Martin v. Sampson

On the trial of an action to set aside a chattel mortgage the plaintiff .

obtained a declaration that the mortgage was void and an order setting it aside without costs.

This decision was reversed on appeal and the action dismissed, with costs both in the Court of Appeal and in the court below, by a judgment pronounced on the seventh of November, 1895.

The minutes of judgment were not settled until some days afterwards, and at the time of the settlement the draft minutes were altered by the Registrar of the Court of Appeal refusing costs to one of the respondents and changing a direction therein as to the payment over of funds on deposit abiding the decision of the suit.

An application was made to the Registrar of the Supreme Court, sitting as judge in chambers, more than sixty days after the judgment was pronounced, for approval of security under sec. 46 of the S. & E.

Held, per Gwynne J. affirming the decision of the Registrar, that nothing substantial remained to be settled by the minutes so as to take the case out of the general rule that the time for appealing runs from the pronouncing of the judgment, and the application was too late.

MOTION by way of an appeal from the decision the Registrar sitting as Judge in Chambers dismissing an application made for approval of security under section 46 of the Supreme and Exchequer Courts Act. The action was brought by an assignee for the benefit of creditors to set aside a chattel mortgage, which was alleged to be void on the ground that the affidavit of bona fides was incorrect and insufficient under the statute. During the pendency of the action, by consent of the parties, the property mortgaged was sold and the proceeds deposited in the Bank of Hamilton to abide the final judgment. In the trial court the judge held that the chattel mortgage was void, and directed that it should be set aside without costs. An appeal to the Court of Appeal for Ontario by the mortgagee was allowed and the action dismissed with costs both in appeal and in the court below. This judgment was rendered on the 7th November, 1895, and the plaintiff did not move for approval of security for costs to be given on an appeal to the Supreme Court of Canada until the 8th January, 1896, when he made an application to that effect before Mr. Justice Osler, one of the judges of the Court of Appeal for Ontario.

Assuming that the time for bringing the appeal, as limited by section 40 of the Supreme and Exchequer Courts Act, began to run from the pronouncing of the judgment, the application was too late, but the plaintiff contended that the time ran from thy entry of the judgment and not from the date when it .was pronounced, and consequently that his application was within the prescribed time.

The facts upon which the plaintiff's contention was based, appeared ffom affidavits filed to be as follows:- After the rendering of the judgment on the 7th November, 1895, the solicitors for the appellant, (the mortgagee), served the usual notice for settlement of the minutes of the judgment and in their draft minutes as served included a direction that costs should be paid both to the appellant and the respondent the mortgagor (he having been joined in the action and named with the mortgagee, the appellant, as a defendant), but the plaintiff contended that although named as a respondent in the appeal, the mortgagor was never actually a party to the appeal and was not represented by counsel nor heard upon the appeal. The draft minutes also contained a direction that the Bank of Hamilton should pay over the funds on deposit there to the defendant, the mortgagee. Upon the settlement of the minutes the Registrar of the Court of Appeal held that the mortgagor had not been a party to the appeal and was not entitled to costs on appeal, but to verify the minute in his own book he undertook to refer to the Chancellor's note book in order to ascertain whether in fact the mortgagor had been present or represented by counsel, and his minute having been confirmed by the Chancellor's note of the case, he decided that the mortgagor was not entitled to any costs of appeal. He also refused to make the direction as to payment by the bank as drafted by the solicitors, as the bank was not a party, but he altered the draft minutes by making the provision in this respect to read as a declaration that the defendant, mortgagee, was entitled to the moneys on deposit. No objection was taken by either side to this alteration, nor to the alteration of Ihe draft minutes respecting payment of costs to the mortgagor, and the minutes were not spoken to before either a judge or the court, but the plaintiff on the application to be allowed to give security which he made to the judge of the Court of Appeal, (Osler J.) contended that as the subject-matter of these alterations was substantial, and that as until the minutes were finally settled and entered the plaintiff could not know exactly from what he had to appeal, therefore under the Supreme Court decisions on the subject the time should run only from the entry of the judgment, and that in any event, if the judge held that the time ran from the pronouncing of the judgment be ought to extend the time under the provisions of the 42nd section of the Supreme and Exchequer Courts Act. After conferring with Maclennan J., Osler J. held that the time ran from the date when the judgment was pronounced and that the application was too late, and also refused to extend the time.

The plaintiff, appellant, then made application to the Registrar of the SupremeCourt upon the same grounds, and the Registrar having heard counsel came to the same conclusion as Mr. Justice Osler as to the application having been made too late, which was the only question before him, there being no power in the Supreme Court or a judge of that court to enlarge the time for appealing.

on appeal from the Registrar, confirmed his decision with costs.

ITl\TDEX .

of-Marine insur- ACTION-Continued.

loss-Sale

'never indebted' put all material facts master-Necessity for ecessary to establish the plaintif's right action.

Will-Legacy-Bequest of-Partnership legatee-Right of

-En engineer-ction for cate.j contract with Crown building locks and other work government canal Partnership-Division assets-Art. provided monthly payments the contrac- C.C.-Nandate-Debtor

602 tors per cent the'value of the work prices named schedule annexed to the contract, payments to made on the certificate the engineer, approved the creditor-Security for nister of Railways and Canals, that the work creditor-Appropriation of had executed to his satisfaction; proceeds-Resudicata the certificate approved a condition precedent to right the contractors the Res

1I monthly payments, and remaining Rcent the whole work retained until its completion; the engineer was to the judge the work and materials, and Sc.] seized ah decisio all questions with regard theregaming-house, under a warrant issued under the meaning and intention of the Criminal and confiscated trat, fnl ages the judgment a Police Magistrate sitting in the ok any ha aerationsin the City of Montreal. In action against work hich dee e Attorney Gene:al recover moneys e seized: Held, per Strong C.J.. that judgment declaring the forfeiture of money can- proximate and subject to revision completion not collaterally impeached an action of the yet where engineer charge revendication.

had changed the character particular class and completed had classified and the value, decision carriers-Express could not re-opened and revised pany-Receipt ceeding engineer.

also, that the contraccedent-Formal -Pleadingtors could proceed action payment a pleas-" monthly certificate was withheld and were not indebted."] Where express pany gave obliged wait the completion the work a forwardedwth the suing condition indorsed that the company should liable for any claim respect of the package unless within sixty days of loss or damage a claim should made written statement with copy the contract annexed : Held, that the consignor obliged to comply strictly with these terms condition precedent to recovery against the express company for failure liver the parcel the consignee. Richardson v.

Ins.

P. distinguished.-In action cover the value of the parcel, the count for money had and received, the plea

Negliqence-Sale powers-Practice-Asof of.] Under the provisions of 0. c. enable the assignee of chose in action to name, the assignment must writing. but a wri:ten instrument not required to restore the assignor to his original right of action.-Where creditors refused to accept the benefit of assignment under 0. c. and the assignor was notified of refusal and that the assignment had not vendee-Principal garantie-Warranty-Delit.

176'surety-Deviation time-Creditor principal-Release of -Arrears interest-No ion-Discharge estate-Death of administrator-Administration non-Unadriinistered competent advice, pays fde made against the estate,

Corporation-By-law-Assessment-Local law-Collision road-Narrow channell-Navigaregistered action for damages properly tin, rules of-B c. 8. 2, arts. brought the name of the assignor against a mortgagee his stock trade sold the goods in improper manner.

' reachof 5-Jurisdictionto collision.'] lands-Action aside-Secret trust-Lex vessels aproach each other the position Canadian court cannot entertain an "passing' ships light dead action to set aside a mortgage foreign lands ahead the other), where unless the course the ground that it was taken pursuance of or both changed they clear of a fraudulent scheme defraud creditors of the other, statutory rule but they original owner through whom the mortgagee governed the rules seamansip-If claimed title, it not being alleged the action, of two 'passing' ships acts consistently and the court not being able to assume, that the with seamanship and the other persists, law of the foreign country in which the lands without reason, keeping the wrong were situate corresponded to the statutory law of channel; starboarding her of the province which the action was brought. when it was that of the other Burns Davidson 0. approved and hard to port and the vessels rapidly approachfollowed.

and, after signalling that was going port, reversing engines and thereby turn- Trust-Principal ing her to starhoard, blame for a goods-Trust collision follows-The non-observance of agent-Replevin-Equitabletitle.] Ifanagent the statatory rule (art. that steamships shall entrusted principal with money to buy slacken or stop, reverse, if necessary goods the money will considered trust funds approaching another ship. involve hands and the principal the same risk collision, not considered terest the goods when boughtas had the afactcontributingtoacollisionprovidedtbecolfunds producing it.

If the goods bought lision could have avoided impinging mixed with tho-e of agent the principal has reasonable care exerted the time an equitable title to quantity to taken from oftherollision-Excusablemanceuvresexecuted the mass equivalent the portion of the money 'agony of collision"

brought about anadvanced which the purchase, other cannot imputed contributory well to the unexpended balance.-Under negligence the part the vessel collided the present system of procedure in Ontario an with-The that narrow channels steame ulal ocatl ilsp~ta cinships shall, when and to replevin.

eISBY

430 the starboard, (art. not override the Partnership-Division assets-Art. rules of navigaion.

C.-Mandate-Debtor creditor-Account.]

U the dissolution partnership, the partners has entrusted with the AGENT-Of insurance company-Authority- PNItAL ANT against directly either for an account under

AGREEMENT-Charqeuponlands-Mortgage- 602 of Frauds-Registration judgment-Partnership-Judqofrep

APPEAL-Final judgment-Petition APPEAL-Continued.

on-Interlocutory pleadinqs-Interference lies with-Discretion the judgment the Court Queen's Bench a petition leave to intervene cause the Suprer u ailotintifl on apa proceedings being interlocutory only. v.

a leave amed pleadings such orders 7being matter procedure within the discretion note--Additions of of court

& 8-Appeal-Jursdition--udicial tojudgment-Arts.484493 C.P. amount-54 were improperly allowed partot the tion ] An opposition under the provsions appeal and could not considered the articles the Civil Procedure Lower Canada for the purpose vacating judgment entered default, a Technical grounds-Surprise.] appellate "judicial proceeding" within the meaning court will not give to mere technical I The Supreme and Exchequer Courts grounds of appeal, against the merits and where Act." nd appeal depends the there has surprise or disadvantage to amount controversy, there appeal the the appellant.

87 Supreme Court Canada the amount ofprinfact.] cipal and interest at time the filing The Supreme Court will not interfere with the the under the judgment sought amount of damages assessed judgment annulled value $2000. -Pronounct-Security controversy-Pecuniary judge- Vacation-R.S.C. of appellant-Arts 0. P.] having the trial of action the proved claim of against an insolvent plaintiffs obtained verdict which the Diviestate contested claim which respondents sional Court set aside.

Court Appeal had collocated against the same estate allowed ippeal and restored the judgment amounting to

The contestation hav- at trial, reducing the amount of damages by ing decided favour of respondents certain specified

Held, that nothing appealed to Supreme Court.

Held, that to substantial remained settled the minutes determine whether or not there was sufficient entiring the formal judgment ofthe Court amount controversy to give jurisdiction to Appeal, and the appealing therefrom to the Supreme Court the pecuniary interest of the the Stprene Court ran the pronouncing appellant only could taken into consideration, and not entry of judgment. and interest being tinder the appeal O'Sullivan Harty Can. SCE. would not lie, although the consequence of the

Walmsley Griffith S.C.R.434) Hartappellant's contestation might result bring- Caron Can. 5CR. followed. ing back to the insolvent estate a of over of the Supreme and Exchequer Courts Act (R.S.C. court proposed heap- 200 pealed a judge thereof allow an appeal after the time prescribed therefor 6-Appeal from of has expired, but order the court Privy Council-Appealable amount-Addition judge thereof extending the will not - C.

authorize the Supreme Court judge thereof Q. art.

accept security after the days have elapsed. 3-54 C. P. Thedelayof6odaysforappealingtotheSupreme Court pieScribed the Act, nut there appeal to the Supreme Court Can- suspended during vacation ofthe courtestaada decision of the Court Review bushed its rules.

Nrws V. Privy Council -Ait.

which prothat 10-Time of-Pronouncofjudqment-Security-Etension shall understood to that demanded and time-R.S.C. c the trial not that recovered ifthey are different' " applies of action set chattel mortgage, the to the Privy Council.-Interest cannot, plaintiff obtained declaration that themortadded the demanded raise it the gge was void, and an order setting it aside amount necessary give a right of appeal.

withoutcosts.

This decision reversed In.Co.(2 appeal and the action dismissed with costs both 'in Court Appeal and court below, 48 r

[S.

APPEAL-Continued.

judgment pronounced on the seventh deb which the purchase the November, minutes had not stock, which payment allegd prefersettled until days afterwards, and at B. over the other creditors. Held, time of the settlement the draft minutes ing the decision the Court of Appeal, that altered the Registrar the Court Appeal there was preference B. within 0. refusing costs to the respondents and s. 2 that position was the also chauging a direction therein a; the if whole debt secured and unsecured payment over funds deposit abiding the had overdue and there had bfen sale decision of the suit.

an application made both stocks realizing amount more than sixty days from the pronouucing of equal such debt, could have the judgment, for the approval of security under appropriated portion the proceeds paysection the Supreme and Exchequer Courts ment secured debt, and would had Acts: Held, that nothing sub.tantial remained the benefit of the law set-off the unto settled the minutes take secured debt under Art; and that case out of the general rule that the time for ap- the only remedy ofthe mortgagor his assignee pealing runs the pronouncing the judg- was redemption would ment, and that the application was too late. have deprived B. of such set-off. lVarranty-Defect 2-Suretyishi Imputation ount-29 -Variation design-Demurrahe-Eeideeie

-Onus proof-Expert -Proportionate ratio-Suretyship -Assign- 12-Questions fact -Ev idence-B urden

. of-Railway fire-Sparks ofbothstocks-o

Contract-Public work- Procreditor-Payment debtor-A

-Preference-R.

trader sontnly carrying business two establishments mort-o gaged stocks trade to security foree

O

1ndotemets with and advances isn and goods amount.

notes made and TAXES-Repair ofstreets indorsed made advances amotnt -Pavements considerably that stated mortgage

A mnth afer hemortgagor default for the advances atd portion of overdue notes and there notes not matured, and B.

consented of mortgaged stocks, taking purchaser's notes payment, 2-Afunicipal applying amount generally payment of' -Local his overne debt part whic unsecured. days after other stock of covered mortgage and about.the time the them under tion, and shortly after the mortgagor iis-igned iASSIGNMSNT-For of creditors-Prebenefit creditors.

An interpleader issue ferences-R N.

10-Chattel between B. and the execution creditor resulted of Eliz.]

Though assignfavour ofB. out ofrtheproceeds ment contains preferences favour certain of rcea tinder of creditors, yet ifit includes, subject such precourt, the balance remaining mort- ferences, trust favour the asssignor's gage. bhursfall Boisseau Oat. creditors it "an assignment general The the mortgagor of creditors' under section the brought action against B. recover Nova Scotia Act S N C. amotnt representing the unsecured part not equire affidavit bond fides. Durkee Flint N. Rep. approved there had sale of both stocks and followed; Archibald Hubley Can.

realizing amount equal debt, which distinguished.-A provision could have appropriated a portion ofthe assignment for the security and indemnity of proceeds to payment secured debt, makers and indorsers paper not due, for ac- would have had set-off commodation of the debter, not make it unsecured debt under the chattel mortgage under of the Act, Act; and that the only remedy ofthe mortgagor property not being redeemable and the assignor assignee was redemption the retaining interest it.-An assignment sale, which would have deprived the void under the statute of Elizabeth as tending such to hinder or delay creditors if it gives a

3-Chattel default-Sale on

-Practice-Revocation signient possession viously had, though these provisions taken itself would have such effect.-A probrance-Iterest-Assignent mortyae-Puror fraud his part" will also avoid the ssign- V.

ment under the statute Elizabeth-Authority to the assignee not only to prefer parties parcel-Conditions -Pleading-3Money creditor-Payment

CAIERS

Appropriation-Preference-R.

trader carrying business two both 2---Carrier-Shipping- ship--Perishgoods-Excepted perilstranshipnotes made and indorsed made advances to an amount considerably over that stated th mortgage.

months after

BANKING

Principal authority- agent-Principal agentthe purchaser's notes payment, appling the Where an agent an act outside amount generally in payment overdue apparent authority, and makes a debt part of which unsecured.

days representation the person with whom acts after other stock goods covered advance the private ends himself mortgage and about the time the other than principal reprsensheriff seized them under execution, and shorilyI'ytation cannot called that principal. after the mortgagor assigned for benefit cred- it immaterial whether or itors. interpleader between 13. and the the person to the representation was execution creditor resulted favour of who made believed agent had authority make rec-ived, out of the proceeds of the sale the it-The local managerofa bank having received goods under an order the court, the balance draft to accepted induced the urawer remaining due mortgage.

Horsfall v. accept representing that certain Boisseau Ont.

The assignee ovn held the bank security the of the mortgagor then broughtan action against' drafts.

action the draft against 0. to recover the amount representing the acceptor: Held, the decision secured part of debt which paid Supreme Court Brunswick, that the purchase of the first stock which, payment was bank not bound sorb representation; alleged to a preference over the other that taking the beneft acceptance creditors. Held, affirming the decision the could not said adopt what the manager Court of Appeal, that there was preference procuring it which would burden it with to within 0. 2; that responsibility instead conferring his position was the same if whole debt and that the knowledge the manager with secured and unsecured overdue and which bank should bc on- BANKING-Continued.

to knowledge of what was material to the transaction and the duty the manager to make known to the bank.

'BILL OF LADING-Continued.

housemen, and the bills of lading contained clause, as did those of the giving subsequent carriers the benefit of their provisions; and that the two courts had held that the loss was caused the newinc creditor-Security for creditor-Appropriation of that proceeds-Res judicafa.] If bank agrees to carried bill of lading issued the Lake give customer a line of credit accepting nego- Erie there was an express provision therein tiable paper collateral security it not that owners should incur all risk of of goods obliged, long the paper remains uncollect- charge of the company, warehousemen; give any credit respect of it, but when and that such condition was reasonable one, any portion the collaterals is paid it operates the company only undertakes warehouse at payment of the customer's debt and goods of necessity and for convenience shiphim.-Under byrejudicata as defence action unless specially pleaded.

BILL OF SALE-Chattel Company-Authority president-Promis- tion-Bills Act-B. 125- Appeal-Order pleadings-Inteference v. with-Debtor creditor-Purchase 443 -Considerotion-Exising

LADING-Railway Co.-Carriage of itd lines-Special mortgaor warehouse-Neglgence-Pleading.

In an action a merchant at Ont., (describing the premises) City ondon in'the chased goods parties Toronto and mortgage this additional description where delivered, to the T.R.

And all machines and the rest the P. and other companies ofconstruction shall hereafter by the said several companies to and course construction completed while same were, transferred to Lake Erie &c. any ofthe hereby secured unpaid, for riage to and that receipt thebing upon the now occupied Lake Erie Company of the goods it their.

Ortagor which are duty to carry them safely Merlin and deliver all any other premises the them to was also an allegation of s

City ofLondon."

Held, affirming the contract the Lake for storage of the cison of the Court of Appeal, that descripgoods and delivery to when requested, and of schedule coald not extend goods lack of proper care whereby the goods were wholly manufactured premises other than lost. goods were destroyed by while those described themortgage, and ifit could stored a building owned the Lake Erie the description was within the at

Held, reversing the decision of meaning the of Sale Act 0. the Court Appeal, that to the goods covermachines manufactuved-The livered to the to transferred to the Supreme Court not interfere appeal with Lake Erie alleged, if the of action order provincial court granting stated was one arising delicto it must as amend tlit pleadings, such orders the evidence showed that the goods were a mat;er procedure wihin discretion ceived the for carriage under the the couit below.-A purchaserot the terms of a special contract contained the bill maker chattel mortgage consideration of lading and shipping note given the G.T.R.

the discharge pre-exising debt purto the consignors, and if it was a cause of action chaser valuable consideration within 5 Bills Act.

tract under which the goods were received & SONS406 the provided among other things, tha't the Co.'y would not liable for goods fire; that goods stored should risk of owners; and that the provisions should apply to and for the benefit every carrier. Held further, that the deliverthe comoanies other than to delivered to the Erie, the latter pany was liable under the contract for storage;

that goods its possession ware- 2--3Iortgage-Alining machinery-Registration terms-Personal Del'very-R. 1, Bills of Sale)-53 Mines Act)-41 4 .

ERECTIONS-Lessor CARRIERS-Continued.

-Filling erections"-"

the are without the consent Seethe owner the latter is entitled to recover from See ~ssR shipowner the amount they would have BY-LAW-Constitutional law-Mlunicipal worth to had received at the port poration-Powers of legislature-License-Mono- shipment at their destination at the time poly-Highways and ferries-Tolls- the breach of duty.

streams-By-laws ferry-Disturbance partnerships--North-west lines-Specia contract-Loss 24-B.

warehouse-Negligence-Pleading and 16-Rev.

Ln-N.

deLisle Can. followedr thelater-s-etiledto-ecoer-176 2-Municipal

2-Archibald v.Huble lands-------------------82

CARRIERS for approved and followed precedent-Formal claim-Pleading- Where 4--Brittlebanc orwarded with the condition indorsed that company not liable any claim eeOMN in respect of the package unless within sixtyARR days loss damage should 5-Burns Davidson (210. approved written statement with the contract followed that the consignor was obliged

.

CATELN

5OTGGE.

to strictly with these terms condition precedent recovery against the express company failure deliver parcel the 6-Clayton's 572)distinguished 29 Farprsens. Co.(16 U. C. distinguished.action recover value the parcel, 7-Cowan Atlen Can. S.C. count and followed-316 put

Craig shipping-Cosrlered ship-Per-;

goods-Ship perils-- Transhipment-orecation tranship-Repairs 9-Cunningham time-Carrier-Bailee ]

tered ship disabled excepted perils followed--------------13 completing thevoya he owner not sarily lose benet contract, hut ms.y forward goods other means the place '1-----------------------------------. ofI estination earn the freight.

option must reasonable and if repairs are decided they must with reasonable despatch herwisethe owner of the rgobecomes entitled 11-Durkee Flint apto Qure-Is the shipover obliged and to tranship ?-Sf the goods such would repairs could made the shipowner should either transbip, deliver sell if cargo owner not object, and 12--olman Green Can. duty the ifa porion of cargo, sever- followed-444 able rest, perishable. And such

CASES-Continued.

davit

Flint and followed

Arctibald and indemnity of makers and indorsers of papers 14-Martley v. Carson Can. C.

not due, accommodation of debtor, followed

-- 895 not make it chattel mortgage under 5 the Act, tie property not heing redeemable and Farrell the assignor retaining interest C.R.

followed

12-Chattel 16-OSutlivan ilarty Can. Negligetce-ilful default-Sale followed

695 salen-Practicp for creditors-Revocationo.) mortgagee possession who sells the mortgaged goods 17-Pictou, liable AC.

I1 account not only for what actually what he have obtained the goods had acted proper regard the 18-Richardson interests mortggor.-Ain assignment U. . P. distinguished the benefit creditors revocable until creditors either execute otherwise assent it-Under provisions of . 0. c. order the assignee ofa action assignment must 19- P

Can. S. writing, hut written instrument not - 1 restore assignor original right action-Where cvditors refused ce1t the an assignment under . 0. 20-Stanton . Home Ins. (2 Legal

. the assignor was notified of approved

216 that the registered, action damages properly brought the name iho assignor against a quirte

1goods improper acto- Wallbrid Can.

followed.

3-Descrition-Bills Act-. 125-Appealwith-Debtor creditor- ur- Can.

695 In chattel mortgage the goods conveed described follows: 'All ofwhich said goods fd

-.

and chattels are the property said 23-Wyce Rogers mIrtgagor and are situate tn and the lowed------- of the London (describ- Street, the City of London ;"

and a CERTIFICATE-Contract-Public work-Proestimates-Engineer engineer-Action for construction completed while any of the moneys hereby occupied the mortgagor * * * CHATTEL MORTGAGE-Assignment for or which are now shall any other ofereditors-Preferences-R. S.N. 5, 10-Chattel mortgage-Statute of Eliz.] ing the decision of the Court Appeal, that Though an assignment contains preferences description the schedule could not extend to favour of certain creditors, yet if it includes, goods wholly manufactured premises other subject to such preferences, a trust favour than those described the mortgage, and if it of all the assignor's creditors it " assign- could the description was not sufficient within ment the general benefit of creditors" under the meaning of the Bills Sale Act (R.S. 0. section of the Nova Scotia Bills of Sale Act c. to cover machines manufacand not require tured.--The Supreme Court will not interfere CHATTEL MORTGAGE-Continued.

appeal with an order made provincial court with and the devise to him of no granting leave to amend the pleadings, such Held, reversing the decision the Supreme orders being matter of procedure within the Court of Nova Scotia, that codicil did discretion of the court below.-A purchaser of affect the construction to put the devise in goods from the maker chattel mortgage the will; that J. and took as tenante consideration of the discharge pre-existing equal moieties the estate of debt is purchaser valuable cousideration ing absolute and that subject to within 5 of the Bills of Sale Act. executory devise over case death at any &

COlATTELS-Fixtures-Severance sales-Unpaid creditor-C. arts.

devisees were iake in the area the property ------ 419 devised and not the character of the estates shares. CHATTELS, PERSONAL-Mortgage - Mining tion terms-Bill Personal chattels-R.

(Bills

Sale)-55

(..S.)

CODE-Arts (Property),

1, ofpartnership froni

"

Context-Codicil.]

Atestator devised property "equally"

to two sons J. and with provision that

"in the event of the death of said unmarried without leaving " his interest law-Collision-Rules road-Narrow channel-Naviqation, of-R arts. 23-" ships-" ships- "Passing" ships-Breach rules-Presumpfault- negligence-lloiety controversy-Pecuniary appellant-C. P.arts. COMPANY-Joint company-Ultra on-Action set aside.] company incorporated for definite are reasonably incidental thereto, nor to exercise their powers the attainment of authorized ter. The assent of every shareholder makes difference.-If company enters into transacparties one obtained after contest and not set aside because the transaction was Tolls-Navigable resolutions-Intermunicipal ferry licensee-Club partnerships-North-west 21-B. 16-Rev. 28-N. 3-Authority president-Promissory Discount-Liability

S. C. R. XXVI.]

COMPOSITION DISCHARGE-Debtor CONSTirUTIONAL LAW-Continued. to muncialiys aye conferred Principal agent-Deed of bie nd nt necrred from "greement-Fraudulent anershi st

"Thessdmonto ferences default carry out the terms Fer ofa deed of composition and discharge new

Company" was purpose arrangement made respecting the realiza- within etassignd terlins tion of debtor's assets and their distribution, muncipalit atin exluie rights e which all the executing creditors appeared acss t rivrin etio cits being assented.

Held, that creditor hadof benefited the realization of the assets and action given the body the creditors reason to believe that had adopted the arrange- ing at least share therein, share udate he trns con oetitle signer tickets that ment, could not reudiate the transaction uponreceived payment service according the ground that t e new arrangement was not to prescribed tariff, and expended could understood, without at least surrender of rrther subscriptions shares advantage had received through it. The renwed debtor's azsent to such repudiation and the grant infi ofbette r terms the creditor would frand with list membership and established and uponoperated their ferry, without any license, within uipeond ofe oe effetos nd

& rll short distance licensed ferries, -3---- - 72 thereby, claimed, disturbing exclusive rights.

Held, that the estab- CONSTABLE-The Criminal lishment clb ferry thereof Persona designata-(,ffcers jure members and others under their club regulations house-Con- was infring'ement the rights under the and that the licensee Evidence-The damages reason such infringement. authorizing

*' 2.Aravigable waters-Title Crotn-Dedicalion lands-Presumpdedication-User-Navigation, of-Public nuisance-Balance but only exercising such functions and The title the navigable duties will bring witin the designation rivers the Crown right the provinces, the statute.

Therefore, the warrant not right the Dominion. Dixson Stetsincould properly the report the deputy ger ed-The property high constable of the city of Montreal. Gironard the Crown bedeiad to public and dissenting. -The warrant would good if presumptio dedication will arise facts issued the report of person who warrant such inference the facto of deputy high constable though of subject-By c 2, ) was not such power given the Crown to ofand 122 grant water lots rivers and other navigable waters Upper Canada, and the power CONSTITUTIONAL LAW-Municipal corpora- grant the carried with it power dedition legislature-License cate it the public usp-The user bridge ferries over navigable river thirty-five years resolutions-Intermunicipal ferry sufficient a presumption dedication. Tlls province confederatin had Territories Act, R. S. c. and cated the navigable river the pir- 16-Rev. that it could not have objected Ord. N.

T1888) c. 28-N.W. Ter. Ord. it an obstrtction navigation, the Crown 7 of

The authority to representing the oi assuming the Legislative Assembly of the North-west Ter- trol the naigation, was bound to permit the ritories, C. c. and orders in council maintenance the bridge-An obstruction to thereunder, to legislate to municipal insti- navigtion cannot justified the grousd tutions" and " matters of local and private that the public benefit derived nature (and perhaps to license for revenue)

outweighs the inconvenience causes. It a within the Territories includes the right legis- public nuisance though great public late to ferries.-The town Kdmonton, and the obstruction the slightest its charter and Ferries Ordinance"

possible degree.

(Rev. Ord. can grant the excluriqhts-larried estate-Jurisdiction

Legislature-Statute-Interpretation of-40 vested the Lieutenant-Governor 7, s. 3 atd oaendmets--R. c. 50-N. IV. LAW-Continued.

Ter. Ord. of provisions ordinance no.16 of respecting the personal property of married women, are intra vires of the legislature of the North-west Territories

Canada, being legislation within the definition of property and civil rights, a subject which the Lieutenant-Governor in Council authorized to legislate the order the ernor General Council passed under the provisions of " The North-west Territories Act."- The ,rovisions said ordinance are inconsistent with section- inciusively

" The North-west Territories Act," which empt liability for her husband debts the personal earnings and business profits of mar woman.-The words "her personal property " the said ordinance are unconfined any context, and must interpreted not having reference only the personal earnings" mentioned but all the personal property belonging to a woman, married subsequently the ordinance, as to all the personal property acquired since then married it was

4-Canadian waters-Property Public harbours-Erections waters-Internavigation-Rights fishing-Power grant-Riparian proprietors-Great rivers-Operation

Provincial legislation-R.

21-R. Q.

arts. beds public harbours not anted confederation are the property

Dominion of Canada. Holmany. Green (6

Can. S.C. R.707.followed. beds ofallother waters not granted belong to the respective provinces they are situate, without distinction between the various classes waters.

-Per Gwynne J.-Thebeds ofallwatersaresubject the jurisdiction and control of the Ioiinion Parliament far required tor creating future harbours. erecting beacons other public works for the benefit of Canada under British

North America A item and the administration ofthefisheries.-R C.c. An

Act respecting certain wrks constructed navigable rivers,"

intra vres of the

Dominion Parliament.-The Dominion Parliament has power declare what shall an interference with navigation and require its sanction to any work navigable waters.

province may grant land extending into a lake or river the purpose of there being built thereon wharf. warehouse like, and the grantee obtaining the sanction may build thereon subject to compliance with c. 92.-Riparian proprietors before confederation an exclusive right of in non-navigable, and navigable, non-tidal lakes, rivers, streams and waters, the which had granted to them the Crown.

lowed.-The rule that riparian proprietors

LAW-Continued. aque great lakes or navigable rivers. Where beds waters have not been granted the right fishing public and not restricted to waters within the and of the tide.-Where the provisions Magna Charta are not in force, the province of Quebec, the Crown in right the province maygrant exelusiverights offishing in tidal waters, except tidal public harbours which, in public harbours, the Crown in rightofthe Dominionmar granttbe bedsandfishingrights.

GwynneJ.dissenting.

PerStrong and King and Girouard J. J.-The provisions Magna Charta relating to tidal waters would the provinces which water exist (except unless repealed legislation but such iegislation piobably passed bylthe various provincial legislatures; and these provisions of the charter they public harbours have repealedby legislation.-The Dominion Parliament cannot authorize the giving by lease, license otherwise the right of fishing in nonnavigable waters, nor navigable waters the and banks of which are assigned to the provinces under the British North America Act. The legislative authority of Parliament under item to the regu ation and conservation of sea-coast and inland eries under which it may require that person shall in public waters without license from the Department of and Fisheries, may impose f, such license and probibit all fishing without and Drobibit particular cla-ses, such foreigners, unconditionally fishing.

The license as required will, however, merely personal conferring qualification, give exclusive right to fish particular locality.-Section and other portions of vised Statutes of Canada, c far they attempt to confer exclusive rights fishing in provincial waters, are ultra v'res. Gwynne J. contra. Per Gwynne J.-Provincial legislatures have jurisdiction with Whatever within that term given the Dominion the British North America Act. section item including the giant leases licenses for exclusive fishing.-Per Strong C. Taschereau

King and Girouard, JJ.and 5 and the Ontario Act of are intra vires but may superseded Dominion legislation Q. arts. to are also Per Gwynne J.-R. 0 c. ultra vires tar it assumes to authorize the land covered with water within public harbours margins navigable rivers and lakes may sold if there an understanding with the inion Government for protection against interfeience with navigation.

Act of R.S. Q. arts. to are valid if passed in aid Dominion Act protection of precedent-Formal of payments le the certificate pleas.] Where an express company gave a Railways and Canals, that the work certified receipt for money to forwarded with the executed to satisfaction, the dition endorsed that the company should not certificate approved was condition liable for any claim respect of the package precedent the right contractors the unless within sixty days loss damage monthly payments. and the remaining claim should made written statement with cent the tie work re'ained a of the contract annexed.

Ield, that the until its completion tie engineer was consignor was oblige I to comply strictly with tie judge the work materials, terms condition precedent to recovery decisin all questions with regard thereagainst the express company for failure to the meaning intention the liver the parcel to the consignee. Richardson contract, and was to at Canada Farmers' Ins. Co.(16 U. C.

iberty make any changes alterations in distingiished.-In action recover the shoulddeem txpedient. Held, value of parcel. on the common count for that though the value the worc to had and received, plea of ' never in- the monthly certificates was only approxiiate debted " put in issue all material facts necessary and subject revision conpletion establish plaintiff's right of action.

yet where engineer charge had al. chnngd the character of a particular class of completed had it and value, decision was 2-Statute Frauds-3Iemorandum revised succeedingenthat contractors ing statement of all the terms of contract for proceed action if payment monthly the sale goods requisite to constitute tifiate was withheld and not obliged to under the section of the Statute Frauds, wait the completion the work for that purpose though it suing.

5-Resolutort ditiot- sale-C. Susequnt

Sbsequent agreed tie freehold-Severance fam all his gas grants, and franchises, the realty.] action was brought. ravencompany agreeing, among other things, " dicate engine and boilers under resoltplant tory condition contained operated to operated them said pro- written agreement providing that, until fully was executed and paid they should remain tie property delivered to the company transferr'ng all the and that payments account of the price leases and property said agreement, shotId considered rent their tte, but containing no reservation favour further that, upon default, should the such as contained therein.

The Erie ht possession atd remove pany, assigned the property transferred I machinery question bad the Provincial Natural Gas and viously imbedded foundations Fuel immediately cut the had s separately the works the supply gas. and an action defendants, and at the tine agreement brought prevent interference.

Held, the boilers still attached the btilding affirming the decision of the Court of Appeal, but the etigie had taken out and was lying that the contract between the parties was the mlard, outside the huilding. quently executed the this condition defendants hypothecated rights of the parties determined the mill property and hypothecs were the latter instrument, and it contained no duly registered.

engine subsequently reservation favour of could not replaced the building and ~ ~ ~ ~~

~~N mantind

C0tett

.TePoi in connection with the boilers for the purpose of running the mill. agreement respecting engine and boilers not registered. B. intervened the action ofrevendication and work-Progress that the machinery part the freehold and subject hypothecs upon the lands. for payment that the agreement and contract with the Crown for building locks and fendants not considered lease bit other work government canal provided for rather sale subject to resolutory condition monthly payments the contractors of per with clause offorfeiture asregards the payments cent the value the work done at the made accotnt. Butwhether agreement nanted schedule annexed contract, Ia lease sale condition. having, CONTRACT-Continued.

spects the boilers and their accessories, consented to their incorporation with the immovable dealt with them while incorporated, they came destination within the terms of article of the Civil and subject the duly registered bypothees of the respondent.

Breach-Waiver breach-Authority of insurance factory and machinery tained condition making it void if the property was sold conveyed the interest of the parties therein changed. the decision the Supreme Uourt of Brunswick, that chattel mortgage given the assured said property interest therein was changed

CONTRACT-Continued.

Erie, the latter company was liable under the contract for storage ; that the goods were its possession warehousemen, and the bills of lading contained no clause, did those of the giving subsequent carriers the their provisions; and that the two courts below had held that the loss was caused the negligence servants of the Lake Erie, such finding should not interfered with. Held also, that goods carried lading issued the Lake Erie there was express provsion therein that owners should incur all risk of goods charge of the company, as warehousemen; and that such dition was reasonable the company only undertakes to warehouse goods of necessity and convenience of shippers.

larine aport-Construction caused such breach. Tonnor

9-Railway company-Razlwayticket-Right lines-Special contract-Loss fire

Pleading.]

Ont..

balk-Loss ofportion-Total partial goods parties Toronto and elsewhere

11-Vendor lands-Deviationfrom terms-Giving timelands-Discharqe surety-Novation and that receipt the Lake Erie

Company of the goods it became their duty to carry them safely to and deliver company-Ultra contract the Lake Erie for storage

Consent judgment on-Action aside-221 goods and delivery when requested, and lack of proper care wherethe were lost.

The goods

13-Chartered ship-Perishable goods-Ship perils-Transhipment-Rer-Bailee that to the goods delivered the transferred to the Lake Erie alleged, if the cause of action stated was arising it must fail evidence showed that the

14-Principal surety-Guarantee riage under the terms of special contract f p given the R. consignors, and if action founded contract it must also the contract under which the

15-Railway company-Carriage tines-Special fire that Negligence-Pleading should at risk the and that the provisions should apply and the benefit every carrier.

Held further, that CRIMINAL LAV-Te

(riminal 575-Persona than the translerred to the Lake Jure-Chief CRIMINAL LAW-Continued.

DAMAGES-Continued.

3-Consitutirnal Iaw-Manicipal -Evidence-The

License-onopolythe i andferries- Tolls-Navigable -By-laws resplutions-Intermunicipal ferry -Disturbance partnerships-orthwcst not that R.S.C. 24-B. NA. from having the exact title Act 8. and 16-Rev. Ord. tioned but only one exercising func- N. I. T. c. 29-1K I. Ter. Ord. 7 designation the statute.

Therefore, the warrant could properly issue the report of deputy high constable the city of Montreal.

dissenting.-The warrant would DEBTOR CREDITOR

Principal and if ofa srty-Giving principal-Reservation ofdeputy high constable though rights against surety.) creditor gives not such de~jure.-In an action reven- debtor extension time paymnt a dicate the moneys the rules of evidence formal agreement not required reserve matteis prevailing the province would surety, but such reservation apply, and the plaintiff not invoke The outfrom what took place Canada Evidence Act, as to e given.

Rogers (1 petent witness behalf in the province & followed. Quebec. Per Strong C.J.-A judgment eannot 2-Composition -ew clause-Principal agent-Deed ridis- 122 charge-Notice agreemetdefault carry out the terms deed composition and CROWN-Constitutional law-Naviqable charge arrangement made respecting of-Dedication realization debtor's assets and their lands-Presumption User-0b tribution, to all the executing creditors Public appeared to assented. that creditor Balance ofconvenience.] The user of a bridge had the realization assets navigable river for years sufficient and given body creditors raise presumption of dedication.-ft proihat had adopted the before confederation dedicated the arrangement, could not repudiate transof a navigable river purposes action upon the ground that new arrangebridge that it could nut have objected it as ment was not fully understood, without at least an obstruction navigation, the Crown re- surrender the advantave had received presenting the Dominion, on assuming control of the navigation, bound to permit the pudiation and grant better terms to maintenance of the bridge.-An obstruction to creditor a fraud upon the other navigation cannot justified the ground creditors, inoperative and of that the public benefit to derived from it out-, & weighs the inconvenience it causes.

It pub-i

3-Debtor creditor-Payment Appropriation-Preference-B trader carryingon business two establishments mortgaged both stocks trade security indorsements composition of dedication-Publienuisance.

322, 444 with creditors and advances cash goods amount. composition made ad- Fvances an amount considerably over that stated the mortgage. A months after the DAMAGES-Nuisance- mortgagor was default the advances and odours-Noise of of the mortgaged stocks, taking pur- 2--Action debt part owhich was unsecured.

days after fact the other stock goods 4.mortgage

DEBTOR CREDITOR-Continued.

I DEBTOR CREDITOR-Continued. 8-Partnerslip-Diviion assets-Art. creditor-Acceived, out the proceeds the sale the goods under order of the court, the balance remaining due mortgage.

Borsfall

9--Principal surety- bondprinczpal-Non-dseosure representing tor secured part of debt which was paid the purchase of the first stock, which payment alleged pre-erence B. over the other

DEDICATION law-Navigable to within 0. 2 that tion-User-Obstrsction navigation-Public nuisance-Balance realizing amount equal debt, which could have appropriated portion the proceeds payment of his secured debt, had DEED-Contract-Subequent the unsecured debt undersec. of the Act; provisions.]

agreement April and that the only remedy the mortgagor or agreed sell'to the County Gas assignee redemption before the sale, all grants, and franchises, which would have deprived B. of the benefit company agreeing, among other things, such set-off.

437 "reserve enough supply the plant operated to procreditor-Security for debt-Se- perty."

April was executed creditor-Appropriation and delivvred the company transferring all ceeds-Resjudicata.] If merchant obtains leases and property specifed said agreebank line of credit terms depositinghis ment. but containing reservation favour customers' notes as collateral security the bank C. was contained therein

Erie not obliged, long the paper deposited Company, assigned the property transremains uncollected, to give any credit re- ferred said Provincial Natural spect it, but when any portion of the collaterals and Company, who immediately paid it operates at once payment the the works supply of gas and merchant's debt and must credited to an action was brought

C. prevent Under the Judicature Act, estoppel res judi- interference.

feld, affirming the decision cata cannot relied defence an action Court Appeal, that the contract unless specially pleaded.

al. tween the parties was deed Oi6 subsequently executed the rights the parties determined the latter instrument, 5-Vendor for and it of -Principal action maintained. surety-Deviation from principal-Release of laws-Registered Priority 149iergrantee-Postponement-Notice.] 19postpone which acquired priority earlier conveyance registration, actual notice, sufficient to make the conduct the 6--Execution- execution-Equittransfers-Registration Property Act-R.

mortgage-Existing debt-Consideration-Purchase

Registration-Fixtures-Interpretation DELIVERY-Continued.

DYING WITHOUT ISSUE "-Continued. Bill of sale-Personal chattels-R. S. N. (5 executors paying former rents after 1, 4 and (Bills of Sale)-55 to attaining the 21 (N.S.) c. 1, Mines Act)-41 years, and subsequent provided (N.S.) c.

Held, that neither ~ ~

~

~ ~ L ovrCninece- DRn wtot i.'sueR nor the language used the will would Dying Iot

-Revert -Dower- Annuity-Conditions re-authorie departure general rule otrait arriae

292to construction according the ordinary rm maidal meaning the words by tetesta- Seetor, and that, there would absurdity, 2-Will-Devise sons-Devise of' repugnance inconsistency construeone's share-Condition-Context-Codicil tion question, t subsequent clause limiting the estates bequeathed executory over must interpreted is referring to all the property devised to the testator's Ss oand preceding claust s DISTRESS-Landlord and tenant-R. O.

c. 28-Construction of statute -Dis- construed asrhrn referene tofir tress-Goods of person holding " under" tenantat death first devisee who thus took Estoppel.1 The Ontario Landlord and Tenant

Act S.

., 187, exempts estate subject to the executory .1 c

2) eemps fomover.

al. al. distress rent the property all persons cept the tenant or persons liable.

The word

" tenant " includes subtenant, assignees of the 2-Construction of will-Executory tenant and any person actual occupation under -Contingencies-' Revert ''-Dower-Annuitywith consent of the tenant. Held, reversing Election widow-Devolution of Estates Actthe judgment of the Court Appeal, that (0) 28-Conditions restraint of marpersons let into possession a house agent riage-' Wills of Ontario," R. 0. appointed assignees of tenant for the sole cs.

purpose exhibiting the premises to prospective lessees and without authority to let or grant 3-Will-Devise sons-Devise possession of them, were not in occupation under" the said assignees, and their goods share-Conditiot-Context-Codicil were not liable to distress.

al. v.

DOWER-Construction of will-Executory devise over-Contingencies-" Dying issue"- " Revert "-Annuity-Election widow-Devolution of Estates Act, (0.) 22-Conditions in restraint of marriage-" The Wills Act

Ontario," R. 0. - STATUTABLE-M1aster and servant- Negligence-" Factories Act" -- B.S.0 arts.

-Accident, cause of- Conjecture - Evidence- Onus of proof-Statutable duty, breach of-Police

"DYING WITHOUT ISSUE "-Will, construetion of-Executory over- Conditional

Life estate-Estate tail.] testator died having previously made his last will divided into numbered paragraphs which devised property amongst certain of his children.

By the third clause devised lands to his F.

on attaining the age of years,-" giving executors power to lift the rent and rent,

EVIDENCE- Warranty- I in construction -Satisfaction acceptance and user-Variation proof- Expert testimony- Concurrentfindings.] In an action where the defendants counterclaimed damages caused defective struction of a boiler their steamer, which had collapsed : Held, reversing the decision of the Supreme Court British Columbia, that conclusive should not given to the evidence witnesses, called experts the cause the collapse, who not present at the time of the accident; whose evidence was not founded upon knowledge but was mere matter opinion, who gave no reasons and stated facts to show upon what their opinion was based and where the result would defective design and faulty struction all boilers built after the same pattern which the evidence showed in general The judgment therefore allowing the counterclaim was set aside tnough against the concurrent findings two courts below.

2- Riles of evidenc-" The Canada Evidence Gambling instruments and cer- 6--Statute Frauds-Meorandum -Repudiating

Criminal and confiscated the judgment of a Police Magistrate sitting in the city

Montreal.

An action was brought against the

7-- law-Navigable waters- -Crown-Dedication User-Obstructiontonavigation-Public -Balance behalf.

8-Will-Execution of- 3-Master servant-Negligence-"

3019-3053-C.

1503-Civil

-Conjecture proof- EXECUTION of-Police The transfers-Equitkilled whilst rihts-Sales execution-R. engineer charge f

The p and machinery.

In action the rovison Sec. widow damages the evidence altogether

(

SC c. ) circumstantial and left manner which r accident occurred matter inferred rullte fl tate af excion deditor can tonlye fonjecrumvidncesproved.

Held, that tane charges liens and equities which the same oe in ha subject hands the execution debtor, sary prove direct evidence, or weighty, and o ieteeeuinceio n and consistent presumptions arising io of tite oer prio eredtran the facts proved.

hat the accident was fot erher b actually caused the positive fault, imprudprotect the lands interebe mediate sales and dispositions the execution enreor cth person to debtor

If the sheriff however, the prproo chaser priority registration the sheriff's bisng eryw ion usbe would under

Act take priority fmiss prosions t previous unregistered transfers.

h ctne (Rto arts301 police ly au te teLAN

O. regulations and the statutable duties thereby imposed not the employers towards their employees provided I bthe civil

EXPRESS COMPANY-Ba ilees-Common carrers-Receipt for parcel-Conditions cedent-Formal claim-Pleading- 4--Railway

"hot-box"-Damages

Evidence-Burden proof-C.

Questions offact In action against a raillaw-Municipal hot-box in ferriesresolutions-Intermuniferry- -Disturbance and it was not shewn that such finding was and 24-B. N. Act R. 8.s.8, and clearly wrong erroneous, the Supreme Court Ord. N. Ter. 28-Ord. N. would not interfere with the finding.

T. 7 of 4-Companie, club Principal surety-Giving prin- FIRE

729' Canadian waters - Property in I'ISHERIES-Continued.

beds-Public harbours-Erections in navigable I waters-Interference with navigation-Right of, are intravires. Per Gwynne J.-R. 0. c fishing-Power grant-Riparian proprietors- ultra vires far it assumes author- Great lakes and navigable rivers -Operation of the land covered within public harbours. Magna Charta-Provincial legislation R. 0. margins navigable rivers and lakes c. 47-55 V. c. may if there understanding and (.)-R. S. Q. arts. to with the Dominion Government proteciton parian proprietors confederation had against interference with navigation. exclusive right fishing in non-navigable, and t nd Q. arts. are navigable non-tidal, lakes, rivers, streamsand valid if pa-sed aid of Dominion Act waters. the of which had been granted to protection fisheries.

If not they are ultra followed.-The that riparian proprietors ad medium filum aquie not to the great lakes or navigable FIXTURES-ortgage

Mining machineryrivers. Where beds such waters have not B-gistration-Interpretation nf terms-Bill granted the right fishing public and sale-Personal chattels-Delvery-R N. not restricted to waters within the and (5 ) 1, 4 and (Bills of Sale)-65 the tide.-Where the provisions of Magna V (N.S. c. 1. (The Mines Act)-41 & 42 Charta are not in the province of

(.S.)

Quebec, the Crown, right of the province, may grant exclusive rights of fishing tidal waters, except tidal public harbours in which as in public harbours, the Crown right of the 2--Property real and personal-Immovables by Dominion may grant the beds and fishing rights. destination- ovables incorporated with Gwynne J. dissenting.

Per Strong J. and hold-Severance from realty-Contract-esola. King and Girouard JJ.-The provisions ofMagna tory condition-Conditional sale-Arts Charta relatingto tidal waters would C.C.-Hypothecary creditor- Unpaid cept Quebec), unless repealed by iegislation, but such legislation has probably been passed the various provincial legislatures; and these visions of the charter far they affect public thority.] an assignment benefit barbours have repealed Dominion legisla- ditors authority assinee not only to tion.-The Dominion Parliament cannot author- prefer parties to acconmodation paper but the giving lease, license otherwise the pay all "costs, charges and arise right fishing in non-navigable waters, nor consequence' paper a badge navigable waters the beds and banks which fraud.

are assigned to the provinces under the British

North America Act.-The legislative authority 2-Debtor and creditor-Composition and of Parliament under section item charge-Acquiescence in-ew arrangement to the regulation and conservation of terms of settlement-Waiver oftime cianse-Princoast and inland fisheries under which it may cipal and agent-Deed of discharge-Notice require that person shall public waters withdrawal from agreement-raedutent preferand Fisheries, may for such license and prohibit all fishing without it, and may hibit particular classes, such as foreigners,

FRAUDS.

OF-Memorandum in conditionally fishing.

The license re- iritinq-Bepudiating contract

A writing quired will, however, merely personal containing statement the terms ferring qualification, and give no exclusive right contract the sale of requisite to to fish a particular locality.-Sction and constitute memo, under the section other portions Revised Statutes Canada, c. Statute Frauds, may that far they attempt to confer exclusive though it repudintes the sale. ultra V.

vires. Gwynne J. contra.

Per Gwynne J.- Provincial legislatures have no jurisdiction to'FRAUDULENT PREFERENCES-Asignment deal with fisheries.

Whatever within for of crelitors-Preferences-B S.N.S. c. that term given to the Dominion British 5, 10-Ohattel e-Statute North America Act, section item includ- I Eliz.] assignment under the statute grant of leases or licenses for exclusive fishing.

Per Strong Taschereau, King itors if it gives first preference and Girouard JJ.-R. 0. and which theassignee and provides to inclusive of the Ontario Act of are allowance ofinterest the ofthe said intra vires but may superseded Dominion until and the assignee permitted legislation.-R.S.Q. arts. inclusive tinue same possession and control ofbusi- FRAUDULENT PREFERENCES- Continued. GUARANTEE-Continued.

ness previously bad, though no one these sureties that bad not punctually perprovisions taken itself would have such formed undertakings respect of previous -A provision that "the assignee shall only employment, nor non-disclosure a liable for such moneys as shall into his representation the sureties they signed hands such assignee unless there gross a new bond that punctually pernegligence fraud his part " will also avoid formed.

the assignment under the statute Elizabeth.

V. al.

Canadian waters

Property in GAMING-Criminal 575-Persona beds-Public harbours-Erections in navigable designata-Officers facto and jure-Chief waters-Interference with navigation- -Right constable-Common gaming house-Confiscation fishing-Power grant-Riparian proprietorsof gaming instruments, moneys, @c.-Evidence- Great lakes and navigable rivers-Operation The Canada Evidence Act, 2, and Afagna arta-Provincial egislation-R. 0 the Criminal authorizing c. 47-55 c 5 19 the issue warrant seize gaming imple- and (O.)-R. Q. arts. ments the report " the chief constable or beds ofpubl-ic harbours not granted deputy chief constable" a city town, federation are the property Dominion not mean that the report must from an Canada.

Holman Green(6 S.C. R.707) having the exact title mentioned but only followed.

The all other waters not one exercising such functions and duties granted belong to the respective provinces will bring within the designation which they situate, without any distinction in the statute. -Therefore, the warrant could between the various classes waters. Per properly issue the report of the deputy high Gwynne J.-The all waters are subject constable of the city of Montreal.

Girouard J. to the jurisdiction and control the dissenting-The warrant would good if Parliamentsofaras required for creating future sued t report of person whofilled defacto harbours, erecting beacons other the of deputy high constable though was works the Canada under British not such dejure.-In an action to revendicate North America Act, item and the the seized the rules evidence administration fisheries.- C. civil matters prevailing the province would "An Act respecting certain works constructed apply, and the plaintiff could not invoke " The navigable rivers," intra aires of Canada Evidence Act, to

Parliament -The Dominion Parliapetent witness in his own behalf the province ment power to declare what shall Per Strong O.J.-A judgment interference with navigation and to require claring the forfeiture money cannot its sanctiot any work navigable waterscollaterally impeached in an action of reven- A province grant land extending into dication.

lake river for the purpose there being built thereon wharf, warehouse the like, and the grantee obtaining the sanction the Domin- GUARANTEE-Principal and surety-Guaran- ion may build thereon subject to compliance bond-Default of principal-Non-disclosure with

S.C. 92-Where the provisions creditor.] was appointed agent of a

Magna Charta are not pany sell its goods commission, and the Crown right ofthe province may grant gave bond with sureties for faithful discharge exclusive rights offishing tidal waters, except ofhis duties. appointment was renewed year tidal public harbours, in public after with the sureties harbours, the Crown right the Dominion, being given to the company each renewal. grant thebeds and fishingrights. Gwynne His agreement with the company only authorized issenting.

GwynneJ.-R.5.0.c.24, to sell for cash, butat the eni of each season ultra vires it assumes authorwas arrear in remittances, which the land with water within attributed to slow collections, and which public harbours.

margins of navigable settled giving an indorsed note, retiring the rivers may if there an understanding same the bond for the next year was with the Dominion Government protection ecuted.

the season of the company against interference with navigation. The Act discovered that had collected moneys of and Q. arts. are valid which had made return and brought an passed aid Dominion Act protecaction to recover the the sureties.

If not they ultra vires. In Held, reversing the decision of the Court matter ofJUISOION FSHpeal, that each year there was employment EaIES-444 of distinct and independent those of preceding years; that the position the HIGHWAY-Municipal corporation-Repair sureties re-appointment was the same as if streets-Pavements-Assessment property other persons had signed the bond of the pre- ner-Double taxation-24 c. (N.S.)-53 ceding year; and that the company was under c.60,s.14(N.S.)] 14ofthe Nova Scotia no obligation, taking bond, inform statute c. City Council of Halifax 49J

HIGHWAY-Continued.

HUSBAND WIFE-Continued. authorized to borrow money for paving the amendment-R. S c. 50-N. W. Ter. Ord. manent material, one-half the cost to a charge against front of which the work should done and to a first lien on such properties.

concrete sidewalk waslaid, under authority ofthis statute, HYPOTHEC front 's property and refused to pay half the costs the ground that his predecessor title had under the Act c. IMMOVABLES-Property, real and personalfurnished the material to construct brick side- Immovables destination--Movables incorporated walk front of the same property and that it with freehold-Severance from realty-Contract would imposing double tax on the property I -Resolutory condition-Conditional sale-Hypoif had to pay the concrete sidewalk thecary creditor-Unpaid vendor-C. arts. Held, reversing the judgment of the

Supreme Court of Nova Scotia, tat there was nothing dubious or uncertain in the Act under which the concrete sidewalk was laid; that it INSOLVENCY-Report of collocation- Contesauthorized exception in favour property tation of-Appeal-Amount in controversy-Pecuowners who had contributed the cost of side- niary interest of appellant-Arts. called upon to pay half the cost of a concrete sidewalk would not paying for the same thing because the property had FIRE- Conditions in policycontributed bricks construct a sidewalk which, Breach- Waiver -Recognition of existing risk had worn out, useless and dan- after breach - Authority of agent.]

policy gerous.

CITY

V. insurance on factory and machinery -36 contained condition making it void if the said property was conveyed or the 2- Repairs of streete-Liability for non-feas- interest of the parties therein changed. - - - - - - 1 affirming the decision the Supreme Court Brunswick, that a chattel mortgage given the assured said property his 3-Negligence-Obstruction of street-Assess- terest therein was changed and the policy actActonIf' said condition.

Held, further, that warranty--------------176 an agent powers limited and forwarding applications for insurance had no authority to waive a forfeiture caused such Constitutional law-Municipal corporation Co.-585

-Powers of legislature-License-Monopoly- MARINE-Voyage policy-" At Highways and ferries-Navigable streams- from" port

Construction of policylaws and resolutions-Intermunicipal ferry-Tolls Usage] ship was insured voyage "at -Disturbance of licensee-North Territories and Sydney St. John, there and Act, R. S. c. and 24-B. N. Act thence,' etc. went to Sydney for orders c. 8. and 15-Rev. N. W. Ter. and witout entering within the limits of the 28-Ord. N. W. T. no. 7 of port statute purposes, 4-Companies, club associations and partner- brought at near the mouth of the harbour ships

Syduey well known port call, that HIRE RECEIPT-Property, real and personalgoing there orders never entered the Immovables destination-Movables incorpor- harbour, and that the insured was within ated with freehold-Severance from realty-Con- port according Royal Surveyor's chart tract-Resolutory condition - Conditional salefurnished navigators.

Held, affirming the Hypothecary creditor- Unpaid vendor-C.C. arts. decision of Supreme Court Brunswick, that words "at and Sydney" at and from first arrival the ship; that at Sydney within the terms the WIFE-Contitutional lawpolicy; and that had attached when Marital rights-Married woman-Separate estate attempted to put about St. John. of Territorial

Statute-Interpretation of-40 c. 7, 3 and TNOO., al.a

MARINE-Continued.

INTEREST-Continued.

2-Goods shipped and insured in bulk-Loss of o/equity of redemption-Accounts. portion-Total partial loss-Contract V.

ance-Construction.] M. shipped schooner, a cargo railway ties a voyage from Gaspe JUDGMENTr-Againstfirm-Liahility reputed to. Boston, and a policy insurance the partner-Action onjudgment]

In an action cargo provided that " the insurers shall not promissory note against M. . & as liable for any claim for damages on makers and J. 1. indorser, judgment renlumber

*

* but liable for total of a default against the and verdict part if amounting per cent on the whole 'found favour J. it appeared the aggregate value of articles."

certificate evidence that had indorsed without considergiven the agents of the insurers when the in- ation tor the accommodation the holders, and surance effected had the margin the an agreement with them that should lowing red ink : "Free partial not held any manner liable note. loss unless caused stranding, sinking, burn- Held, subsequent action the judgment to ing, or collision with another vessel, and recover J. 1. member of firm who amounting to ten per cent."

the voyage had made the note, that the verdict the part the cargo was swept the vessel during former suit was conclusive favour, the a storm, the value which M. claimed under agreement meaning that was not to the policy.

Held, reversing the decision the liable either as maker indorser.

&

J. dissenting, that M. was entitled to recover;

that though the law of insurance the loss 2- Criminal

Confiscation would only have been partial, the insurers, gaming instruments, ,c-Action the policy, agreed to treat it as total loss; recover.]

action revendicate and that the the certificate did not and confiscated under the provisions alter the terms of the policy, the words Criminal Code: Held, per Strong from partial loss," referring not to apartialloss thatsa judgment declaring the forfeiture in the abstract applicable a policy the ofmoneys cannot collaterally ordinary but such loss according to peached action revendication. Held, further, that the policy, certificates and together constituted the contract and 3-oint company-Ultra vires contract must construed to avoid any repugnance

Judgment between their provisions and any ambiguity company incorporated definite purposes should construed against the insurers, power to pursue objects other than whom all the instruments emanated.

V 'pressed its charter reasonably Co.

incident thereto, nor their powers the attainment authorized objects amanner Constructive total loss -Notice of abandon- notauthorizedhy thecharter. Theassentofevery ment-Sale master-Necessity for, shareholder makes difference-If company sale.] If disabled ship can taken port I enters into transaction which ultra vires and repaired, though at an expense far exceed- and litigation ensues whiah a ing its value, unless notice of abandonment has judgment entered consent, suchjudgment been given there is not even constructive total binding parties obtained after loss.-If the ship a place safety, but can- contest and not set because the not repaired where nor taken a port transaction was beyond the power the cannot received for weeks, the of preserving her, the danger of her being 4--Appeal-Time limit-Commencement ofdriven shore and the probability of great Pronouncing or entry ofjulgment-Securityterioration in value during the delay will justify Extension of time-Order of judge-Vacationthe master, when acting fide the l.S.C. c. 42.46.

benefit of all concerned, in selling without waiting instructions, and the sale will excuse notice abandonment

5-Appeal-Time limit-Commencement of- 65 Pronouncing or entry ofjudgment-SecuritylExtension of time- Order of judge-R.S. c. INTEREST - Appealfrom Court of Review--Appeal Privy Council-Appealable amount-Ad- s4 e dition of interest-C. P. arts.

-R. Q. art. 2311-54 s.3, s.s. 3-54 V. (P.Q.) c. (amending C.C.P. art. JUDICATURE (Ontario -Practice-Ad- - ---- 216 dedparties-Order and

Mortgage-Loan pay prior incum- JUDICIAL PROCEEDING-Appeal-Jurisdicbrance-Interest-Assiguient of mortgage-Purtion-Judicial proceeding-Opposition judment-C.C.P. arts. 484-493-R.S.C. c. Quijuresuo utitur neiinem kedit amount-54

4-Retrospective legislation.]

under the provisions of articles and In jure non remota causa proxira of Civil Procedure Lower Canada tatur-135 the purpose vacating a judgment entered default, a "judicial proceeding"

within the meaning "The Supreme and Cujus dare ejus disponere

Courts depends upon the amount controversy, there

Canada the amount of principal and interest

Volenti non fit injuria at the time of the filing of the opposition under judgment value of

LEGISLATURE- Constitutional law-Marital rights-Married estate-Juris- JURISDICTION-Action-Jurisdiction 1erritorial Legislaturetain-Mortgage foreign lands-Action of-40 and aside-Secret

50-N.

. 1889397 sitn.

-Judicial judgment-Appealable legislation-C. 484-493-R. S. Public harbours-Erections in navigable waters navigation-Bights ing Power grant

Riparian proprietors- Great lakes and naviable rivers-- Operation 28-Construction of statute-Distressof person holding "under" tenant.]

Ontario Landlord and Tenant Act c. exempts distress rent the property of all peisons except the ant person liable. The word tenant includes sub-tenant, assignees the tenant and actual occupation under with sent of the tenant.

Held, reversing the judgment of the Court Appeal, that persons into possession house agent appointed assignees of a tenant for the purpose hibiting the premises prospective lessees, without authority to let grant possession notin occupation " under " the said assignees, and their goods not liable to

LEASE CHATTELS-Property, real and personal-immovables destination-Movables

Magna Charta-Provencial legislation-R. 0. 4;-55 (0.)-R. Q.

Filling -"Buildings and erections" -" Improvements."] The lessor of water lot who had made cribwork thereon and it with earth to the level adjoining lands and thereby made the property available the construction sheds and warehouses, claimed compensation the works under proviso the lease the lessor pay " buildings and erections" upon the leased premises at the end of the term. Held, affirming the judgment the Court Appeal, that the crib-work and earth-filling were not "buildings and erections" within the meanincorporated with freehold-Severancefrom reatt,

SITtyE-Action-Jurisdiction enter- -Contract - Resolutory condition- Conditional

-Mortgage offoreign lands-Action HIypothecary creditor- Unpaid vendoraside-Secret trut] A Canadian coart cannot C. arts.

LICENSE-Constitutional law-Municipal poration-Powers of legislature-License-Hono- bring suit against him directly either for an poly-Highways ferries-Tolls-Ferry-Dis- I account under the mandate, money had partnerships-North-west

24-B.

MARINE INSURANCE.

road-Narrow ESTATE-Will, of-Death 23-" shipsissue-Executory over-Conditional ships-Breach rues Preoffault-Contributory LOCAL IMPROVEMENTS-Municipal corporI approach eacother the posiation-Pavements-Assessment tion passing" (with light N.S.)c.

(KS.)~. 0,one ahead the other), where the taxation-24

.--N----------both changed they will s.143 rfeach other, statutory rule imposed, but they are governed the rules good mansip--If "passing" act& 2- Municipalconsistently with seamanship and the other orpoatin--y-la-Asessentpersists, without good reason, keeping the wrong the channel ; starhoarding thatthe proaching; and, after signalling that CHARTA-Canadian water-Pro- thereby turning her starboard, beds-Public harbours-Erections collision which -The nonobservance the statutory rule (art. that grant-Riparian steamships shall slacken stop prietors-Great rivers-Oper-' necessary approaching another Provincial ship involve risk collision, not R. 0. c. 47-55 s.s. 5 consIdered tact contributing collision, and (0.)-R. Q. arts. provided the have been avoided Where the provisions of Magna Charta are not the impinging reasonable care province the Crown erted time the accident -Excusable right of the province may grant exclusive manouvres executed agony of collision rights fishing tidal waters, except tidal brought about another cannot public barbours which, public harbours, imptted contributory negligence part the Crown right the Dominion, may grant collided with-The rule that the and fishing rights. Gwynne J. dissent narrow channels steamships shall, when ing. Per Strong and King and Girouard J and practicable, keep the staiboard (art. J provisions Magna Charta relating to not override general rules iavigatidal waters would the provinces tion.

Leveriupton (

P. followed. but legislation probably passed

MARRIAGE-Conditions of-" '-Contingencies- Annuity-Dower-lection bywidow-evoltios 22-' FisHERIES444 ofOntario,' S. 0. MANDATE-Partner. hly-Division of

Art. C.C.-Debtor creditor-Account.] WOMAN-Constitutional law-Marital rights-Harried -Staiute-Interpretation made according to the rules laid down anendments-R. 50-N. Ter. Ord. Civil r lation the partition of of

The provisions ordinance far they can made respecting personal property apply.-Upon

4-Companies, Act."-The ance are not inconsistent with sections lands-Statoies Act," which exempt liability her tuteof Frauds-Registry.] ownerof an equity husband's debts the personal earnings and busi- redemption in mortgaged lands, called the profits married woman.-The words Christopher farm, signed memorandum "her personal property'' the said ordin- follows:-" agree charge the east half ance-no. are unconfined any context, and Ilot seventh concession of Loughmust interpreted not having reference only i borough, with the payment two mortgages the "personal earnings"

mentioned held M. and respectively, upon but all the personal property belonging to ,the Christopher farm

* * * amounting to woman, married subsequently to the ordinance,

* * * and agree demand to well all the personal property acquired ecute proper mortgages of said land carry then married before it out this agreement, or to pay the said Chrisacted.

Brittlebank Gray-Jones (5 topher mortgages."

Held, affirming judg- 397 ment of the Court Appeal, that this instrument created present equitable charge upon MASTER SERVANT-Negligence-" east half of lot favour the mortgagees Act,"-R. Q arts.

art.

of-Conjecture-Evidence-Onus lroofof-Police plaintiffs husband was accidentally killed sale.]

mortgagee possession sells whilst employed engineer charge the ithe mortgaged goods in reckless and improdefendant's engine and machinery. Inan action vident manner liable account not only the widow damages theevidence was alto- what actually receives, but for what gether circumstantial and left the manner in might have obtained for goods had acted which the accident occurred matter of conjec- with a proper regard for the interests of the it was necessary to prove direct evidence

3--Mining Registration-Fixtures that ofterms-Bill of sale-Personal chattels-R.S.N.S. prudence or neglect of the person sought to (Bills Sale)-55 charged with responsibility, and such proof ynes Act)-41 4 (N.S.) s.4.] being entirely wanting action must dis- "fixtures"

included the meaning the missed.-The provisions of " The Fac- pression " Personal Chattels " the tenth tories Act," arts. inclu- tion of the Nova Scotia "Bills Sale Act," are sively) are intended to operate only police only such articles are not made a permanent regulations and the statutable duties thereby portion of the land and may passed hand not the civil responsibility of hand without reference to any employers towards their employees provided affecting the land, and the " delivery " referred the Civil Code.

the same clause only such delivery MACHINERY-Jfortgage-Registration-Fixtures-Interpretation of terms-Bill sale--Personal chattes-Delivery-R.S.N.S.

(Bills of Sale)-55

Act)-41 4 ferries-Navigable streams-By-la s-In erry- Tolls-Disturbance

R.S.C. 24-B.N.

28-Ord. N.W.T.

act.-An instrument conveying an interest lands and also fixtures thereon not require registered under the Nova Scotia "Bills Act" 5 and there is fixtures covered alicensee's or tenant's mortgage and those covered mortgage made -Jurisdiction lands-Secret trust-Lex

MORTGAGE-Contineed.

MUNICIPAL CORPORATION-Continued. Property, Halifax was authorized borrow paving the sidewalks of city with concrete from realty-Contract-Resolu- other permanent material, one-half the condition-Conditional sale-Bypothecary to charge against the owners the respeccreditor-Unpaid tivepropertiesin fiont of which the work should and to first properties. SeeA concrete sidewalk was laid, under authority this statute, front L.'s property and prior mortgage-In- to pay half the costs the ground that of under the Act furnished material to'con- 443 struct brick sidewalk front the property and that it would imposing double tax property had pay the MOVABLES-Property, real and personal- crete sidewalk well. reversing the destination-jiovables judgment of the Supreme Court Nova Scotia, freehold-Severance from realty-Con- that there was nothing dubious uncertain tract-Resolutory condition-Conditional the Act under the concrete sidewalk was creditor-Unpaid vendor-C. laid that it authorized exception favour - 419 property owners who had contributed the and that to called upon pay half the CORPRATON paying twice for thing because streets-Liability for non-leasance.] In the ab- property had contributed bricks to construct sence ofa statute imposing liability negligence sidewalk which, had worn or non-feasance municipal corporation not usele-s and dangerous.

reason of a sidewalk having been raised to I A allowed to get out of repair. Municipality of Pictouv mentagreement entered the Corporation Toronto with railcompany and other property owners the 2-Constitutional construction ofa subway under tracks oftegislature-License.-Monopoty-High- company ordered Railway Committee appovtroned resolutions-Intermunicipal ferry-Tollsbetween the parties the agreement. 24-B.N.A.

16-Rev.

limit the subway, the street being lowered 28-N.

front of the company's lands, which authrity given the Legislative extent, cut abutting Asseuibly of the North-west Territories, certain streets ; retaining and orders in council thereunder was found necessary.

the agreement legislate to "municipal institutions " and company abandoned all claims damages matters of local and private nature," (and injury its lands construction the perhaps license revenue) within the works.

city by-law assessing Territories, includes the right to legislate as to the company its portion the cost ferries.-The town of Edmonton, its charter the roadway n local improvement, and "The Ferries Ordinance

Ord. greater part of property assessed N.W.T. c. grant the exclusive right approach the subway.

that to maintain a ferry across navigable river which the extent which the lands company not within territorial limits of the municut abutting the street cipality; and under the charter the powers work injury, and not benefit vested the Lieutenant-Governor Council lands and therefore not within clauses the Ferries Ordinance are transferred the the Municipal .ct local improvements municipality, such right may conferred that length of the retaining wall the license and by-law not necessary.

work was necessary construction the 22 subway and not assessable; and that greater part the work, whether not absolutely necessary the construction subway, of taxation-24 corporation under the advice (N.S.)]

Scotia statute V.c the City Council public work interest the rublic - MUNICIPAL CORPORATION- Continued.

NAVIGABLE WATERS-Continued. Held 3-Canadian waters-Property beds-Pubharbours-Erections waters-Innavigation-Bights fishinggrant-Biparian proprietorshad rivers-Operation Charta-Provincial legislation-R. (187) Notice to property owner of assessment for c. s. 47-55 c. $s.5 19andl2 (0). local improvements under sec. of the

S. Q. arts.

cipal Act cannot proved an affidavit that notice the usual was mailed to the

S owner; the court must, upon view the notice NAVIGATION- Constitutional law-avigable waters-Title of-Crown-Dedicalands-Presumption judgment -User-Obstruction navigation-Public sance-Balance warranty-Negliqence-Obstrucwaters-Property beds-Public offect waters-Interfeence nuvigalion-Bight a]fishing-Power grant-Biparin proprietors-Great WATERS-Constitutional

-Prvincail legislation-B bed-Crown-Dedication of 21(0.)navigation-Public nuisancethe beds navigable rivers the

-Narrow channel-Navigation, of-B. and 23ships-' ships-Passing" ships-Breach rules-Presumption fult-ConlributorY negligence-foiety itto the public use.-The user of a bridge over navigable river for thirty-five years ient raise presumption dedication.-If pro- 3053-C. 1053-Civil responsibility-Acbridge that it not have objected to it proof-Sattable of-Police the navigation, was bound permit theaccidentally mitneof the bridge-A bu killed whilst employed as engineer charge bridge.-An navigation cannot justified the ground defendant's engine and machinery. thatthepublc bnefi jutifid the for damages the evidence that the public benefit derived it weighs the inconvenience itner which the accident occurred matter nuisance though of very great public and the obstruction the slightest possible gree.

a.

action it necessary to direct evi- 322dence, or weighty, precise and coporaionpresumptions arising facts proved, that accident was actually caused the positive imprudence neglect ofthe person sought ferries streams-By- chargad with responsibilit and roof ferry being g

Tolls-Disturbance muse and24-B. tois the prs

'3Que ac ss. 8, and 15-Hev. Ord.

as aolic lions IV. (888)c.

2-Or. N..T.,no.

intended to operate only splc. rgltos N. W. Ter 28-Ord. N.W.T., 7 fo

4-Companies, the responsibility of employers partnirships towards their provided tle 2-Railway

Sparks from hot-boz'-Damages

Evidence-Burden of proof-C.

Questions In an action against railway company for damages loss of property alleged have occasioned sparks an engine or hot-box of passing train, in which the court appealed from held that there was sufficient proof that the occurred through the fault or negligence of the company and was not shown that such finding was clearly wrong or erroneous, the Supreme Court would not interfere with finding.

3-Municipal cotporation-Repair

4-Negligence-Obstruction fact-Action warranty-default-Sate powers-"

Practice

6-Maritime law-Collision-Rules

-Narrow channel-Navigation, of-R.

ships-'' Meeting' ships-" Pass- 7--Railway Co.-Carriage lines-Special contract-Loss house-Negligence-Pleading

NOTICE-Continued.

subsequent purchaser had actual notice which was bound notwithstanding the informality in proof execution, which did not make the registration a nullity. Held, per Taschereau J., that the agreement not require attestation, and if the solicitor was not witness had carriers-Express parcel-Conditions cedent-Formal claim-Pleading-Money 3--Registry laws-Registered deed-Priority grantee-Postponement clause-Prinagent-Deed discharge-Notice 5--Principal agent-Agent's agent-Principal principal-Knowledge 6--Principal surety-Guarantee ofprincipal-Non-disclosure " NOTICE-Mortgage-Agreement offrauds-Registry.] NOVATIONfor Assiqnment-Principal surety-Deviationfrom time-Creditor rightsprincipal-Release oflandsmortgagees of the Ohristopher farm brought an was contended that the solicitor was not sub- NUISANCE-Livery stable-Ofensive odoursscribing witness but only the per-on to Noise of horses.] though livery stable the letter was addressed. Held, affirming the structed with all improvements drainjudgment Court Appeal, that the and ventilation, if odour therefrom solicitor signed the agreement witness and and the noise made the horses not, the document upon registry the residents proprietor liable damages INI)EX.

Partnership-Division of assets-Art. 20 C.-Mandate-Debtor creditor-Account.] I the province of when there is Constitutionallaw-Navigable waters-Title ofstream-User-Obstruction -Public nuisance-Balance obstruction navigation cannot justified down the Civil in relation the partithe ground that the public benefit to derived of successions, far as they can made from it outweighs the inconvenience it causes. apply.-Upon dissolution a partnership it public nuisance though of very great where the partners has entrusted public benefit and the obstruction of the slightest with the collection of moneys due the mandapossible degree.

,makers, person who holds himself out to the payees a member of such though may not fat, liable a maker.-In action upon promissory note against M. & makers, and J. as indorser, judgment was rendered default against the and a verdict was found favour of J.I. it appeared the evidence that had indorsed without judgment to recover J. as member the who had made the note, that the verdict the former suit was conclusive his favour, the said agreement meaning that was not to liable either maker or indorser.

for of vendee-Principal from agreement-Giving -Creditor of rights-Secret principal-Release nds-Arrears interest-Novation-Discharge creditor-Payment Creditor-Security judicata

Will-Legacy-Bequest of

EACE OFFICER-Criminal dejurein partnership for over thirty years and the lowing bequest: will and bequeath unto my brother J. all interest the business of J.

& Co.in the said city of St. Catharines, together with all sums of money advanced to the said business at any time, for his absolu- PLEADING -Bailees jar parcel-Conclain- Pleading -Money received-Special that pleas-' express company was under no obligation to indemnity the testa- gave receipt money forwarded with tor's estate against liability for the debts of the the condition indorsed that company should the assets should insufficient for not liable for any claim respect of the the purpose and did not his right to have package unless within sixty days claim should made written the contract annexed. PLEADING- Continued.

the parcel, the common count for money had and received, the plea of "never indebted"

ut issue all material facts necessary to establish the plaintiffs right action.

2-Rejudicata - Defence by-Judicature Act.]

Under the Judicature Act of Ontario reejudicata cannot relied defence unless specially pleaded.

3--Railway company

Carriers-Connecting lines-Special contract--Loss fire-Negligence.]

In a statement of claim, to anticipate and reply to matters of defence a highly improper practice.

POLICE REGULATIONS-Master and servant

-Negligence-" Factories Act "-R. Q.

3053-Art. C.-Civil siblity-Accident cause of-Coniect re-Evi

-Onus of prool-Statutable breach of- PRACTICE- Continued.

the lands devised to was improperly aly. 292 3-Replevin-Equitable title- Principal and agent-Advances agent buy goods-Trust goods mixed with of agent.] Under the present system procedure in Ontario an equitable title to chattels will support action of plevin.

&

4---Appeal-Final judgment Petition for leave intervene-Judgment on-Interlocutory proceeding------ 5--Money counts-Notice of claim-Special pleas-" Never

6-Action of warranty-Negligence-Obstruction of street-Assessment of damages-Questions offact

-- -- -176 PORT-Marine insurance-Voyage policy "At and from"-Construction of policy-Usage - 5 7--Adding parties-Orders and Ontario Judicature Act

PRACTICE-Case in appeal-Additions made judgments after institution of appeal.] Per 8-Chattel mortgage-Mortgagee inpossesswn- Taschereau, J.-Where court had pronounced Negligence-Wilful default-Sale erpowersjudgment "Slaughter sale"-Assignment for had creditors-Revocation of purporting additions to their respective

9-Appeal-Time limit-Commencement of- PronouncingorentryofJudgment--Security-De- 58 lay filing-Extension of time-Order ofjudge- Vacation-R.S.C 42, 46 - 695, 707 2- Devolution of Estates Act. V. (0.)

Added parties-Orders - Ontario Judicature Act-R. S. 0. c. e.

PREFERENCE-Payments debtar-Approtator divided real estate among three printion-R.S.O. c.

the portion of the eldest, charged with the payment each of brothers and its proportion of the widow's dower.

also provided that "should any of my three sons without lawful issue and leave widow, she shall have the PRESUMPTION.

of dollars per annum out estate long remains unmarried, and the balance of the estate shall revert to his brothers PRINCIPAL AGENT-Agent's authority with the said dollars her marriage." -Representation agent-Principal C. died after the testator, leaving widow -Advantage other than principal-Knowledge but no issue. Held, that the mortgagee of of Agent-Constructive notice.] Where an agent reversionary interest of brothers Act outside of the-apparent his- 741' AGENT-Continued.

authority, and makes a representation to the person with whom acts to advance the private ends himself or other than his principal such representation cannot called that of the principal.

In such a case is immaterial whether or not the person whom the representation was made believed the agent had authority make it.-The local manager bank having received a draft accepted

]uced the drawer accept representing that certain goods of own were held the bank as security for the drafts. In action the draft against the acceptor: Held, affirming the decision of the Supreme Court of Brunswick, that the bank was not bound such presentation ; that taking the benefit of the acceptance it could not said to adopt what the manager said in procuring it which would burden it with responsibility instead of conferring benefit; and that the knowledge the manager with which the bank would be affected should confined to knowledge of what was material to the transaction and the duty of the manager to make known to the bank.

2--Trust-Principal agent-Advances goods-Trust of agent-Replevin-Equitable is entrusted principal with money to goods the will considered trust funds hands and the principal has the same terest the goods bought as had the funds producing it.

If the goods bought are mixed with those of the agent the principal has equitable title to quantity to taken from the mass equivalent to the portion of the money advanced which has been the purchase as well to the unexpended balance.

&

3---Fire of risk breach-Authority policy insurance factory and machinery contained a condition making it void if the said property was sold conveyed or the interest of the parties therein changed. Held, affirming the the Supreme Court of New Brunswick, that a chattel mortgage given the assured said property interest therein was changed and the policy forfeited under said condition.

Held, further, that agent with powers limited to receiving and forwarding applications insurance had no authority to waive forfeiture of clause-Prinagent-Deed of discharge-Notice from agreement-Fraudulent

SURETY-Suretyship-Continuing security-Appropriation of counts.1 J. was local agent an insurance companyand collected premiums policies secured through agency, remitting moneys thus received to the branch Toronto from time to time.

Ist January, was behind remittances to the amount and afterwards became further arrears until the of October, one joined note for the for immediate discount the company, and mortgage lands collateral to the note renewals that might given, which it was declared that payment of the note or renewals or any part thereof was to considered as a payment upon the mortgage.

The company charged J. with the balance then arrears which included the sum secured the note and mortgage, and continued the account before their ledger, charging J. with premiums, and the notes which they retired time to time as became and creditingmoneys received J. H. the ordinary course their business, the note and its various renewals being also credited in this general account cash. died December, and afterwards the company accepted notes signed J. H. alone for the full amount of indebtedness, which had increased the meantime, making debit and credit entries as previously the same account.

the July, J. this account a balance which included accrued since January. and after had credited with general payments there remained due the time trial note signed 5th October, was payable four months after date with interest at 7 per cent, and the mortgage was expressed to payable equal instalments of with interest on unpaid principal.

, that the giving of the accommodation iotes without reference to the amount secured had not the of releasing the surety being an extension of time granted without his consent and prejudic9; that the renewal of notes secured the collateral mortgage was prime facie admission that, at the respective dates of renewal, at least the amounts mentioned therein were still due the security of the mortgage; thatin the absence evidence of such intention it could not assumed that the deferred payments the mortgage were to expedited instanti extinguished entries of credit the general account which included the debt secured the mortgage; and that there being evidence that the credited the general account represented premiums of insurance which not belong to the debtor, but merely lected and remitted for policies through agency, the rule Clayton's case to the appropriation of the earlier items credit towards the extinguishment of the earlier items of debit the general account would not PRINCIPAL SURETY-Continued.

PRINCIPAL SURETY-Continued. apply and there should have a reference to vendors of the assignment ard their kuowlthe master to take the account.

edge that the vendee held the land security - 29 the performance the assignee's obligations towards hound the vendors deal with 2---Giving of property not affect its valud injuriously rights Where creditor gives impede having recourse to it a his debtor an extension of time for payment a security.-ln suit taken the vendors against formal agreement not required reserve the vendee recover interest overdue, rights against surety, but such reservation may made out what took place when treating company having got the the extension was given.

(1 third party every release part lot M. & followed-Per Gwynne J. the amount that they ought have dissenting. evidence this case was not release entire lot and to show that the remedies were having received each transfer arrears reserved.-GoMAN

87 interest-lu the absence any sure indication the agreement the ratio apportionment payments the release lots should established the simple arithmetical of dividing the amount of ferred instalments stated the agreement lands-Ar- the total number lots mentioned therein. An agreement for the purchase and sale of certain specified lots of land consideration a 4-Principal bonddeferred instalments dates specified was sub- was appointed agent of company ject to payments being made in advance of sell commission, and those dates under proviso that "the company with sureties for faithful discharge his will discharge any said lots payment of duties. appointment was renewed year after the proportion of the purchase price applicable year, bond with the sureties each."

The vendee assigned all interest given the company renewal the agreement to third party a written agreement with the company only authorized assignment registered the vendors' and cash, butat the at the time there were several conversations arrear remittances, which tween the three parties as to the substitution attributed collections and which the assignee purchaser the lots the place tled giving indorsed note, retiring the of theoriginalvendee.

The vendors afterwards bond the next year was accepted from the assignee several payments ented. After the season company upon interest and account of the principal discovered that had collected remaining time time as lots and which had return, and brought parts of lots him, and without the action recover the the sureties. knowledge of the arranged schedule reversing the the Court apportioning the amounts payments to peal, that year there was employment made releases lots based their distinctfrom, and independent otthoseoffpry. supposed values, and fact released lots and vious years ; that the position the sureties parts lots sold and conveyed them to sub- re-appointment was the if other persons purchasers payments according to this had signed the bond the preceding year; and schedule and not the ratio of the full number that the company was under obligation, lots the unpaid balance of the price and taking bond, the sureties that without payment of all interest owing at the had not punctually performed undertaktime sales were made. The vendors charged the ings respect previous employment, nor assignee with and accepted compound non-disclosure imply representation interest and also allowed the assignee exten- sureties they signed new bond that time for the payment certain interest had punctually performed.

overdue and thus dealt with him in respect to Gaowsaa' e. diterent agreement reference the stitution of debtor the place the promissory nutes are signed a makers, original vendee, or release the vendee from person who holds himself out the payees liability under the original agreement. Held member such though may not also, that though the of dealing did not fact. liable maker-In action change the relation of the parties to that of a promissory note against

1. & Co., as principal creditor, debtor and surety, notice to makers, and indorser, judgment rendered default against the and verdict was found in favour of J. I. as it appeared the that had indorsed without consideration for the accommodation of the holders, and upon agreement with them thst should not held in any manner liable upon the note.

in subsequent action the jvdgment to recover J. as member the who had made the note, that the verdict the former suit was conclusive favour, the agreement meaning that was not to liable either as maker indorser.

Company-Authority ofpresident-Promisnote-Discount- Liability law-Navigwaters-Title stream-Crown-Denavigation-Pub.

nuisance-Balance

"

-Public estimates-Engineer's certificate-Reengineer-Action for

"

RAILWAY COMPANY-Railway ticket-Right stop the sale a railway ticket vey purchaser continuous journey to destination; it gives him no right stop

Q. Briggs

Q.

Railway (9 Jar.

C. Jur.

approved and followed.

CooMs

Sparks from hot-box"-Damages

Evidence-Burden of proof-C.

way company for damages loss property alleged to have been occasioned sparks from engine or hot-box passing train, which the court appealed held that there was not sufficient proof that the occurred through the fault negligence of company and it was not shewn that such was clearly wrong erroneous, the Supreme

Court would not interfere with the finding.

C0.-641 contract-Loss fire

In an action a merchant at

Out., against the

Lake Erie and Detroit,

River Railway the statement of claim

COMPANY-Continued. alleged that had goods parties Toronto and elsewhere to delivered, and the rest to the the Lake Erie &c. for carriage to That on receipt the Lake Erie of the goods it became their duty carry them safely to and deliver them to

There was an allegation of a contract the Lake Erie for storage of the goods and delivery to when requested, and a lack of proper care whereby the goods lost.

The goods were destroyed while stored a building owned the Lake Erie at reversing the decision of the Court peal, that to the goods delivered to the R. to transferred to the Lake Erie as alleged, the cause of action stated was one arising ex delicto it must fail the evidence showed that the goods were received from the carriage under the terms of a special contract contained the bill of lading and shipping note given the Rt. the consignors, and it was cause of action founded contract must also fail the contract under which the goods were received the provided among other things, that the company would liable for the of goodsby fire; thatgoods stored should at sole risk of the owners; and that the provisions should apply and the benefit of every car-ier. Held further, that to the goods delivered to the companies other than the to transferred the Lake the latter company was liable under the contract storage; that the goods in its as warehousemen, and the bills lading contained clause, did those of the giving subsequent carriers the their provisions; and that the two courts below had held that the was caused the negligence of servants of the Lake Erie, and such finding should not interfered with. Held also, that to goods carried a bill lading issued the Lake Erie there was express provision therein that owners should incur all risk of goods charge of the company, as warehousemen; and that dition was a reasonable the company only undertakes to warehouse goods of necessity and for convenience shippers.

4-Municipal ment-Local ACT-Registration-Executransfers-Equitable execution-R. " 2.

LAWS-Mortgage-Agreement la,,lds-Sttufe ofFraudsowner of equity of redemption mortgaged lands, called the Christopher farm, signed agreement which his solicitor wrote one letter forms under the printed words "Dear

Sir," name being at the bottom the left side and made an affidavit, subscribing witness, to have it registered.

In an action arising out of this agreement it was tended that the solicitor was not subscribing witness but only the person to judgment of the Court of Appeal, that the solicitor signed the agreement witness and the registration therefore, regular, but if not, the document was upon the registry subsequent purchaser had actual notice which was bound notwithstanding the informality the proof execution, which did not make the registration nullity.' Held, per Taschereau

J., that argument did not require attestation and if the solicitor was not witness it should have indorsed with certificate county court judge required 0.

and it having registered the court would presume that such certificate had obtained.

Act-Registration rightsexecution-R.S.C. V(D.)

Property Act (R.S.C. c. as amended

51 V. (D.) not displace the rule law that execution creditor only sell the real estate debtor subject to the charges, liens and equities to which the same was subject hands of the execution debtor and give the execution creditor any superiority title over prioe unregistered transferees, nerely protect lands from intermediate sales and dispositions the execution debtor.

the sells the purchaser priority registration of the sheriff's deed would under the Act take priority over previous unregistered

Priority pone which acquired priority over earlier conveyance registration, actual notice, sufficient to make the conduct of the subsequent purchaser taking and registering conveyance fraudulent, indispensable.

machinery-Registration fn'erpre'ation -Billofsale- Personl

4 S'le)-55

Mines ict).] " fixtures" included the nieaning of the expression "Personal Chattels"

the tenth section of the Scotia ' of Sale Act," are only such articles are not

GISTRY LAWS-Continued.

made a periianent portion the land and may passed hand to hand without reference any way affecting the land, and the "delivery"

referred to the same clause means only such delivery as can made withouta trespass or tortions act.-An instrument thereon not require to registered under the Nova Scotia "Bills of Sale Act" (R. 5 ser. c. and there now no distinction, in this respect, between fixtures covered licensee's tenant's mortgage and those covered a mortgage made the owner of the 5--Agreement lands-Statute ofFrauds -Registration-Proof

6-Assignment for of R.S. c.92-Chattel mortgage-Sratute Resotlory condition-Immovbles withf reehold-C.'. ganbling instru- 'c.-Crininal s.575-*" "

creditor-Security Resjudicata.] Under Judicature Act, estoppel resjudicata an action unless specially pleaded. Partnership-Julginent firm-Liaof partner-Action house-Rules of RIPARIAN PROPRIETORS waters--' SAL-Continued.

Property in beds-Public harbours-Erections in naviqable waters-Interference with navigation- m-Nece sale-aie insrace Right fishing-Power grant Riparian prietors-Great lakes and navigable rivers- Operation of Magna Charta-Provincial legislation-R.S.O. c. s. 47-55 V. s.

4-Resol'to,?; candition-mmovables and (O.)-R.S.Q. arts. to

Riparian proprietors before confedera- tination-Movables incorporatei with freetion had an exclusive right of fishing in non- hold Severance/rem realty-fypothecary creditar-Unpaid vendor rivers, streams and waters, the beds of which had been granted to them the Crown. Robertson

The followed.-The rule SECURITYFor Debt and creditor that riparian proprietors own ad medium filum -Security for debt-Security realized creditor acquae not apply to the great lakes or navig- -Appropriation ofproceeds-Resjudicata-611 able rivers.-Per Gwynne J.-R.S.O. c.

the sale of land covered with water within public barbours. The margins of navigable rivers 2-Appeal- Time limit- vfand lakes may sold if there an understand- Delay in filing-Extension of time-Order ing with the Dominion Government for protec- ?udge- Vacation-R. C. tion against interference with navigation. The 1'46-695

Act of and arts. to are valid if passed aid of Dominion Act protection of fisheries.

If not are ultra 3-Appeal-Time limit-Commencement of- In Pronouncing entry of judgment-Securit Extension time-Order of jdge-R. S.. 135,ss.40, 46

SALE-Statutteoaf-rauds-Memoranidum in it utional law ing-Repndia4ing contract writing Marital rightsarried woman-Separate esate taining statement all the terms a ,t-Jurisdiction of North-west Territorial Leg isletract the goods requisite constitute ture-Sttute--nterpretaton o t-40 V. 7 .3 a under the section the Statute and amendments-R.S.C. 50-N. W. Ter. Ord. of Frauds, may that purpose though No.16 it repudiates the sale. V.

Chartered ship- 2-Sale nder powers-Chattel mortgage-Mart- Perishable goods-Ship disabled possessi on-Ne ligeuce- Wilful default perils

Transhipment

Obligation tranship l he e tice-Assigmet for -Repairs-Reasonable time-Carrier-Bailee.] ./creditors-Revocation A mortgagee if chartered disabled excepted sells the mortgaged goods in perils completing the voyage the owner a reckless and improvident manner liable to not necessarily the benefit of his account not only for what actually receives - contrnct, but may forward goods other but for what might have obtained for the' means to the place destination and earn goods had acted with proper regard for the the freight.

option to tranship must interests the mortgagor-An assignment ercised withinareasonable time, andifrepairs the benefit creditors revocable until the decided upon they must with creditors either execute otherwise assent reasonable despatch or otherwise the owner it.-Under the provisions of the cargo becomes entitled order to enable the assignee of action -Is the ship-owner obliged to tranship? Ifthe to his own name, the assignment must goods are such would perish repairs in writing, but written instrument not could the ship-owner should either quired restore the assignor original tranship, deliver or sell if the cargoright of action.

creditors refused ac-, owner not object, and duty cept the ofan assignment under 0. if portion the cargo, severable the rest, and the assignor was notified such perishable.

And if in such the fusal and that assignment had not been re- sold without consent owner the gistered, action damages was properly latter entitled recove fom the ship-owner brought in name the assignor against the amount they worth mortgagee stock in trade if received at the port of shipment goods improper manner.

at their destination at of the breach at.

35ayofrduty.

SHIPS SHIPPING-Continued.

; OF-Continued. 2- Maritime law-Collision-Rules of road 3. (The Mines Act).]

The "fixtures" -Narrow channel-Navigation, rules of-R. cluded the meaning of the expression " Perarts. and sonal chattels " the tenth section of the "Crossing"

ships-" Meeting" ships-" Pass- Scotia " Bills ofSale Act," are only such articles ing" ships-Breach of rules- Presumption of as are not made a permanent portion of the land fault-Contributory negligence-Moiety of dam- and may passed hand to hand without ages-36 and (Imp.) c. s 17-Maneou- reference to or any way affecting the land, vres in "agony of collision."

If two vessels and the "delivery"

referred to in the approach each other in the position of " passing' clause means only such aelivery as can made ships, (with a side light of one dead ahead of without a trespass or a tortiousact.-An instruthe other), where unless the course of one or ment conveying an interest in lands and also both is changed they will go clear of each other, fixtures thereon not need registered statutory rule imposed, but they are gov- under the Nova Scotia "Bills of Sale Act" erned the rules of good navigation.-If ser. and there now no distincof two "passing" ships acts consistently with tion, in this respect, between fixtures covered good seamanship and the other persists, without by a licensee's or tenant's mortgage and those good reason, in keeping the wrong side of covered mortgage made the owner the channel; in starboarding the helm when it was seen that the helm of the other was hard to port and the vessels are rapidly approaching;

Constitutional law-Marital rights-Married and, after signalling that was going to port, woman-Separate estate-Jurisdiction of Northturning her to starboard, to blame Territorial Legislature--Statute-Interpretafor collision which follows.-The non-observ- tion of-40 V. c. 7, 8. and amendments -R.S. ance of the statutory rule (art. that steam- 40-N. W. Ter. Ord. of ships shall slacken speed, or stop, or reverse, if provisionsof ordinanceno. respecting necessary, when approaching another ship, as the personal property of married women, are to involve collision, is not to considered intra vires of the legislature of the North-west fact contributing collision, provided the Territories of Canada,as being legislation within collision could have avoided the im- the definition of property and civil rights, a pinging reasonable care exerted up to subject upon which the Lieutenant-Governor the time of the collision.-Excusable manceuvres in Council was authorized legislate the executed " agony of collision " brought order of the Governor General Council passed about another vessel, although in contraven- under the provisions of " The North-west Tertion of statutory rules, cannot imputed as ritories Act."-The provisions of said ordinance contributory negligence the part the vessel no.16 are not inconsistent with sections to40 collided with.-The rule that in narrow channels inclusively of " The North-west Territories Act." steamships shall, when safe and practicable, which exempt from liability her husband's keep to the starboard (art. not over- debts the personal earnings and business profits ride the general rules navigation which would of married woman.-The words "her personal also apply to appropriate cases. The Leverington property" used the said ordinance no. are P. followed.

unconfined any context, and must be intersonal earnings" mentioned in but all Marine insurance-Constructive total the personal property belonging to a woman, Notice of abandonment-Sale of master married subsequently the ordinance, as well -Necessityfor sale

ervant-Negligence-" FactoriesAct,"

R. Q. arts. 3019-3053-Art. C.-Civil responsibility-Accident, of-Conjecture- Evidence- Onus of proof-Statutable duty, breach of-Police regulations.] The provisions of the

" Factories Act," (R.S.Q. arts. to inclusively) are intendedto operate only police reglulations and the statutable duties thereby not the civil responsibilt of employers towards their employees provided the Civil

2-Mortgage-Mining machinery-Registration

-Fixtures-Interpretation of term-Bill of sale

-Personal chattels-R. S. N. S. (5 ser.) c.

ss. 1, and (Bills of Sale)-55 . (N.S.) c. 1,

-Repair of streets Pavements-Assessment of owners-Double taxation-24 c.

5- Canadian w aters-Prope rty in beds- Public harbours-Erections in navigable waters-Interference with navigation- Riqht v/fishing-Power to grant-Riparian proprietors-GUreat lakes and navigable rivers- Operation of fagna Charta- Provincial legislation-R.S.O. c. 24,3 s47 (0.) 5 and 21-R.S. STATUTE, CONSTRUCTION OF-Continued. STATUTES-Continued.

6-Landlord and tenant-R.S. 0. 6-36 - c. s. [Imp.] (Navigation) 28-Distress-Goods of tenant---588

7-Appeal- Time limit - Commencement of, pronouncing or entry of judgment-Security- Extension of time- Vacation-R.S.C.

695,-707

STATUTE OF ELIZABETH-Assignment for of creditors-Preferences-Chattel mortgage-R.S.N.S. (5 ser.) 5,

An statute as tending to binder or delay creditors if it gives first preference toa firm ofwhich the assignee a member and provides allowance interest on claim of said firm until paid, and the assignee permitted continue in the same possession and control of business as previously had, though no one of these provisions taken itself would have such effect.-A provision that " the assignee shall only liable for such moneys shall into hands as such assignee, unless there gross negligence or fraud part" will also void the assignment under the statute of Elizabeth.-Authority to the assignee not only to prefer parties to accommodation paper but also to pay all " costs, charges and expenses to arise in consequence"

of such paper, badge fraud.

CHISHOLM

STATUTES-13 Eliz. c. [Imp.] (Fraudulent

Conveyances)

2-29 Eliz. [Imp.] (Fraudulent Conveyances)

4-9

III. (Nullum Tempus

--- 5-17 i

V. [Imp.] (Navigation)

British North America Act, 8-B.N.A.

9-B.N.A.

10-B. S. c. ss. 4 (N. W. Terri- 11-R.

S. c. (N. W. Territories) - 12-R.

S. (Territories Real Property --- 13-R.

S. C. s. arts. and (Navigation of Canadian Waters) c. (Works in or over navigable rivers

------ 15-R.

S. (The Fisheries Act) 16-R.

c. (Supreme and Ex- 17-R. S. (Supreme and -R.

S. (Supreme and 19-23 2, 8. [Imp.] (Crown Grants water

----- 20-40 c. 7, s. and amendments (N. WV. Territories)

3----- 21-51 (D.) (Territories Real Pro- [S.

Expropriation

Supreme Court from Court of Review) - 24-54 [D.] (Supreme

8. 0.

S 0. (Ontario Judi- - ---- Laws)

R. S. 0. (Assignments inc. [D.] (Devolution of Estates V.c. ss.5 and [0.] 444 38-R.

Q. art. (appealable amount) 2 16 R. Q. arts. (" Fac- [P.Q.] (amending C.C.P. art. 1115-Appeals from Court of Review)

----- 43-24 c. [N.S.] (Local Improvements) 44--41-42

Sale)

-- --- -- - 46--55 Mines 47--Revised Ordinances, Norh-west Terri- (Ferries)

48-N.W. Ter. Ord. no. of (Harried 49-North-west Territories Ordinance 7 of (Incorporating Town of Edmonton) Extension oftimc-Order of judle-Vacationstreels-Pavements-Double taxation-Assessment of owner-24 V. [N.S.]

39-53 V. [N.S.]

2-Appeal-Tinae limit-Con of- Ponouncing or entry of judgment-Security- Extension oftime-Order judge-R.S.C. c. 2-Municipal ment-Local improvements-Agreement

[S.

----sons-Devise over of one's share-Condition- Context-Codicil

"Ne

3-"

Buildings and erections"-" Improvements'

Dying without issue

Revert "-Contingencies-Executory over - 292, 316,

TITLE LAND-Real Property Act-Registration Registered transfers-Equitable rights- Sales under execution-R. S.C. c. 51;

LD.] c.

2-Constitutional law-Navigable waters-Title in soil of--Crown-Dedication of public lands - Presumption of dedication- User-Obstruction navigation--Public nuisance-Balance

3-Canadian waters-Property in beds-Public harbours-Erections in navigable waters-Interference with navigation-Right of fishing--Power grant-Riparian proprietors-Great lakes and navigable rivers- Operation of Magna Charta- Provincial legislation R.S.O.

and 21--R

TIME-Appeal-Time limit-Commencement

-Pronouncing or entry judgment-Security- TOLLS- Constitutional law-Municipal corporation-Powers of legislature-License-Monopoly -Highways and ferries-Navigable streams- By-laws and solutions-Intermunicipal ferry- Tolls-Disturance of license- -- Nortk-west Territories Act, R.S.C. c. and 24-B.N.A. Act and 16-Rev. Ord. N. W. Ter. 28-Ord. N. T. 7 of 4-Companies, club associations and TRUST--Mortgage foreign lands-Action to aside-Jurisdiction-Secret trust-Lex sit-- - - - - - 2--Principal and agent-Adcances agents buy goods--Trust goods mixed those of agent VIRES-Joint Stock Company-1Ultra vires contract-Consent judgment on-Action, aside

principal-Release lands-Arrears I -Novation-Discharge ment for the purchase and sale of certain personal-Immovables desIination-lovables hold-Sverance from ('otract-Resoluject made condition-Conditional sale-Hypothecory creditor-Unpaid portion of the purchase price applicable each."

The vendee assigned all his interest the agreement to third party a written WAIVER-Debtor and creditor-Composition at of of -Principalandagentof from agreement-Fraudulent wards accepted the assignee several payments upon interest and account of the of of breach-Agent's a schedule apportioning the amounts of payments to made for releases lots sold basedon their supposed values, and in fact released lots schedule and not in the ratio the full number WARRANT-Criminal 575-Persona jure-" "-Confiscation ,-c.-Ministerial the assignee with and accepted from him issued under the Criminal Code pound interest and also allowed the assignee gaming instruments would dejure. damqges-Qestons bet.] it.-In that notI te ~ndor ofthe ssinmen

Archbaldv. value injuriously

LOTS-Filling security-]u erections''-4'I

''-Lessor l's. grants-Title 2-Crown ullnounath

Use, Ob3uci

~i'' fer interest.-In beds-Public arbours--Erectiois navilation-- WATERS, CANADIAN-Continued.

WILL-Continued.

Right of fishing-Power grant-Riparian pro- character of his ; that she was also prietors- Great lakes and navigable riverstitled to the annuity of perannum given Operation of Magna Charta-Provincial legisla- by the will, it not being inconsistent with tion-R. S. 0. c, s. 47-55 V. c. right to dower and she was therefore not put to 5 ant 21-R. S. Q. arts. her election; that the limitation of the annuity 444 asbeingin 'restraint of marriage ; and that could not claim a distributive share of the devised lands WILL-Legacy-Be quest of partnership business under the Devolution of Estates Act which ap- -Acceptance by atee-1light of an only the descent inheritable lands.- J. brother carried business mortgagee of the reversionary interest inprnrhpfroe hryyasadteone his brother in the lands devised 0. brother having will contained the was improperly added, in the master's as lowing bequest: " I will and bequeath unto a party to an administration action and could brother J. all interest the business of J. & take objection at any time to the proceeding eithaheya o r bywy aippal heeoto n the said city St. Catharines, togethereihrbwaofpelfomteeotorn withallsum ofmony avaned m tothefurther directions ;she was not limited to the said business at any time, his abso- time mentioned Order of the Supreme lutely and advise my said brother to Court Judicature, which refers only to a the said business with as little delay motion to discharge or vary the possible."

Held, affirming the decision of the al v. al.

Court Appeal, that accepting the legacy was under obligation to indemnify the testa- Devise sons- Devise ofone's share tor's estate against liability for the debts of the -Condition-Context-Codicil.]

testator assets should insufficient for vised property equally'' to two sons J and not his right to have and with provision that '1in event the accounts taken in order to make the estate of the death of said unmarried testator pay its share of such deficiency, without leaving issue" his interest should go J.

a codicil third was given an equal interest with his brothers the property 2- Construction of-Executory overon a condition which was not complied with Contingencies-" Dying without issue "-"Re- and the devise became vert "- Dower-Annuity-Election reversing the decision the Supreme Court Devolution of Estates Act, V. (0.) 22-Con- Nova Scotia, that the codicil did not ditions in restraint ofmarriage-Practice-Added construction to put devise the will; parties--Orders 4- Ontario Judicature Actthat and took as tenants common S.O. c. s.

testator divided in equal moieties, the estate of J. being absoestate among three sons, the portion late and that of subject to an executory C. the eldest son being charted with the devise over in case of death at any time and not payment of to each of his rothers and merely during the lifetime of the testator. its proportion of the widow's dower.

will Cowan Allen Can. R. followed. also provided that " should any of three sons Beld also, that the word " equal " indicated the without lawful and leaves widow, she respective shares which the two devisees were shall have the of dollars per annum to take in the area the property devised and out of estate long she remains un- not the character of the estates given those narried, and the balance of the estate shall re- shares.

vert to brothers with the said dollars her marriage."

A. died after the testator, 4- Will, construction of-Death without issue leaving but issue. - Held, reversing -Executory over-Conditional feethe judgment of the Court Appeal, that the Life estate-Estate tail.]

testator died gift over in the last mentioned clause was in- having previously made last tended the testator to take the will divided into numbered paragraphs death of the without issue at any time whicb devised amongst and not during the lifetime of the testator only; certain of children.

the third clause that it was no ground departing this devised lands to his son attaining the age prima facie meaning of the terms of the gift that of years-" giving the executors power to burdensome conditions were imposed upon lift the rent, and rent, said executors paying devisee; and that conditions would F. all former rents due after decease imposed the to this attaining the age of 2 L years," and substruction the sums of each charged sequent clause provided that "at the death favour of brothers were charged upon the ofany one of sons or daughters having and if by his personal repre- their property to divided equally among leath could enforce repayment, survivors."

F. attained the age of years his estate. Held that the widowof and died unmarried and without issue. intitled the dower out the lands Held, that neither the form nor the language to notwithstanding the defeasible the will would authorize a departure [8. C. R. VOL. XXVI. WILL-Continued.

from the general rule as constructioi according to the ordinary grammatical meaning the words used the testator, and that, as there would no absurdity, repugnance inconsistency in such construction the question, the subsequent clause limiting the estates bequeathed an executory devise must interpreted as referring the property devised to the testator's sons and daughters by all the preceding clauses the will.

Held further, that the gift over should construed having reference failure of issue at the death of the first devisee who thus took an estate subject to the executory devise over.

al. v. al.

5-Will-Eecution of-Testamentary capacity.] testator was suffering from a disease

WILL-Continued.

which had inducing drowsiness stupor during the time gave the instructions for drafting and when executed will, but as the evidence showed that thoroughly understood and apprec:ated the instructions was giving to the draftsman as to the form will should take and the instrument itself when subsequently read over it was held to valid will.

et al. WITNESS-Agreement change lands-Statute Frauds-Registry