Majority
was therefore valid. The Court of Appeal affirmed this judgment, but upon other grounds, holding that BAKLEY as the subject of the assignment did not consist of G assets which could be reached by creditors at the time when it was made, the assignment did not come within the Act respecting assignments and preferences. After hearing counsel for both parties, the Supreme Court of Canada reserved judgment and on a later day dismissed the appeal with costs, the judges Adopting the reasoning of the judges in the Court of Appeal for Ontario as reported in volume 24 of the Ontario Appeal Reports.
Robinson Q.C. and W. H. Ferguson for the appellants. Miller Q.C. for the respondents.
Ex parte JAMES W. MACDONALD.
*Dec.
*Dec. 31. A warrant of commitment was made by the stipendiary magistrate for the police division of the municipality of the county of Pictou, in Nova Scotia, upon a conviction for an offence stated therein to have been committed "at Hopewell, in the county of Pictou." The county of Pictou appeared to be of a greater extent than the municipality of the county of Pictou, there being also four incorporated towns within the county limits-and it did not specifically appear upon the face of the warrant that the place where the offence had been committed was within the municipality of the county of Pictou.
The Nova Scotia statute of 1895 respecting county corporations (58 Vict. ch. 3, s. 8) contains a schedule which mentions Hopewell as a polling district in Pictou county entitled to return two councillors to the county council. Held, that the court was bound to take judicial notice of the territorial divisions declared by the statute as establishing that the place so mentioned in the warrant was within the territorial limits of the police division.
The jurisdiction of a judge of the Supreme Court of Canada in matters of habeas corpus in criminal cases is limited to an inquiry into the cause of imprisonment as disclosed by the warrant of commitment.
APPLICATION before Girouard J. in chambers for a - writ of habeas corpus to inquire into the cause of comof the petitioner for the reason that the jurisdiction of the committing magistrate did not sufficiently appear upon the face of the warrant.
The material facts presented to the judge on the application are mentioned in the judgment reported. Owen Ritchie for petitioner ex parte.
: J.-On the 2nd of November, 1896, the petitioner was committed to the common jail in the county of Pictou, in the province of Nova Scotia, under a warrant signed under seal by "James Roy, stipendiary magistrate for the municipality of Pictou." The warrant of commitment contains among others, the following allegations: " Whereas James W. Macdonald, of Hopewell, in the county of Pictou, was, on the eighth day of September in the year of our Lord one thousand eight hundred and ninety-six, at the town of New Glasgow, in the county of Pictou, duly convicted before the undersigned James Roy, a stipendiary magistrate for the municipality of the county of Pictou, for that he, the said James W. Macdonald, between the first day of June last past and the thirtyfirst day of August, in the year of our Lord one thousand eight hundred and ninety-six, at Hopewell, in the county of Pictou, unlawfully did sell intoxicating liquor contrary to the provisions of the second part of the Canada Temperance Act then in force in the said county of Pictou."
The petitioner contends that the said warrant is defective upon its face, inasmuch as it does not appear that " Hopewell in the county of Pictou " was in the municipality of the county of Pictou. He makes the VOL XXVII] SUPREME COURT Of CANADA.
following statement in the affidavit which is filed before me:
E parte The province of Nova Scotia at the time of the making both of the said conviction and warrant of commitment was, and now is, composed Girouard J. of eighteen counties, of which the county of Pictou is and was one, and at the time of the making of the said conviction and warrant and of the taking of the said information on which they are founded, the said county of Pictou was, and now is, composed and made up of the municipality of the county of Pictou, incorporated under chapter 3 of the Acts of the legislature of the province of Nova Scotia for the year 1895 and four incorporated towns existing in law and governed by the Towns Incorporation Act, 1895.
The said municipality of the county of Picton is not now and never was territorially or otherwise co-extensive with the said county of Pictou, but is territorially less than the said county of Picton and was so at the time of the making of the said conviction and warrant aforesaid.
The municipality of the county of Pictou at the time of the making of the said conviction and warrant aforesaid comprised and now comprises that portion of the said county of Pictou, other than the four incorporated towns aforesaid, which said four incorporated towns with the said municipality of the county of Picton now and at the time of the making of the said conviction and warrant of commitment, made up that geographical division of Nova Scotia known as the county of
Pictou.
For this reason (and others which were not urged before me) the petitioner made an application to the
Honourable Mr. Justice Graham, one of the justices of the Supreme Court of Nova Scotia, for his discharge from imprisonment under a writ of habeas corpus, (R. S.
N. S. 4 ser. ch. 99, sec. 3) but the learned judge refused to discharge him.
The petitioner then renewed his application to the
Supreme Court of Nova Scotia, sitting in banc, (Mc- Donald C.J., Weatherbe, Townshend and Henry JJ.), but that honourable court also refused unanimously to discharge him.
Mr. Justice Townshend delivered the opinion of the court.
He said:
The offence for which he was convicted is stated to have been committed at Hopewell, in the county of Pictou.
It is contended that this warrant does not show as it should on its face jurisdiction in the t committing magistrate.
By Acts of 1895, c. 89, s. 1, "The municipality of the county of Pictou is hereby created a police division." - Roy was duly appointed stipendiary magistrate for this police division. Girouard J. If Hopewell is within it, jurisdiction is shown.
By ch. 3, sec. 1, Acts 1895, the municipality of the county of Pictou is defined to be what at that time was known as the county of Pictou.
Although not very clearly expressed, this section-read with other parts of the Act-in my opinion indicates that the area of the original county is designated as the area of the municipality of the county. This is made clear by section 2 which cuts out of this area all cities or incorporated towns and proceeds to define the term " county " as that part of the county or district within the territorial jurisdiction of the county council.
The warrant describes "Hopewell"
as in the county of Pictou.
The question is whether that necessarily means the municipality of the county of Pictou, or may it with equal reason be read as in some of the incorporated towns, or one of the incorporated towns.
It was pointed out that in the schedule to the Act Hopewell in Pictou county is described as polling section no. entitled to return to the municipal council of the municipality of Pictou two councillors.
We know from other portions of the same Act that no locality can return councillors except it be part of the municipality, and this in itself seems a conclusive reason for saying that Hopewell is within the police division and therefore within the jurisdiction the stipendiary of the municipality of the county of Pictou. The petitioner has filed before me a copy of the warrant of commitment and also of the conviction and information filed before the stipendiary magistrate, and other papers, but I must say that I am not inclined to go into any inquiry behind the warrant of commitment.
I am not disposed to go beyond what appears to me to be the plain words of the Supreme Court Act and the well settled jurisprudence of this court; Re Boucher, 1879 (1) ; Re Poilvin, 1881 (2) ; Re Tripanier, 1885 (3); Re Sproule, 1886 (4).
The first paragraph of section 32 of the Supreme and Exchequer Courts Act, sec. 32, provides as follows: Dig. 325.
Can. R.
(4) 12 Can. S. C. R. 140. I believe therefore that the jurisdiction of a judge the Supreme Court in matters of habeas corpus in any criminal case, is limited to an inquiry into the cause of commitment, that is, as disclosed by the warrant of commitment, under any Act of the Parliament Canada.
The question then is whether the warrant of commitment discloses jurisdiction on the part of the stipendiary magistrate. The counsel for the petitioner has referred me to Paley on Summary Convictions, 7th ed., and other authorities, to establish that jurisdiction must appear upon the face of the warrant, and especially as to the locality where the offence is alleged to have been committed. But the learned counsel has forgotten to quote from Paley at page 196 which shows that the court will take judicial notice of the general division of the kingdom into counties. This is the rule laid down by all the judges of the Supreme Court of Nova Scotia, and I believe it expresses the law not only of that province but of the whole Dominion.
Mr. Justice Townshend has most appropriately referred to Taylor on Evidence, sec. 15 : The same principle was upheld by Mr. Justice Ramsay of the Quebec Court of Appeals in 1880 in a case very much similar to the present one, Ex parte Archambault
See also Sleeth v. Hurlburt
I am therefore of opinion that the application should be rejected, and it is rejected.
I have the satisfaction of knowing that the petitioner is not J. without recourse.
He may appeal to the full court under the second paragraph of sec. 32 of The Supreme and Exchequer Courts Act.
Writ refused. Solicitor for the petitioner: John J. Power.
ACTION -- Of warranty -Suretyship
Re- ACTION-Continued.
sureties inter se-Ratable
Banking-Discharge of of course-Trust funds of further,perSedgewickk.,thatneither him.-Where
4-Action disturbance-Possessory action Possession annale
Nature of possession of unenclosed vacant landsBoundary marks--Dcieryofpossession.] 94'ance, andwas assessed foot lot to G.,who f paid all municipal taxes and rates there. 2--Administrations -Trustees-Agents-Nullity-A rt.
that tvo that the possession anna/c, required article ed946 sui- Suretyship/i entite pour aval, at
5-Serice of-Judgqneut default Oppositin judgment-Rensons of
Rescivsoire" joined with
Rescindant"-Arts. P.-Paac return of service.] exparte parte boswere still in the possession ofR.adi
I that ACTION-Continuled.
ADMISSIONS-Contin ted.
year and day have elapsed from the render- entered into the parties suit order ingof thesame,and without allegingor establish- compromise family disputes and preing that has defence to the action vent litigation failed to attain its the merits.-An opposition asking to have was annulled set aside order thc court judgment set aside, the ground that the being contravention article the defendant has not duly served with the Civil Lower Canada, allegation action, which also alleges the defendant's contained it subsist even grounds defence the merits, should be dismissed merely for the reason that the rescissoire has thus improperly joined with AGENCY
6--Testamentary tutor-Executorns-Account, for-Actin ALIMONY-A ppeel-.Jurisdict for possession-Parties amount-Petare rights- Alimntary 362 ance- Other tnd things
ACCOUNT-Trust funds-Abandonment trust-Eidence of-Lention-Poper
Building
Participating borrow-ers-Shareholders-C.
69-42
32-Liquida- APPEAL tion-Expiration loans-Notice of-Interest and bonus-Usuryt laws-C.
1(D).] Abyistrators and trustees-Sales
Art. 0.
street to certain homolegated line, Bu'aino
-Judicial ben instrments'-Cadastre-Plans and of
" Transaction"-Estoppel-Arts. and the burden assessent the properties 0. -Arts. P] will, actuallyassessed, theoners these properties testatrix, aside an action the heir at law and The Court Qoeen's Bench affirmed judgdeclared the judgment to acte faux, nent dismissing the action.
application and therefore to null and effect.
In for leave to appeal
Held, that the subsequent petitory action between the same the jodgient sought appealed would parties : Held, Girouard J. dissenting, that to increase the burden assessment not judgment faux law anything the devisee had done the future, the judgment in respect the first, because the will a w having annulled was for all purposes un- coming tile meaning the words and available, and, secondly, because the declara other matters things where the rights to answer interrogatories upon articulated facts recorded under art. P., cannot be invoked a judicial admission subse
strip
Chamberland Fortier
3--A ppeal - Election petition -Preliminary objection--Delay fliinU-Objiection~s
APPEAL-Continued.
6-fron Gourt of Review-Appeal Privy Council-Appealable amount-54 &- V. c. s.s. and (D.)-C. S. L.C. c. s. Arts. P.-R. S. art. Oerenont - -Orderin chambers-R..S. c. 8. The 7-Juri-idiction-Appealable amen-Fltnre rights-" Other matters and things"-R. (b)-59 nder could their nature and not rights to Rodier Lapierre O'Dell Appeal-Preliminary objections-R.
and 50-Order dismi.ssing petition- Affidarit ot qen ofac.
Noapeal Noapelevidence eidence
-Questions practice -Duty of appellate 9A Appeal ollocation and distribution-Art. P.eArts. Action annul deed-Parties in interest- Incidentel rin folle ensh/re that procs -erbat tribtion part cutio.-The thit tnth declared appellate court.] judgieot s
APPEAL -contin
APPEAL-Continued.
appeal should not interfere to restore the court judges, nder the original judgment, unless it clearly appears court appealed from w that the reversal was erroneous.
resort within the
Qwere.-L court judges a
11--Jurisdiction-Title lands-Municipal meaning Vict.
law--By-law- Widening streets-Expropriation TlE Toi
(b)-54
3-56 s.
Jurisdiction
F by-law passed for the expropriation land the tionary order Iat
(a), 27-R appeal to the Supreme Court Canada, OntarioJudicature Act than
The judgment. the merits the High Court the judgment the court below.
(See R. application the
Iproceedings and appeal the 8
Co. 640 inal judgment - Discreplead-R. ride
After judgdefendant to have the allow him to defend, Juriscictio, for opinion-54 S.
Qawre.
- Jurisdiction-52 c. ID,)-Ap
ARBITRATION
Areement respecting land. of presiding officers-County Cout'Boundlarie.s ejeree's derision
Boruere Judgles-55 c. (Out.)
c. Arts. and P.] Statute, construction, of-Appeal fro ass-Is went Finol judgmnet.] hou diAisn provinml estalished Cirt aritratious.
appointed provincial municipal authority, ASSESSMENT AND TAXES
Exeptions tres-Gas Gyne ., thatas -ighway- ASSESSMENT AND TAXES-Continued. ASSESSMNT AND TAXES-Continued. of soil-11 (Can.)-55
(On.)-58 (Ont.l-Statute, of-Appeal assessmen-Final judgment-''
ASSIGNEE for paid asdyment-Liability offlizabeth-Ilindering ASSIGNMENT-For of creditors- Prfferred crediors-iloneys paid a.'iqnwnet-Liability asiqnee-.tutae Elizatath-Hindering hve trust lel 453 2-Insolcency-Pre sure-A Fraudulent ces-State intermnuniipal-Initiation and Alizabeth-Assets contribution--By-la--Otario of
1873-Ontario
Trms that mortgage-Asinmcnt let
BAILIFF-- petition-P-eliinry jetions pdition- Bailiffs ition-Prodcion Aredily municipality tifed," joining that BANKING-Sretyship-Recourse se-Ratable ranty-Dicharge of course-Trut surety- 3--A ppial-Expropriation of lands-Local improvements-Future laic-Crin 4---Appeal-Jurisdiction
276-Grnadin marrying (D.)-Appointment of
Par-ianient
Judgqes55
BIGAMY-Continued.
intra tires
- BILL OF EXCHANGE.
BORNAGE
Arbitration- Arts. and
BOUNDARIES Appeal-A
-Futire lands-R.
(b)-54 3-56
2--Boundary marks-Posessory action-Deofposesiou lands
BUILDING SOCIETY--Participating rotwers-Shareholders-G. 69-42
(Q.)-Liquidation-Expiration loans-Notice of--Inbonus-Usury lan-s-U. S.
Art. -Administrator and to-Prdte-nom-Art.
nents
Ist
BUILDING SOCIETY-Continued. instalnents ligidation tienty-eight had does anount that the BUILDING SOCIETY-Continued.
CASES-Continued.
Worrall 5---Dnfcesee Cudremout instalnents
Filiatrauit Coldie Held, d-- 7--Laind land
BY-LAW-Drainage, intermnicipal-Initia.
tion and contribution-Ontario Drainage Act- Consolidated Municipal Act-Assessnent--495O
2-Mnuicipa/ cocniocation?-Negligleece-Sniowv and iof
- Richelie Election S. R. V (0.)-57 c. (0.)
Finding ofjcy-Tross
7-LuVind
R41959 3-- Waerwokt
Resolution wcriting-Injunction-Art. 0. P.-329
CIVIL CODE-Arts. (subrogation), CADASTRAL PLANS-Evidence-Admission-Artf..
2--Act-s.
(Interpcetation), (Presnmptions), (Sale), 1599(Ecchange) Acts.
(Respousibility), (Dainnge), (Oblicgtions o U.
363 (Loss Spfce of leasedpcoperty) CASES-Attorney-Generalv. Sheraton
Rep.) approved and followed
355L
4-At.
(Accounts of tutorship)and 2--Chamberland Fortier
3--Cornwall, of Derochie
Arts. (Incapacity of followed upon Interest)
CIVIL CODE-ontinued.
rts. (Gifts inter ricos) and (Con- NULLITY
CIVIL CODE OF PROCEDURE-Arts. 56
(Service ofprocess) and (Ret urn ofservice)
"
4--Art. 1033a (Iujunctions)
5-Arts.
(Faits articles) - Arts. and (Collocation, Distribution, Opposition tojudgment) - - 7-Arts.
and seq.-Agreenent respecting la ids
Boundaries-Referee's decision-Bornage rbit ration
8--A (Possessory actions)-575
9-Arts.
(Service), seq. (Judgment by dejault), (Remedies against judgnients)
10--Art. (Requite civile)
CHAMPERTY-Will-Sheriff deed-Proof heirship-New trid
CIVIL SERVICE-Extra salary-Additional rem uneration-Permanent employees-51 V. CODE.
COMMISSION-Appeal- Evidence taken by commission on questions of fact.] COMMITMENT - Form of-Jurisdiction- Judicial notice-R. c. - CONSTITUTIONAL LAW-Convention Treaty, construction of-Statute, struction of- Fisheries - Three mile limit-- Foreiqn fishing vessels-"Fishing III., (Imp.)-R. S. & seized with the seine still attached within the and consequently liable with the cargo, tackle, 2--Crimiinal Code 276-Bigamysubject marrying abroad--Jurisdictio-i of Parliament.] and the Crimi- C.J., contra.
d6 2- Art. (Sherif's sales)-Arts.
for false bidding)
309 COLLOCATION.
3--Arts. (Appeals from judgments ofS uperior Court), (Appeals Privy
CONTRACT-Sale sample-Objections to invoice-Reasonable time - Acquiescence
CONTRACT-Continued.
true 2--Agreement in writing-Municipal cor- the parties executed between them poration
-Extension of worksaccording the terms therein expressed and streets-R. art.
-Art. P.]
McOav.
Unpaid rendorincorporated ci f-eeholclmmoeables )/ tiatiol- Hypothecary charges 4rts. dition that the works should commenced CONTROVERTED ELECTIONS-Election petitio
-e-Copy- ,'tatis of petitioner Preliminary objection
2-- Appeal
Election petition
Preliminary visions
R. art.
and given objections Delay in fling Objections struck Order in chambers C. S. 3--Appeal-Ptiinary objections-R. and Order cismisiing petition- Held, judg- Afidacit ofpetitioner
'-ee but part
-Affdecit of petitioner-Bona fides-Exaniination oftdeponent-Form of petition-B. 9-54
.
Liw
5--Election petition-Preliminary objections -,ervice of petition-Bailifs return of-exaination Production ofcopy
6--Cont-orerted election-Corrnpt treating- - 329 Agent ofcandidate-Limited agency-'ri-ial 3--Agreenent respecting lands-Boundaries- neft rp
Referee - decision -Bornee Arbitration -- rts.
and et.seq. C..P.]
CONVENTION.
premises-Terms of mortgage-Assignment
COUNTY
COURT JUDGES -Appeal- Jurisdiction-52 (D.)-Appoint- (0ut.)-57
(Ont.)--Statute, ofassessmen-Final
COURT-Appeal-Juridiction-52
(D.)-Appointment of offers- Jiidges-55 (Ont.)-57
(Ont.)-58 (Ont.)-Statute, oj--Appealfrom judgment-" of
CRIMINAL LAW-Criminal
276-Canadian marrying Juris- CUSTOMS DUTIES - Imported
Canada-'larif qf
R. 32-57 (D.)-58
DATION EN PAIEMENT-Sale--Donation
Mortal of of
During her last illness aid short stat- DEBTOR AND CREDITOR-Assigiment for the of creditors-Preferred paid asiginment-Liaof of Elizabeth-Hinder- DEBTOR AND CREDITOR-Contin ued. the ground that it void under the statute trust CUMNGS of-Title lands rary Possession- partiesfrom of C.-47 (D.); strip Justi that le DEED -continued.
DRAINS AND WATERCOURSES-Con. Otrt-io Drainage 1873-36 (O.)-36 (O.)-J. attain pal of lands-eignorial tenure-Deed of of lini- enlarged.-If tation-Corenant grantte-harles strutting train title-Serr-itude-Condition, volero- Prscriptive title--Edits tre icipal regulations-23 147 tre by sheriff-Folle enchd-e-Registra- runicipality tion-Nullity
309 takingany Administrators trustees-Sales to-Nurllity rt.
"DYING WITHOUT ISSUE" -Statrte, corstrtctiorof-Kdate abolishinflI?. 6--Sale-Donation Jorm of-Oift8 of death-Mortal of
Eecrrtory cirern
-La-fu paement- 551 expectart-Statto-ytitle-B.
114.s.
ralitCorreyance 7--Assijument for of teant tail
Preferred creditors-Money paid assinment-Liability of estate-burt lites- for 'rertairt -sn~
589 ofetlass-Sut-tio- DISCRETION -Jrrisdiction order-Defaurlt plead-R. c.EASEMENT-Neessary Jtplied and 27-R.
User-Obstrtctiottoftr-ay-L[tte-t-ntiottofpre- Jdicature
654 vcrivtiori-Acqtiescence-Linittior 112-R. (4se-.) DISTRIUTION.c.
100-2 DISTRIBUTION.K.
Luenbrg, DONATION
>-ale-Donation form death-Mortal of donor-Presumption of nullity-Validatig paiement-Arts.
lunicipal mtcitpal iitiation
EASEMENT -Continued.
ELECTION LAW-continued.
at R. followed.
XsNsrEo Preliminary fron that infiling
March, easeneit s.50 tle that petitioi.
Held, that and petition- 4-Election petition-Preliminri Affldoitof tion ofodcponint-Jorn petdion-R. 9-54 K s. 3D.)]
& AW-lerton ptition ELECTION LAW-Election election of petitioner-Preliminary mut jection.]
at that that other-ise trict eect atedhy particulars.
trict that 5-Eletn petitmon-Preliaiinary objections -Serrice petit ion- Bail if's return-Cross ELECTION LAW-Continued.
EVIDENCE examination-Production of esw ar u
To rary ileec-Iile tondtct orupation agency-Ii
0]B act-54
2oveable 8.-If district.Though, tothe at dsarned stripof Iamiguous, that gcen ded
EMINdhaE giOenAIN-A totiscagent,
(lase the therstreets-Exproporiation-R.
3-50 that huan that Inerits ded he ath ESTOPPEL
Eridence-Judicial ontrvers i cotrovers i ls-Cds thPan a200n edascnanndtemtrdcocuina jufied actiouroArts.
P.- EVIDENCE -Continued.
EVIDENCE-Continued.
3--Landlord and tenant--Loss fire-Cause a foundation for secondary evidence. offire-Nergligene-Ciril responsibility-Legal presumption
Rebuttal of- Onus of prooj- 6-Eilence-Juicial adnissions-Nullified Hazardous occupatiou-Arts. iistritmets-Cadastre- Plans and To rebut the pre- of reference-Comprouise
Transaction" suniption created Article the Civil J'stoppel-Arts. and 0.-Art. Lower Canada it not necessary for C. P.]
will, favour the actefauxand defanille), that that attributed illfaux Queen'sin ulled for all purposes unavailable, and, 4-machinery-Eri- the declaration faux, for jury.] was employed asa weaver tamed the judgment, did not any afact defalt caastral attais .
Iill-Sherif's deed-Eidence-Prooj o that herip
Nutriahant a b'y amne fat tonas unceitat clarcasllhve prevend thet tinder should trial.
that the raffirming decisin, 5-Election petitiua-Peliuninary -Se r-ice of pet itiou-Bailirs return-Crossexanminatiou-Production of copyt]
that that at P.-Counsel that information EVIDENCE-ontiniued.
EXCHANGE Title lands--Anbiguous to trustee, and there was evidence scriitson-Possession-Conduct parties-Pre. to the nature his trust and there strong suptions from occupation qf suspicion the existence champerty or maintenance the part the persons attacking the will, the latter failed to establish the title the persons under whom they claimed and EXECUTORS- Testamentary succession the appeal should dismissed.
Balance due tutor-Account, action for- 443 Action for provisional posse- -ion-Partie b coonisio-Reer-action. al.
8--Appeal-Kridence ission-Re rerfact.]
EXEMPTIONS
Real property-Chattelsjudge Fixtures- pipes
Highicay
Leislative grant soil-11 (Gan.)-55 trial (0.)-' Ontario Assessment Act, it. EXPROPRIATION
Of lanls-Assess3nents - - - Loral inprovenients-Futnre rights Juris- Action disturbance-Possessory action anuale"-Arts. and
.
P.-Nature of possession qf unenclosed raFT ant lands-Boundary marks-Delirery of poshim the ground, and showed the pickets FALSE BIDDING, RESALE FOR Sale marking its width and depth. The lot remained sheruf-Folle Resale for false bidclng-Art
P-Queetions of disturbance, and was assessed foot lot practice Appeal-Art. U. C. P.-Privihypothecs-Sheriffs Iegistra. thereon.
In the adjoining lot, was nullity-Retfication ofslight also vacant and unenclosed, was to anoth errors in jucynit-Duty appellatecoart-309 person who commenced laying foundations for building, and, in doing encroached two feet the width the lot purchased FISHERIES-Constittional Iaw-Conventioa who brought possessory action within 181S-'reaty, ronsttnctinn of-Statue, couple months from the date the disturb- strurtion of'Jhree-mile tiniit- Joreign fishing ance.
Held, that the possession annale, requir- Iessels-' Fishing"-59 Ill., c. (Imp.) article the Code Civil Procedure,
-.
Where had was sufficiently established to entitle the plain- enclosed three marine tiff to maintain his action.
miles-froii the coast Nova S otia, and the pursed ip and secured to foreign 10--Contract-Sale sample- Objections the was afterwards invoice - Reasonable time--Acquiescen'e-Pre- with the still attached within tie sumptions three limit, her being then engaged the hailing the out cf the seine: eld, (the and Gwynne J. dis- 11--Trustee-Account of trust funds-Aban- senting, affirming the decision o the court donment cestui que trust that the when TusTs fishing" violation the convention Sepoic TRST
I1.
etween Great Britain and United 12--Accident insurance-Renewal
States America and the Imperial Act Payment of premium-Agent's authority-la- eo. I., and the Statutes structions agent-Finding of jury
- Canada, cl. and consequently liable with the cargo, tackle, rigging, apparel, furniture fo-m stores to condemned and forfeited. Sale-Donation of death-Mortal
-Presumption of sullity-Validating circumstances-Dation paiement-Arts.
FIXTURES.
FOLLE ENCHbRE
HABEAS CORPUS-Continued.
E-3iiie
FORFEITURE-Mines ierals-Laue ofI the warrant rent-R. S. ser.) 7-52 ment
(N.S.)-Atatute,
"HANSARD" STAFF- Civil .erice-Extra snlrry-Addttionial remuneration- FRAUDULENT FREFERENCES--Assiyn- enp/oyees-51 c.
nont fur creditors-Preferred ditors-.lloiey of of
HEIR- Hindering delaing for ascertimneat of
-Presire-Assignment
Statute of extaion.]
of-Estates alolishiql 112-R. 112-R. Ill- FUTURE RIGHTS--Action
Will-Costruct of lands--R. U. (b)-54 over-"' issue" 3-56 1
Lanfulheirs"-"Heirofthebody"-Estatein reiaitider expetant
Statutory title-R. 24-Title ppeal-Expropriation of
HIGHWAY- Waterwork-Ilepairs Injunc- -Futire rights-A al/otrance-"Other aid of-Legislative soil--'as pipes- Fixtures etptioio'
(Can.)-55
HABEAS CORPUS-Jurisdiction-Forin of couinitment-Territorial ditision-Judicial tire-R.
HIRE OF PERSONAL SERVICES-Apof officrs- Nova Scotia, county'HYPOTHECS.
Pictou,--there IMMOVEABLE PROPERTY-Vendo pttrrhaser-Uipatd sale- Suspetiie iirorporated that freehold-Immoteables Fypoltecary charrps-A-ts condition-In Held that jurisic- Laid Blatd IMMOVEABLE PROPERTY-Continued. INSURANCE,
ACCIDENT
Renewal Filiatrault policyPayment premium-Promissory De_-Inructions agent-Agent's authoritythe Court Queen Bench affirmed, hndinJofjury.] policy issued bythe Manu- Girouard J. dissenting.
aprovision that renewed from year pipes-Title of ixtnres-LegilatIre should made, and another that renewal INDORSEIENT killer railway payment the INJUNCTION it had Inanaction agntesf waysndstreetis-R. art. Art. eanaccient accoun
P..t
Ce
Chicoutii, (the asnied the covenientiforat cetai tine ani that it that Q. art epted as but part ofet
J. that Reld, that t a had eloy o te the atice te
Cde
Cvilwas meaning article 1033a of the Code of Civilnok wldefaylittonf sauhry nicu~n a.Lt had works.R the jury, inference drawn of profits- Pressure-Fraudulent preferences-Statute did; that miaht fairly al. al.
drawn the facts that the INSURANCE ACCIDENT-Continued.
JUDGMENT-Continued amounted to payment the premium and it -Ptition in revocation of-equ~e cirilewas to assumed that the act was within the Cottcenhnenofeidece-Jnridictioit-4rt.1177 the agent's employment; the fact that 0. P.9-P. c. 135,s.
Where jndgthe agent disobeying instructions did not ment appeal has rendered prevent the inference though it might the Supreme Court Canada and certified to sidered determining whether or not such the proper the court original jurisinference should drawn ; and that new diction, the Supreme Court has jurisdiction trial should not granted to enable the to entertain petition (requte citi/c) for revocapany to corroborate the testimony the agent tion its judgment the ground that the that had renewal receipt his possession opposite party succeeded through the fraudulent except one produced at the trial as the concealment evidence.
pany might have supposed that the plaintiffC would seek to show that such receipt had obtained and were not taken surprise.'
Appeal-Jur/sdition- Reference coTHt AcinEt ISURNcE for opiniou-54 C. (B3.
C. c. The Supreme Court Canada has jurisdiction to entertain INSURANCE, FIRE-Landlord tenant the Provincial court upon refer- -Loss fire-Cause offire-Negligenre-Civil ence made the Lieutenant-Covernor-ii responstibility-Lefal presumptiou-Rebuttal of tnder provincial statute, authorizing him -Ons ofproof-Hazardous occupatiou-E xtra preniuns-Arts. tion any matter may think though the statute provides that such opinion 12'shall deemed judgment the court. INTEREST~-Usury latcs--C. S. 58-- C. art. 1785 jCOLUMIA
I -- Appeal-Itt erlocuton o-Rde--Fittal jdttettA rts.348-350 P- Trial jory. INTERLOCUTORY PROCEEDINGS r.
AppCao-nnterlocutory orte-oTrfal jeuyr nljudinent-R.
. c. &24--C.
of s3,ht arts.h348-350e os appellate rocrt g INTERROGATORIES~
-Fa/is iefatptiti Opsitioe to-eao s o atitcles -Judicitat adtnissiotts ts.
Pa/ic of sertic rts. 18,89 Ct Pi] The constructive admission jq,
Pta fact resulting default to answer interrogatories upon articulated facts recorded under art. C3 C. P., cannot invoked judi- Appeal-Jurisdiction-e52 u37,s. (D.)-Appoitttnzent of presiditng -- County nature between the parties.
fort jiniyes-55 V. c. (Ot.)-57 c. (Ottt. )-58 47 (Ont.)-Statntc, const rtion of Appeal frotti assesnmet-ia/ JUDGMENT-Eidetr-e Acilissiocs of /nst res ort "
.fied ittsrtoneitsj] A will, in favour of the husban the testatrix, set aside in an action t o a rer the heir-at-lam declared the jdg-i teo-o to acte faux, and therefo r beS
, nooI be t etitor
.
. 0. or
65-On tario Judirae
At, tule
He/d,as
Giroiard J. (dissenting)
, that the judgment dbdeSee the will faux not evidence adthe title the reason JUDG
Or DISTRIBUTION-Apanything the devisee had respect pea/-Collocation a ditribetior-Ar-. the will, first, becaiuse the will been C.P--.Hypotkecary,-laitn.Cs--sitttivotice purposes unavailable, and,
-- Rcyistratiomt-Prete-noct-A attd 0. secondly, because the declaration faux, C. P -Actiot del-Patie interest taIed the judgment, did not any -Icidental proceedittf/.] The appeal admission.
363 judgments distribution under article JUDGMENT OF DISTRIBUTION-Con.
JUSTICE Or THE PEACE-Continued. the Code Civil Procedure not restricted to diction judge the Supreme Court theparties to thesuit butextends toevery person Canada matters habeas corpus criminal having an interest in the distribution the limited to inquiry into the cause moneys levied under the execution.-The pro- imprisonment disclosed the warrant visions article the Code Civil Pro- commitment.
Ex pade cedure that every fact which the existence or truth not expressly denied or declared to unknown the pleadings shall LANDLORD AND TENANT-Loss fire held to admitted, applies to incidental prooffire-Negligenre-Cieil responsibility ceedings upon appeal the Court Queen's
Legal presumption
Rebuttal of-Onus Bench.-The nullity deed assignment proof-Hazardous occupation rts. can only invoked proceedings to which rebut the all persons interested the deed have presumption created article theCivil made parties.
- Code of Lower Canada it is not necessary for the prove ihe exactor probable origin JURISDICTION - Appeal - Jurisdiction- the that it due to unavoidable Expropriation of lands -Assessments-Local cident or irresistible
It sufficient improrements-Future rights-Title lands and to prove that the premises tenements-R. c. (b)-56 c. leased prudent administrator pere s. 1 defanille), and that the occnrred without any fault that could attributed to hin or to persons whose acts should held 2--Appeal -Interlocutory order-Trial sponsible.
Judgmentofthe Courtof Queen's jury- Final judgment-R. S. c.
Beich for Lower Canada affirmed, Strong C.J. Arts. 348-350. P.
dissenting.
r.
disoeLEASE-1Minles and minerals -Lease 3--Fornm of comnmitient-Territorial diiiny areasRental agreement-Payment rent -Judicial notice-R. s. -- Forfeiture-R. N.
c. 7-52 c. (N. S.)]
7, the Accident insrance-Reneal of po lessee mining areas Nova Scotia were Pa'on eofeninrnme-rmaissof obliged to perform certaiii amount work -Payment thereon year pain forfeiture Agent's authority-Finding of jury lease, which, however, only through certain formalities.
By an amendment the permitted JUSTICE OF THE PEACE-Jurisditionto advance annual rental Form of commitment - Territorial decision work, and (c) the owner Judicial notice-R.S.C. c. warrant leased area duplicate agreement commitment was made the stipendiary writing with the Commissioner magistrate for the police division the muni- avail himself the provisions such annual cipality the county Pictou, Nova Scotia, payment aid "such advance payments shall upon conviction for offeice stated therein construed to commence the nearest recur to have been committed " at Hopewell, the ring anniversary the date the lease." county Pictou."
The county Picton ap- 7 all leases are to contain the pro peared to a greater extent.than the muni visions'of the Act respecting payment rental cipality the county Pictou, there being ant its refund certain and 8 also four incorporated towns within the county said 7 to into two ionths limits-and it did not specifically appear upon after the passing the Act.
Before tha Act the the warrant that the place where passed lease issued to dated the had been committed was within the June for twenty-one years from municipality the county Pictou.
The May 21st,
June 1st, rental Nova Scotia statute respecting county agreement under the amending Act was corporations Vict. contains cuted under which E. paid the rent for schedule which mentions Hopewell a polling mining areas for three years, the last payment district Pictou county entitled to return two being May,
May the councillors to the county council. Held, that comnissioner declared the lease forfeited the court bound to take judicial notice non-payment rent for the following year and the territorial divisions declared the statute issued prospecting license to T. for the establishing that the place mentioned areas.
tendered the year's rent June the warrant was within the territorial extent 9th, and an action vas afterwards taken the police division.
Held also, that the juris- the Attorney-General, relation to LEASE-Continued.
LEASE Coninned.
illegally ficient and improvidently granted.
affirming sul-lease.
judgment recurring anniversary the late the lease" LEGISLATION
Revilae-Custos dutiesgoods-Importation Canada- 'arifiAct-Constrution-Jetrospectiie 32-57
(D.)-rent that' (1.)]-By thejudgment aproed ndfollowed.
JJ. that ''this assented to until imported into Canada 4th, were -395 2--Mortfgage-Leasehold prenises-Terms mortgage-Assignment LEGAL MAXIMS-Omnia prumuntur tended to and form part the term
LIEEL-Master and serrant-Iiring of perserrices-Municipal ofirers-Semiary dismissalreoltion-Statute, of- Iiference of sions-52 (Q.)-" discrtion" ''At pleectre"
assignment the whole term and the habendum, LIMITATION Or ACTIONS
Easement tothe nay nay-Interuption ofprescription- 4cquies-ence-R. 112-R. sr.) 100-2 that ilpoes.
LIMITATION OF ACTIONS-Continued. 'MALICIOUS PROSECUTION-Continued. t.ial itwith hisfather's winter road only, the cessation user for the MASTER AND SERVANT-Hiring of personalsertice-iipulcorporation-Appointplaintiffs ofoflicers-Summary dismisal-Libellous Held that resolutiou-Statute, inerpretation of-Diflerence s. (2.)-"A disrition"-" grant, sa tenure-Charges running Edits that MAGISTRATE.
MAINTENANCE
Will--Sheriff
Proof of heirshap-Rejection of MALICIOUS
PROSECUTION- -Probable
Negligence-Injuries sustained -errant neligeue -Proofmachinery.] MASTER AND SERVANT-Continued.
I MINES AND MINERALS-ontnaed. the accident by which the injuries were caused feiture of E.'s lease was, therefore, void for was directly due to his neglect.
v. want the formalitiesprescrihed theoriinal 567 Act.
3-Neglilence
Defective machinery
Evi- MORTGAGE-Leasehold prenises-Term mortgage-A simentorsub-lease.] Aleaseof MINES AND MINERALS-Lease of min- I real estate for twenty-one years with ing areas-Rental agreement-Payment of rent naut for like enn terms mortgaged -Forfeiture-R. N. S. ser.) c. 7-52 c. the
The mortgage after reciting the (T.
R. ser.) 7, the terms the lease proceeded to convey to the habendun ring anniversary the date the assigns, for the residue yet to and unexsaid feld, ant habendun, lans Held, that habendum sublease.
dently
MOVEABLES
Vendor and purchaser-Unpaid vendor-Conditional sale-Slspenlire or next ensuing anniversary," and the lease dition-Moeabes incorporated with freeholdneing dated June 10th, no rent for was Immoveables desination
Hypothecary due May 22nd that year at which date 'charges-Arts. e '. a] suspensive tion-In where the holders executed the agreement to the time, owner both the moveables and pay thereunder lieu work.
the real property with which they are incor- MOVEABLES-Continued.
MUNICIPAL CORPORATION-Con. porated.
Laind v. Beland Can. R. these properties brought an action to set aside and Filiatrault v. Goldie R. the assessments.
The Court Queen's distinguished.
Decision the Court affirmed a judgment dismissing the action. Queen's Bench affirmed, Girouard J. dissent- an application leave to appeal ing. v. THE
TE the the judgment sought to apwould to increase the burden assessment not for the expropriations then MUNICIPAL
CORPORATION made, but expropriations which would and sidewralls-By-law-I have to made the future, the judgment of statute-55 c.
which appeal would lie, the Finding matter controversy coining negligence.] by-law the City Kingston ing the words "and other matters things requires frontagers to remove from the where the rights future might bound," sidewalks.
The its being complied contained subsec. (b)
.
Supreme with was to allow the snow to remain on the Exchequer Courts Act, amended crossings which therefore became higher than 1.
O- Water-o,-s -By-ae ctin a resolution damages against the city and obtained a ver- the Council the Chicoutimi 9th corporation, guilty gross negligence, liable mo taed perisio sidewalks; notice action in case must t trial that River Chicoutimi atwhateverpoit mighthe the corporation has not been prejudiced in its his pe ditin Held, affirming the decision the the sod mntee withi a e Court Appeal, Gwyne J. dissenting, that constructed syste waerworks had it finding that the corporation had not fulfilled the perain withinsthet pib its statutory obligation to keep the streets and formed under the provisions R. S. repair; that attempted perfect system, Act; that judgin jury found the corporation guilty ; and that anj et apee romrelyne ~~.
sstem notice of action.
CITY V.
peris- Appeal-Juridiction
Expropriation improements feld, that Future rights-Title lands
(D.] was founded constituted ''contract ritand a portion street to certain meaning art. the Civil Proline, and for the necessary expropriations there- celure Lower Canada, and violation its grond 4--Asessment -Exemptions- MUNICIPAL CORPORATION-Con.
MUNICIPAL CORPORATION-Con. -Hi qhwray-'itletoportion-Lefislatire grant of-Dtflerence ofsoil-11 (Can.)--55 c.
and French versions (Q.) ''A
''At pleasure.'] which are the property a private corporation charter the City
Montreal, laid under the highways a city are real estate Vict. section gives power to the City within the meaning the " Ontario Assessment Council to appoint and remove officersas Act and liable to assessment as such, it may necessary carry into execntion they do not fall within the exemptions the powers vested it the charter, the tioned the sixth section that Act.
The French version the Act stating that such enactment the first and thirteenth powers be exercised '' sa discrdtion," clauses the company's Act incorporation while the English version the words 'at its Vict. operated as legislative grant pleasure." Held, that notwithstanding the to the company much the land the parent oifference between the two versions streets, squares and public places the city as the statute, it most interpreted one night found necessary to taken and held the enactment, and the City Council was for the purposes the company and for the thereby given full and unlimited power, convenient the gas works, and when the where the engagement nade incefiopenings where pipes may laid are made at nitely to duration, to remove stthe place designated the city surveyor, manly without previous notice, payprovided said charter, and they are placed nent nly the amount saltry accrued to there, the soil they occupy land taken and op to the late dismissal. held the company untler the provisions the said Act incorporation.
The proper the the streets, uares and pub- -Special assesssnettt-Jesjtidirata.] lic places a city ought to separately the ttniera la obligations initiation and contributions- By-lar-Ontario of c. (0.)-36 c. (0.)-R. 0. c.
184-Ottario Muniripal of. NEGLIGENCE
Ontario MunicipalAct V. that ofstattte-55 c. 531-57 l3Findig jnry-Goss A the water lands another the lands the agers to removesnow the sidewalks. latter benefited may assessed for their its being conplied to allow proportion the cost applies only to drains the to remain the crossings which properly called, anl not include original therefore became higher than the sidewalks, watercourses which have deepened or ai when pressed down traffic incline verdict, le toy that end,with it, GREY and that the corporation not prejudiced its the J. dissenting, Hiring of per- that there sonal services-Appointment of Sum- jury in finding that the corporation had not disnmissc-Liellons fulfilled its statutory obligation keep the NEGLIGENCE-Contin ued.
NEGLIGENCE-Con/inned.
repair; v. trial. premises-Risk that tardy part hal coalat id not apply to the School Board or the caretake'r charge and tenant-Loss fire-Cause offire-Ciril respon.sibility-Legal tie of-Onus ofproof-Hazardous tie pation - Arts. danger the condition the premises Canada it not necessary for the lessee serran/-Injuries that lesponsibili/y-Uon/ribu/ory to'-Protectionofnachinery.] that ststains that sile that offnc/
3_--Defectire machinery-Evidence for Jury.] lae
NOTICE-Nerliuence-Unsafe premises Risk duty NULLITY-Assignent
-Regis/,aion--Ac/ion Pa-ies that interes.]
aII bolt shuttie all jury made parties.
Sale-Donaion of-Gifts Presunp/ion cianstances-Da/ion paiemen/-Arts. Durilg ier last aid ilstrunent that, settlenent that thatthe tie tie coisite blwas paid.
consisted in the omission to eane thebol tie that the prov isions article the NULLITY-Continued.
PARTITION- Will-Gonstraction of-Donabstitntion-Partition, that caht.
paienent,)
PAYMNT
Evidence-Estoppel-C. arts. and ininy areas-Rental agreement-R. for of creditorstPrefer 2- Mortal paid Nu/lityl-IDat -Liability assinee
OPPOSITION-Action- of-Judgtent PLEDGE-'litle land--Sale-Right of default-Opposition judgment-Reasons demption-Efect third parties-Pledjejoined and of Arts. P.-False service.] default for lv parte that bailiff.-The which exparte the Beld, reversing yar aday that intnded that tha ame, elapsed from the the same, and ete a' it was valid as such, not only nerits.-An person as that POSSESSION-Action disturbance-Possessory action-' annale"-Arts. P.-Vature of of rcant lands
Bofndary nark that of Hypothecs--Arts. p.ration--Prite-nondeed-Parties interest-Ini the adjoining lot, which was also vacant and PARTIES-Action for account--Prorisional Asiynment
Prte-nom- Notice-A annut was POSSESSION-Continued.
I PRACTICE-Continued.
ciently established to entitle the plaintiff to the defendant's grounds defence upon the maintain his action.
it hould dismissed merely for the that the resciesoire thus been 2--Deed-Construction of properly joined with the rescindant. scription-Title lands-Conduct oj'patics favour of
3--Testamentary succession-Balance tutor-Executors- for--Action for Parties
PRACTICE-Appeal-Collocation and distribution-Art. P.-Hypothecary
-Arts. P.-Action leed-Parties interest-Incidental ings.] The appeal judgments distrithe Civil Procedure that every fact which the existence or truth is not pressly denied or declareil to unknown the pleadings shall held admitted,
- Preliminary of return
- - 4--Questions practice-Appeal-Duty ppeal-Jurisdiction--Discretionaryorder plead-R. and 27-R. 65-Ontario Judicature PREMIUM NOTE-Accident insuranceof policy-Payment of premium-Pronote--listructions agent-A authority-Finding jury
PRESCRIPTION nterruption of-Niecesnay-Implied grant-User-Obstruction PRESUMPTION-Sale-Donation in form death-Mortal Action-sercire of-Judyment Fiesimption dating circumstances-Dat "joined seq., P.-False
PRtTE NOM
4ssigument-Action the papers
-Sha-eholders--C. 68-42 32-Liquidation ofclcvsesof-Interest parte judgment elministratos judgmenit and have it set aside, notwithstaud- PRINCIPAL AND AGENT-Accidet elapsed from the rendering the same, and preiiumn note that agent-Agent's authority-Finding ofjuryI A good defence to the action the merits.-An policy the Manufacturers'Ae. Is. P. premium.
conitio PRINCIPAL AND AGENT- Continied.
$16)
jury but coipany.
tract it; that did; that drawn;
'PRINCIPAL AND AGENT-Continued. that trial not 2--Buildinrg ociety-Liquidation Prite-nom- PRINCIPAL AND SURETY
Suretyship .se-Ratable of warranty
Banlkinq-Disco-surety-Reserre recourse-Trust finds of surety-Arts. him.-Where Qia/ied pour aral, at PRINCIPAL AND SURETY-Continued.
entitled to recover an action upon the notes.
PRIVILEGES AND HYPOTHECS-Sale sherif-Folle enchdre-Resale for false bidding-690 P-Questions-of practice
-Appeal-Art. 0. P.-Sheriffs deed- Registration of-Absolute nullity-Rectification of slight errors in judgment-Duty of appellate
2-Unpaid vendor-Conditional saleables incorporated with the freehold-Immoreables destination-C. arts. seq.-406
Collocation and distribution-Art.
P.-lypothecary claims-Assignment-Notice-Prete-non-A rts. and P.
Nullity ofdeed-Incidental proceedings-Appeal
PROBABLE CAUSE.
PROCEDURE.
PROMISSORY NOTE-Action-Suretyship
-Qualified indorsement.]
acal, at third
PROMISSORY NOTE -Continued.
REAL PROPERTY-Gas pipes-fixtures- A esiment -Exemption
Jrom taxes REDEMPTION (DROIT DE REVERt) Title land-Sale- ht of redeniption- Efect as to third parties-Pledge-Delivery and pos- REFEREE respecting lands- Boundaries - Referee's decision - Bornage- Arbitration-Arts. and REGISTRY LAWS-Sale sherif Sherift's deed-Registration of-Absolute ntlity - REMAINDER -Statute, construction of- Estates tail, acts abolishing-R. N. S. (1 ser.) 112-R. 112-R. 111-23 S.)-Vill-Construction of-Executory devise over-" -Dying the body"-Estate in remainder expectant- Statutory title-R. N. S. c. is. and 24-Title will-Conveyance tenant in REPRESENTATION-By heirs--Partition per stirpes or per capita-Usufruct-Accretion REQUtTE CIVILE-Petition in recocation of judgieit-Concealment of eridence-Jurisdiction-C. P. Q. art. I 177-t. S. c. s. SALE-ontinued.
Sherif' deed-Registration of ullitypurported to rente ce it was valid Arts. P.
309 not only as respected third persons.
REVENUE
LAWS --- Revenue - Ou"toms 3-sale sheriff-Polle enchere-Resale for - Imported -- Importation i'to false biddiny-Art-. 690 P-Art. Canada-Tarif Art-Contruction-Ret 688C P.-Pririeges andhypothers- 'hersf's leglislation-R. U. c. 32-56 & V. c. deed-Reqitration of-Absolute nullity.] Part (D.)-58 & c.
- lands the sheriff had withdrawn before sale but proceelings for flle cu/re it was ordered that the property described the proces verbal seizure should REVERSION-fortgage-- Teasehold pren.i.
resold, reference being made the part -Terms of mortWaye-Assignment or withdrawn.
appeal, the Court Queen's reversed the order the ground hat directed a resale property had not sold and further apparently regular sheriff's the lands actually REVIEW, COURT OF-Appealfrom Court had been duly registered, and nut of Review-Appeal Privy Council-Appeal- annulled the-rder for resale, prior to the able aniount-54 & c. 1. proceedings folle cuere. Held, that the & 4-C. S. c. 1. 25-Arts. sherif's deed having issued improperly C. P.-R. S. Q. art.
and without authority should treated as absoluteinnllitynotwithstandingthatit hadbeen registered and appeared its to have SALE-Contract-Sale saiple--Objections regularly issued, and it not necessary incoice - Reasonable time Acquiescence-ito' have annulled taking proceedings Evidence.] merchant receives an invoice foifolle enchre.
and retains it for considerable time without any objection, there presumption against 4-- Vendor and purchaser- Unpaid vendorhim that the price stated in the invoice was Conditional
Suspensive condition-Morethat agreed
(Judgment the Court ables incorporated with freehold-mnmoreables Queen's Bench, that the evidence was sufficient desination-Hypothecary chargesArts. to rebut the presumption, reversed, Gwynne C.
suspensive condition in J. dissenting and holding that the appeal de- agreement the sale moveables, whereby, pended mere matters fact which an until the the price shall have appellate court should not interfere.)
paid, the property the thing reserved 1totevendorisavalidodition.
Tim land-Right of redemption-Effect I third parties-Pledge-Delivery and possession of thing Real estate 5--Donation inform of sale-Gifts veyed security for money advanced by'plation of death-Mortal illness of donor-Prehim to the vendor, the deed sale containing ption of nullity
Vcdidating circumstances provision that the vendor should have the Dation paiement-Arts. right a re-conveyance paying to the Dining last illness and short time before amount the purchase with interest her death, granted certain lands to and expenses disbursed, within certain time. instrument purporting to deed subsequently advanced the vendor a further price therein stated, but reality the transacsum and extended the time for redemption. tiou intended settlement arrears The right redemption was not exercised salary the grantee and the considthe vendor within the time limited and took cration acknowledged the deed possession the property, which was subse- paid.
Held, reversing the decision the Court quently under an execution issued V. Queen's Bench, that the not judgment creditor the vendor.
then set aside and annulled under the proopposition claiming the perty under visions article the Civil the Held, reversing the judgment the circumstances tended to that the transac- Court Queen's Bench, that as it shown tion was actually for conside-ation (dation that the parties were acting in good and pienent,) and consequently legal and valid. that they intended the contract
[S. C R. YOL. XXVII. SEIGNORIAL TENURE-T'tJe land'SERVITUDE--Condo
Deed of conicession- Conistructiou of deed-' of linitatio-Coreatw franteerunnin title-Servitudeestab- Ciharejesi voeo-ngw/hte.
coluero-Prscriptre title-Edits tihe ordonnances, (L.O.)-Muiciipal requlationi-i
(LG. )Muncipa rel(/(mn
SEIZIN-Possessory actionV-rant marks-Delirery of
SERVICE OF PROCESS--Service of copy-BailhfI's retura-Crossexamination-Production of
2---False of serrie snunons-Judgtojudgment-Arts.
seq.,
-Implied ser.)
SHERIFF-Deed of-.Absonullity-Folle for 2--Deed by--Champerty-Maintenance SERVITUDE
SHIPPING-Foreiyn fshing ure-Deed of of
I8iS-Three limi/-59 limitation-Covenant roluero-Prescriptive title-Edits
(Can.)
In the Seigneur STATUTE, CONSTRUCTION OF-Appeal from
Pricy Counil amount-54 3.s.s. 4--C. 25-Arts. P.--R. 9. art. tle by.54 & A s.s. appealale A aninaux tie a part it6 dit
A
& ient privilge,
Held, areas-Rental agreement-Paymen that Forfeitures-1. 7-52 File aount amndment lessee adthe owner all STATUTE, CONSTRUCTION Or-Con.
STATUTE, CONSTRUCTION or -Con. of personal serrics-ibinicipal Appointment of offiers Summary (isissal-Libellons lition -igfrenre
Enylish and French ,ersions of satste-52 V. (O.)-'A iiscrdtioi"-''At pleasure."] Concil sub discrdtion," its pleasure." Held, that Estates tail, acts nboltshiny
N. 112-B. N. 112-R. S.,V.,5. (33cr.) (iV.S.)-Will Costruction of
Executory devise over-Dywithout issue the body"-Estate in remainder expectant Statutory title B. 24'1itle will-Gonveyance tenant in 3--Revenue-Customs duties-Imported Canada-Tarif Act-Conlegislation-R. 32-57 (D.)-58
Crurt, JJ. until landed.-Section latter assuch.' STATUTE, CONSTRUCTION OF-Con.
devised lands in Nova Scotia to his son, and in default lawful heirs, with devise over to other relatives, in the course descent from the first donee.
the death the took possession the property as devisee under the will, and held it until when sold the lands in question in this suit to the appellant. Held, per Taschereau, Sedgewick and King JJ., that notwithstanding the reference to " valid remainder " in the statute all estates tail were thereby abolished, and further, that subsequent to that statute there could no valid remainder expectant an estate tail, there could not a valid estate tail to support such remainder.
further, per Tasehereau, Sedgewick and King
JJ., that in the devise over to persons in the course descent from the first devisee, in fault lawful issue, the words " lawful heirs,"
in the limitation over, are to read as if they were " heirs his "; and that the estate the first devisee was thus restricted to estate tail and was consequently, the operation the statute converted into estate fee simple and could lawfully be veyed the first devisee.
Held, per Gwynne and Girouard JJ., that estates tail having remainder limited thereon were not abolished the statutes or but continued to exist until estates tail were abolished the statute 1865; that the first devisee, in the question, took an estate tail the lands devised and having held them as devisee tail up to the time the passing the Act the estate in his possession was then, the operation that statute, converted into an estate simple which could lawfully conveyed him.
EnssT
6-Appeal-urisdiction of presiding
County Court Judges- (Ont.)- (Ont.)-Appeal from assessment
- Final judgment.]
By Vict.
amending
"The Supreme and Exchequer Courts Act," appeal lies certain cases to the Supreme Court Canada fron courts " last resort created under provincial legislation to adjudicate concerning the assessment property for provincial or municipal purposes, in where the person or persons presiding over such court or are pointed by provincial or municipal authority."
the Ontario Act, Vict. amended
Vict. an appeal lies from rulings municipal courts revision matters assessment to the county court judges the county court district where the property been assessed.
an appeal from the decision the county court judges under the Ontario statutes: Held, King J. dissenting, that if the county court judges constituted a "court
STATUTE, CONSTRUCTION Or-Con. last resort" within the meaning Vict. the persons presiding such court were not appointed provincial municipal authority, and the appeal was authorized by the said Act.
Ield, per Gwynne J., that no binding effect is given to the decision the county court judges, under the Ontario Acts cited the court appealed from was not a "court last resort" within the meaning Vict.
Quere.-Is the decision the county court judges a "fiaal judgment" within the meaning Vict. 2?
- - Civil Service - Extra salary-Additional remuneration-Perthat extra which, at the time his acceptance the intended or expected to within the and ice sidewalks-By-law-55 V. c. (Ont.)-57 (Ont.)-46 9-Convention of - Fisheries mile limit-Foreign fishing vessels-" Fishing III. c. (Imp.) - C. c. & STATUTE OF ELIZABETH-A ssinment for of creditors-Preferred paid voidable Liability of assignee-Hindering delaying 2--In solrency--Pressure-Assigmenet of profits-Fraudident al. V. STATUTES-13 Eliz. c. (Fraududent STATUTES-ontinued.
ances]
16--R. c.
Fishing sets]
2i1 Eliz. [Fraudulent conveyances.]
III. (Inp.) [Fisheries; Three
Limit]
--- & IV. (Imp.) and 4
[Limitation of
Exchequer Courts Act
1.See
5--C. S. [Interest; Usury]
19--B. C.
6--11 c. (Can.) [Incorporation of h sumers Gas of Toronto]
20--R. c. [Supreme and Exchequer Act"]
7--23 V. (Can.) c. [
]
21---.
Supreme Court]
8--R.
c. Dominion Elections
22--R.
c. s. [Certificate ofSupresne Court appeal] 9--R.
Dominion Elections Act
SeJU'ET
241"
EUT
23-R.
c. s. [Jurisdiction of Sn- 10- C. c. and Dominion prem Court Habeas
-orpus] - Controverted Elections Act
24-V7V. .
M. 0. 0. jy. Easten
11--B. c. 9 Controverted Elections Act
12--R. c. respecting House 25--48 & c. (A) M. 0. & 13-B. c. Service Act]
657 26-51 V. c.
CilSrcemnd Act]
S.
Am-n6 14--R. S. C. c. civil
8. [Apptls Court of Canada, from Provincial and 15--R. S. [Customs Act]
pal Courts]
[S. C. R. YOL. XXVII. STATUTES-Coutioned.
28--54 c. 20, [Coutrorerted
Elections]
& c. s. [Controrerted
30--54 & V. (D.) c. s.s. and 4
[Supreme and Exchequer Courts]
- 31--54 35,s.
32--55 & c. The
Crimina/ Bigamy sections]
33-56 c. s. 1 Supreme and Exchequer Courts "]
- 34-56 V. 1 Court]
35-57 & Y. c. ,. [Customs
Duties]
- &
[Customs
Duties]
- - - R. 0. c. [Ontario Judicature
38--R. S. 0. c. [Municipal Act]
39--36 V. (0.) ["Ontario Drainage Act,
40-36 c. (0.) [Drains and Watercourses
STATUTES-Continued.
41-55 c. 8. (0.) [Municipal Act] - - - - - - - 42--55 V. c. (0.) [Consolidated Municipal 43--55 c. (0.) Ontario Assessment 44--55 (0.) [Appealsfrom assessments and Municipal Courts of Revision]
- 45--57 V. r. (0.) [Municipal Act] 46--57 Y. c. s. (0.) [Appeals from assessments and Municipal Courts of Revision] c. (0.) [Appeals from assessments and Municipal Courts of Revision] - 48--C. L.C. [Building Societies] 49--C. L. c. [Court of Queen's Bench] -- --- 50--R. art. [Appealable amount determined demand]
S. art. [Waterworks] -- 52--42 &
[Liquidation "
STATUTES-Continued.
53-45 c. 0. & 0. Ry.
Eastern
54--52 [Charter of City
55--R. N. S. (1 ser.) [Estates Tail]
56--R. S. N. S. ser.) c. [Estates Tail]
57--R. N. S. ser.) [The Wills Act]
R. N. S. ser.) [Estates Tail]
59--R. S. N. S. ser.) c. (Liberty
R. S. N. ser.) c. [Limitation
61--R. S. N. [Mines and
62- R. S. N. c. [Limitation
63-28 V. c. (N. [Estates Tail] - 64--52 V. c. (N. [Mining]
- STATUTES-Continued.
65--54 V. c. (B. [Coal Mines Regulation Amendment Act,
66--58 V. (N.S.) [County corpora- SUBSTITUTION
Will
Construction of- Donation-Partition, per stirpes or per capita- 17sufruct -Alimentary allowance -Accretion legatees.]
The late Joseph Rochon made his will in which'he devised to his two sisters the usufruct all his estate the property therein to their children, naming Pierre Dupras, his uncle, his testamentary executor, and directing that his estate should realized and the proceeds invested according to the executor's judgment, adding to these directions the words " placer la masse liquide de ma succession h intirit autrement, la manibre qu'il croira plus avantageux, pour fournir revenus A mes dites et conserver fonds pour leurs enfants," and providing that these legacies should be considered as an alimentary allowance and should non-transferable and exempt from seizure.
codicil in he appointed a nephew as his testamentary executor in the placeof theuncle, who had died, anddeclared:- " Il sera de plus 1'administrateur dits et jusqu'au partage d6finitif de biens entre hiritiers voirs qu'avait dit Pierre Dupras dans dit testament."
Held, Gwynne J. (dissenting)
, that the testamentary dispositions thus made did not create a substitution, but constituted merely devise the usufruct the testator to his two sisters and the estate, (subject to the usufruct), to their children, which took effect at the death the testator. Held also, server le fonds"-imposed upon the testamentary executor could not construed as posing the same obligation upon the sisters who were excluded from the administration, or having, that term, given them the property subject to the charge that they should hand it over to the children at their decease, or being modification the preceding clause the will which the property was devised to the children directly, subject to the usufruct. Held, further, that the property thus devised was subject partition between the children per capita and not per stirpes.
SURETYSHIP.
TAXATION-Appeal-Local improvements- Expropriation of lands-Future rights
And AsSSs
TENANT FOR LIFE- Will-Construction
Words offuturity-Joint lives-Time for ascertainment of class-" Lawful heirs "-Survivor dying without issue
TENANT IN TAIL-Statute, construction
-Estates tail, acts abolishingl-R. S. N. (1 ser.) c. 112-R. S. N. S. ser.) c. 112-R. S.
N. S. ser.) 111-28 V. c. (N.S.)
Will- Construction of-Executory devise over- 'Dying issue"-" Laivd body"-Estate remainder expectant-Statutitle-R.
ser.) c.
-Title will-Conveyance tenant in tail
TERRITORIAL DIVISIONS-Habeas corpus-Jurisdiction-Form of conimitment-Judicial notice-R.
- TITLE TO LANDS -Seignorial tenure-Deed of concession-Construction of deed-Words limitation-Covenant grantee-Charges running with the title-Servitude-Condition, volnero -Prescriptive title Edits & Ordonnances, (L.C.)-Municipal regulations-23 V.
(Can.)
ayants
''en A s'il udcessaire,
A dit
A spicialenent
A
TITLE TO LANDS-Continued.
grant, 2--Right of redemption-Third parties-Delirery and of
3--Ambiguous description-Possession-P-esumptions infavour o occupant
Statute, construction of-Estates tail, acts abolishing-R. N. (I ser.) c. 112--H. N. S. (2 ser.) c. 112-- . Ill c. (N.S.) -- Will-Construction of- Executory devise over-" Dying without issue - " Heirs of the " - Estate in remainder expectant-Statutory title- R. N. (2ser.) c. and 24--Title by vill-Conveyance tenant in tail
- Wu
TRANSACTION -Nullitied instrmnents - Kstoppel-C. arts. and -- TREATY - Construction of- Convention 1818-Fisheries -Statute, construction of--59 III. (Imp.)-R. S. & Three mile limit-Foreignf vessels-'"Fish- III., TRUSTS -Trustee -- Arrount fuid- TRUSTS tablisiel tie iela- Providence Bid, after1.'s Sheholdr sum Ase-rnts sojudgnent dilifull sinilar sur still iis iito tie TRUSTS-Continued.
TRUSTS-Cotinued.
right -ed, attributed deed.
instrnsrtConpromise-that USUFRUCT lioiS'ibstitrrtion Pertitioa, per tieen naning llpras, Iis that Iis that tie ir-ested tie incgrort, na intirt cies rvr that legcies alircrtary ard lacministraterr (ines jasquac scers affirs rornies ion sit juscj'as irritiers prolitaires, testanent." tinuel nentary thrs antif tie tie fruct).to tok That, that deth estate-'' nserver deteriirposed iot iiposiig tie chrge tiey tie liing sfficient tie TRUSTS-Continued.
capita per
USURY - Building societies - Participating
& V. c. 32-Liquidation-Expiration of classes-Assessments loans-Notice of- Interest and bonus-Usury laws-C. c.
C. C.-Administrators and trustees
-Sales to-Prite-nom-Art. - VENDOR AND PURCHASER - Unpaid rendor-Conditional sale-Suspensire destination-Hypothecary innoveables
Laind
Filiatrault
VENDOR AND PURCHASER - Deedlands-A description-Eridence rary of parties-Presumptions of premises-Arts.
0. 0-47 c.
(D.)-45 (Q.)-102
WARRANTY-Suretyship-Recourse se-Ratable contribution-Action warranty-Ban king-Discharge of of recourse-Trust funds of surety-Arts. 0.] Where two sureties has moneys his hands to be applied towards payment the creditor, he him.-When
WARRANTY-Continued.
MERCHANTS WATERCOURSES.
WATERS, CANADIAN-Treaty of 1818of-Fisheries-'1hree of statutes-59 III. (Imp.)-R. S. and 95-" Fishing "fishing
WATERWORKS-Mun icipal corporation- Waterwork-extension
By-law-Resolution-A greenent in writing-Injunction-Highuays and streets-R. S. art. 4485-A rt. C. P.
- - WILL-Undne inilnence-Eridence.] In tion was obtained undue influence the testator of-Donation-Substitution- Partition, per stirpcs capita-Usufructin which devised to his two sisters int~rt declared:-" l'addit jusqu'au dfinitif hiritiers WILL-Continued.
WILL-Continued.
et il aura pouvoirs qu'avait dit Pierre Statutes Nova Scotia, (1 ser.) Dupras dans dit testament."
Held, provided as follows:
estates tail are Gwynne J. dissenting, that the testamentary abolished, and every estate which would hitherdispositions thus made did not create substi- to have adjudged tail shall hereafter tution, but constituted merely devise the Ic adjudged simple ; and, no valid reusufruct the testator to his two sisters and mainder limited thereon, shall a the estate, (subject to the usufruct), to their pie absolute, and may conveyed or devised children, which took effect at the death the the tenant tail, or otherwise shall descend testator.
Held also, that the charge pre- to his heirs sitple." In the revision serving the estate-" conserver fonds"- (R. 8. N. ser.
the terms are latter statute per per
3-- Will-Sherifs deed-Evidenwe-Proof oJ his will, made in devised lands heirship-Rejection of evidence-New trial- Nova Scotia to his and default lawful Champerty-Maintenance.]
will purporting heirs, with devise over to other relatives, JJ., that further, that that JJ., that trust the statute into part the persons attacking the the latter an estate simple and could conveyed had failed to establish the title the persons the first devisee. Held, per Gwynne ani under whom they claimed and the appeal (lirouard JJ., that estates tail having remainshould be dismissed.
der limited thereon where not abolished the 4--Statute - Construction of -- Estates I all estates tail were abolished the sta- 112-R. N.
ser.) c. 112-R. S.
question, took estate tail in the lands N. S. ser.) c. 111-28 (N.S.)-Ex- vised aid having held them devisee tail ecutory devise over-Dying without isseup the time the passing the Act heirs"-" Heirs of "-Estate in remainder epectant-Statutory title-R. operation that statute, converted into N. S. ser.) c. & 24-Title will estate simple which could lawfully tenant in tail.] ab Zisce WILL-Continued.
WILL-Continued.
5--Constrution o- Words offuturity- Life 6--Testamentury succession- Balance due by es(ate-Joid lices-Time fbr acertainment of tator-Executors-Arrount, for-Action class-Surcivor Lauftd for prorisional devise real estate tothe testator's wife and only child for their joint lives, with estate for to the survivor and remainder in
7--Eridence-Vullfed tention upon the part the testator to exclude the child from the class entitled to the case child should survive the testator.