonment quired the various interests, with instruc- tirguished confusion.

the co-proprietors into a bank. whence they drawn upon bearing tie joint signatures PETITION

RIGHT-Constiutional lawcredit"-Obligations istetures-Governnent instrument-"Bills looked after the business of the repre- Bank Act," R.S.C.

sentatives of paid diligent attention to the interests and received their share profits, but J.0.B., acted in the interest, negligently looked after the business as to enable the book-keeper to moneys which represented part of the PLEDGE-Trustees and adminitrators-raudconversion-Pst ofpaper-Deberdelivery-Equity holdersArt.2t87 C.-Estoppet judgment factors-Pledge-Implied notice-Duty that inquiry-Innocent for valuepar Tirrike Trusts bonds tnder special Acts that representatives of were not liable and dinances Stats. make good any part of the having proper payable bearer and transferable and marked iattrag, ard lost adrertised nenspaper tei -'ent Judicial abandonment-Dissolution-Composition-Subrogation pledged trem broker Compensation-Arts.

advances account, bonds beirg partner in commercial firm which made ther lorg past bit payment being provided judicial abandonment indebted the under statutes.

at the time of abandonment large amount judgment of the Corrt Qreerrs oveidrawn personal account. Subs- Bench, Fournier and Tasherean JJ. dissenting, quently made and carried out composition that neither advertisement, nor marks with the creditors the firm, and with the upon bonds, nor the boker's knowledge proval of the court the curator transferred agent's insolvency. notice pledgec assignment authentic "all detects pledgor's title and that assets and estate generally of the said late the bouts, having their act enabled #

*

A

I as they existed at the their agent transfer delivery, time the said curator was appointed."

At the etopled asserting their title the detrithe creditors discharged both him and ment holder, feld also. (iffirmpartnership.

Held, affirming the decision of fide holder acquiring commercial paper after PLEDGE- Continued.

PRINCIPAL AGENT- Contin ted. dishonour take; subject not merely to the makeinquirq-Innocentholderforvalue-Arts. equities of prior parties the paTer but also

Turnpike to those of all parties having an interest therein. Trusts bonds under special Acts and In European Bank. Ex parte Oriental Ordinances Stats. Commercial Bank (5 App. followed. are payable bearer and transferabl 272 livery.

Certain these bonds belonging to the estate the late L). Young, had PRACTICE-Appeal for costs-Action exhibits and marked a Young ranty-Proceedings judq- Rattray. and having afterwards lost principal demand.] Itis only regards advertised newspaper the principal action that the action warranty year About years afterwards incidental demand. Between the warrantee agent administrator estate and the warrantor it principal action and and bonds possession such, brought after judgment on the principal them broker advances action and the defendant in warranty has account, being long past interest object manner which payment being provided under the called where question of jurisdiction arises above cited statutes.

Held, affirming judgand prejudice thereby. But if a mont the Court Queen's Fournier warrantee elect to take proceedings against and Taschereau JJ. dissenting, that neither warrantors has himself advertisement, nor marks bonds, demned at his risk, and if nor the broker's knowledge ofthe agent's insolunfounded action has taken against the vency, were pledgee defects the warrantee and the warrantee not get the pledgor's title; and that the ofthe bonds, costs the action warranty included in the having their act enabled their agent to judgment of dismissal of the action against transfer them delivery, estopped the principal plaintiff, must bear the asserting their title detriment bolder.

PUBLIC WORK- Contract-Final engineer-Previous ing damage-Tortious Act.]

The prescription of-564 rightof action for injury to property runs the time the wrongful act was committed, notwithstanding the injury remains continuing 2- Wharf property injuriously affected-Evicause damage year year, when the damage results exclusively from that act and could have been foreseen and claimed for at the time.

I RAILWAY COMPANY-Customs duties-Exeptionsfromduty-Sreetrailsoruseonrailways RALA-o.-A-p9 rmplication exemption duty in & item of agent-Lending jor principal-Financial rails weighing not less than twenty-five pounds brokers-Liability for of per lineal yard, railway tracks," ges.] Financial brokers who invest money I rails street railways for client are his agents the transaction are subject duty "rails forrailways if they profess to acting for and and tramways of any form"

under item his interest though their remuneration may Strong C.J. and King J. dissenting borrower.-An vests for principal without taking

2-- Prescription security guilty of negligence, and if the value of nuing damage-- Tortious Act--Public the security proves than the amount invested I

Contractor Liability ot company for liable principal for the loss occasioned of] prescription of right action thereby.-The measure of damages such a injury to property runs time the not the amount loaned with interest, but wrongful act was committed, notwithstanding the between that amount and the ac- the injury remains continuing cause tualvalueof the land.

Taschereauand Gwynne damage year to year, when damage JJ. dissenting.

& Cos- results exclusively that act and could have toreseen and claim-d at the time. A company building railway not liable for 2-Trustees administrators-Fraudulent 'jury to property caused wrongful act conversion-Past of-Nego- their contractor borrowing earth embankpaper-Debentures meits place, and a manner, not delivery-Equities of authorized the contract.

holders-Art. C.-Estoppel-Brokers I factors-PPledge-implied notice-Duty

RAILWAY COMPANY-Continued.

REGISTRY LAWS-Continued.

Railway company-Loan of cars-Reason- 11.] 0. c. providing able care-Breach of duty- Negligence-Risk that no lien, charge interest affecting land voluntarily incurred-" Volenti non fit injuria."] shall valid as against registered instrument lumber company had railway sidings laid executed the party, heirs or assigns, their yard convenience in shipping lumber, not restricted to interests derived under over the line railway with which the switches written instruments susceptible of registration connected, and followed the practice of point- but applies to all interests.

If the owner ing out to the railway company the loaded cars land gives permission the municipality to to removed, the railway thereupon sending construct f, drain through it the municipality, their locomotives and crew to the respective after work done, has an interest sidings the lumber yard and bringing away the land to which the registry laws apply the cars to despatched their depot as whether the agreement conveys the property, directed the bills of lading. Held, that in creates easement or mere license which the absence any special agreement such has irrevocable, and if there has the railway company's servants while by-law authorizing the land taken engaged were not the employees of the lumber interest is, under the said section, invalid company. and that the railway company against a registered executed by mained liable for the conduct of the persons assignee of the owner, purchaser value charge of the locomotive used the moving without notice.

Ross Hunter (7 Can. S.C.R. the cars; and that where the lumber company's their occupation there, the persons in charge the locomotive owed them the duty using 2- Public highway-Registered plan-Dedicareasonable skill and care moving the car tion- User-Construction of statute-Retrospecwith them it, to avoid all risk of injury tie statutes-Estoppel-46 (0.) c. 246 to them.

the trial of an action for damages consequence of an of the lumber company being killed in loaded car which was being shunted the jury had found that " the REPLEVIN-Debtor and creditor-Agreementdeceased voluntarily accepted the risk shunt- Conditional license take possession of goodsing " and that the death deceased was Creditor's opinion of debtor's incapacity, caused defendant's negligence the shunt- fdes of-Replevin-Conversion ing, giving car too strong push. Held.

that the verdict meant only that deceased had voluntarily incurred the risks attending the 2-Canada TemperanceAct-Searchwarrantshunting cars careful and oa

TmencAtSarhwrnmanner, and that the olenti non fit Magistrate's jurisdiction-Constable- Justificaivria8"

had application.

Smith v Baker tion of ministerial oficer in custodid A.

applied.

legis-Estoppel-Res *judicata- Judgment inter 4--Municipal by-law-Special assessments- Drainage-Powers of councils as additional necessary works-Ultra vires resolutions-Exe- Bar Judgment

Judgment obtained after action begun - R. S. N. S. 5 ser. c. 5- Jury-Anseers questions-Negliqence - 7 ; orders and rule 2 ; Act of incorporation-Change of name.

rule judgment of foreign court having the res judicata the foreign country the like force Canada. - Unless RATABLE CONTRIBUTION - Water lots-, prevented rules of pleading a foreign judg- Accretion lands-After acquired propertyment can made available bar domestic Falsa demonstratio -- Discharge ofmortgage-368 action begun such judgment ivas tained.

The Delta P.D. distinguished. The combined effect the orders and rule REGISTRATION - Chattel mortgage

2 and 7 S. (5 (0.)-Agreement not register- will permit this in Scotia. creditor

96 al.

2---Title land-Action bornage Surveyor's report-Judgment on-Acquiescence in judgment-Chose juge.] REGISTRY;LAWS - Trespass - Damages age between M. and surveyor was appointed Easenent-Equitableinterest-Municipal by-law, the Superior Court to settle the line registration of- Notice

Act, R.

. 0. division between the lands of the respective 'I11 parties, and report, indicnting position of the boundary was homologated, the court directed that boundaries should at certain points said line.

)1.

pealed from that judgment to the Court

Review claiming that the report gave B. more land than c:aimed and that the line should follow the direction a fence between the properties that had existed for over thirty years.

Court of Review gave this contenand the bounda:ics placed according to it. which judgment parties acquiesced and another surveyor appointed execute it. le reported that. had placed the boundaries direct-d the Court but that measurements showed that line indicated was not the line of and his report rejected ty the Superior

Court. The Court Review. however, that the report the first surveyor, having bomologated the court, was the location of the and that the judgment had properly executed.

The Court

Queen's reversed this judgment, set aside the last report and ordered the surveyor place the boundaries the true line of the

Held, reversing the decision the

Court Queen's that the judgment the Court which the parties acquiesced was between them only that division line between the properties must located the line of the fence that line was starting at the point dicated the plan and report ,f the first surveyor.

Court Review right, thereholding that the surveyor executmg judgment nothing than start line at the said point.

31ERCIElt vir v.

Contract-Public iwork-Final engineer-Previous

The Intercolonial Railway Act provides thatno contractor for construction of any part of the road should paid except the certificate the engineer, approved the commissioners, that the work was completed to satisfaction.

suppliant's work this was completed the engineer resigned, and another was appointed investigate and report the certain should paid the contractors.

Held, per Taschereau, Sedgewick and King JJ.

C. R. had, under precisely the state facts, that the contractor could recover that decision shouid followed, the judgment of the Exchequer Court di.missing the petition ofright Held, per Gwynne

J., that ependently lcG eery The the contractor could not recove: want the certificate. Ifeld. per Strong C.J., that judges not accord any proposition aw the decision depended, it was an authority binding the and the

RES JUDICATA- Continued.

4--Canada oficer-Goods legis-Replevin-Etoppel--Judgment search warrant issued under " The Canada Temperance Act"

if it follows the prescribed and it it has issued competent authority and valid its lace will afford justification to executing it either criminal or civil proceedings, notwithstanding that may bad fact and may have quashed set aside.

.-The statutory not quire the premises searched cribed metes and bounds or otherwise.-A judgment certiorari quashing the warrant would not the defendant justifying under it in Iroceedings to replevy the seized where not party the proceeding to set warrant aside, and judgment was judgment inter partes only. Taschereau J. dissenting.

N. 8. Estoppel]executrix obtained from the Probate Court license sell real estate Judgment creditors of the devisees to set aside the license but their motion and again appeal, lands were under the license and the executrix paid part the price the judgment creditors, and they received the same knowing the moneys to proceeds the sale the lands. wards the judgment creditors, still claiming the license null, issued execution against the lands, and the purchaser brought an action te have it declared that the judgment was not a charge thereon.

Held, that the judgment the motion set aside license was against the judgment creditors and were precluded thereby taking collateral proceenings to charge the lands affected, upon grounds invoked or which might have voked the motion. Held, further, that the judgment creditors, receiving payient of the proceeds of the had elected treat the license as having regularly and estopped attacking its validity in answer to the action.

administrators-Fraudulent conversion-Past paper-Debentures delivery-Equity of factors-Pledqe-Implied for value-Principal Ilaqistrate's jurisdiction-Constable-Jusoficer-Goods

Replevin-Estoppel-Rea warrant issued under "The

Canada rance Act" good if it follows prescribed form, and if it has issued competent authority and valid its it will justification the executing it in either criminal or civil proceedings, notwithstanding that it may had fact and may have quashed set aside.

Taschereau J.

dissenting statutory not require the premises to searched described metes aid bounds otherwise.-A judgment certiorari quashing the warrant would not estop the defendant justifying under it proceedings replevy the goods where was not party to the proceedings set the warrant aside, and such judgment was judgment inter partes only.

Taschercau J. dissentine.

purof-Executory

" 1.

pression extended simple contract creditors of the mortgagor or bargainor suing behalf of themselves and other creditors, and to any assignee for the general of creditors within meaning the Act respect'ng assignments preferences" (R.S.O. 5) c. mortgage void shall not, subsequent possession the mortgagee of the things mortgaged, made valid against persons creditors - * before such taking of possession."

versing the decision of Courtof Appeal, that under this legislation mortgage void against all creditors, those becoming after the mortgagee has taken possession as well and not merely against those having executions the sheriff's hands at the possession taken, simple contract creditors who have commenced proceedings to set it aside and assignee appointed the mortgage given; that the words "suing behalf themselves and other creditors,'' the amending Act, only indicate the nature of proceedings necessary to set the mortgage aside, and that the will enure the benefit of the general body of creditors ; and that mortgage will not made valid subsequent taking MCIIASTER 4-Construction satu te-By-law- Exclsive STATTJTE-Constrertion by-Statute p-Extension of Act-Repeal rc.79,s.5(P.Q.)-C.S.C.c.65.] tion.] A general later statute, (and afortiori a municipal St. Ilyacinthe statute passed at the same time) not abro- granted company incorporated under a gate earlier special Act mere implication. general Act (CS.C. the exclusive privilege law not allow interpretation that tor twenty-five years manufacturing and would have the effect revoking altering soiling gas said city, and special enactmentby the construction of general pany obtained special Act incorporatin words, where the terms the special enactment V. P.Q.), 5 ofwhich provided that may have theirproperoperation without such "all powers and privileges terpretation.

the said company as organized under the said Act, either terms of Act itself By-lar-Petition quush-Appeal-40 byiresolution, by-law or agreemeit the ciy St. Hyacinthe, hereby and coifirmed company incorporated R.S.C. a. (g).]

Section of under present Act, including their right Town Corporations Act Vic. (P.Q.)

break streets not having excluded from the charter addition it shall lawful company, in the City Ste. Cunbgoode Vic.

substitution gas connection therewith, read forming part it and prohibits addition thereto, to manufacture, and an appeal the Court of Queen's Bench electric, galvanic other artificial light, judgment the Superior Court petition to and manufacture, store and heat and quash by-law presented under said motive power derived either gas othercharter.-Where the Court Queen's has

* with the privileges, quashed sucb appeal want jurisdiction subject the liabilities, are applicable no appeal lies the Supreme Court of Canada I the manufacture, and disposal illumifrom its decision.

CcNLGONDEV. nat:ng gas under the provisions of this Act." affirming decision Court Queen's Benchf that the section not ofstatute-55 ss.2 the company the exclusive rightfortwenty- (0.)-r'hattel years manufacture and electric light; gister-Void that the right make and electric light the Act relating chattel mortgages (R.5 0. with the privilege was applicable c. mortgage not registered within not confer monopoly. but gave days after execution " void as against privilege to electricity entirely unconnected creditors," and c. s. 2 (0.) that with purposes company ; I STATUTE-Continued.

that the word "privilege " there used could 4-R.

[Canada Temperance referred to the right break streets and Act.]---20 exclusive privilege claimed.

Held also, that it

C. [The Bank Act.] was a private Act nothwithstanding it and the city was not party nor any way 6-R.

S. [Supreme Court.] assented to it; and that construing it the-d78 court it between promoters and the legislature and apply the maxim verbafortius accipiuntur contra proferenespecially where exorbitant powers are ferred.

5-Registry Act, R.S. 0. - Municipal reviistration of-Notice.]

R.S.O.

C. s. providing that no charge or interest affecting land shall valid against a registered instrument executed the party, heirs or assigns, not restricted interests derived under written instruments susceptible registration, but applies to interests.

6-Public highway-46 V. (0.) 18--Registered plan-Dedication- User- Construction of statute-Retrospective statute-Etoppel.]

right vested a municipal corporation

Vic. (0.) convert into public highway a road laid out a private person his property, only exercised respect of private roads, to the which the owners of property abutting thereon entitled.

7duties-50 & V.

and 173-Exemption from duty-Steel rails for railways-Application street railways -- --- 8-"

Bills of Exchange Act, 1890"-" The

Bank Act," R. S.

c. 120-Constitutional law-Obligations binding provincial legislatures-Government expenditures-Negotiable instrument-" Letter of credit' -Powers

9-Ez post facto legislation-Special tax- 289

STATUTES-" The British North America Act,

"--- -- 2-''

The British North America Act,

[Ownership of lands, mines, etc.]

7-"

The Bills ofExchange Act, 8-54 and (D.) [Supreme Court Stats. Can. [Gas Companies, and (Can.) [Montreal and (Can.) [Montreal Improvements.]

R.S.O. [Registry Act.] 237 13--R.S.O.

Judical

14-R.S.O. [Ontario Insurance Act.] ---- -- 15-R.S.O. 16--46 [Highways.] - 246 17--55 (Ont.) 2 and [Chattel 18--R.S.Q. Supplement [Quebec Turnpike Trusts, Special Acts and Ordinances.] --- - (Que.) ch. [Town Corporation.] 20--45 8. 5. [St.Hyacinthe Gas

----- 21--53 [Incorporation of 71& TITLE LAND-Continued.

22--55 & [Manufacturing Court gave to this and Trading Licenses.]- - - 422 tention ard ordered the boundaries tobe placed LI~~5~

Iacquiesced and another surveyor appointed execute it.

reported that had placed [Manufacturing and the boundaries directed the Court 422 but that measurements that the line indicated was not the of the old and report rejected the Superior Court.

Court ofReview, however, that the report of the having R.S.N.S. (5th [N. S. Pro- homologated court, final to the been properly executed.

The Court of Queen's reversed judgment, set aside last R.S.N.S (5th series) ch. as. 7. report and ordered the surveyor place the [Rules of Pleading.]

69 boundaries the trie line the Held, reversing the decision the Court Queen'sBench, that thejudgmentof the Court of Review which the parties acquiesced was (N.S.) [N.S. Probates.] 663 jugde between them not that the line between the propertis must STREET RAILWAYS- Customs duties-Ex- line starting at the point indicated in emptions from duty - Steel rails for the plan and report the first surveyor. The - - -ing that surveyor executing judgment nothing than start line at the vir TAXATION

Constitutional

Powers 2--Trespass -Damages-Easement-Equitable provinc ial legislatures- Direct taxation- Meni- *interest -Municiral by-tao-Natice

Registrafaturing and trading licenses- Distribution of'tioniSO.

taxes- Uniformity of taxation-Quebec statutes

& Va c. and c. 15-British orth

TR 1.

America Act,

3--Public highwa-Private roads-Registered plan -Dedicationser Constructon of statute -Retrospective statute-Estoppel-46 (0.) TAXES-Specialtax-E post facto legislation c.

-Warranty

2-Municipal by-low-Special assess ments- 14--Vendor and Purchaser-Sale of landsrainage-Powers of councils additional Waiver of objections-Lapse of time- Will, necessary work- Ultra vires resolutions-Executed strction of-Executory over-Defeasible contract-608 title-Rescission of contract

TITLE

Action bornge

Sur-, 5-ortgage of trust estate-Equity runni veyor's report-Judgment on-Acquiescence in estate-Equitable recourse-Construction judgment-Chose jugc.] action bornoge deed-Description oflands-Fals demonstratiolands-After acquired titleredeem-Discharge of goge-Parol -368 6-Constitutional law-Province of Canada- Treaties with Indians-Surrender ofIndian lands -Charge lands-B. N. S. that nuity Indians-Revenue from lands-Increase ofannuity434

PURCHASER-Continued. damages-Liability for

3 . act fconractr

objection the title but witlit the date agreement. pursers brought suit fo specific performance Hell revesing te judgment that althoi,h B. S. took TREATIES WITH INDIANS-Constitutional estate simple subject to executory law-Province Canada-Indian treaties-Sur- over without Indian lands-Annuity livitg at her denth, insmuch tle ptrchaser Indian lands-Increase wotld get holding title companied lands-British tte objection taken not to title which could not given, not having laken within tie limited agreement. An trust-Discretion

MCerLsNd. beneficiaries-Poor relatites-Public

Prtestast charities- uses-Persona e-Special tax-Ex city under and & diV. apportioning of certain 2-Fraudulent local improvements lands thereby. deliery-Estoppe-1npwlied of rolts aside null and Past power the legislature two alt re tands-Falsa general had rolls -Waterlots-Acretionwto lands-After tmprovements and purchaser paid the taxes Prirol d0 amouts that two 4-Constiationetl taw-Proince Canada-I Indians-Surrender t09-Ane ironprovements had legally till alter PURCHASER-Agreenent for land-Objection title-blaier- aganst Devise- VERDICT-Railway carsdtty-Reasonable incurredshould objecinvestigation title purchaser

71t WAIVER-Insurance fire-Mutual

WILL-Continued.

Company-Contract-Termination ofchaters brought suit specific performance, Notice-Statutory conditions-R.S.O.

rs e 167-Estoppel the judgment of the court below, that although took an estate simple subject the executory devise over should WARRANT-Form in statute-Canada Temper- without issue living at her death, inasmuch as Act-Search warrant-Magistrate's jurisdic- the purchaser would get present holding title accompanied possession, the objection taken 620 not the root of the title was which could not given, not having Ris

4beetn taken within the limited the agree- 4.NAsoN

WARRANTY-Action warrantyof-Holograph 7-Locus only regards princi- actum-Lex domicitii-Lex sitae-Trustees pal action that action warranty an In-. -Discretion cidental demand.

the and the warrantor it principal action, and relatives-Public brought after the principal itis-Charitable uses-Right interventionaction, the defendant warrawty Persona desiguata.] In 185 J.G.R., merchant, interest object the manner which then and at the time death domiciled calledin where question ofjurisdiction arises the city oQuebec, while temporarily the city and rejudice thereby.

But made the following in acwarrantee elect take proceedings against cordance with the relating holograph warrantors has himself wills Lower Canada:

"I heteby will and demned at risk, and if an bequeath all property, assets means unfounded action taken against the any kind, brother Frank, will warrantee, and the warrantee not get the halt them for Public Protestant Charities costs action warranty included the and Carluke, the Protestant judgmentof dismissal ofthe action against pital French Canadian and principal plaintiff, he must hear amongst relatives may judge best, quences.

other tor excepting send to Frame iverton Farm." and others, 2-Special heirs at law the testator, brought ac:ion to legislation-a rranty

289 have the will declared invalid.

, that the will was valid. a t eld, further, Fournier and Tacherea JJ. dissenting, that the rule regit actum was WILL-Vendor and purchaser-Sale of lands- not the Province Waier tor under itself (art. of-Executory imperative, btt permissive only.

feld title-Rescission dissenting, that will was the sale prehase land contained the valid if rule locus regit actsm did vision that the vendee should examine the title apply, because it appeared the at and have days the evidence that the law State date the agreement that purpose. aid !York the will would considered should "deemed have movables wherever situated, having jctions title not raised within that time,' executed according the law the testator's investigation of title the pudomicile, and good immovables the chaser it appeared that vendors erived title Province having executed acthrough purchaser cording the law of the situation those imwhich the land movables-In this action interventions question was devised testatrix her College, institution where daughter the said and certain other land youth are instructed higher branches another daughter the will contained learning, and especially young intended direction that 'if either daughter should ministry Presbyterian Church without lawful issue the part and portion the Canada, are entitled receive genshall revertto the surviving daughter,"

eral and theological education, and assisted lit oer ncase both daughters should scholarships and bursaries complete their wi

At time of the agree- education the Finlay Asylum, corporate ment B.S. alive aid had children.

institute for the reltef the aged and infirm, ection taken to the title but not within the belonging communion the Church ten daysfromthedateofthe agreement. pur-. England; and first ofthe WILL-Continued.

testator, claiming a poor relative. Held, that College did not come within the description of charitable institution according to the ordinary meaning of the words, and had therefore no locus standi to intervene; Sedgewick J. dissenting; but that Finlay Asylum came within the terms of the will as one of the charities which F. might select as a ficiary, and this gave it right to intervene to support the will. Held, further, that in the gift to " poor relatives " the word " poor" was vague and uncertain to have any meaning

WILL-Continued.

attached to it, and must therefore rejected, and the word relatives " should construed as excluding all except those whom the law, the case of an intestacy, recognized as the proper class among divide the property of a deceased person, and R. not coming within that class intervention should dismissed.

Beld, per Fournier and Taschereau JJ., that the bequest to "poor relatives" was absolutely null for uncertainty. Ross Ross