Leggat v. Marsh — (1899) 29 SCR 739

Majority

Bench for Lower Canada, (appeal side), (1) which reversed the judgment of the Superior Court, District of Montreal, in favour of the plaintiff and dismissed his action with costs.

After hearing counsel on behalf of both parties the court reserved judgment and, on a subsequent day, dismissed the appeal with costs for the reasons given in the court appealed from.

Lafleur and Buchan for the respondent.

Marine insurance-Re- ACTION-Conti ted.

pairs-" jury under the policy until after award Setting rerdict.

have been obtained the manner therein vided fixing the making such award condition precedent any right action to recover a for under the policy.

Construction of statute-20 & ACCORD.

Imp.)

Application

Criminal prosecution- Embezlement of trustfunds-Sesjsnsion of civil reneay Stifling prosecution

-Partnership-ettled

& cl.54, and provides that nothing this Act contained, (ounts.] judgment sing business capacity the other managed and had taken thereon against any person controlled all its affairs presenting at intervals to under this Act, shall prevent, his partner statements account which the lat- peach any remedy at or equity, which ter passed and nothing this Act submitted the active partner, were exe- contained shall affect prejudice any agreecuted

In an action against the active ment entered into, security given Held, that trust Senble, that Municipal corporation-By-law-Railway aid-Subscription for shares-Debentures-Dir- Is the said Imperial British ision of county-Erection of separate muni- Columbia?

it would not apply to a cipalities-34-V. c. (Que.-Arts. prosecution for an under R.S.C. Mun. Code-39 V. c.

(The Larceny Act)

Assessnient-Sale of shares at discount-Action brought covenant given for the purpose of comptes-Trustee-Debtor and which was inn-Code,

Held, that the alleged Criminal ACTION-" Mortgage clause "-Fire insur-Act, having committed before the ance-Assignment of insured caie -Arbitration- Award-Condition held express trust the remedy his mortgage has been assigned and he has ceased to have any interest therein at the time the loss-1Where condition in the 3-Muaicipal corlloration-By-law--Railway policy provided that no action should main- aid

Subscription for shares-- Debentures tainable against the company for any claim Division of county-Erection of separate ACTION-Continued.

municipalities-34 V. (Que.)-Arts.

Code-39

Assessment -Sale of share at discount-Action redition conptes-Trustee-Debtor and creditor.] action en redition comptes not lie against trustee invested with administration fund administration complete and has terminated. -V here several local municipalities formerly constituting part county municipality have been detached therefrom and erected into separate corporations they remain in the same position in regard to subsisting by-laws as they were before the division having further rights or obligations than they had never been separated, and they cannot, either conjointly or individually institute actions against such county corporation to the rendering special accounts the administration funds realized upon the sale county debentures issued before the separation, their proper method obtaining necessary information before that provided article the Municipal Code and through the other facilities thereby afforded local municipalities the

4--Title land-Sheriff's sale-- Vacating sale

Arts. U. P.-Refund price paid-Exposure eviction-Arts.

C.-A ctio condictio indebiti -Substitution-Substitution non ouverte

-Prior incumbrance-Discharge sheriff's sale

-Proedure]-The refunded.-The actio condictio indebiti the recovery the price paid the purchaser lands lies only in where there has been actual eviction.-The

Trust and pany of Canada v. Quintal Dor. B.

followed.

5--Scire facias-Annulment of Letters Patent

-- Tender - Concealment material facts- Transfer of Crown lands.] Held, Taschereau J., dissenting, that it not necessary that an action for the annulment letters patent should be preceded or accompanied tender or deposit of the dues paid to the Crown in order to obtain

ACTION-ontinued.

'l ime limit for submitting particulars of loss- Condition precedent

Waiver -Authority agent]-A condition in policy insurance against provided that the assured " to ing Employers' Liability Assurance Corporation 7 aylor Can. R. that pliance with this provision was condition precedent to action the policy. Condictio indebiti-Rdpetition l'indu- Fictitious claims-Misrepresentation-Evidence -Onu probandi-Arts. 0. -Railway subsidies

V. c. Insolvent company-Construction of railroad by company-Payment of claims Grown- Transfer failed, another company undertook to complete $175,000, reversing the judgment the Court Queen's Bench, that the action must fail it could have been maintained against that the onus was on the Crown proving A.'s claim to be fictitious, and that the Crown not only failed to satisfy such onus, but the evidence clearly established the claim to be a just and reasonone.-Held, that, letter under.-Held, that pro ACTION-Continud.

Liquor laws-Municipal

Discretion of members of counzcil-Refusal to confira certificate -Liability of corporation.]

In an action against a municipal corporation proceedings-Negligence-Interference with proprietary rights-Abandonment of proceedingsstility-Arts.

-domain

- 10-Action to compel completion of purchase- Settlement after judgment. -Subsequent

AGENT- AGREEMENT-Railways-Expropriation land-Title land- I enants in

Propr-idaires par indivis-Misdescription

Plans and of reference-Satisfaction

-condition as idemnity-Registry laws-E stoppel-R. S. Arts. 5164-Art.

APPEAL -Jurisdiction- Court of

Judgment in first instance varied

P. Q-54 & V. c. s.s.

Statute, construction of.]

nent,

49J

EX.

APPEAL--Continued.

Criminal -Criminal Code, 742-750-New trial-Statute, construction of-55 & V. c. appeal to the Supreme Court Canada does not lie in where a new trial has granted the Court Appeal under the provisions the Criminal Code, sections to inclusively.-The word "opinion" as used in the second subsection section hundred and forty-two ' The Criminal Code, must construed as meaning a decision" or " judgment" the Court Appeal in criminal

3--Right in Ontario cases-60 & 34-Application pending cases.]

appeal to the Supreme Court cases Ontario as therein specified, not apply to a which the action was pending when nounced until afterwards.

4--Exchequer Court-Order after lodging appeal Supreme Court of Canada-Jurisdii--Question of practice-Inscription for proof and hearing-Peremptory list-Notice- Surprise-Artsfce -Requdte civile-Arts. C. P. (old text)-R. of P. granting appropriate relief although the strong TowNSHIrs

6--Jurisdiction-- Special - R. S. C. as. 42-Form of application and order -Cross-appeal Privy Council-Inscription pending such appeal - Stay of proceedings- Costs.] In an order granting special leave to APPEAL-Continued.

! APPEAL-Continued.

appeal for hearing the Supreme Court judice and there was necessity for a motion Canada after he had received notice an to quash.

appeal taken the same matter the respondent to the Privy Council, upon motion on 10---Dertiorari - Merchants' Shippin Act, behalf the respondent the proceedings in I 1854-oDitrsedemn--Roerofexpnethe Supreme Court appeal were stayed with

Ownerfortimebeing" Proofofownershipand costs against the appellant pending the decision payment.] An appeal lies to the Supreme Court the Privy Council upon the respondent's Canada from the judgment a provincial appeal.

(Eddy v. Eddy [Coutlde's Dig. court making absolute nisi for certioran to bring up proceedings before police with view to having the judgment thereon 7--Court of Review-Right of appeal to Privy quashed.

Council-Construction statute

Final judflment-R. c. (j), & 29-54

& 1 c. 25 s. 3 (D).]

Certain ratepayers of ARBITRATION AND AWARD -Ditches the City Montreal having objections to one and Watercourses Act, (Ont.)-Owner the commissioners named proceedings land - Declaration ownership Defectstaken for the expropriation land required

Validating award - the improvement public street, in which c. (Ont.)]

lessee land with they were interested, presented a petition to option purchase not an the Superior Court demanding his recusation. owner initiate proceedings for The petition was dismissed; appeal to struction ditch under the Ditches and the Court Review, the judgment dismissing

Watercourses Act, Ontario. Township the petition was afirined, and further appeal of York folthen taken to the

Supreme Court lowed.-If the initiating party not really motion to quash the appeal for owner the filing declaration ownership want jurisdiction.

Held, that no appeal under the Act will not rjurisdiction.plano would lie from the judgment the Court Section the Act, which provides that Review to Her Majesty's Privy Council, and award thereunder, after expiration the time consequently there was no appeal therefrom for appealing the judge, or after it to the Supreme Court Canada under the affirmed appeal, shall binding notwithprovisions the Act, & Vict. standing any defects in or substance amending The Supreme and Exchequer either the award or any the proceedings, Courts Act.

further, that the judgment not validate an award proceedings the Court Review was not a final judg- where the party initiating the latter not an ment within the meaning section The owner.

or TowxsHIP Supreme and Exchequer Courts Act.

2--Conditions of policy - Award--Right 8--Eviden ce-Concurrent findings on questions action--Condition precedent offact-Reversal Although there concurrent findings questions fact in both courts below, the Supreme Court ASSESSMENT - Mlunicipal corporation - Canada will, upon appeal, interfere with their Assessment- Montreal harbour improvementsdecision where it clearly appears that gross

Wideninq streets-Construction statute-57 injustice has occasioned to the appellant,

V. c. (Que.)-52 V. c. and there evidence sufficient to justify find- by-law passed under the to the contrary.

Taschereau J. dissented, statute, Viet.

provided holding that there had been concurrent for special loan aid the Montreal harboth courts below supported the bour improvements, and appropriated evidence, an appellate court ought not to inter- thereof for the construction a tunnel with fere.

- 616 approaches as shewn a plan annexed from Craig street, line with Beaudry street to the 9-Habeas corpus- Extradition-Necessity to tunnel, passing the side W.'s land, and subquash.] The Supreme and Ex- sequently a resolution was passed to open, chequer Courts Act. (R. " no alongside the open cut approach, a high level appeal shall allowed any case proceed- roadway to give communication from Craig for upon writ habeas corpus arising street to Notre-Dame street, the surface out any for extradition made under the ground.

These works constituted, fact, treaty." application to the court to an extension Beaudry street, from the line a day for hearing a motion to quash such an Craig street, feet in width, which appeal.

Held, that the matter was coram non constituted open-eat approach to the tunnel ASSESSMENT-Continued.

BORNAGE

Concession line

Survey-Fyi- In an homage south-eastonly1850, ther tme enctmntclaim .

677veyors Municipal streets-Assessments--Excessive ws retracid ation-52 al

- - - 298 the evidence failed support the contention ASSIGNMENT -Transfer of rights policy-Signification nanner ofaction.] oftranster-Art. C. C.-Right of

In the Province an assignment e not justified acting "BOSTON CLAUSE Marine Insuranc- Abandonment

Repairs Find o f

Settin asd ed

BOUNDARY

Mortgage--Assignment of equity-Covenant!

to indemnify-Assignment of covenant-Right BROKER

Principal and agent-Stock of mortgaye on covenant in mortgage. changecnstom-Saleofshares-Marginaltransfer-Undisclosed principal-Acceptance Set- BENEFIT ASSOCIATION-Life insuranc tlement"-Obligation of purchaser- onstrection -Benefit association-Payment of assessments of contract- The Bank Act," R. c. -Forfeiture- Waiver-Pleadings

-- "- 70-77-Liobility of shareholders] The broker doing business See ~stn~ax

BOOKS OF REFERENCE of land-Tenants common-Propridtaires par indivis-Construction of tion-Plans and of reference-Surveysnot aware that the defendant was acting an laws-Satisfaction of indemnity cipal was not disclosed within the time limited "settlement BROKER-Continued.

'BY-LAW continued.

the exchange.

The transferee's name was I v. left blank the transfer book the bank, but it noted the margin that the shares were subject to the order the defendant who, three days after settlement due according to the

Company-Directors- Ultra tires Discustom the exchange, made a further margi- count shares Calls for unpaid balances-Connal memorandum that the shares were subject tributerie8

Trustees

Powers

Contract to the order H. The affairs the bank were Fraud-Breach of trust-Statute, construction placed liquidation within month after these

-8 c. Div. 7-R. S. c. transactions and the plaintiff's name being put the list contributories, was obliged to pay double liability upon the shares transferred under the provisions " The Bank -Auicipal corporation-Coustrnction Act," for which afterwards recovered judg- statute rt. S. Q-Appre al of electers. ment against and then, taking an assignment right indemnity against the defendant, the defendant had not disclosed the CALLS.

any principal within the time limited for settleinent the custom the Exchange and the shares had been placed at his order and dispoeu sition the seller, became legal thereof without the necessity any formal

ES-Allen Marine Ins. acceptance upon the transfer books, and that followedobliged to indemnify the seller against all consequences in respect the ownership the shares, and the double liability imposed under 2-Ascet Compton (3 Rev. Jur. the provisions The Bank Act."

BY-LAW- Municipal corporation - Railway aid

Subscription for shares-Debentures- Division of county - Erection of separate

(Que.)-Arts.

Hun. Code-39 of at reddition Trustee- Debtor and creditor.]

The relation existing between a to money by-laws, not that an agent trustee, but the county corporation the creditor and the several local corporations are its debtors for the amount taxes to be upon their rate-payers respectively.- Where several local municipalities formerly detached therefrom and erected into separate corporations they remain the same position in regard to subsisting money by-laws they were before the division, having no further rights obligations than if they had never separated, and they cannot, either conjointly or individually institute actions against county corporation to compel the rendering special accounts the administration funds realized upon the sale county debentures issued before the separation, their proper method obtaining necessary informabeing that provided article the

Municipal and through the other facilities local municipalities the Code.

3--Atlas Assurance Brownell Can. - - 4--Barber Out. App. R. 5--Beach Township of Stanstead (Q. R. 8 3- 6 6-Boulbee Ont. App. R.'502) reversed

7--Brownell Atlas N. 8--Burris v. Rhind N. Rep. 9--Byron Rep. 10-anadian Pacific Ry. McBryant (6 Rep. reversed

CASES-Continued.

11--Caston v. Consolidated Plate Glase 26--Kervin Canadian Coloured Cotton Ont. R. reversed - - 624 Mills Ont. reversed -Chef it Vadebonewur City of Montreal 27---Lambe Armstrong Can. R. S. R. followed followed

- - 13--Common McArthur R.

Lennoxcille Compton Rev. de Jur. 14--Daris Kerr Can. R.

Logan, Tp. of Tp. of McKillop 15- Day L. R. 290)

Major Rep. 16--Eddy

32_lce.S~psoa

(Q. Q. 17--Employers' Liability Assurance Corpo-a reversed-375 tion aylor R. followed

MeLeod Ins. of North America Se reversed

Feindel Zwicker

-- McNerhanie Archibald (6 B. C. Rep. Fonseca Atty. of Can.

referred to

'Pownship of v. York followed

20---Georqe Matthews v. Bouchard

Can. R. followed

201'36

I'erraudt Gauthier Can. R. referred

21--Great Northern Transit Alliance

Assur. Ont. R. reversed 37--ope (6 Rep. affirmed. 22--Guerin Manchester Fire Aseur.

R. affirmed

- Black Ex. R. affirmed

23--Hederso ada Atlantic Ry. Co. 32-he O'Gilrie Ex. C. R. Oat. R. affirmed

24- -- Helei

3-N.

40-Rinille

Grand o rnk Railway affirmed

Ont. affirmed

& 1.

25---Hobbs Esqniaul and Nanairo By.. 41--Rahnaay City Montreal (Q. 7 Q. Rep. reversed

450 affirmed

- CASES-Continued.

CHARTER

Compliance with 42--Roy Price (Q. R. Q. varied statute-- Timber slides-Action against incorpor- 43--Salras Vassal Can. R.

44--Sddsac Central Yermont Ry.

Servitude

3-Arts. 9,3, (Substitutions)

45---Spark.s Wolff Ont. App. R.

1 and

4-Arts. (Dlits and Qua5si85its) 46--Trust and Loan of Canada Quintal

1-13.

47--Vadeboncwnr City of Montreal 3--Arts. (Imputation f Pay- Ca2. S.

6- 48--- Vian The R. 7 B.

49-- Williams Bartling N.

50--Walsh North-West Electric (11

L. R.

- 52--Zwicker Zwicker Rep.

(Penal clause)

(Eridence)

" 2

-Art. (Mandate)

340, 484, 613 11--Arts. 1929-1965 (Suretyship)

CERTIORARI-Appeal- Merchants' Shippinq Act-Distressed seaman-Recovery of ex- 1 penses-" Owner for time being "-Proof of I 12--Art. (Hypothec on substituted land) and payment-Final nisi 13--Art.

Merhants'

14---Arts. (Prethat every order two justices seaman's wages shall final, will certiorari to remove the proceedings into a Superior CIVIL CODE OF PROCEDURE - Court ? v.

(Appeals)

CIVIL CODE OF PROCEDURE-Con. 2--Arts. & P. (Judg- Arts. (Sherf's sales); and of Sheriff

>ee

COMMON FAULT - Xegtgence- COMPANY-Directors-By-law--Ultra vires shares-Calls for unpaid Fraud-Breach of trust-Statute, Dir. S.

rate ultra rires 2--Incorporated company-Action againststatute-Resjudicata.] statutory COMPANY-Continued. resjudicata. Held that tIe forfeited.-By facto, c--iter, conipany-Irregular Surrender Foifeiture -Duty "-Con- COMPANY-Continued.

avoid his liability a contributory setting performed the work for two years tnder up defects or illegalities in the organization authority this letter asd then brought tract coitractor Queen's Printer, and that could not recover respect the work after the original CONDITIONS PRECEDENT-Fire insur- contract had expired-Om October 30th, ance-Condition in policy-Time limit for sub- an order-in-council was passed, which recited nitting particulars of Waiver--Authority the execution and assignment the original of agent contract, the execution the work X. o after it expired, and the recommendation of the Secretary State that a tormal contract CONTRACT-AUreement supply goodsshould entered into extending the original to Property in supplied-Execution--Seizure.] Ist, and and wife the other, the latter were contract with XV. but subject to the condition to provide and furnish shop and H. to supply that the Government should waive all claims stock and replenish same when necessary ;

to damages reason nonexecution was to devote his whole time to the business; imperfect execution the work, and that W. and wife were to make monthly returns WV should all claims sales and cash balances, quarterly returns because the execution binding work stock, etc., hand and to remit weekly pro- other parties up to the date sales with certain deductions. H. had extension.

V. refused to accept the extension a right at any time to examine the hooks and terms.

eel, that

V. could not rely have an account the stock, etc.; the net the order in-council ratification the profits were to shared between the parties ; contract formed the letter the Queen's cold ueteimmnedat imePrinter ;that the element enters the agreemtent could be determined at any time 111 by H. or and month's notice.

into ratification contract into Held, that the goods supplied H. under this the contract itself ; and that could not After appeal the final judgment the Exchequer Court lodged the under execution against H. at the suit Court the obtained lea to appeal creditor.

order reference ascertain the amount the suppliant's damages.

Held, that the 2--Public work--Formation of contract-Rati- Judge the Exchequer Court had authority to feation-Breach.] November 22nd, allow the appeal and it was properly before the the Government Canada entered into Supreme Court.

LE QUE tract with which the latter undertook to all the Government binding for years the said date.

The contract was execut- 3--Rescission-Innocent misrepresentation under the authority & Vict.

7 ,ommon error-Sale of land-Failure of and November 25th, was deration.] executed contract for the sale assigned to who performed all the work interest land not rescinded nocet purchase

Thus where, the a the Government will sent to you for mining claim, it turned out that the whole execution under the same rates and conditions property included under the contract has just expired." whereby the purchaser got nothing his 4--Railays- Exp-opriatihn of land-'litle land-'l mon-Propridtaires par indiris-Construction of agreement-Misdescription-Plans of reference-Satisfaction as indeiniity-Registry laws-Estoppel-R.S.g. arts. Art.

The provisions the Civil respecting the registration real rights have application to proceedings matters lands for railway purposes under the provisions the Revised Statutes

Quebec. -Pending expropriation proceedings begun against lands held in

(par indiris, "

Pitterson

Quebec,

Our linepf persns pri'd ments were registered. purchased the New Waterford property in and, after registering his deed, executed by all the owners parindivis, that part that ienpar indi-is & QUBEC, & insuraitce-A pplication-Ownership theproperty,or stated that -Partnership-Dealing land-Statute frands.] partnership may formed a parol agreement notwithstanding it to deal in land, the Statute Frauds not applying to a P.

7--Fire insurance-Construction of contract

" Until "-Condition precedent -- Waiver - Estoppel-Authority of Certain conditions policy insurance required proofs, etc., within fourteen days after the and provided that claim should payable for a specified time after the loss should ascertained and proved accordance with this condition.

There were two subsequent clauses providing respectively that until proofs were produced, no money should payable the insurer and for forfeiture all rights the insured the claim should not, for the space three months after the occurence the in all respects verified in the to the production proofs within fourteen days was a condition precedent to the liability of the insurer ; that the force the word

" until " the subsequent clause could not to the omission to produce such proofs, within the time specified, the effect postponing recovery merely until after their production; and that the clause to forfeiture after three months did not apply to the conditions specially required to be fulfilled within any ser period.

- - 8--Breach of contract-Evidence--Custom

Practice- Amendment of claim after enqute closed-Arts

9--Construction of "stock jobbing" memo.- Erchange custom-Sale of shares-Undisclosed principal-Marginal transfer- "Settlenent"-Obligation of purchaser

10--Railways--Expropriation-Title lands

-Propritaires par indivis -- Plans, surveys, of reference- Estoppel---Satisfaction condition as to zndemnity

Application of statute-Registry lawsi-Construction of agreement

--- Agreement for sale of land - Mutual mistake-Reservation of minerals-Specific performance- 12--Condition in policy of fre insurance- Ship insured while running"- Variation from statutory conditions-Ontario Insurance

CONTRIBUTORIES.

COSTS-Trust -Lien for costs- Husband and

2---Appeal

R. S. 42-Form of application and order-Uross-appeal Privy Council-Inscription pending such appeal--Stay of pro- COURT OF REVIEW- Appeal-Right appeal Privy Council -Construction statute-Final judgment-R. c. (j), & . - CRIMINAL LAW--Appeal-Jurisdiction- Criminal 742-750-New trial-- Statute, construction of.]

An appeal to the inclusively.-The 2--Construction of statute-20 & V. c. (Imp. )-Application---Criminal prosecution -Embezzlement of trust funds-Suspension civil remedy-Stifling prosecution--Partnership.] in British Columbia? If force it would not apply to a prosecution for an under (The Larceny Act)

Extradition- Necessity to quash.] By the Supreme and Exchequer Courts Act, (R judice - CROWN - Suretyship - Postmaster's bond- Penal clause-Lex loci contracts-Negliqence- Laches of Crown officials-Release of sureties information the Attorney General for Canada 'ipon bond executed the Province CROWN-Continued.

CUSTOM OF TRADE-Continued. '-Obligation Opurchaser-''Stock Held, that DAMAGES

Lease-Negieuce-llire of Presinption fault proprietary

Jor utility-Arts. CROWN LANDS- facias -'Title land pledge-Vente rdmeir-Conceal- -egligence fault-Diision of material fact-Arts.

Q.--Registration-Tran fer of Crown lands

Judicata

Estate-Refusal Coi1etc Artiontinycurator Judginnt

Axlenp- DEBTOR AND

CREDITOR Appropriascire facian annulnent sous a anl letter fornsneat demded for that that Departnt the dues paid to the Crown order to bered for special deposit, and 323-100,000, TRADE-Breach of

Eridenre of trade

Damages-Practice-A of after closed-Arts.

ments dividends received.

The defence to 739 that the hank and 0. that any payments of shares-Marginal transfer-Stock made account the borrowed money should principal first applied to the garanteed loan and that DEBTOR AND CREDITOR-Continued.

DEED-Continued.

the president had instructed the accountant purchasing, and prescriptive title cannot afterto apply the two sums paid, but wards in-oked either those in had omitted to

The trial judge gave possession under as holders faith to this objection and dismihsed translatory title.

(Leave appeal to formation the Crown.

Held, reversing the Privy Council refused.)

Taschereau and Girouard .JJ. dissenting, that as the evidence showed that the president 2--Conveyance Dnresundue pressureknew what the accountant had done and did 7rust property.] The owner land having not repudiate it, and the act was for the intestate leaving several children, benefit the bank, the latter was bound byit; them, received from the others deed that the act the Government in immediately conveying to the entire title the land returning the deposit receipts when consideration paying all debts against the payments were made was sufficient act the intstate estate and those appropriation the creditor within Art. brother. Subsequently W. borrowed no appropriation at all having been from his sister and gave her deed the the debtor the hypothesis error ; land, learning which creditor and this were not the bank could not accused the latter fraud and threatened annul the imputation made the accountant with criminal prosecution, whereupon unless the Government could restored to the induced sister to execute re-conveyance position it would have been in no imputation the lani to and then gave mortgage at all had been made which impossible as

The re-conveyauce not having been prothe Government would then have had option perly acknowledged for registry purposes, which could not now exercised.

returned to the sister to have the defect 299 medied, but had taken legal advice the and destroyed the deed. B. then Areement supply goods-Property in brought action against X. R and his sister supplied-Execution-Seizure mortgage declared the land. eld, pressure-Trust prothe land the money lent to her brother that the deed to XW. had DEDICATION - Highway-User-Evidence obtained uidue influence pressure and should set aside, should not allowed to set it up.B. claiming to be a creditor the father and deceased brother DEED-Title land-Substitution--Acceptance the defendants wished to enforce the provision institute-Parent and child--Rights of chil- the deed to

V. brothers and sister dren not yet born-Revocation of deed-Prescrip- for payment te debts the father and tion--Bona fides- Recital in Presumption brother.

Held, that this relief not asked against purchaser-Arts. in the action, and it had been the said prosubstitution created mere contract between the parties a donation inter favour the chil- the deed which third party could not dren the institute, even before they are for execution, trust having created born, irrevocable after acceptance their for the creditors the deceased father and parent; and the law the Province brother.

Delivery-Retention grantor- Presump existence before the promulgation the Civil tson-Jebuttal.j

The fact that after Lower Canada.-Where institute been signed and sealed the grantor, accepted donation creating a substitution retained the latter's possession not favour his children, his acceptance cient evidence that it was never delivered stitute constitutes valid acceptance the take duly executed instrument. substitution behalf his children thereafter

The evidence favour the dne execution born to him during marriage. -Where the title such not rebutted the facts that deed purchaser lands bears upon its face compromised all the grantor's property, and recitals which would have led upon inquiry to that while it professsJ to dispose proevidence the defeasibility his vendor's perty immediately the grantor retained the title, must presumed to have aware and enjoyment it until his death. of the precarious nature of the title was xviCmw R

- DEED-Continued.

4.--Construction qf Partition--Charge upon lands.] deed for the partition land

DONATION-Continued.

DURESS-conveyance Duress-Undue presthat sure-rnst property.] their partition that coparceners.

land-Sherifis sale Held, sale-Arts. U.C.P.-Hefund of paid-Exposure eviction-Arts.

Entail sale-Procedure-Petition sherifs sale.

DITCHES

WATERCOURSES

Ditches and Watercourses Act, lad Declaration of ownership-eone o iard-Defects- Validating ling petition-ren 5:58 struction ofstatte-54

who words and termis--Legal holiday.] 1tches

Townshiptern

York

S.C.R. followe--If jurisdiction.-Section tioe the

EMINENT

[Municipal corporation

Expropriation- Widening Exceie valuation-52 am

Expropriation of lourd-Tenants indi is-Coiitrurtion DONATION iidiiis condition idenity- EMINENT DOMAIN-Continued.

ESTOPPEL-Incorporated company-Acalon 3-3Municipal corporation - Expropriation against Forfeiture of chartcr Astoppel vit po-pliance with statute-Res juclicata.] proceeding

Neligence nterjerence with proprietary rights-Abandonment of utility-Arts, plaintiff nent omaini

4--Assessment-Montreal

Widening streets-Construction of (Que.)-52

139 (uey]COMPANY

ENTAIL.

OPN

ENTIL.I

Sale of laud-Misrepresentation endor.] ERROR-Rale of land-Agreement for utual mineralsleds Mutuali

Speciflc per:formance.]

The E. & N. Ry. Co.

Specficpeifm-ianc.]

EVICTION

SheriFs sale-Vacating Arts. F.-Arts. Substitution] posre land EVIDENCE

Negligence-Use of dangerous material Tiespass.] coinpaiis, fond Hons Contract-Rescission-sentation-Conmnon error-Sale of land-Fail- injred ure

-291therecreditor-Appropriation of that pagments-Error appropriation- Arts. facias-Title land-Annulment of patent-Tender action-Sale pledge-Vente 4 of terial facts-A rt. Q.-Registration-Transfer of lands-Art. Q.-Art. 0.

evidence circumstances leading to a different they wre found could fairly attributed to of land-Misrepresentation them; that it EVIDENCE -Continued.

opanycloins -I'vii.f payee.]

found; that (overnient tie 2--Deed-Delirery--Retention grantortoP. that perforiel thenew bythe latter's that tie Held, reversing that that that ous until that iot T.

3--Concarrent findings factone.-By bal that filiriish skip a/ foreign port Sippiig Act-Distressed seamen-Rerorery an appellate court ought not to interfere.

Expeises

Proof of ownerhip and payment.] 616 certificate the Assistant Secretary the MNTRAL

V CAIEUX616Board

Trade that expenses for the relief a 4--Highway-Dedication-User.] In order distressed left foreign port were to establish the existence public highway incurred and paid, under the provisions dedication it must appear that there was

Merchants' Shipping Act, not only intention the part the owner sufficient payment nder the to dedicate the land for the purposes a Act though the section not provide way but also that the public accepted such for node proof certificate.

Notwithdedication user thereof as public highway. standing the provision in the Imperial Interwhere the evidence to user was pretation Act that the repeal an Act conflicting, and the jury found that there had not any suit, proceeding or remedy been no public user the way in question, the under the repealed Act, proceedings under trial judge disregarded this finding and held The Merchants' Shippig Act proof that dedication was established deed ownership ship made according to lease evidence, and this decision was tse provided The Merchants' Shipping affirmed the court.

Held, that as such Act, which theforner Act repealed.decision did not take into account the necessity Under the Act copy the registry establishing public user the locus, it could ship registered Liverpool, certified the not stand.

Judgmient the Supreme Court Registrar General Shipping at London sufficient proof ownership.

5-ACttion-Cordicoo iordebiti-Rdpritior de inde- Fictitious claims-Misrepresentation- 7-NegligencelFindings ojury-Evidence- Onus probandi-Art. 10900. C-Railway Concurrent findings of courts appealed fron 201 sidies-54 c. (Qe.o)-Insolmeyr

EVIDENCE-Cotned.

EXPROPRIATION-Continued.

8--Lease-Neglience - Hire of tug-Condi- at. S. C. referred to. tions-Repairs-Coipensation-Presuiption of Chief Justice dissented.

faudt-Eridence -Neasure of damages

3-Montreal corporation

9--Bornage-Concession line-Surrey - Pre- Widening streets-Assessmet-Excessiee valnasunptions

V. o.

a.- - Vylf

-- ee~sryprof- EXTRADITION

Appeal-Habeas corpuseglgence-Necesary proof-Statory Vecessity qsh.] the Sureme officer-Ratepayer--Statute labour

443P tbour

443and Exchequer Courts Act c. s. 31), "no appeal shall be allowed in any case Neligence haeas duty-Cause of corpus arising out the court to day hearing motion to 12--Negligence-Findings ofjury-Contribuneglience-Neto Trial coran judice sity for motion quash.

lure Eppi. GROSSES RtPARATIONS-2itle to laud - Exprop

-Life estate

Constructio of statute Preation of land-Title land-Tenants in ferred claim

Improvements made lands mon-Propritaires par indivis-Construction agreement-Misdesciption-Plans and of rjrde substitution-Charge lands reference-Satisfaction of condition as to indemnity-Registry laws-Estoppel

S. Q. arts.

5164-Art.

In matters HABEAS CORPUS-Appeal-Habeas corarticles and Revised Statutes as deposit plans and books allowed any proceedings corpus arising out with the owners, or with at least one-third any for extradition under any the owners par indivis, lands taken for rail- treaty."

application to the court to a way purposes, the title to the lands passes day for hearing motion to quash such forthwith to the company for the whole the appeal.

Held, that the matter was coram statute, jndice quash.

In re par

HIGHWAY-Dedication

User

Evidence.I the owner dedicate the land for the purposes highway but that the public accepted dedication user thereof public -proceediugs-Negligence-Interference with proprietary rights-A of proceedingsutility-Arts. C.-Emiutility

Perrault trial this 2--Municipal corporation - Widening streets

Assessments Excessive HIGHWAY-Continued.

INSURANCE, FIRE--Conditions of policyvaluation abtie lose-Change in risk Insur- Mortgage clause-Arbitration- Condition precedent-Foreign statutory conditions

R. 0. HUSBAND AND WIFE-Trust-Lien for' 'ransfer of mortgage

Assignment of rights costs-Evidence -Husband and after -Sign j cation - Right Where a condition in policy INSOLVENCY-Purchase of insolvent estate insurance against fire provided that any Refusal complete-Action curator-Corn. change material to the risk within the control pletion of purchase after judgment--Subsequent or knowledge the insured should avoid the action for speciad damages--Res Judicata.]- policy, unless notice was given to the company: A merchant in Ottawa, Ont., purchased the Held, that changing the occupation the inassets insolvent trader Hull, but sured premises from dwelling to a hotel was refused to accept delivery the same.

The change material to the risk within the meaning curator the estate brought an action in the this condition.-A mortgagee insured pre- Superior Court Quebec to compel him to inises to whom payment to made in case and obtained judgment, whereupon he "ashis interestmayappear" cannotrecover accepted delivery and paid the purchase money. the policy when his mortgage has The curator subsequently brought another assigned and he has ceased to have any iaterest action in Ontario for special damages alleged to therein at the time the loss.-In the Province have been incurred in the care and preservation Quebec, an assignment rights under a the assets from the time the purchase policy insurance ineffectual unless significauntil the delivery.-Held, reversing the judg- tion thereof has been made compliance with ment the Court Appeal for Ontario, tha' the provisions article the Civil under the law Quebec, which the case -Where condition in a policyprovided that no was governed, the curator was entitled to action should be maintainable against the recover the expenses and disbursements which, pany for any claim under the policy until after as prudent administrator, was obliged to I an award should have been obtained in the make for the safe-keeping the property.manner therein provided fixing the amount Held also, that these special damages, most the claim :-Held, that the making such which could not ascertained until after the award condition procedent to any right purchase was completed, could not have been action to recover claim for under the included the action brought in the Quebec policy.-Quere, per Taschereau J.-Do Ontario courts, and the right recover them was not statutory conditions printed the back a res judicata the judgment in that action. policy issued in the Quebec and not referred to in the body the policy, form part of the contract between the parties?-GUERIN Inspector-Mandate-Trusts

0. C-Art. P.

-An inspector an insolvent estate

2--Condition in policy-Notice of subsequent a person having duties fiduciary nature insurance - Inability of assured give notice.] to perform in respect thereto and can- condition in a policy insurance not allowed to become purchaser, his against the insured was

" forthwith " own account, any part the estate the to give notice to the company any other insolvent. Davis Kerr, S. R. insurance made, or which might afterwards 613 made, the same property and have Codto .

thereof indorsed the policy, INSURANCE, ACCIDENT otherwise the policy would void; pro policy--Notice-Condition precedent. ]-A condi- vided that such notice should given tion in policy insurance against accidents after it the company had the option to required that in the event an accident there- continue cancel it.

Held, affirming the tinder, written notice, containing the full name judgment the Supreme Court New Brunsand address the insured., with full particulars wick that this condition did not apply a of the accident, should given within thirty which the application other insurance days its occurrence to the manager for the accepted the day which the property United States or the local agent -Held, revers- insured destroyed and notice ing the judgment the Supreme Court New such acceptance did not reach the a-sured until Brunswick, Gwynne J. dissenting, that the after the to the right to bring action the policy.

3-- Application

Ownership of property insurcd

Misrepresentation.]

condition INSURANCE, FIRE-Continued.

INSURANCE, FIRE-Continued. indorsed a policy insurance against Court Appeal Ont. R. that provided that if the application for the policy never attached ; that the steamship insurance was referred to in the policy it was only insured while employed inland would considered part the contract waters during the navigation season or laid and warranty the insured, and that 'in safety during the winter months.-Held any false representation the assured also, that the above stipulation was not a the condition, situation and occupancy the dition but rather description the subject property, or any omission to make known matter the insurance, and did not fact material to the risk would avoid the policy. within the Ontario Insurance In the application for said policy the insured relating to variations from statutory conditions. stated that

U. whereas it was, to his knowledge, and that the sub-agent who secured the application, 6--Construction of contract situated upon the public highway.-Held, re- Condition precedent - Estoppel versing the judgment the Supreme Court Authority of agent.]

Certain conditions New Brunswick, that the application was a policy insurance required proofs, fourteen a part the contract for insurance, and that and provided that should be payable the misrepresentation to the ownership for specified tirne after the loss should have the land avoided the policy under the above been ascertained and proved accordance with condition.-Nowica that until proofs were produced, money should be Condition in policy-Time limit for submit- payable by the insurer, and for forfeiture all ting particulars of loss-Condition precedentrights the insured if the claim should not, Waiver-Authority ofagent.] condition in for the space three months after the occurpolicy insurance against fire provided that the rence the in all respects verified assured to deliver within fifteen days after the manner aforesaid. Held, that the condition thefire, in writing, as particular an account the as to the production proofs within fourteen the nature the case pernits." Held, days was condition precedent to the liability following Employers' Liability Assurance Cor- the insurer; that the force the word poration I'aylor Can. R.

" until " in the subsequent clause could not give that compliance with this provision con- to the omission to produce such proofs, within dition precedent to action the policy. the time the postponing Held, also, that person not an the recovery merely until after their production, insurance company, appointed to investigate and that the clause as to forfeiture after three the and report thereon to the company, months did not apply to the conditions specially was not agent the latter having authority required to fulfilled within any lesser period. to waive compliance with such condition, and -Neither the local agent soliciting risks if had such authority could not, after the an adjuster sent for the purpose investigating fifteen days had expired, extend the time with- the under policy fire insurance, has out express authority from his principal. Held, authority to waive compliance with conditions further, that compliance with the condition precedent to the insurer's liability or to extend could not any be waived unless such the time thereby limited for their fulfilment, waiver was clearly expressed writing signed and the policy in question specially required the company's manager in Montreal, it, there could no waiver unless indorserequired another condition in the policy. ment in writing upon the policy signed 537 Can. R. followed. 5--Condition policy-Ship insured running "-Variation from statutory conditions.]

policy issued in insured against the INSURANCE,

LIFE - Beneft associahull the Baltic, including engines, tion-Payment of assessments - " whilst running on the inland lakes, rivers and

Waiver- Pleading.] member a canals during the season navigation.

To association died while suspended from memlaid up place safety during winter months bership for non-payment assessments. any extra hazardous building."

The In action his widow for the amount Baltic was laid up in and was never after- his benefit certificate it was claimed that the wards sent to sea.

In she was destroyed forfeiture was waived.

Held, reversing the fire.-Held, reversing the judgment the judgment the Court Appeal, that the INSURANCE, LIFE-Con tinued.

JURY-egligence-Matters of fact-Finding waiver, not having been pleaded, could not be of w relied answer to the plea non- w payment.

Allen Merchants Marine Ins. which it rested and pointed out to the Can. R. followed. master that this could not done until the it, LLIE

971do.

it INSURANCE, MARINE-Abandonment- Repairs-" Boston clause "-Findings of jury against the owners for damages the jury found that the fall rigging not being secured, but that this was - INTERPRETATION.

Supreme Court Nova Scotia J. that IRRIGATION-A joininglands-Threatened that it one-Right of guard neighbour-Sic alienun ldas.] land'not Trial of action-ontributory Findings of jnry

Eidence.] that Street Railway Company for damages ENT- Apea

AppealCourt of Reiew- Bight of appeal to Privy Council-Construction reasonable care and diligence have avoided the of statute-Final judgment-R. S.

accident?" the answer was, We believe that (j), & 29-54 & c. Cer- it cold have possible,"

Held, reversing objections to one the comnissioners named answer did not amount finding negligence the part the land required for the improvement public the accideit which would disentitle him to street, in which they were interested, presented verdict.

Held, further, that the other recusation.

The petition was dismissed; which caused the accident which amounted to an appeal to the Court Review, the judg- denial contributory negligence; there affirmed, further appeal was then taken to the Supreme in the record; and the court had before it Court Canada.

motion to quash the all the materials for finally determining the appeal for want jurisdiction : He/d, that no questions in dispute, new trial not appeal plano would lie from the judgment necessary.

Council, and consequently there appeal therefrom to the Supreme Court Canada a -Marine insurance-Abandonment-Re. under the provisions the Act, & Vict. pairs"Boston clause"-Findings of jurych. amending The Supreme and Setting aside verdict.

Courts

The Supreme and Exchequer Courts Act.

2--Consent judgment-Action against incorporated company - Forfeiture of charter -- 4--Negligence-Findings ofiury-teidence- Estoppel-CompliancCe statute-Res judi- Concurrent findings q/ courts appealed front 1i

JUSTICE OF THE PEACE-Appeal- LEASE-Continued.

Certiorari-Nerchants'ShippingAct-Seamanf's

I while still in their possession, the pilot took wagesi-Jurisdiction-Final judgment.] I her the day time, into.waters at the foot -Where the Merchants' Shipping Act the Cornwall Rapids, the River St. Lawprovides that every order two justices in an rence, where st struck against submerged action for seaman's wages shall be final, will bard substance and sank.

was raised a certiorari lie to remove the proceedings into days afterwards, towed to port and placed Superior Court ? v. at were to make the necessary repairs, to put the LACHES-Crown-Suetyship

Postmaster's the condition inoud-Penal clause-Lex loci coutractus-\eQ- before the accident, and 30th igence-Laches of officials-Re,,ase of July, was notifie that the repairs were sureties-Arts.

completed, that the tog would pitt ont The rule law that the dock the following day and was requested Crown not liable for the ladnes or negligence to receive the tug at Montreal.

K. ansvered its obtains the Province Ithat the discharge made at Quebec, except where altered statute.

that was not as good condition when 63 join QUEEN

-survey, which, however, they declined to do. LANDLORD AND TENANT-Leasefor The survey was made a naval architect who months-Monthly or yearly tenancy - Over. reported that, addition to the repairs already holding.] R. & made the following made, it would cost $2,494.90 to restore the writing to the owner the premises mentioned vessel the same condition when leased to therein:-" We are prepared to rent that store the company.

1st August, K. took poswhere the ' Herald' used to be and will session the tug under protest and brought a year for the whole the ground Ithe action the amount this estimate in oor as well the cellar.

We will rent for addition to the rent accrued with for surmonths from the August next at the rate, vey and protest.

The company admitted the per year. " *

* *

This having rent anl tendered that portion the been accepted 1. & occupied the premises claim into court.

The Superior Court rendered for year and seven months, no new agreement judgment for the amount the tender, disbeing made after the months expired, paying missing the action as to the remainder the their rent monthly during said period.

They the ground that K. had been then gave month's notice and quitted the ciently compensated the repairs which had premises.

The landlord, claiming that the ten- been made the charterers.

The Courts ancy year to year brought an action Review and Queen's

Bench increased the for rent for the two months after the tenancy verdict to the full claimed, $4,909.90, ceased according to the notice.

Held, i adding the amount the surveyor's estimate ing the judgment the Supreme Court the and the fees.

appeal to the Supreme Court North-west Territories, that the tenancy Canada: Held, Sedgewick and Girouard JJ. month to month after the original dissenting, that the contract between the parterm ended and the month's notice to quit was ties contract lease ; that the taking sufficient.

'. RICHARD & CO.

the vessel, in the day-time, into the waters . where she struck was pri2nmdfacie evidence LEASE -Negligence - Hire of tug negligence the part the company ; Presump that tion oj fault.-Eridence-Measure of damages. sufficient to rebut the presumption fault The company chartered the tug " Beaver existing against them they were responsible from K., written contract dated at under the Civil Code Lower Canada for the 22nd which it was agreed that damages caused to the during the time K. should charter the tug " Beaver" for not she was controlled and used them. less than month from date, at forty-five further, that the proper estimate daniages dollars per twenty-four hours. If kept under the circumstances the cost the longer than one month the rate to forty repairs which should assumed to the dollars per day.

K. to furnish tug, crew, pro- measure depreciation value occasioned visions, etc., and everything necessary the accident, and that substantial error except coal and pilots above Montreal.

The arose from regarding the condition and value tug to leave next morning's tide, and to dis- the vessel at the commencement the charged in Quebec.

The company took pos- that in which she ought to have disthe tug, put her charge their charged.

Gironard J. was opinion that the pilot assumed the control, employment Superior Court judgment should restored. July,

LEASE -Continued.

LIQUOR LAWS- Continued.

2--Lease for liquors hotel. affirming the MAXIMS- Jortiaccipiuntur

Law," Art. to le exercised the juris transferre council had acted maliciously refusing to ladas"-359 that against the corporation.

TowsHip Ignorantia juris

MAGISTRATE- MANDATE -isolvenry-Prchase LETTERS PATENT-Scire facias-fitle

-Sale pledgerialfact

Arts R.

fS. th.-Regiextra- MASTER AND SERVANT cliebiability-Uqe

-nsulation deth- Ste

Findings of fart-Arts. Per- LICENSE

LIMITATION OF ACTIONS-Title land

-Parent and child-Rihts of paiy of Prescriptioni-Bond fidespurresponsile third party llate faith.-Where (ourt title, aid that Plate Glass

MARITIME LAW-Apy

Certiorori LIQUOR LAWS- -municipal xpenses-" Ottwrfor Action-Discretion being"-Proofofon-nership Liability of making MARITIME LAW-Continued.

MORTGAGE-Cotined.

the Merchants' Shipping Act with a view to the lands, subject to the mortgage, three having the judgment thereon quashed. 213'parcels, the purchasers assuming pay- The Merchants' Shipping Act, makes ment his proportion the mortgage debt, the expenses seaman left foreign port and assigned the three respective and being relieved from distress under the Act to the mortgagee agreed not to any charge upon the ship and empowers the Board claim for the mortgage money against Trade, Her Majesty's name, to sue for and until had exhausted remedies against the recover the same from the master the ship or said three purchasers and against the lands. " owner thereof for the time being."

Held, The iortagee having brought an action against affirming the judgment the Supreme Court covenant the mortgage--Held, Brunswick, that the latter words mean reversing the judgment the Court Appeal the owner at the time action brought. Held Ont. that the mortagee being further, that certificate the Assistant the owner the covenant with the Secretary the Board Trade that such mortgagor, assigned to him collateral penses were incurred and paid sufficient proof rity, had dealt with it to divest himself payment under the Act though the above power restore it to the mortgagor section not provide for mode proof paired, and the extent to which it was impaired certificate.-Notwithstanding the provision could only determined exhaustion the the Imperial Interpretation Act that remedies provided for the agreement between the repeal Act shall not affect any suit, the mortgagee and

The mortgagee, thereproceeding or remedy under the repealed Act, fore no present right action the in proceedings under The Merchants' Shipping nant the mortgage-McCUAIG Act proof ownership ship may be made according to the mode provided in The

Merchants' Shipping Act, which the 2--Sale mortgaged land /or taxes-Pur. former Act repealed -Under the Act chase mortgagor- Actioa Jorclose-Pleada copy the registry a ship registered ig]-Lands under mortgage were Liverpool, certified the Registrar General sale the municipality for arrears taxes Shipping at London sufficient proof owner- and purchased the the mortgagor. ship.

Quere. here the Merchants' Ship- The tax certificate afterwards assigned ping Act provides that every order to L, who obtained deed from the municipatwo justices action for seaman's wages lity.

In an action against the mortgagor, his shall will certiorari lie to remove the and foreclosure the mortgagee proceedings into Superior Court ? alleged that the purchase the tax sale " TRooP "

in pursuance fraudulent scheme the mortgagors to obtain the land freed from the MINES AND MINERALS-Sale of landmortgage, and the trial judge so held in giviug Agreemeut for sale-Mutual mistake-Resercafor the mortgagee.

The Court tinof nminerals-Specifec performance judmen tiontfitrl-pcifeef7m~c

- 50 Queen's Bench did not pronounce the tion fraud but affirmed the judgment other grounds.-Held, affirming the decision of MISDESCRIPTION - Railways - Expro- the Court Queen's Bench, that L. could not priation- Title lands - Propridtaries par to have purchaser value with indivis--Plans, surveys, referenceout notice such defence was not pleaded, Astoppel-Satisjaction of condition as to indem- and it was not which leave to amend nity-Application statute-Registry lawsshould granted.-Held, further, that the Construction of agreement facts proved the trial were sufficient to put L. inquiry and amounted to constructive MISTAKE.

notice.-LAWLOR v.

3--Title land-Life estate-Construction of statute

Preferred claim

Improvements MORTGAGE-Assignment of equity-Coven- made lands greve substitution-Charge ant of idemnity-Assignment of covenantlands

Right of mortgagee on covenant in mortgage.]

executed mortgage his lands favour with the usual covenant for payment.

He afterwards the equity redemption to 4--Right action mortgagee-Coudition who covenanted to pay the mortgage and precedent-Notice of assignment-Transfer indemnify against all costs and damages mortgage--Assignment of rights under.fre in connection therewith.

This covenant D.srance policy after assigned the mortgagee.

). t

Arts. 164, 939 MUNICIPAL CORPORATION-Go. (Inspection of Municipal subsequently abandoned, the owner the land was not, the absence any statutory MUNICIPAL CORPORATION-By-lawauthority therefor, entitled damages for of statute-Art.

stCd.

4-Veqlqjence-Aeressary proof

Statutory officer-Rtepoyer Statute labour.]In olls

PICEconsequence 2--By-law aid shares-Debentures-Division of county-Erection of new separate municipalities-34 the obstruction cane (Que.)-Arts. Mun. Codeplaced the highway, but appeared that (Que.)-Assessmrent-Sale of statute at at discout-Action reddition terminated.-The by-laws, not that an agent or trustee, but Appeal, that the action must fail for want Qua're. Is ratepayers respectively.-Where several local the corporation liable for the acts statutory part paimaster, 'Assessnt mets- Jideoiig street- 6onstruction of statate (Que).] by-law passed institute statute, provided their Craig street to Notre Dame street, the sur 3--Expropriation proceedings-Neglienceproprietary rights-Abandonment proceedings - Servitudes tunnel and the remainder, the high level road. for utility-Arts.

C.-Eminent statute that for improvements made widening MUNICIPAL CORPORATION-Con.

I MUNICIPAL CORPORATION-Con. ceedings to quash the assessment, the Superior

Alunicipal corporation-Exproprioeion- Court held that it was authorized and legalized

Wideningstreets Assesoets-Ixresuice macaas " existing roll," the Act Vict. tiou-52 c.

1, and this judgment was affirmed athe Court Review.

Held, reversing the decision both courts below, that notwith- NEGLIGENCE

Master ad serran-Amstanding the reference therein to " existing ployers' liability-Use of materilrolls," the application the latter Act should Insulation of electric Cause of deathbe restricted to the cost the " widening"

Finings fact-Arts. Peronly the streets therein named cases dealing with dangerous material are where there were, at the time its enactment, obliged to take the Utmost care to prevent existing rolls prepared the commissioners juries being caused through their by fixing the limits for that purpose, and these adopting all known devices to that end and words could not have the effect extending where there evidence that there was prethe nature and character such works caution which might been taken a to include works manifestly forming part company making use electrical currents to the harbour improvement scheme and charge- prevent live wires causing accidents, and that able against the special loan.

this precaution was not adopted the company must 6l-Ditches Act.

-Ooner land-Declaration of ownership- 2- Use of dangerous material-Evidence- Award-Defects- Validating award-57 c. 'repas.]

Work the construction rail- 55--58 c. (Ont.)] lessee land with an going near the unused part a option to purchase the not owner who public cemetery connection with which were initiate proceedings for construction used detonating containing fulminate. ditch under the Ditches and Watercourses Act, years passing Ontario.

Township of York through the with some R. followed.-If the initiat- found these lying about the ing party not really owner the filing bank above the works, front tool declaration ownership under the Act will used the gangs workmen, and put not confer jurisdiction.-Section the Act, them his pocket.

Later the day which provides that an award thereunder, after scratching the fulminate end expiration the time for appealing to the them with stick when it exploded and injured judge, or after it affirmed on appeal, shall his hand.

the trial action against the binding notwithstanding any defects in form contractors for damages, there direct or substance either the award or any the evidence to the came to ivhere proceedings, not validate an award or they bat it proved that when proceedings, where the party initiating the blast was about to take place the workmen latter not an owner.

McKIL- would hurriedly place any explosives they 702 might have tbcir possession under their box, and then run away.

It also was i--Liquor laws-Action-Discretion of that tbe allie kind were kept the of council-Refusal

Liability of corporation.] In an action against found and were taken out and put a municipal corporation for damages claimed the workmen as might require. account the council the municipality Held, reversing the judgment the Court having, as alleged, illegally refused to confirm Appeal, that the absence evidence a certificate to enable the plaintiff to obtain a cunistances leading to different conclusion, license for the sale liquors in his hotel :the act placing the cas where they were Held, affirming the judgment appealed from found could fairly attributed the work- (Q.R. that the municipal council were shown to have had the had discretion under the provisions the right to handle them ; that it was incumbent " License Law," R. Q. Art. to defendants to exercise a high degree be exercised in the matter the confirmation caution to prevent falling into the hands certificates for the exercise which no strangers that the act exploding action could lie, and, further, that even if the the did not necessarily import wan members the council had acted maliciously caution, and his negligence contributed in refusing to confirm the certificate there to the accident jury should not that account any right action and that whether or not was trespasser, for damages against the corporation.

question the jury, not cs oanpaup yer of3ge6i ?.PGOT

3--Findings of jury- Evidence-Concurrent findings of courts appealed front.] In an action ous; that following Sdadsac Central Vermont Railway that jury appelhte

-- 4.--Trepasser-Dangerous way-Art. C.O.-Warning-Imnprudece-Arts. 5--Lease-Negligence-Hire of tug-Conditions - Repairs -Compensation - Presumption of fault-kridence-Measure of damages.] The July, put July, put rent anount JJ. that facie tion and value the vessel at the commence- carried away the force the waters and ment the lease that which she ought the volunteers was drowned. In an have discharged. -Gironard J. opin- action the widow for damages :-Held, that the Superior Court judgment should Gwynne J. dissenting, that the maxim " restored.

non fit injuria " did not apply, the was 247 which both the mill owner and deceased were to blame, and that, being a case 6--Mnicipnl corporation proof fault, the damages should divided -- Statutory officer-Ratepayer-Statute labour.] ding to the jurisprudence the Province In an action against municipal corporation tamE dence damages consequence a carriage havbeen upset running against pile 9--Matters of fact - Finding of Jury.] sand left the highway, and one the W. was working vessel port when pants thrown out and seriously injured, there boom had to taken out the crutch no direct evidence as to how the obstruc- which it rested and he pointed out to the tion came to placed on the highway, but it master that this could not be done until the appeared that statute labour has been per- rigging supporting it, which had removed, formed at the place the accident immedi- replaced which the master undertook to ately before under the direction the path- do.

When the was taken out it fell master, an appointed the corpora- the deck and W. was injured.

In action tion under statutory authority.

The evidence against the owners for damages the jury found indicated that the sand was left the road that the fall the was owing to the said labourer working under directions from rigging not being secured, but that this was the pathmaster or ratepayer engaged not occasioned by the negilgence the owners the performance statute labour.

Held, or their servants.-Held, affirming the judgaffirming the judgment of the Court Appeal, ment the Supreme Court Nova Scotia that the action must fail for want evidence N. Rep. Gwynne J. dissenting, that the that the injury was caused some person for first part the finding did not necessarily whose acts the municipal corporation was re- mean that the rigging had never been secured, sponsible.

Per Strong J. Is the or that if secured originally it had corporation liable for the acts a statutory insecure negligence defendants, and the like the pathmaster, or ratepayer in jury having negatived negligence their finding performance statute labour ? should not be ignored. v. 7---Dangerous machinery duty- Cause of accident.] K., workman cotton mill, was killed being caught in a revolving shaft dashed against beam.

No one the accident, and it could not be ascertained it occurred.

In an action by his widow and infant children against the company the negligence charged was want a guard around the machinery, which caused the death K., contrary to the provisions the

Workmen's Compensation Act. Held, Gwynne

J. dissenting, that whether the omission statutable duty could or could not form the basis an action at common law, the plaintiffs could not recover in the absence evidence that the negligence charged was the cause the accident.

8--Volunteer-Conmon fault -Division damages.]-P. was proprietor certain lumber mills and a bridge leading to them across the River Batiscan. The bridge being threatened with destruction the spring the mill foreman called for volunteers to attempt to it undertaking manifestly dangerous work in loading one the piers with stone,

While the work was in progress the bridge

10.-Master and servant - Hiring of servant third party - Control over service.] Plate Glass hired the day the general servant and horse and wagon another pany for use in its business, and while hired the servant in carrying a load glass knocked man down and seriously injured him.-Held, reversing the judgment the Court Appeal Ont. R. that the Plate Glass was not liable in damages for the injury; that the driver remained the general servant the company from which was hired and not that the Plate Glass 11--Railoay--Running of trains-Approach. ing crossing- Warning

Railvay Act, 256.] of the Railway Act, providing that " the bell with which the engine furnished shall rung, or the whistle sounded, at the distance at least eighty rods from every place at which the railway crosses any highway, and be kept ringing or be sounded at short intervals until the engine has crossed such highway " applies to shunting and other temporary movements connection with the running trains well as to the general traffic.

12-- Trial of Action-Contributory negligence of jury- trial-Eridence.]dint.-Held, that

NOTICE-Fire insurance--Condition policy - of subsequent insurance-Inability gice Held, judgr.

2---Fire insurance -Conditions of policy- Change risk-Foreign 0. .

3--Appeal-Question local practice-Inscription for proof and hearing-Peremptory list- -Notice -Surprise rtifice-RequIte civile Penal clause-Lex loci contractus-Negligence o

-Laches of Crown officials -Release of sureties

Landlord and tenant-Lease Jar int soa

NEW TRIAL - Negligence - Contributory 1 negligence

Findings of jury

Eridence.]

5--Mortgaqe-Sale of mortgaged land for taxes-Purchase mortgagor-Action toforeclose-Pleading.

OWNERSHIP-Railway-Expropriatiou land-title land-Tenants in coin on-Propn. Staires par indiris-onstrvction of agreementthat Mis-description-Plans and ofreference- Held, that Sa

sto of c nemiy-egs PARTNERSHIP-Settled accounts- Releaes -Setting aside releases and opening acconts.] 717controlled all the affairs presenting at intervals 2--Appeal

Criminal

Criminal PARTNERSHIP-Continued.

were executed each. In an action against the active partner to set aside these releases and open up the accounts.-Held, that all it was necessary to establish was, that in the accounts as settled there were such errors and mistakes would inflict material injustice upon the plaintiff if the accounts should held to closed.

2-Contract-Dealing in land-Statute frauds - British Columbia Mineral Act.]

Sections and the Mineral Act which prohibit any person dealing mineral claim who not hold free miner's certificate, not prevent a partner in claim recovering his share the proceeds sale thereof his co-partner though held no certificate when he brought his action having allowed the had up to the time to lapse.-A partnership may formed parol agreement notwithstanding it to deal in land, the Statute Frauds not applying to

Judgment the Supreme

Court British Columbia Rep.

affirmed, Gwynne and Sedgewick JJ. (dissenting)

- 3-Construction Statute-20 & V.

(Imp.) Application Criminal prosecution- Embezzlement of trust funds-Suspension civil remedy-Stifling prosecution

PARTITION-Construction of deed-Charge

PAYMENT- Debtor and creditor- Appropriation payments-Error in appropriation- Arts. 0. C.]-A bank borrowed from the Dominion Government two sums giving deposit receipts respectively numbered and

Having asked for a further a like amount it was refused, but afterwards the loan was made on 0., one the directors the bank, becoming personally responsible for repayment, and the receipt last loan was numbered

Government having demanded payment account, that suni was transferred in the bank books to the general account the Government, and letter from the president to the Finance Department stated that this had been done, enclosed another receipt number 358for$50,000on special deposit, and concluded. " Please return deposit receipt 323-$100,000 now in your posses- Subsequently$50,000 more was paid and return receipt No. requested.

bank having failed the government took proceedings against 0., on his guarantee for the last loan made to recover the balance after

PAYMENT- Continued.

crediting said payments and dividends received. The defence to these proceedings was that had been agreed between the bank and 0. that any payments made account the borrowed money should first applied to the guarantee loan and that the president had instructed the accountant to apply the two sums paid, but he had omitted to do The trial judge gave to this objection and dismissed the information the Crown.-Held, reversing the judgment the Exchequer Court Ex. R. Tascherean and Girouard JJ. dissenting that the evidence showed that the president knew what the accountant had done and did not repudiate it, and the act was for the benefit the bank, the latter was bound it; that the act the Government immediately returning the specific deposit receipts the payments were made was sufficient act appropriation the creditor within Art. no appropriation at all having been made the debtor the hypothesis error; and if this were not the bank could not now annul the imputation made the accountant unless the Government could restored to the position it would have if imputation at all had made which was impossible, the Government would then have had an option which could not now exercised. 2--Action-Condictio indebiti-Re'pdtition de l'indu--Evidence-Fictitious claims-Misrepresentation-Onus probandi-Railway subsidies- Insolvent company-Payment of claims the Crown-Transfer payee-Art. C.- PLANS-Expropriation of land-Tenants in coinmon-Proprietaires par incidis-Construction of agreement-Mtsdescription-Plans and of reference-Snrveys-Rlegistry laws- Satisfaction of condition as indemnity - PLEADING-Life insurance- Beneft associa- Payment of member benefit association died while suspended memberaction his widow for the amount his benefit certificate it was claimed that the forfeiture was waived. Held, reversing the judgment the Court Appeal, that the waiver not havrelied answer to the plea non-payment. Allen v. Merchants Marine Insurance Company (15 PLEADING-Continued.

2--Leave amend-.hortygage-Sale of mortgaged land for taxes -Purchase mortgagor- Action forclose-Pleading.] iort- PRACTICE-Continued.

2--Appeal Question of local practice-Inscription for proof and hearing Peremptory list-Notice -Surprise-Artiice-lequdte civile Arts. CC.P. (old text)-R. LV.]

Lambe Armstrong Underalocal PLEDGE-Scirefacias -Titletolad-Annu reqdete meat of letters patent-Sale of pledge-Vente virile rdndrd Concealtent of material fatcts-Arts,

0.-Registration-Tratsfer of. Lends-Art. P. 0.-Art. nissingthe reqnte costs;-eld, POST OrrICE ACT-Cromc-Snretyship-.1 Postme~tem's bond-Penal clauseaLex loci tract s nre of the Crown o cia/s Release of Sureties-Arts. requ~te civile. 3--Appeal-Jrisdiction-Special leave-R. C. ofapplication and ordrCross-adpeeal Privy Conncil inscrippending appeal-Stay of proceedings- Tie

Costs.] Vit.

CL. tle eld, nder PRACTICE lection petition

Prelitinary -Filing of petition £'onstrnction of statte-54 (I).)-B. iatter s.s.

Iterpretation of words and terms-Legal holiday.] tneber be (Eddy Eddy - PRACTICE-Continued.

PRINCIPAL AND AGENT- continued. 4--Appeal- Habeas corpus- Extradition-- the name any principal within the time Necessity quash.] the Supreme limited for settlement the custom the and Exchequer Courts Act (R.S.C. Exchange and the shares had been " appeal shall allowed in any case pro- his order and disposition the seller, he ceedings for or upon a writ habeas corpus became legal owner thereof, without the necesarising out any for extradition made sity any formal acceptance upon the transfer under any treaty."

application to the books and that he was obliged to indemnify court to a day for hearing a motionto quash the seller against all consequences in respect appeal.

Held, that the matter was the ownership the shares, and the double coram non judice and there was necessity for liability imposed under the provisions The a motion to quash.

In re Lazier

- Bank Act."

5--Action against incorporated company- 2--Fire insurance-Condition in policy- Forfeiture charter -Estoppel - Compliance !Time limit for submitting particulars of with statute-Res judicata- Collection of tolls Condition precedent - Authority insurance company, appointed to investigate the report thereon to the company, 6--Title land-Sheriff's sale-Vacating ot an agent having authority to waiv Reund of price- Exposure evictioncompliance with conditions precedent to liabi- Actlo condicto indebiti

Substitution -Prior lity, and has such authority he not, incumbrance-Discharge Sheriff's sale-Pet- after the fifteen days for delivery proofs have ition vacate sheriff's sale expired, extend the time without express authority from his principal.

Asson- PRESCRIPTION.

SeeC insurance-Construction of Condition precedent

PRINCIPAL AND AGENT

Broker-Stock Astoppel - Authority of agent.] Neither the cusom

Saefshares-Mrg local agent for soliciting risks nor an adjuster exchange custom - Sale shares - Marginal sent for the purpose investigating the transer principal

Acceptance

"Settleoent"

Obligation of purchaser waive compliance with conditions precedent Construction contract

The Bank ito the insurer's liability extend the tine Act," R. S. ss. 70-77-Liability of thereby limited for their fulfilment, and the shareholders - "Stock jobbing.'] The defend- therey imitedsfor thei fulfi ant, a broker doing business the Toront poly question specially required it, there Stock Exchange, bought from another could no waiver unless indorsement broker, certain bank shares that had writing upon the policy signed as therein and transferred to by the plaintiff.

At the specified.

Atlas Assurance Brownell timeno thansed ot pawa.

tAt the followed.

time of the sale C. was not aware that the Muo defendant was acting for an undisclosed principal and the name principal was not dis- PRIVY COUNCIL-Appeal-Jurisdictionwithin the time limited for settle- Special leave-R. S. c. 40-42-Form ment" transactions by the custom the of application and order-Cross-appeal to Privy exchange.

The transferee's name was left Council - Inscription pending such appeal blank the transfer book in the bank, but it Stay of proceedings-Costs noted in the margin that the shares were subject to the order the defendant who, three days after settlement was due according -Appeal-Court of Review-Right of appeal to the custom the exchange, made a further to Privy Council - Construction of statutemarginal memorandum that the shares were Final judgment-R. 24 (j), subject to the order H. The affairs the & & (D.)

bank were placed liquidation within month after these transactions and the plaintiff's name being put upon the list contributories, PUBLIC WORK-Formation contractwas obliged to pay double liability upon Ratification - Breach.] November the shares transferred under the provisions the Government Canada entered into a "The Bank Act," for which afterwards contract with which the latter undertook recovered judgment against and then, taking to do all the Government binding for years an assignment C's right indemnity against from said date.

The contract was executed the defendant, instituted the present action. under the authority & Vict. Held, that as the defendant had not disclosed and November 25th, was assigned PUBLIC WORK--Continued.

to W. who performed all the work sent to him up to December 5th, when, the term the contract having expired, received a letter from the Queen's Printer as follows: "I am directed the Honourable the Secretary

State to inform you that, pending future arrangements, the binding work the Government will sent to you for execution under the same rates and conditions as under the contract which has j ust expired." performed the work for two years under authority this letter and then brought action for the profits he would have had work given to other parties during the seven years. Held, that the letter the Queen's Printer did not constitute contract binding on the Crown; that the statute authorising such contracts was not directory but limited the power the

Printer to make contract except subject to its conditions; that the contractor was chargeable with notice all statutory limitations upon the power the Queen's Printer, that he could not recover respect the work done after the original contract had expired.- October 30th, an order-in-council was passed, which recited the execution and assignment the original contract, the execution the work by W. after it expired, and the recommendation the Secretary State that formal contract should entered into extending the original to December 1st, then authorized the Secretary State to enter into such formal contract with W. but subject to the condition that the Government should waive all claims for damages reason nonexecution or imperfect execution the work, and that W. should waive all claims to damages because the execution binding work by other parties up to the date said extension.

refused to accept the extention terms. Held, that W. could not rely the order-in-council ratification the tract formed the letter the Queen's

Printer; that the element consensus enters much into ratification contract as into the contract itself; and that W. could allege ratification after expressly repudiating its terms and refusing to be bound it.- RAILWAYS--Negligence--Findings of jury

Evidence - Concurrent findings of courts appealed from.] In action against railway company for damages in consequence plaintiffs' property being destroyed alleged to caused sparks from engine the pany the jury found, though there was no direct evidence how the occurred, that the company negligently permitted an accumulation grass or rubbish their road opposite plaintiffs' property which, in case emission sparks or cinders would be dangerous; that

RAILWAYS-Continued.

the originated from or reason a spark or cinder from an engine; and that the was communicated the spark or cinder falling the company's premises and spreading to plaintiffs' property. verdict against the company was sustained the Court Appeal. affirming the judgment the latter court Out. R. and following Sdndsac Central Vermont Railway Can. R. 541); George Matthews Bouchard Can. R. 580); that the jury having found that the accumulation rubbish along the railway property caused the damages, which there some evidence, and the finding having been affirmed the trial court and Court Appeal, it should not be disturbed appellate court.

RY. 2-Expropriation of land-Title land- Tenants in common-Propridtaires par indivis -Construction of agreement-Misdescription- Plans and of reference-Satisfaction condition as indemnity- Registry laics- Estoppel-R.S.Q. arts. 5164-Art. C.C.]

In matters expropriation where the railway company has complied with the directions and conditions articles and Revised Statutes Quebec, to deposit plans and books reference, notice and settlement indemnity with the owners, or with at least one-third the owners par indivis, lands taken for railway purposes, the title to the lands passes forthwith to the company the whole the property by mere operation the statute, without the consent the other owners par indivis, and without the necessity formal conveyance deed or pliance with the formalities prescribed the Civil Code as to registration real rights.- The provisions the Civil respecting the registration real rights have no application to proceedings matters expropriation lands for railway purposes under the provisions the Revised Statutes Quebec.-Pending expropriation proceedings hegun against lands held common, (par indivis,) for the purposes appellant's railway, the following instrument was signed and delivered to the company six, out nine the owners par indivis, : " it known by these presents that we the legatees Patterson the Parish Beauport, County Quebec, do promise and agree that as soon as the Quebec, Montmorency Charlevoix Railway located through our land in parishes Notre-Dame des Anges, Beauport and L'Ange-Gardien, and in consideration its being located, we will sell, bargain and transfer to the

Montmorency Charlevoix Railway Company, for the sum one dollar, such part our said land may required for the construction and mainten- RAILWAYS-Continued

[RAILWAYS

Continued.

ance the said railway, and exempt the said company all damages to the rest the the deeds will permit the construction 3Runini of traina-Approachmg crosng said railway to proceeded with over our said

-Warning-Shnnq-Railway Act, a. land, without hinderance any kind, provided 2 that the said railway located to our satisiding that the bell with the engine faction.

witness our hands at Quebec, this furnished shall rung, the whistled sounded 11th day June, in the year Our Lord, one at the distance at least eighty rods from thousand eight hundred eighty-six." every place at which the railway any Afterwards, the line the railway was altered highway, and kept ringing sounded at and more than one year elapsed without the short intervals until the engine crossed deposit amended plan and book refer- such highway" applies to shunting and other to show the deviation from the line temporary movements connection with the originally located.

The company however took running trains well to the general possession the land and constructed the rail- traffic.

way across it and, in August, the same persons who had signed the above instrument 4--iomicipal corporation-By-low-Rai/nay granted an absolute deed the lands to the aid

Subscription for shares

Debenturescompany for consideration five dollars, Dieision of county-Erection separate acknowledged to have been paid, reciting there- municipaities-34 c. (Que.)-Assessment in that the said lands had " been selected and ofshares at discount-Action reddition set apart the said railway company for the comptes-''"stee-Debtor and creditor-228 ends and purposes of its railway and being already in the possession the said railway company since the eleventh day June, one 5-Action-Gondictio indebiti-Rpdtition de thousand eight hundred and eighty-six, l'indu-Fictitious claims--Misrepresentation virtue certain promise sale sons seing Eeidence-Onus probandi-Art. a. prive the said lors in favour the said C.-Railway aubidiea-54 c. Neither of the instruments were (Que.)-Inoleent company-construction ofrailregistered.

purchased the New Waterford road comnany-Payment of claims by property and, after registering Crown-Transfer'by payee.

his deed, executed all the owners par indivis, brought a petitory action to rezover that part the property taken the railway company, REDEMPTION.

alleging that the instruments mentioned stituted donation the lands and did not one within the operation articles and REGISTRY LAWS-Title laud Life the Revised Statutes Quebec.

Held, etate-ubstittio--Pi-ileyea and Iypothecs that the terms sub-section article

Preferred claim-Prior incumbrances.] Held, R. Q. were sufficiently wide to include and per Taschereau J. that article the apply to donations ; that the instrument in Lower Canada, interpieted the question was not properly donation, but a statute, Viet. applies to hypothecs valid agreement or accord within the provisions and charge not require renewal said tenth subsection, under onerous registration for the preservation rights ditions indemnity which appeared to have and titles to real estate.

that, the C agreement stipulated time within which the 3-Railway-Expropriatioa of land-Title new plan should and the location land-Tenants in common-Propridtaires par appeared to have made to the satisfaction indicis-Cwnstr-ntion of agreement -Alisdeacrip the required proportion the owners, it tion-Plans and ofreference-Satisfction sufficient for the company to the amended of condition as indemnity-Estoppel-R.S.Q. plan and book reference at any time there- Arts. 5164-Art.

The proafter and that, the indemnity agreed upon the Civil Lower Canada out nine the owners par indivis had respecting registration real rights have satisfied changing the location the application to proceedings matters the railway line desired, the requirements expropriation lands for railway purposes article R. had fully complied under the provisions the Revised'Statutes with and the plaintiffs action could not, undeI the circumstances, maintained.

REGISTRY LAWS-continued.

REQUtTE CIVILE-Continued. 2- Title land-Substitution-Acceptance adverse party required by the Rules institute-Parent and child-Rights of children Practice the Superior Court, and that the not yet born-Revocation of deed-Prescription defendant was entitled to have the judgment -Bond fde -Recital in deed-Presumption revoked upon civile.

against purchaser-Arts.

As faith required for the ten years prescription under RES JUDICATA-Incorporated companythe Civil Code, that prescription cannot in- Action against - Forfeiture of charter voked against substitution which has been Estoppel - Compliance with statute.] duly registered, such registration being action against River Improvement cient to constitute any third party, who might pany for repayment tolls alleged to have subsequently purchase from the institute a been unlawfully collected, it was alleged that holder in bad faith.

(Leave to appeal to Privy the dams, slides, etc., for which tolls Council refused.)

claimed were not placed the properties men- Scire facias-Title land-Annulmenttioned the letters patent the company; of letters patent-Tender taking action-Sale that the company did not comply with the of pledge rdndrd- Concealnent statutory requirement that the works should material facts--A rts.

. S. Q.-Regis- completed within two years from the date tration-Tranfer of Crown Lands-Art. incorporation whereby the corporate powers C. P. Q.-Art.

were forfeited; that false returns were made to the Commissioner Crown Lands upon which the schedule tolls was fixed; that the RELEASE-Partnership-Settled accounts_ company its works and improvements - Setting aside releases andopntng structed navigable waters contrary to the proaccounts visions the Timber Slide Companies Act, works.

a consent judgment in a former REPAIRS-Charge lands gaction between the same parties it had REAIRSCareo l1 agreed that valuator should appointed the Commissioner Crown Lands whose report was to be accepted in place that pro- RtPtTITION-Action-Condictio indebitivided for the Timber Slide Companies Act, Rdpdtition de l'indu - Fictitious and to acted upon the commissioner in claims -fisrepresentation

Onus probandi- fixing the schedule tolls.

Held, affirming Railicay subsidies-Insolvent conpany-Pay- the judgment the Court Appeal for -ment of claims the Crown-Transfer payee tario, that the above grounds impeachment C.-54 V. c.

were covered the consent judgment and judicata.

REQUTE CIVILE

Appeal-Question of local practice-Inscription for proof and hear- Res judicnta

Bert ration-Damages. ing -- Peremptory list -- Notice -- Surpris

2--Rsjdct etficainDaae. Notice

Arti~fice-Arts. P. text) deed the plaintiff claimed the benefit a reser- -R. of P. (S. LV.] Under a local practice vation containedin prioragreement but judgprevailing the Superior Court, the District vat hipron the

Montreal, the plaintiffs obtained an order ment was given against him the ground that from judge fixing day peremptorily for the then action to reform the adduction evidence and hearing on the inserting the reservation therein merits precedence over other cases subject natter the action was not previously inscribed on the roll and without t matt eond actn notice to the defendants.

The defendants did resjudicata by the previous judgment.-In an not appear when the was taken up for action for rectification contract the plaintiff proof and hearing and judgment default awarded damages.

(Leave to appeal was entered favour the plaintiffs.

The to Privy Council refused.)

defendant requite civile asking the

N revocation the judgment to which the plain- Purchase of insolvent estate-Refusal to tiffs demurred.

appeal to the Supreme complete-Action curator-Completion of Court Canada against the purchase after judgment-Subsequent action for taining the demurrer and dismissing the requte special ages-Res Judicata-Practice.] A with costs ;-Held, reversing the decision the merchant in Ottawa, Ont., purchased the assets Court Queen's Bench, that the order was an insolvent trader Hull, but refused improperly made for want notice to the to accept delivery the same.

The curator RES JUDICATA-Continued.

the estate brought an action in the Superior

Court Quebec to compel him to do obtained judgment whereupon he accepted delivery and paid the purchase money.

curator subsequently brought another action

Ontario for special damages alleged to have been incurred in the care and preservation the assets from the time the purchase until the delivery.

Held, that these special damages, most which could not be ascertained until aftor the purchase was completed, could have been included in the action brought in the courts and the right to recover them was not res judicata the judgmont that

4---Vis major-Construction of chaps.

& 77-Mortgage of substituted lands -Estoppel-Judicial

REVIEW, COURT OF.

REVOCATION OF JUDGMENT.

RIVER IMPROVEMENTScompany - Forfeiture of charter-Estoppel

Compliance with statute-Res judicata-Collec- RIVERS AND STREAMS-Timber slides

-Compliance with statute company-Infeiture of charter-Res judicata

SALE-Contract-Agreement to supply goods

-Property in goods supplied - Execution - Seizure.] an agreement between H., the part, and and wife the other, the latter were to provide and furnish a store

H. supply stock and replenish same when necessary; W. was to devote his whole time to the business; W. and wife were to make monthly returns sales and cash balances, quarterly returns and stock, etc., hand and to remit weekly proceeds sales with certain deductidns.

H. had right at any time to examine the books and have an account the stock, etc. ; the net profits were to be shared between the parties ; the agreement could be determined at any time by H. or by W. and wife month's notice. Held, that the supplied H. under this agreement the stock the business were not to W.

but remained the property H. until in the ordinary course; such goods, therefore, were not liable to seizure under execution against H. at the suit a creditor.

SALE-Continued.

2-Contract-Rescission- Innocent misrepresentation-Common error-Sale of land--Failure of consideration.] An executed contract for the sale an interest in land will not rescinded for mere innocent misrepresentation. But where, error both parties and without fraud deceit, there has been complete failure sideration court equity will rescind the contract and compel the vendor to return the purchase money.

Thus where, the sale a mining claim, it turned out that the whole property sold was included in prior claims whereby the purchaser got nothing for his money the contract was rescinded though the vendor acted good faith and the transaction was free from fraud.

3---Sale of land-Agreement for sale-MAutual mistake-Reservation of minerals-Specific per- Jormance.] The & N. Railway Company executed an agreement to sell certain lands to H., who entered into possession, made improvements, and paid the purchase money, whereupon a deed was delivered him, which refused to accept, it reserved the minerals on the land while the agreement was for unconditional sale.

In an action H. performance the agreement the company contended that in its conveyances the word " land " was always used meaning land minus the minerals.

Held, reversing the judgment the Supreme Court British Columbia Rep. Taschereau J. dissenting, that the contract for sale being expressed unambiguous language, and H. having had notice any reservations, it could not be rescinded on the ground mistake and was entitled to a decree for performance. (Leave granted for an appeal to the Privy Council.)

- -Title to land-Sherif's sale-Vacating sale -Refund of price- Exposure to eviction-Actio condictio indebiti-Substitution-Prior incumbrance-Discharge sheriff's sale-Petition to sherif's

5-Mortgage-Sale of mortgaged land for taxes-Purchase mortgagor-Action foreclose-Pleading

Scire facias-Jitle to land-Annulment letters-Sale or pledgerdmdrd-Goncealment of material facts-Artq. R. S. Q.-Registration-' ransfer of Crown Lands 0. P. Q.-Art. 7--Deed-Delivery-Retention grantor Presumption-Rebuttal

SCIRE FACIAS-Title to land - Annulment j SHERIFr-Continned.

of letters patent- Tender-Sale or pledge- tatzon of estate-Discharge of incumtrances.] 4 rdmird-Concealment of material fact-Arts. Where lands grevd de substita- R. S. Q.-Registration- Transfer rown landsA rt.1007.P.Qcial reference b statute serior to sale land subject to the right redemption, r y

(rente rdmdrd) transfers the title the lands ayrgt ritrssta ih rs ne ( rdzdr)

tansersthetite th ladseubstitntion, sale the sheriff, execution to the purchase in the same manner the judgment recovered, discharged the simple contract sale. Sala Vossal, land from the suhstitution not yet and Can. R. followed.-The locatee certain Crown lands sold his rights therein to reserving the right to redeem the the whole estate, including that the substiwithin nine years, and subsequently sold the tt hat de titun same rights to subject to the first deed.

These deeds were both registered their protio atit the an

Th srifeed per order in the registry for the division g and the Crown Lands at Quebec.

adefend th

Crwn Lnds ff eainn un-e~c ant described in the writ execution, process paid the balance Crown dues remaining uns paid upon the land and made an application for letters patent grant thereof in which no greed de substitution." Held, that the term mention was made the former sale thedescriptive the defendant mde te frme sae th and not limit the estate sold original locatee.

In an action by scire Jacia e for the annulment the letters patent granted to M:-Held, Taschereau J. dissenting that the

T failure to mention the rente rdmdrd the ap- Title land Sherjffs sale-Vacating sale plication for the letters patent was misrepre- Arts. C.C.P.-Relnnd of sentation and concealment which entitled the price paid-Exposure eviction-Arts. Crown to have the grant declared void and the

0.0.-Actio condicto inletters patent annuled as having been issued debiti-Substitution non oneerte-Prior mistake and in ignorance material fact, not- trance-Dicharge Procedure

The provisions withstanding the registration the first deed article the Code Civil Proin the Crown Land Fonseca Attorney cedure

Lower no apply General for Canada Can. R.

to sheriff's which have been perfected referred to.-Held, further, Taschereau J., payment the price adjudication dissenting, that it not necessary that and the execution deed, nor that an action should preceded or accompanied article a right to such sale vacated tender or deposit the dues paid to the and the amount paid refnnded.-The aetio Crown in order to obtain the issue the letters concictio indeviti for recovery the price 484 the purhaser lands only SERVITUDE- Municipal corporation-Ex- where there has actual eviction. propmatiii

Iterfr-.procedure petition provided the propriation proceedings-Negligence- Civil Procedure for the vacating sheriffs proprietary rights--Abandonment proceedings- Damages- Servitudes established action ol le invhe Trust an for public utility-Arts.

C.-minnt oman.]Wheeunder author- pay Canada Quintal Dor. Q. B. C.-Eminent domain.] Where, panrathr ity a statute authorizing the extension fici ernd t eiff's street,, a servitude public utility was esta- shff'ae in exectin jdent blished private land which was not owne rec ution priated and the extension was subsequently abandoned, the owner the land was not, inupon obligation the absence any statutory authority therefor iy over the deed creating a substitution, disentitled to damage for loss proprietarcharges the lad from the unopened substitution rights while the servitude existed.

Perraidt v.jthuttutinaeprty the proig Gauthier at R. referred ditV tonaur the to eeal Chief Justice dissented.

an.

9) fo

1sH r SHARES.

SHIPPINGAppeal-Certiorari -Merchats' Act, 1854-Distressed seamnan-he. SHERI

.- Title land -Mortgae- Life rovery expenes-" Owner for time being"estate-Substitution-SeiziIre and sale lands Proofofownership and payment.] Anappeal -Sherif's deed -Desc ript ion parties-Limi- SHIPPING-Continued.

judgment a provincial court making absolute rule nisi for certiorari to bring up proceedings before a police magistrate under The

Merchants' Shipping Act with a view to having the judgment thereon quashed.-Sec.

The Merchants' Shipping Act, makes the expenses a seaman left a foreign port and being relieved from distress under the Act a charge upon the ship and empowers the Board

Trade, in Her Majesty's name, to sue and recover the same from the master the ship or " owner thereof for the time being."

Held, affirming the judgment the Supreme

Court New Brunswick, that the latter words mean the owner at the time action brought.

Beld further, that certificate the Assistant

Secretary the Board Trade that such expenses were incurred and paid sufficient proof payment under the act though the section not provide for a mode proof certificate.- Notwithstanding the provision in the Imperial Interpretation Act that the repeal an Act shall not any suit, proceeding or remedy under the repealed Act, in proceeding under The Merchants' Shipping Act proof ownership may made according to the mode provided in The Merchants' Shipping Act, which the former Act repealed.-Under the Act copy the registry ship registered Liverpool, certified the Registrar General Shipping at London cient proof ownership.

Qumee.-Where the

Merchants' Shipping Act provides that every order two justices an action seaman's wages shall will certiorari remove the proceedings into Superior

Court ? " -662

2--Lease-Neglience - Hire of tug-Conditions-Repairs-Compensation--Presumption fault-Evidence-Measure of damages - 1ire insurance ship " while running"

-Condition in policy- Variation from statutory

SIGNIFICATION - Assignment of rights under policy of insurance-Art.

.- SPECIFIC PERFORMANCE-Vendor and purchaer-Laches- Waiver.]

The purchaser under contract for sale land not entitled to a decree for performance the vendor unless has been prompt in the performance the obligations devolving upon him and always ready to carry out the contract part within reasonable time even though

SPECIFIC PERFORMANCE-continued. time was not its essence; nor when he has declared his inability to perform his share the contract.-The purchaser waives any jection to the title the vendor takes possession the proper y and exercises acts ownership making repairs and improvements.

2--Sale of land-Agreement for sale-N utual mistake-Reseration of minerals.]-The E. & N. Ry. Co. executed an agreement to sell certain lands H., who entered into possession, made improvements, and paid the purchase money, where upon was delivered him which refused to accept as it reserved the minerals on the land while the agreement was for an unconditional sale. In an action H. for performance the agreement the company contended that in its conveyances the word "land" was always used as land minus the minerals.

field, reversing the judgment the Supreme Court British Columbia Rep. Taschereau J. dissenting, that the contract for sale being expressed in unambiguous language, and H. having had notice any reservations, it could not rescinded the ground mistake and he was entitled to a decree for performance.

(Leave to appeal to Privy Council granted.)

STOCK JOBBING.

STREET RAILWAYS - Negligence-Findings of jury-New; trial-Contributory negli- STATUTE-Criminal Code, ss. sub-section section seven hundred and forty-two "The

Criminal Code, must be construed meaning " decision " " judgment " the Court Appeal criminal 2--Municipal corporation

- Construction of statute - Art. R. S. Q.- Approval of electors.] Under the provisions the Revised

Statutes Quebec money by-laws for loans town corporations require the approval majority both number value the municipal electors who are proprietors real estate within the municipality, ascertained from the municipal rolls. STATUTE-Continted.

3--Construction statute-20 & c. 5--Contract-Partnership-Dealig in land (Imp.)-Application-Criminal prosecu- -Statuteoffrauds-British Columbia Miniral tion-Embezzlement of trust funds-Suspension Act.]

Sections and the Mineral of civil remedy-Stifling prosecution Partner- which prohibit any person ship.] The Imperial Act, & Vict., dealing mineral claim does not bold provides that " nothing in this Act free miner's certificate, not prevent a contained, nor any proceeding, conviction or partner recovering share the judgment to be had or taken thereon against proceeds a thereof his co-partner any person under this Act, shall prevent, though held certificate bronght lesson, or impeach any remedy at law or action having allowed the one n to equity, which any party aggrieved any the time sale to lapse.

V. icnothinv in this Act contained shall affect or 6-Raileay-Riniaz i trains-Approachprejudice any agreement entered into, or g any trnstee, having for its objectAc rity given byaytute aigfrisojc the Railway Act, the restoration or repayment any trust pro- 1 providing that "the hell with perty misappropriated."

Held, affirming the engine fnrnished shall rnng, or the judgment the Supreme Court British whistle sounded, at the distance at least Columbia, that the class trustees referred eighty rods from every place at which tie railin said Act were those guilty misappropria- way any highway, and kept ringing tion property held upon express trusts. or sonnded at short intervals until the engine Semble, that the section only covered agree- crossed such highway" applies to shunting ments or securities given the defaulting temporary movements ,onnection trustee himself.

Qumre.--Is the said Imperial the running of trains vell to the Act in force in British Columbia ? If in force general traffic.

under R. (The Larceny

Act) 58.-An action was brought on

S covenant given for the purpose stifling ping-Distressed seaman-Recorery prosecution for the embezzlement partner- -"Oenerfor time "-Prooj of ownership ship property under and payment.] The Merchants' Shipwhich was not re-enacted the Criminal ping Act, make the expenses seaman Code,

Held, that the alleged Criminal left foreign port ani being relieved from Act, having been committed before the Codedistress under the Act charge upon the ship and came into force, was not affected its pro- enpowers the Board Tiade, Her Majestys visions and the covenant not enforced. name, to for and recover the same the Further, the partnership property not having master the ship or "owner thereof the been held an express trust the civil remedy was not preserved the Imperial Act. the Supreme Court New Brunswick, that thelatter words mean the owner at the time action brought. -Notwithstanding the provision the Imperial 1Iterpretation Act that 4--Compliance with provisions of " The Tim- the repeal an Act shall not affect any suit, ber Slide Companies Act"-Forfeiture of proceeding or remedy under the repealed Act, pany's charter-Non-completion of work.]

in proceedings under The Merchant's Shipping R. 0. it was pro- Act proof ownership ship maybe that made according to provided complete its works within two years from the The Merchant's Shipping Act, which date incorporation it should forfeit all its the former Act repealed. v. corporate and other powers " unless further' time granted the county or counties, district or districts, or adjoining which the

Assessentwork situate, the Commissioner Montreal Harbour inprorenments-Special taxes Public Works."

Semble.

Widening streets

Construction of statute-57 the work within two years would not, ipso V.

(Que.)-52 facto, forfeit the charter, but only afford

()ne.)] Notwithstanding the reference therein grounds for proceeding the Attorney Gene- to "existing rolls," the application the first Vict. iiening"only the streets therein named where there then existing rolls prepared the commission fixing the limits for that

R. c. (j), and 29-54 purpose, and these words could not have the and c. (D)-Appeal-Right extending the nature and character appeal to Privy Council- Court of Reviewworks as to include work manifestly Constructson ofstatute--Final judgment forming part the harbour improvement

AE scheme and chargeable against special loan under by-law based the provisions the 1i--Lsquor laws-Afunicipal corporation- 139th sectionf the Montreal City charter iscretion of members-Refusalto con/irm liquor Vict.

license certifcate-Liability of corporation-R. 9.--Ditches and

-Owner of tand-Declaration of ownership- STATUTES - & V. c. (Imp.) Award-Defects-ValidatinU award-57

55-58 c. (Ont.)]

land with option to purchase the not

& can initiate proceedings for construction Shi

& V. (-p.) [Merchant ditch under The Ditches and Watercourses

Act. Ontario.

Township oj

York Can. R. followed.-If the 3--17 &

V. c. (Imp.)

[Merchant initiating party not really owner the filing Shipping]

declaration ownership under the act will not confer jurisdiction.-Section the Act, which provides that an award thereunder,

& V. c. s. (Inp.) [Frauds after expiration the time for appealing to trustees]

the judge, or after it affirmed on appeal, shall binding notwithstanding any defects in form or substance either the award or any 0-_2 & V. c. (Imp.) [Interpretation Act]

or proceedings where the party initiating the latter not owner.

6-14

& (Can.) [Primoeniture 702 abolished]

10--Construction ofstatute-14 & V.

(Can.)-Derietoheirs.] TheActl4&15Vict.,

7-57

& V. c.60(Imp.) [Merchant Shippinq]

niture Upper Canada, placed no legislative where will made after it in force devised 8--16 V. c. (Can.) [Montreal Fire Relief his eldest brother only. Judgment the Court 9-16

V. c. (Can.) [Montreal Fire Relief 11--Vis major-Construction of, Vict. 10--R. c. 1, a. 7, (Legal Holidays.) chaps. and 77-Mortgage of substituted lands-Estoppel-Judicial authorization

7he ompanies 12--Election petition-Preliminary objections

-Filing petition-54 and c. 20, (D)

c. 1, 7, 27-Interpretation of 12--& s. c.

(Bank Act) 54 words ad terms-Legal

See LECION

13--RI. S. C. c. ~"The Winding-up. 13--Appeal- Juridiction Special

1. 42-Form and order-cross-appeal to Privy Council-In scription pending such appeal-Stay of pro 14-R.

(Special ceedings-Costs for appeal)

STATUTE-Contiued.

15--R.S.C. (j), (Appeals from 32--R. Q. arts.

Crovn Lands) 16--R. (Supreme and 33-R.S.Q., Art. 4529 [Money by-laws] Exchequer Courts Act)

34-R.S.Q., Arts. [Plans, surreys, 17--31 [Security Crown Oficials]- - - - See 2.

35--39 V.

[Registration of Crown hypothecs.]

cials]

36-52 V. r.79,s. (Que.) [Montreal iar- 19--38 c. [Post Act] bour Improvements]

20--51 V. (D.) [Running oj37-52 c. 79,s. [Expropriations Railway trains]

632 for widening streets in Montreal]

21--34 & V. [Election Peti- [Aontreal street LAW.

22---54 & V.

[Appeals 39--C. M. c. Div. 7 [Manitoba Joint from Court of Review]

- - Stock Companies Incorporation Act]

23-55 & V. c. [Crim-140-R.S.M. c. [Joint Stock inal Code,

- 90 Companies-Powers of directors-Allotment shares- 24--56 V. c.

662e STATUTORY

CONDITIONS oreign 3Sttt.-Force in Proince of R.S. - 0. c. 203,s.

peals Supreme Court of Canada]

- 2--Fire Insurance- Variationfrom Statutory conditions-Ontario Insurance Act

- --- R. 0.

Slides Companies Act

STATUTE OF FRAUDS-Contract-Part. 3nership-Dealing in land-Parol agreement.] - - - - - 27--. s.0.

Wokme's39A prtneshi may

9,oDme.

b[ aoagJoint 28--R405R.0.M(1897)5c.

203,0s.316[,oiStatutor

Fire Policy conditions]

139haE- SUBSTITUTI ON-Title to land-Entail- ILije-estate-Privileges and hypothecs-Statute, 29--57 V. (Ot.)

[Ditches and Water- I construction of- . & 77- Fortgage by 702 inst e-Pref erred claim-Prior incumbrancer Registry

Practice-S

's salejuge-Parties- Major-Estoppel- 30-58 c. (Ot.) [Ditches and Water- Arts, 98, Arts. 707711

P. P. Q.- Sherif's deed- Grosses rcparations.] 31--R, Q. (Liquor licenses)

736 the institute in possession parcel land City Montreal, gred substitution, and SUBSTITUTION-Continued.

SUBSTITUTION-Continued.

a curator appointed to the substitution, mort- perfected payment the price adjudica. gaged the land, under the provisions the Act tion and the execution deed, nor that for the relief sufferers the Montreal article give right to have such sale vacated Vict. to obtain loan which and the amount paid refunded.-The acti. was expended in reconstructing buildings the condictio indebiti for the recovery the price property. Default was made in paynent paid the purchaser lands only cases the mortgage moneys and the mortgagor where there has been actual eviction.-The protained judgment against the institute and cedure petition provided the caused the land to sold execution by the Civil Procedure for the vacating sheriff's sheriff in suit to which the curator had not sales only invoked in where an been made a party. Held, that as the mortgage action would

The Trust and Loan of had been judicially authorized and was given Canada Quintal Dor. Q. followed. special preference the statute superior to -Mere exposure to eviction not a sufficient any rights or interests that might arise under ground for vacating sheriff's sale.-A sheriff's the substitution, the sale the sheriff, in execution judgment against the execution the judgment recovered, dis- owner lands, subsitution, based upon charged the land from the substitution not yet obligation a mortgage having priority open and effectually passed the title to the over the deed creating substitution, discharges purchaser for the whole estate, including that the lands from the unopened substitution withthe substitute as well that the grevd de out the necessity making the curator to the substitution, notwithstanding the omission to substitution party to the proceedings. Chef make the curator party to the action or pro- dit Vadebonemr The City of Montreal ceedings in execution against the lands.-An Can. S. C. R. 9) followed.

institute, greed substitution, may validly-274 affect and bind the interest the substitute in real estate subject to a fiduciary substitution a case where the bulk the property has been 3-Title land-Aceeptance institutedestroyed vis major order to make neces- Parent and child-Rights of children not sary and extensive repairs, (grosses rdparations), born-Reocation of deed-PrescriptionBona upon obtaining judicial authorization, and s-Recital in deed-Presumption against such the substitution is charged with the purchaser-Arts. cost the grosses rdparations, the judicial substitution created a authorization operates res judicata and the donation inter aivos in favour the children substitute called to the substitution is estopped the institute, even before they are born, is from contestation the necessity and extent irrevocable after acceptance their parent, the repairs.-The sheriff seized and sold lands and the law the Province the under execution against a defendant described subject, declared the Civil the in the writ execution, process seizure and the old law that province in existin the deed to the purchaser "greed the promulgation the Civil Code substitution." Held, that the term used was Lower Canada-Where an institute has merely descriptive the defendant and did not accepted donation creating substitution limit the estate sold or conveyed under favour his children, his acceptance instithe execution.

Judgment the Court tote constitutes valid acceptance the substi- Queen's Bench for Lower Canada affirmed, tution behalf his children thereafter horn Taschereau and King JJ. dissenting.

Held, to him during marriage.-Where the title deed further, per Taschereau J., that article purchaser lands bears upon its the Civil Lower Canada, interpreted recitals which would have n the statute Vict. applies to hypo- evidence the defeasibility his vendor's thecs and charges only and not require title, must presumed to have been aware renewal registration for the preservation the precarious nature the title was rights in and titles to real estate.

purchasing and prescriptive title cannot afterc(uR vp wards invoked either by him or those in 2--Title land-Sheriff's sale- Vacating sale

C. P.-Refund of price paid-Exposure to eviction-Arts.

C.-Actio condictio indebiti - Substitution non ouverte incumbrance - Discharge - Procedure.] The

Civil Procedure Lower Canada, apply to sheriff's sales which have possession under him as holders good faith under translatory title.-As faith required for the ten years prescription under the Civil that prescription cannot invoked against a substitution which has been duly registered, such registration being sufficient to constitute any third party, might subsequently purchase from the institute a holder in bad faith.

(Leave to appeal to Privy Council r.

SURETYSHIP-Crown--Postmaster's bond- TITLE TO LAND-Continued.

Penal clause-Lex loci contractats-Negligencea curator appointed to the substitution, mort- Laches of the Crown officials-Release of sureties gaged the land, under the provisions the Act for the relief sufferers the Montreal In an action the Crown the infor- Vict. to obtain mation the Attorney General for Canada upon bond executed in the Province Quebec was expended reconstructing buildings the in the form provided the "Act respectingproperty.

Default made in payment the security to given by the tamd

Canada" Vict. ch. : Vict. and aised judgment against the institute and Canadaaused the land sold execution the The Post Act " Vict. 7):-Held, suit to which the curator had not Sir Henry Strong, C.J. dissenting, that the made party.

Held, that the nortright action under the bond was governed gage the law the Province Quebec.

Held, given special preference the statute superior further, that bond was not an obligation to any rights or interests that might arise with penal clause within the application articles and the Civil Code execution the judgment recovered, dislaw that the Crown not liable for the lachesthe substitution not yet la ha heCofn is ofie fotis the j open and effectually passed the title to the puror negligence ofhere alteredy cbaser for the whole estate, including that Province except where altered bytts well that the de notwithstanding the omission to SURVEYS - Bornaye-Concession line-E-i- make the curator party the action prodence.]

against lands.-An Seeinstitute, grde de substitution, nay validly and bind the interest the substitute Expropriation of land-Tenants in real estate subject fiduciary substitution mon-Proprietaires par indivis-Construction of agreement-Misdescription-Plans and destroyed ri, mjor order to make of reference-Reyistry laws-Satisjaction of;sary and extensive repairs (grosses reparations), condition as to indemnity.]

obtaining judicial authorization, the the rdpnration, judicial TAX SALE-Mfortgage Sale of mo-ryaged authorization operates resjndicata the land for taxes-Purchase mnortgagor-Action substitute called to the substitution estopped foreclose-Pleading.]

contestation the extent the repairs.The sheriff and sold lands under execution against defendant TENANT.

scribed the writ execution, process seizure and the deed to the purchaser ,''grere subistitution." Held, that the term TERMS, INTERPRETATION Or.

used merely descriptive the defendant and did not limit the estate, or conveyed the Court Forteiture of charter-- Estoppe-Complianceing

JJ. (dissenting)

. wiorfeite of ch at- sopeti oftlsI further per J. that article with the Civil Lower Canada, interpreted Vict. applies hypo- CoANY and charges only, does not require TITLE TO LAND -Entail

Life-estaterights titles to real estate.

Substitution- -Privileges and hypothecs-Statute, construction of-16 V. and Mortgage I institute-Preferred claim-Prior incum- 2-Sheriffs sale-Vacating sale-Arts. brancer-Registry lairs-Practice-Sherifls sale 710, P.-Refnd of price paid jugde-Parties- Major-Estoppel Exposure eriction-Arts. 2060-Actio condictio indebiti-Snirtitu- C.-Arts. P.--Art. tioniionrerte Pmioricnmbnmece-Discharge P.

- Sheriff's deed - Grosses

- Procedure.] The provisions article rdparations.] being judicially authorized, the (ode Civil Procedure Lower Canada, the institute in possession parcel land not apply sheriffs' which have perthe City gred substitution, and payient S.

TITLE TO LAND-ontinued.

.and the execution deed, nor that article give right to have such sale vacated and the amount paid refunded.-A sheriff's sale execution judgment against the owner lands, grevd de substitution, based upon an obligation in mortgage having priority over the deed creating substitution, discharges the lands from the unopened substitution without the necessity making the curator to the substitution a party to the proceedings.

Chef dit

Vadeboncour v. The City of Montreal

R. followed. v. BuR-274

3--Title land-Sub. titution-Acceptance by institute-Parent and child-Rights of children not born substitution created bya donation inter vivos favour the children the institute, even before they are born, irrevocable after acceptance their parent, and the law the Province Quebec the subject, as declared the Civil is the same the

-old law that province in existence before the promulgation the Civil Lower

Canada.-Where an institute has accepted a donation creating a substitution in favour his children his acceptance institute constitutes valid acceptance the substitution behalf his children.

(Leave to appeal to

Privy Council refused.)

SIMPSON

4--Scire facias-Title to land-Annulment

-of letters patent - Tender - - Sale or pledge

-ented rdndrd-Concealment of material fact

Arts. R. Q.-Registration-Transfer of Crown lands-Art. P. Q.-Art.

sale land subject to the right redemption, (vente d rndmrd,) transfers the title the lands to the purchaser in the manner a simple contract sale.

Salvas

Vassal Can. R. referred to.

5-Construction of deed-Partition- Charge upon lands]-A deed for the partition land held common contained a conveyance a portion thereof W., for certain considerations therein recited which one was the condition that she should procure from minor children, upon their coming the necessary quitclaim deeds for the release their interest in another portion the land question apportioned and conveyed to her parceners, and the amount certain payments money then made for the purpose effectuating the partition, was the deed partition declared to remain lien on that portion the land thereby conveyed to until such squitclaims should have been obtained and

TITLE TO LAND-Continued.

delivered to her said coparceners.

the said recital was charge that portion the said land conveyed to a security for the due execution and delivery the quitclaims conformity with the condition stipulated in the deed partition. Vendor and purchaser- Specific performance-Laches- 7--Railways-Expropriation of land-title to land-Tenants in common-Propridtaires par indivis-Construction of agreement-Misdescription- -Plans and of reference-Satisfaction of condition as idemnity-Registry laws- Estoppel-R. Q. Arts. 5164-Art. c.]

8--Mortgage--Sale of mortgage lands for taxes -Purchase mortgage-Action to foreclose- TOLLS--Action against incorporated company Compliance with statute-Fixing Scale.] In an action against River Improvement Company unlawfully collected ground objection to the imposition tolls was that the the valuator appointed under a consent judgment. former action, erroneously based the schedule tolls upon the report as to expenditure instead as to actual value and the statement claim asked that the schedule set aside scale tolls fixed. Held, that under statute the schedule could only allowed or varied the commissioner and the court could not interfere, especially as no application for relief had made to the commissioner.

TRUSTS-Construction of statute-20 & c. s. (Inp.)-Application-Criminal prosecution-Kmbezzlement of trust funds-Suspension of civil remedy-Stifling prosecution-Portnership.] The Imperial Act, & Vict., provides that " nothing in this contained, nor any proceeding, conviction judgment to had or taken thereon against any person under this Act, shall prevent, lessen, or impeach any remedy at law or equity, which any party aggrieved any against this Act might have had if this Act TRUSTS-Continued.

this Act contained shall affect or prejudice any agreement entered into, or security given any trustee, having for its object the restoration or repayment any trust property misappropriated."

Held, affirming the judgment the Supreme Court British Columbia, that the class trustees referred to in said Act were those guilty misappropriation property held upon express trusts. that the section only covered agreements or securities given the defaulting trustee himself.

2--Insolvency- Purchase inspector-Mandate-Arts.

.- Art. P.

Q.]

person having duties fiduciary nature to perform in respect thereto and he cannot allowed to purchaser, his account, any the estate the insolvent.

(Davis Kerr, Can. R. followed.)

VENTE A REMtRt-Scire facias-Title to land-Annulment of letters patent-Tender -Sale or pledge-Concealment of material facts 1274-1279 R. S. -Registration Transfer of Crown lands-Arts. C. P. Q. -Art. 0.

WAIVER-Lifeins urance-Benefita.ssociation -Payment of assessments-Forfeiture- Waiver -Pleading.] member benefit association died while suspended from membership non-payment assessments.

In action his widow for the amount his benefit certificate it was claimed that the forfeiture was waived.

Held, reversing the judgment the Court Appeal, that the waiver not having pleaded it could not relied as answer to the plea non-payment. Allen Merchants Marine Insurance Company. for costs-Eridence

Husinsurance-Conditions of policyband and wife.]

lime limit for delivering proof-Conditionpre- 4--Conveyance -Duress - Undue pressurecedent-Authority of agent.] Compliance with Creation of trust conditions piecedent liability cannot waived unless such vaiver clearly expressed USAGE.

the policy. USER-Highwtay-Dedication -Evidence-627 3-Vendor and purchaser-Specific performance-Laches

VENDOR

AND PURCHASER-Spciflc 4--Fire isnranzce-Conzstruction of contractperformance-Laches- Wairer.] The purchaser

Until "-Condition precedent

Waiver-Esunder contract for sale land not entitled toppel uthority of agent

- vendor unless has been prompt the performance the obligations devolving upon and always ready to carry out the contract WATERCOURSES

Adjoining lands his part within reasonable time even though' Threatened damages one-Right owner time was not its essence; nor when he has guard against without reference neighbour his inability to his share Sic utere tno ut alienum non ladas.] the contract.-The purchaser waives any ob- the owner land threatened with damage jection to the title the vendor if he takes water used for irrigation purposes coming possession the property and exercises acts higher level has right to protect ownership making repairs and imrove- himself against such injury all lawful means i-prove without regard to any damage that may result laud neighbour front the measures of land-Misrepresentation adopts.

states the position boundary line and thereby leads the purchaser tobelieve that he is acquiring strip not included the deed, estopped from afterwards claiming such strip his own property.

3-Delivery of deed-Retention of deed by grantor-Presumption-Rebuttal.]

WILL-Construction of statute-14 & V. c. (Can..)-Devise to heirs.] The Act & 15 Vict., (Can.) abolishing the law primogeniture Upper Canado, placed no legislative interpretation the word "heirs."

Therefore, where will made after it was in force devised property certain contingencies to " the WILL- Continued.

heirs" a person named, such heirs were all the brothers and sisters said person and not his eldest brother only. Judgment the Court of Appeal Ont. R. affirmed.

" WINDING-UP ACT "-Joint stock pany-Irregular organization- Subscription for shares-" The Companies Act "-"

The Winding up Act " - Contributories] After issue order winding-up joint stock under "The

Companies Act," a shareholder cannot avoid his liability as a contributory by setting up defects or illegalities in the organization the company; such grounds can taken only upon direct proceedings the instance the Attorney General.

WORDS AND TERMS-Election petition- Preliminary objections-Filing petition--Con- WORDS AND TERMS-Continued. struction of statute-54 and V. c. 20, (D)-R. S. 1, 7, 27-Interpretation of words and terms-Legal holiday.

- 2-Fire insurance-Construction of contract- " Until "-Condition precedent- Waiver-Estoppel-Authority of

3--"

Owner for the time "-Merchants Shipping 'Act,

Owner of land "-57 V. (Ont.) WORKMEN'S OOMPENSATION INJURIES ACT-Dangerous machinery- Statutory duty-Cause of Accident.

- '786

[NDEX.

Majority

affirmed, Gwynne and Sedgewick JJ. (dissenting)

JJ. (dissenting)

Statutes and regulations cited