Banque Jacques-Cartier v. Gratton et al.

PHILOMPNE G-RATTON 6s qual.

RESPONDENTS. et al. (DEFENDANTS)....................

ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA, APPEAL SIDE.

(Oral.) -The question is whether or not the two clauses of the will relied upon by the appellant can be construed together as giving power to the executors to raise the loan upon promissory notes as they have done for the purpose of Tief advancing the share of one of the beneficiaries under the will. I consider that these two clauses are entirely separate and distinct and have no connection one with the other. The testator was a merchant and the provision in his will is evidently intended to assist the executors by giving them power to make promissory notes and indorsements of notes in connection with the winding up of his business for which purpose these powers were probably necessary and are not unusual, but this intention cannot be assumed to extend so far as to give that power to the executors to be used in the distribution of the estate among the beneficiaries or in order to raise money or loans for the purpose of advancing shares to any one of them. Further, it would be simply a wrong to permit money to be borrowed in such a manner for settlements in advance with a legatee in a manner which would bind the other beneficiaries and make their shares chargeable with the legacy advanced.

I think the reasons for the judgment of the court below are clearly right and I am not at all impressed with the reasons given for the dissent from it.

I should also mention that it is quite clear from the evidence of Mr. DeMartigny that the bank had notice of the nature of the powers of the executors under the terms of the will, for a copy of the will was deposited with the bank for its use and reference.

The appeal is dismissed with costs.

Geoffrion, Geoffrion, Roy 4 Cusson. Ontario (1) reversing the judgment of the Divisional Court in favour of the appellant.

In 1891 the City of Toronto passed a by-law authorising the construction of iron and steel bridges over the railway track crossing, Dundas street.

For the purposes of such construction certain lands were expropriated, and the land of the appellant, Leak, affected by his being deprived of access thereto.

A County Court Judge was appointed arbitrator between the city and land owners, and by his award he allowed Leak over $8,000 for injury to his land, with interest from the date on which the by-law was passed. The city appealed to a judge in chambers who sent the award back to the arbitrator with a direction that it should state whether or not any land of Leak's had been taken, and if not that he was not entitled to interest. The arbitrator then amended his award by :-Sir striking out the interest. The claimant appealed to the Chancellor who affirmed the amended award, and he then appealed to the Divisional Court which overruled the arbitrator's amendment and allowed Or interest. This judgment in its turn was reversed by the Court of Appeal and the Chancellor's judgment restored. The claimant then appealed to this court. Du Vernet for the appellant. There is no statutory provision prohibiting the granting of interest in a case like this, and without it the appellant will not be fully compensated.

See North Shore Railway Co. v. Pion (1); Corporation of Parkdale v. West (2); Bell v. Corporation of Quebec (3); Lewis on Eminent Domain, sec. 499.

(Oral).-We need not call upon counsel for the respondents, as we are all of opinion that this claim for interest cannot be maintained. The question has been very ably and forcibly argued by the appellant's counsel, who has said everything which could possibly be said bearing on the point, but we think there is no ground whatever for the appeal. Interest is not given by any statute, and the whole analogy of the common law is against it. Nobody ever heard of a jury, in an action claiming damages for a tort, being told that after ascertaining the amount of the damages suffered they should calculate the interest thereon. Such a direction would be not only wrong but grossly wrong.