Dunn v. Prescott Elevator Co.

lies.-Leave

Diisional judgment-Appeal diect

3-Appeal from

FAnRLt- -Titl

Vict.

41j

APPEAL -Continued.

5- Jurisdiction- Award of arbitrators-54 6(D.)-54 2(Ont.)-54 arbitrators DOmINION plea-Incidental prescription-Judmnent plea-Costs 24-Art. Iamel Hanel followed.-An costs-Practice- Supreme ScsmoLNs 9--Jurisdiction cotroversy-R.S of appointment-Arts C.--Tutelle tutrix

CHEVRE- Jurisdiction-Sercitude-Action soire-Execution of therinof of session controversy-'itle land- Future APPEAL-ontinued.

does not raise question title to land nor Supreme Court from the decree separation bind future rights, and such case the O'Dell Gregory S. Supreme Court Canada has jurisdiction to and the demand the declaration entertain appeal. O'Dell Gregory being only incidental to the main cause followed; Chamberland Fortier'action could not give the court jurisdiction to and McCoey Leamy entertain the appeal.

distinguished.-If jurisdiction the court doubtful the appeal must quashed.

Langevin Les 15---Assssments for local improvementssaires de Marc R.

Widening Iririal objection taken for 330!first time appeal.] Where an assessment roll covering valuation over a half million 11---Vendor and Purchaser Act-Reference to dollars has after contestation, duly master-Admission of evidenec--Appeal front firmed, a ratepayer cannot permitte certificate- Final judgment-R. c. 8. raise the objection, upon an application to Where master, reference under quash the roll, that his property assessed the Vendor and Purchaser Act to settle the for oomparatively trivial amount over its title under written agreement for a lease, proper value, when had failed to urge that ruled that evidence might given to show what objection before the Board Revisors. does not lie to the Supreme Court from the judgment affirming such ruling it not being ARBITRATION AND AWARD-Riei final judgment and the not coming within and streams Floatable nater.s-Construction oj the provisions (e) the Supreme and statute-The Saw Drivn

Act "-R. Exchequer Courts Act relating to proceedings in 0.

c. 121-Arbitration-Action upon Equity.

award-Ricer improvements Detention V. -Damages.]

When being floated --JurisdictionActionothers

1ltra grledsO ultra ofstatute-Judgment

-R.

S. 29(a).] action claiming penalties for an against the restricted to the remedy provided 3 Pharmacy Act, the pleas were:-1. General that Act, namely, removing tbe obstruction. denial.

That the Act was ultra vires. In the courts below the action was dismissed for J he COUR Apea (

. pp. Strong C.J. and Gwynne J dissenting, that appeal would lie to the Supreme Court; that if

Appeal-Jurisdiction-A ward arbitrathe court should hold that there was error in lors &

. c. 6(D)-54 c. (Ot.)the judgment which held the not proved the respondent would entitled to a5 decision his ultra vires and the appeal would therefore lie under (a) the Supreme Vict. (Out.) and Vict. there ~..

13--Findingoj Questionsoffact. ]athr

Wheie there not appear to have been aa ey have proceeded o their view a fest error the findings the courts below disputed qiestion 14--Jurisdiction-Action for separation de corps-Money demand-Supreme Court Act.] liabiltsol bri

Crwn In action a wife for separation de corps indemity cond eeent-Pe to o for ill treatment the declaration concluded by p demanding that the husband condemned toA ct, s.

deliver up to the wife her property valued at

Rovic Ci perty.

Held, that appeal would to the jS

ARBITRATION AND AWARD-Con.

ASSESSMENT AND TAXES-Continued. 4--Contract for construction of railway-children trust for them

He then went Condition precedent to payment-Certificate of to New York where carried the busines engineer buying and selling stocks and securities having for such business and living at latter 5--Damages-A ward-Interest.

four months at St. John visiting children and taking recreation.

He ASSESSMENT AND TAXES the directors the Bank New Brunswick corporation - Railways- Tcoation-By-las- during his yearly visits.

He was never per- Constraction of statute-Yoluntary paynent sonally taxed New York and took part Action rdpitition-29 V. c. 57, (Can.) municipal matters there. Beingassessedin1897 Can.]-The statute, that there continued actual rally on all trades, manufactories, occupation residence J.

York, and his business, arts, professions or means profit, appeal agaist the assessment le hai livelihood or gain, whetherhereinbeforeenunerbondfide intention making it his percity; put that others;

put 3--Ontario Assessment Act-R. 0. Beld, that statute 193-Construction of statate

Accears taxes Distress.] treasrer, stalute. that imperative.-Taxes affiriing 4---Mlin icipal institution 2-Jlunicipal assesset-Doicile Change iprorement-Rating proportion of doinicile-Intention-59 c.61 (N.B.)]

Trivial objections first taken in appeal- (Que.)-54 " for the purposes assessment, any (Que.)-55 & c. S. (Quejperson having his or domicile, or carry- c. (Que.)] Where statute for the widening street directs that part the profession, within the City Saint John, bordering the street, apportionment shall deemed

* an inhabitant and resi- the tax should made upon consideration of dent the said city."

J. carried business the enhancement accruing such St. John a brewer up to when perties respectively aid the rate levied the brewery to three his sons and portion to the special benefit parcel has '.eyed his house and furnsiture to adult derived the local iniprovemsenti-n1here ASSESSMENT AND TAXES- Continuel.

Crv

- Drcinage

Acts-A of lands-" Beneit"liability"-" Injuring liability"-Construction of statute rates

-Assinent for

Fraudulent

Promiss-ory note-Illegal consilercction-Nullity void.-An

BuoiGAs

;.

2--Assignment of leselortgage-Dischaere

3--Assigponent for of creditors and Discharge-Release of cebior-373

ATTORNEY

AWARD

BAR- Prohibition-A ofProcince of Quebec-Discipline-nrislictio -egulr

BAR-Continued.

procedure- Domestic tribuncl-Powers-Arts. Q.-58 connere BENEFIT ASSOCIATION

BILL OF LADING-Shippingl -Ship's agent -.

icudcate-Custom of port-Delivery-Carriers.] A sistelt fron BILLS AND NOTES-Promissory 2--Husband oe-Separate toife-fcrried (N.S)of against BRIBERY -Fraudlent peference CASES- Cow conideration-AssiUn

Pay- Se BRIDGES-Toll Bridge-8 Liability of of Canada-Indemnity- Renedial

7-Canada 1(13

BY-LAW-A rates-School Parish Notre-De Pacifi.Railway taxes.-The and1 10-6'a.ton Fortier Imperial -- Railoays Co.v. Iaxotion

A.,.,iIN

CARRIERS ladig 473 irme CASESrchiald at Handey .mRal of C3tada (,meral 17N mts -34f)

- 24, 15 1 reversed Imperial Stn CASES-continued.

19-Foster Walker N. Rep.

20--Fraser Drew N. Rep.

21--O old Medal Furniture Mantfacturing

Lumbers 0. R. ; Ont. R.

22--crand Trunk Railway City

R. affirmed

23---Grand Trunk Railway Vogel-( 11 disapproved

- 24--Grenier The Queen--(6 Can. Ex. R.

25--Griffiths Earl Dudley-(9

Hanel Hamel Can. R.

27--Harris v. Dunimnir Rep.

28--Hart McMullen N. Rep.

- ---- 29--Honan Bar of Montreal R. Q.

3 --- Iirjlis Halifax Electric Tramway

Rep. affirmed

- - 31--King McHendry reversed -- --- 32--Kirk Kirkland (7 B. Rep.

- --- 33--Laengevin Commissaires d'Ecole de

Marc R. followed

-- CASES-Continued.

34--Leak City of Toronto 0. R. Ont.

Macdonald Riordan R. affirmed

- --- - LAW 36--The Midland Railway (ribble 37--McFarran Montreal Park Island & Railway Co. (3 Q. P. R. I; Q. R. 9 Q. B. 367) overrruled motifs but affirmed its results 38--McGoey Leany Can. R. 39--O'Dell Gregory R. Paradis Municipality of Lemoilou.(Q. R. affirmed

41-Ciy of North Shore Railway 8, R. referred to 42-The Queen Filion 1,

43--The Queen Grenier Can. R. 44--Robinson Canadian Railway distinguished - 45--OCity of Winnipeg Canadian Pacific Railway L. R. reversed Ylde v. The Queen(6 Ex. R. 103)affirined CIVIL CODE - CIVIL CODE -Continued.

COMMON

EMPLOYMENT. 2--Art.

EmployeeArt.

.

doctrine 1.vail the Province

Ar 106

(l~fazds)

15 17ion Can. followed. 42155 2--Emniloyer-s' liability 10560.0. 4--Arts. (Delit, Quasi-delits)

ofaccident.] the doctrine employment not prevail in the Pro 5---Art. (Suretyship)

servants the not exonerate employers from liability for the negligence a servant may have to injury. 6- Art. (Prescription)

- Pition, S. R. and The renier, S.

'AsESTOS 7--Arts. (Tutorship)

Successions)

- - ( Wills

327 COMMUNITY. - Continuation - Inrentory-Procis-rerbal and 1 snDxo

Tripartite __ COMPANY.

Judgment Creditor-Action aanst shareholder-'Jransfer of shares-Sri- 9--Arts.

(Mandate) and deuce.] Judgment creditors incorporated 10---Art. of leuws ns a.then warranty)

special~~~ warny rts. (Sale)

539 that way 13--Arts. Seef eld, failnre justice the (Illegal the rights the subsequent suit-The company which CIVIL CODE OF PROCEDURE

Arts. Act passed intituled "An Act lajorme)-410 la forme)--Arts

(b) (Dilatory exception)-Arts. giving the

Promssor latter

Held, that was perty obtained.

COMPOSITION.-Discharge of of insolfirm-Relecse of

CONDITION.-overnment

Railway - Liability of Crown--Negligence of Crown-Notice.

CONDITION PRECEDENT dition precedent-Allegation of perjornance

-Burden of proof- Waiver-Insurance policy.]

Under the Ontario -Judicature Act the performance conditions precedent to a right action must still alleged and proved

Renedial procews-Arbit ration and award

-Petition of Right-Deferred liabitity of Prorince of Canada-8 V. c. (Can.)

Perfornance-Burden of proof-Wairer

-Iurance

AcTos

Contract-Certificate of Engineer of contract-Noticedeneure-Long Wairer

CONSIGNMENT

CONSTITUTIONAL LAW-B. Act.

sc. 111-Debts of Province of Canada- Deferred liabilities-Toll bridge-8 c.

(Can.) - Reversion Crown - Indemnity - Arbitration and atward-Oondition precedent-- Petition of right

Reimedial process.]

toll bridge its necessary buildings and approaches was built and maintained

Chambly, the Province Quebec, arbitration

N,

CONSTITUTIONAL LAW-continued property; that the date the passing the British North Attorney General of Canada The Attorney General of Ontario, 199; Can. R. followed.

Reld also, that the third the at coipensation that right 2--Government Railway-R. --- Liability negligence employee of the Trtnk Railway C Can. 3--Treaties Indian -Contingent annuities-B. N. Act 112-Debts of the Province of Canada-Res judicata.] that certain payments made the from to and for increased annuities paid subsequently should taken into account CONSTITUTIONAL LAW-Continued.

of Canada that the work to that tte 4--Adaninistration of Yukon-Franchise terri- Waiter-Art. maitenance mit co~seff

Lci~slati-epora thirty 5---Railways idatire powrers.]

provincial legislatures in Canada xorks Railways

Caaa.tJhe visions of ", The Railway Act of Canada. " 'The

Railuay usatisfactory 6--Lqgislatire

159-R.

art. 2920-53 (Qu.)- -Contract-tIllegal couplaint ration-Co-relatire ilit hve aie lidity judicially -Arts.

xaterxorks ntler circutances, statutes Canada.-A that xas therexith inproieeieut.] tos apple caea cotrats fledandals inproemetsand Per contraentions not and consequently the Act crtisIolcoeiuetyteAto as xas fond 7--Powri,.s Canadia Parliament- Pro- pty contract--7

19 denanied rail-ay jugment prcedi was assignment any patent that might after- chant Toronto, "Quote bottom prices to wards obtain ; that was bound to obtain and cars, thousand bushels white oats assign a patent for machine described the delivered, basis Truro freight, bagged caveat referred to the agreement; and that bags four bushels each."

replied next as the evidence showed the variation therefrom day,

White oats half, Truro, two the American patent to most material, cents bushel extra."

wired sameday, "How and to deprive the purchasers feature utuch you mixed oats for ? Might the machine which they deemed essential, work white at thirty-two, but not any more. was not entitled to recover.

Held further, Answer."

answered. 'Mixed oats scarce Gvynne J. dissenting, that as and but odd cars obtainable half cent Exportaccepted the Canadian patent and paid a por- bidding for white.

Highest freight, tion the purchase money in consideration Truro freight two half over Halifax. thereof, and they took the benefit it, white bulk, half four bushel worked it their profit and solid rights Truro."

Nextday wired, "Iconfirm purunder it, they were not entitled to recover chase 20,000 bnshels oats, white at thirty-two back the money paid money had and mixed at thirty-one half, bagged even received to their bushels in uy bags.

Confirm.

-lay yet order cars more bulk," he confirmed also letter.

answered telegram at 4--Oral agreement-Eridence- Withdraiwalof 'Cannot bagged.

half a questions from jury-Kew trial.] gave in- cent for bagging.

Bags extra."

S. replied, structions in writing to H. respecting the sale 'All right order.

Willhave of mine terms mentioned and agreeing bagging"

wired day, late toto pay a commission per cent the selling day.

too many sales already. Will try price, such commission to include all expenses. to-morrow."

receipt this H. failed to effect sale.

Held, affirming the wrote urging action, and next day wired, judgment appealed from, that in an action by

Will you confirm oats?

Conpleted sale H. to recover expenses incurred an endeavor ceipt first telegram yesterday.

Expect to make a sale. and reasonable remuneration, answered next day, ''Market parol evidence was admissible to show that the vanced two cents here since yesterday written instructions did not constitute the Had oats nder expecting order whole the terms the contracts, but there til noon yesterday.

When accepted had been a collateral oral agreement respect bagged parties demanded half cent for bagging. to the expenses, and that the question as to They sold your second wire yesterday. whether or not there oral contract in This I could not

Think adaddition what appeared in the written in- too to last."

He wrote to S. to structions was question that ought to have the same that day. The oats were never been submitted to the jury.

uNSMUSR

. delivered and S. bought an action for damages. 334 Held, reversing the judgment of the Supreme o--Cndiionas

Nova Scotia, that there was 5--Condition as toinspection-Sale of lumber.] pleted contract between the parties, they contract for the sale lumber was made did not to understanding respect to wholly correspondence, and the letter which the material terms, and could not completed the bargain contained the following provision : "The inspection this lumber to be made after the same landed here " (at Wind- 7--Principal and agent-Sale agent-consor) " competent inspector to be agreed mission-Eidence.] The appellant company upon between buyer and seller and his inspec- deal electrical supplies at Halifax have tion

Held, reversing the judgment at times sold goods commission for the of the Court Appeal, that it was not essen- defendant, company manufacturing electric tial for the parties to agree upon an inspector machinery Montreal.

In the appal before the inspection was begun ; and a party lant telegraphed the respondent follows chosen the buyer having inspected the m'- Windsor Electric Station completely burned. ber before his work was completed the Fully insured.

Send quotations for new teller having agreed to accept him as inspector plant.

Will look after your interest." the contract was satisfied and the inspection reply was:"

Can furnish Windsor Nubfinal and binding the parties.

vatt Stanley two phase, complete exciter and sitchboard, including commission sze, cents per 4-Ofer and acceptance-Telegra-n.sGor- ICo pletion-Mutuality.] grain merchant company went to Windsor but could not Truro, telegraphed to inerthis machinery.

Shortly after a trying entitle

Starr

COSTS-Assignment for creditors- Fraudulent 2-Action for personal injuries- -Prescription -Failure plead exception-Judicial notice limitation -Dismissal o action -Arts. In action for bodily Constitutional laiw-Legislative

B. N. Act, 1867-Criminal 1892-A.

Appeal Jnrisdiction

Final judgment c. R. S. Q. art. 2920-53 V. c. c.

(Que.)--Lottery-Indictable

-Illegal consideration- relative agreement- Nultity-Inmcalidity judicially noticed-Arts. 4 appeal Voluntary execution- The Provincial costs

Estoppel lotteries forbidden the criminal statutes of

Canada.-A sfeto CRIMINAL

LAW

Crime

Lottery Indictable ofeucc-Criminal Cede, 1892-R.S. 159--.

Art. 20-53 Per

J.,

Per

CROWN-Ferry license

58tios breach of contract-Bridges ithin ferry Injury employee-Art. C.-'

Exoneration from liability-l. S. c. 38,.s.

- (Can.)- Bertsian, of toll Indemnity-_ Liability of Province of Canada 'rocess

10---Breach of for of leased prem ises-Sale-Parol agreement-Misrepresentation

3- Goernett Railivays-Liability tract employee-P.

.

Co-relatice agreements-Illegal considera cdiiin ratiout-Fuaitchice granted tion-Nullity -- Judicial notice invalidity-598 Dominion lands-Tolls

- - See 4. Obstruction - Rivers and -DEED-Continued.

Driving logs-R. 8. 0. c. and th viction may for cause, inasmuch the 5--1881,

88 lssor could not, under the dispossess the except for lreach the conditions therein 2--Easement-Sale of land-Unity sion-Severance Continuous user

- 2-- Construction of lease

Provision fr termination-Sale of premises-Parol agree- '~ cres nen t-Misrepresentat ioni-Quiet cujoynsent.]A DAMAGES -Action for personal inJuriesleaseof premises asa factory contained Assessment of damages

Future suferings.] this provision : 'Provided that the event When action for bodily injuries there the lessor disposing the factory the but one cause action, damages must vacate the premises. necessary, assessed for all.

And when damages have months' notice.

Held, reversing the judgment recovered, new action can I the Court Appeal Ont. R. maintained for sufferings afterwards endured and that Rose J at the trial 0. from the unforeseen the original'that parol agreement for the sale the pmmises, though not enforceable under the Statute 2--Floatable waters-Coastitution of statute- Frauds, ''disposition" the same " The Saw-logs Driving Act," R. S. 0.

under said provision entitling the lessor to 121-Arbitration-Action award-River the notice to vacate.

Held, further, that improvemsents-Detention the lessor having, faith, represented that he hal sold the property, with reasonable 3-- Eviction - Knowledge of cause - Special lent misrepresentation entitling the to agreement - Liquidated damages - Art. damages sale within the meaning there any eviction disturbance constituing a for quiet enjoyneit. DEBTOR AND CREDITOR

Cov.

letf tfor of Cre- - Construction Sale of Patent-Future ditors

'ompositiotDiei oShalefpeofrdebtem eleasei improvements

& made assignment for the

Constrction of-Deceased parte, tintiosno-c.as Mare-Dicount-goo DELIVERY -Donationortis caus-Delivery pro br etn-cscyo e.

donatio mortis cavscte lentemisrepresetationyentitlig catstl t poiion thad apetly t benmatd cnor wa Oit. App.brac of the) covnan for quietna enjoyment.in u ws etiiu thereunder.

DEED-Landlord and tenant

Conditions f' DISTRESS.-Assessment and taxesoffr-ario lease

Construction deed

Practice.] Assessment Act-R. S. 0. c. Constrthe tion of statuteArrears of taxes-Disthe the are entitled to the DITCHES AND WATERCOURSESindemnity upon being dispossessed although inprovenzent of natural S. 26as. 3-Order courses-Artifcial -Dyke--"

Drainage

Drainage 3.A

Irainage Aid DOMICILE-Municipal

39-36 donicile-Intention asse-nant'Injuring liability" (N.B.)]

liability"-Assc-ssnt landsofstctute.] shll deeed

~aninha iieiits Saint John, shall be deemied * an inhabitant coiniodun trust draiiage nicipality. at latter ient outlet.Every but applied work.-Assessment that bytherroposel u-rk aid that that DONATION-Donatio caued-Delreiy iot third person--Delirery of inier aortis third municipality.In preseit that third thereuiier, th tohave ouav caiisd-Future of executor-Seizin.] DRIVING LOGS

EASEMENT-Right of Way -- Easement- ESTOPPEL--ontinued.

User.] right way granted as an easement w incidental to specified property cannot be used paries the plaintiffs cd ler the grantee for the same purposes respect ies rht t the no ofgsucharier to any other property.

PURDoIn v.

hsvritsoteenymtofucrvr to~~~~~~~~~~ anitemrpet.puo ons~, rovements or require the demolition the 64flume notwithstanding that they, were absolute Sale Laud -Unity of possesion-Sethe strip land which the erance-Continuous user.]

When two proper- ini-race and portion the had ties belonging to the same owner are at the constructed. City of North Shore Railtime, and each purchaser has notice and La Commune to the other, the right to any continuous Berthier R. easement passes with the sale as abiolute ferred to.

legal right. But the easement must have enjoyed by the former owner at the time the 2--Quashing appeal

Practice acquiesce- Therefore, one purchaser could not claim

Voluntany execution-Questiou of the right to dan on his land such a,-323 way as to cause the water to back on the

S.

other property, where such right, if it had enjoyed the former owner, had been EVICTION-Landlordand tenant--Conditions abandoned years before the sale.

V. lcase-Gonstrnction ofdecd.]--Where lease land provides for the payment indemnity to the lessees in case they should be Aan Se the lessor before the expiration EMINENT DOMAIN.

the tcrm the lease, the are entitled to claim the indemnity upon being so dispos- "

although the eviction may fr cause, inasmuch the lessor could not, under the EMPHYTEUSIS--Transfer of lease-Alieu- dispossess the except breach ation for rent--Emphytensi -Bail a rentethe conditions therein mentioned.

Bail a longues anndes-Droit mobilier--Cnmulative demand-Incompatible pleadings-Rin tigrande-Denonciation de nouvel oeuvre-(Arts

C.-Arts.

EMPLOYER AND EMPLOYEE-Injury employee-Lord Campbell's Act-Exonerationfrom liability-Art. 0.

EMPLOYERS LIABILITY--Railway Company-Grass siding

2---Common -Negligence-Dangerous material--Arts. 6.

Oral agreement - Withdrawal of questions from jury-New trial.] ing the sale a coal mine on terms mentioned the selling price, such commission to include affirming the judgment appealed from, that action H. to recover expenses incurred an endeavour to make sale, and reasonable remuneration, parol evidence was admissible to shew that the written instructions did constitute the whole the terms the tract, but there had been a collateral oral agreement respect to the expenses, and that the question to whether or not there was oral contract in addition to what appeared ESTOPPEL-Acquiesement-Floatable waters the written instructions question that Water powur-River improvements-Joint user ght to have been submitted the jury. -Serritude-Arts. and Where riparian owner lands a lower level had permitted the plain- 2-Expert opinios-Hearsay-Extrajudicial tiffs, for a number years, to take water- statemets-Assessor'sreports.]

'herethereis power necessary to operate his mill through direct contradiction betweenequally credible he had constructed along the river bank witnesses the evidence those who speak from partly upon the plaintiffs' land connecting with facts within their personal knowledge should the plaintiffs' mill-race, subjectto the contribu- preferred that experts giving opinions tion half the expense keeping their mill- based upon extra judicial statements and inunirace and dam had been cipal reports.

recognized is deeds and written agreements too

[S. C R. VOr. XXX EVIDENCE-Continued.

shareholder-Transfer of Judgjudicial

3--Uompany Judment shareholders-'ranfjer of shares.] Judgbut

GRANT.

of proof -Wairer

3-Damages-Effect jury-Improper and Purchaser

Appeal Final nce-Railway

-Proof of

EXCHEQUER

COURT - Arbitration of of Canada liabilities-Toll bridge-Rerersion -Indemnity--Petition of Right--Condi- EXECUTORS-Wia -Powers of executorsnote-Adrauring leyter's share.] l., part their 2---Poiers-Donatio canud-Future succession Illegal

Ratifration EXPERT OPINIONS- Eridence--flearsay -Extrajudicial their EXPROPRIATION OF LAND -Expropriation of land-Lands injuriously -Award.]

arbitrator EXPROPRIATION OF LAND-- Continued. HUSBAND AND WIFE-Continued. the amount damages awarded.

writ summons and that the plaintiff has no right action, 2-Local impror-emnent-Rating in proportion exception 4 la forme. Absolute want legal right may invoked defendant suit.

Judgment the Court Queen's Bench, Q.P.R. 1, over-ruled the FACTORS

Mandate-Agency - Pledge~! motifs, but

Notire-Arts. C.C.-441 FERRIES-Ferry license-Interference-Tortios breach of contract-Bridges within ferry limits-R.

FINDINGS OF FACT

FLOATABLE WATERS

2--Commniiity-Continunation ofcomm unity- Inventory--Procdes-verbal carence-- Tripartite community.] At the time the dissolution community the death one the consorts the common assets consisted bare necessaries small value and exempt from ure. There was inqentory or procs-rerbal de carence made and subsequently the survivor contracted second marriage. In an action a child the first marriage claiming share was no necessity for an inventory property FRAUDULENT PREFERENCE-Assign- I insigniticant value thattailure to make ment for of creditors-Fraudulent prefer- an inventory proce-rbal varence did not, ence-Bribery sideration-Nullity-Costs.]

ment whereby the provisions the

Civil Procedure respecting equal distribution

Husband and ujfe-Separate property the assets insolvents are defeated arried Woman's Proper-ty Anct.d advantage given to a particular unsecured credi- Action against hnsbaud.]

Under the tor a fraud upon the general body creditors Married

Women's Property Acts Nova notwithstanding that the agreement for the Scotia, promissory note indorsed to the additional payment may be made third maker's wife the latter person who has direct interest in the insol- againb her husband.

vents business. A promissory note given secure the amount the preference payable 4

Aas under such an arrangement wholly void.

deman

Supreme Court Art

GUARANTEE

INDIAN TREATIES, Treaties withIndians anKnities-B.

.

Act 112-Debts oa late Province of "HEIR"- Will-Codicil-Testamentary Suc- judicata.] The award complained cession-Arts. c. (Imp. )

4lGeo. III., c. the Dominion Canada (L.C.)

416 irtue the Huron and Superior with Ithe Ojibeway Indians for arrears augmented annuities and interest 167 to and HUSBAND AND WIFE. -Married for increased annuities excess the -Commsunity

Persounal injutries

Right of annuities interest paid subsequently actioti-Pleading-Exceptioti lafornse-Arts. should taken into account and in P. Text.)- -A ppeal- the debt the late Province Canada Questions of procedure.]-The right action tioned in the section the British North married entbieuJurbelongion bad for the recovery such damages in her and decided Her Majesty's Privy even with the authorization her the The Attorney-General of Canada baud-Where Attorney- of Ontario AC. INDIAN TREATIES -Continued.

INSURANCE, LIFE-Continued.

and that the payments made the reversing the judgment the Exchequer Court Dominion were recoverable from the Provinces Can. Ex. R. that the rule the Ontario and conjointly in the same association was an answer to an action his manner as the original annuities.

widow under Art. to recover com. --- --- - INFANTS

Condition precedent action-Allegation and proof ofperformance-JVaiver

INJUNCTION - Appeals from Ontario

Jurisdiction-Ditches and iatercourses-Title 3--Policies life of person murdered by to land-60 & V. c. 34, s. (a)

benefciary Claim heirs Appeal-Juris. diction--Amount dispute-Questions raised byplea-Incidental

INSOLVENCY

Assignment for of creditors - Fraudulent preference - Bribery- Promissory note-Illegal consideration-Nullity INTEREST-Expropriation of land- Lands secret arrangement whereby the injuriously afected - Damages - Interest provisions the Code Civil Procedure Award.] If the construction public respecting equal distribution the assets work land a private owner injuriously insolvents are defeated and advantage given to affected and the compensation therefor deterparticular unsecured creditor fraud upon mined arbitration, interest cannot allowed the general body creditors notwithstanding the arbitrator the amount damages may made third person who has

Appeal-Jurisdiction-Final judgment-Ilea of prescription-Judgment displea-Costsvoid.-An

12--Prescription-Arts. Wairer-Failure plead limitation-Deence supplied court-Reservation for future

Judicial Interr.

of prescription-Noration -Costs 2--Practice-Incomplete assignment for JUDICATURE ACT.

of creditors - Seizure of immovables -Stay of execution-A rt. C.C.P. (old text.)

r.

618 JURISDICTION

Prohibition

3-- Partnership Assignment for tribunal-Powers-Arts. seq. Q.creditores-Composition and discharge-Release V. c. )] will debtor

373 inferior tribunal where there has not INSURANCE, LIFE-Government railwaycse

Injury employee-Lord Campbell's Act--Arl

.- Exoneration from liability-R.

An employee oin the Intercolonial Railway became 2-B.N.A. Act s9.

Exchequer colonial Railway Relief and Assurance Court of Canada-Petition of Right-Debt of Province of Canada such contribution a rule the association provided that the members renounced all claims against the Crown arising from injury or death JURY--Negligence-Action for damagesthe course their employment.

The proper evidence - ALisdirection-60 c. ployee having been killed in discharge his (N.B.)] Vict. (N.B.) servant: Held, 42J

JURY-Continued.

JURY-Continned.

misdirection, the improper admission was delayed through instrumentality and or rejection evidence unless the opinion as the jury certainly consider the judge's the court substantial wrong or remarks bearing the contention made carriage has been thereby occasioned the plaintiff's behalf that amputation should trial the action."

the trial an action taken place the very day the accident, it against the Electric Street Railway Company must have theamount the verdict. damageson account personal injuries, the tell jury ask themselves "If I Vice-President the company, called ought to paid the plaintiff's behalf, was asked direct examina- the company ditime injury?" not a tion the amount bonds issued proper direction.

jury having stated that the company was making large cross examina- -2-Neiv

Trial Verdict-Finding of jury of fact-Misapprekension.] findings upon trial that that the jury misapprehended or misunderstood The judge charging the jury directed them the evidence, notwithstanding that the trial to the damages as "upon the extent judge as dissatisfied verdict. what these people may or whether they are

Coat met

Oral Agreement rich or poor."

The plaintiff obtained verdict it da iot with heavy damages.

Held, that crosscounsel the door not for re-examination to the selling price the stock; that

NegligemceSknnting railway cars--Etiquite likely that the general observation the judge in his charge did not remove its the jury as to the financial ability the conpany to respond well in damages:-The injury for which plaintiff was his foot being crushed, and the the accident the medical staff the hospital where he had been srity.]

Thmte e a taken held consultation and were divided mayn hmself fromoliablt t to the necessity for amputation.

Dr. lease thought the limb might saved, was, four days lessor tse assignment way mortgage ltoughpitdb mightuge with the latter's consent, releasing debt later, appointed the at the sugges an tion plaintiffs attorney, to co-operate with re-conveying the security.

a. & & plaintiff's physician.

Eventually the foot amputated and plaintiff made good recovery.

Conditions of lease Construction the trial plaintiffs physician swore to -- Eviction.] Where written lands versation with Dr. W. four days after the first provides for the payment indemnity to the consultation, and three days before the case they should dispossessed tation, when Dr. WY. stated that if he could the before the expiration the induce plaintiffs attorney to view it from the the are entitled to the surgeon's standpoint, and not use it to work on indemnity upon being dispossessed although the sympathies the jury might consider the eviction may cause, inasmuch the more the question amputation.

The lessor not, under the dispossess the in his charge referred to this conversa- except for breach the conditions therein tion and told the jury that it seemed to mentioned.

very important Dr. W. was using his position one the hospital staff to keep the 3

Provision for termination-Sale prealimb when it should have taken ises-Pa-ol and that thought it very reprehensible.

Alease premises Held, Strong, C.J. and Gwynne, J. dissenting, factory contained this provision "Prothat Dr. W. did not represent the company videJ that the event the lessor disposing at the first consultation when opposed the factory the lessees will vacate the preputation; as others the staff took the same iecessary, six month's notice." Held, and there was proof that amputation reversing the judgment the Court Appeal LEASE-Continued.

LIMITATION Or ACTIONS-Continued. that at nent .2--Woie-eriiire limit ai there was fraudulent misrepresentation aicrFluetopadimttonDfene

Reseration of for futire Judicial admission-Interriptioi lion.]

for

Emphyteusis-Bail rente-Bail ndes-Droit mobilier-Cumulative tort tionde nurre-A provisions the Civil LEGACY of -Promissory

LOGS.-Detention " "--Codocil- Obstretion-Dem- Driiiq

LEGAL MAXIMS--"

S

LORD CAMPBELL'S ACT

Government railway-Injury LIEN-Re Liability Act-A

Proice c.38s. Art. embodies (Can.)-Indeniity-Renereenacting bell's Act.

Robiisoa Pail- ([1892) C. 481) hed.-A -Factor-R renunciation would answer an action LIMITATION OF ACTIONS-- Partition Dudley (9 Q. followed.

LOTTERY poers-B. N. Act,

Criuinal title 1892-P. 159-P. Art. statutory

Idietablp Illegal attribute -Nullity

Iuialidity judicially .

statutesof Canada.A LOTTERY-Continued.

unlawful and cannot enforced a court justice.

The illegality which vitiates such a contract cannot waived or condoned the conduct or pleas the party against whom is asserted and it the duty the courts, ex mero mol, to notice the nullity such tracts at any stage the and without pleading. Judgment appealed from reversed,

.-Per Girouard J. (dissenting.)-In Canada, before the Criminal Code, lotteries were mere or contraventions and not crimes, and consequently

Act the Legislature was constitutional.

MANDATE

MARRIED WOMAN

MASTER AND SERVANT-Continued. The Queen Filion Can. R. 2---Negligence- Use of dangerous materials- Cause of accsdent-Arts. C. C.explosion the dynamite, though the direct cause such explosion may unknown. Gwynne J. dissenting.-As the doctrine common employment not prevail the Iilion MASTER AND SERVANT - Government The Grenier S. railwtay-Injury employee--Lord Catmpbell's followed.

Act-Art. C.-Axoneration from lia.

may contract with his employer to MINES AND MINERALS -Mining claimlatter invalid location-Location foreign territory.] territory utterly Grif-t

Earl followed.-In of materialsof accident Arts.

C.- Employer's liability.] eiployes Grand Trunk Railway became member the Intercolonial senting.

v. Du- Railway Relief and Assurance claim-Registered description Error-Certificate of inprocements-Aderse B.

that ton viinity negligence a fellow servant.

Held, revers- not included in description and covered judgment the subsequent claims. Art. MINORITY-Appeal

Matter death.-The controversy-B. '.

(b)-Tu'orskip-nPetition for of appointment- MINORITY- Continued.

'MUNICIPAL CORPORATION-Con. I. ail MISDIRECTION for damages-Improper adnission evidence-60 themselves-" within the meaning

MISE EN DEMEURE-Man iripal 2-deneare

Walreritong user-Wairer-A Art,

155tion MISTAKE -M-ining claim-Error rp tion-Rlqstrato aITY MORTGAGE.

Assigmnt lase ofsecurity.]

latter's that, tie MUNICIPAL CORPORATION

Mnici- tie pl -)inz domic/ie

Iitt eition-59 J it for tie le paiticlar busiess, deelei the said city.

brewry

Assessett att toc.s-Exeaptiot frotn trust trtt

181, tie ''all ani payig tie latter oly

1uring he that hiis

The by-lw tt tie lnt dirctors iis cl.

uas isse New York muicipal sui coisiieration ertakigs tie iy-lat tie comletion aii NEGLIGENCE-Continued.

hereby declared legal, binding

I crate the latter fro liability for negligence, * *

* Held, that notwithstanding the de- and such renunciation would answer to scription the by-law in the Act was confined action nder Lord Campbell's Act. Griffiths to the portion relating to the issue deben- Earl Dudley (9 Q. 1. followed-In tures the whole by-law including the exemption the Government Railways Act from taxation, was validated.

.38)-providing that Her Majesty shall ot relieved from liability any notice, condition or declaration the any damage arising from any negligence, omission 4-- Expropriation -Assessment- Local ordefanltof any employee orservant provemzent-Ruting in proportion to beneftriviaemetRtngfs ian rpin bnFt the the words notice, condition Triial objections frst taken in appeal-52 c.not include contract r (Que.)-54 V. c. agreement which employee has renounced )-55 & V. c.

c. his right to daniages from the Crown (Que.)] Where statute for the widenina injury negligence fellow servants. a street directs that part the cost shall

Acaud Trunk Railway N. S. paid the owners property bordering disapproved-An employee the Intereolonial Railway became member the nonced part that application to have the assessment roll set aside. that the rule association was answer Judgment appealed from R. to action his widow under Art. reversed ; judgment the Superior Court, recover compensation his death.-The R. restored; Gwynne J. dis- doctrine enployment not the Province

5--Railways-axatio-By-laws-onstruc- blion followed. payment-Action

Railway Conepany-Crasson For V. c. (Can.)

73 railway conpany to permit giass and grow side 6--Ontario Act-Construction eploye 6--Otaro

Asesmen Act~'ostrmecionof ho injured consequence growth Statute-Arrears of taxes-Distress while the track the course Drainage

-- " The Ontario Drainage Act, 3--Electric car -Excessive speed Prompt -The"Municipal Drainage Aid Act "-Improvement of natural watercourses-Artificial was e courses - Beneflt - Injuring liability - Outlet track odevori rive ca liability-A ssessment of wild lands bya and damaged.

against the Tramway Company for damages it appeared that the accident occurred part NEGLIGENCE.-Government railways grade several hundred feet long, and that the Jury Act.-Art. C.-Exoneration from liability-R. S. car with the brakes, and that provingineffectual Art. embodies the action rersd te power, being then about car Canadian Pacific Railcay and that there also negligence the failure distinguished.-A NEGLIGENCE-Continued.

affirming the judgment the Supreme Court

Nova danage

NEGLIGENCE-Contin ued.

negligence, and that man should have the crossing when making the switch to warn the public.

verdict for the plaintiff was sustained the Court Appeal. affirming the judgment the Court Appeal, Gynne J. dissenting, that it was properly the jury to determine whether or not, under the special circumstances, it was necessary the company to take greater precautions than it did and to much more careful than ordinary where these conditions did not exist; and that the did not raise the question the jury's right to determine whether or not a railway company could compelled to place watchmen upon level highway crossings to warn persons about to cross the line. Caue of

DomlampeImproper isdirecproxinity

N jury--Question ]act-3isupprehension.] hasben company as will reader it liable damages iry an the finings senting.-As prvailin rovnceof prevail the Province Qu

2-Ware

Negliee-Damages.] c. 370(N.B.)

mlne-Oral

-Proof oftestion NOTaICE

-ub-ernmet direction, to pick car siding.

After switching the train demuetse when was struck jy the latter and killed.

oti. willow under Campbell's Act the jury found that the railway company was guilty

NOVATION-Prescription-Arts. 2188, 2262, PARTNERSHIP-Cotinued.

Waier-Failutre plead limi- 3--Contrucion of deed-6ontiauance after tation-Deence supplied court-Reservation of recoursefor future damages-Judicial admis- 8'ia o tDeesd

Artner-Prseo the share special NULLITY-Fraudulent preferencc

Bribery per cent.

After the years consideration-Costs.

Held, vaying 2--Co-relatice cagreements-lllegal ation-Judicial notice inalidity

1 Columbia, that even the parties had not atio Juicia noice iraliityI the terms the partnership deed terms OPPOSITION-Action coniessoird-Execution the surviving partners had, therefore, right to of judgment therein-Localization of right of purchase the share and to allowed the of possession-Appeal Court of Canada provided and that in the absence any stipulation the deed the contrary the therein should taken into account the valuation to PARTNERSHIP- Insolvent fr

Assiamentfor charge of debt-Release of doing business under the name T. & PARTY

WALL nialean assignment for the benefit creditors,

Trustces' Powers creditor, to pay a chattel mortgage the I stock, and composition cents the 1 PATENT Or INVENTION -'ontract dollar unsecured claims, the company to Sale of patent-Future improrenents.] receive its debt in full with interest.

The tract under seal agreed to to and assignee & then transferred all the the patent acetylene gas machine assets to the Dueber Company, and the arrange- which had applied caveat had the company eventually and also improvements and patents provided contemporaneous deed executed machine that might thereafter make, the parties interested reconveying the assets and covenanted that would procure patents to taking his promissory notes and chat- Canada and the United States and assign the tel mortgage security.

In action and

The latter received the company against T. & the original debt : Held, affirming the judgment the p

Court Appeal Out. that the I potin thsue, t hn America original debt was extinguished and variation the description the machine released from all liability thereunder.

the caveat and they refused pay the action to recover the they counterclaim return had paid account, field, 2-- Mandate - Agency - Factor -Pledge reersing the judgment the Court Appeal, Lien-Notice-Right of action -Interrentionthat the agreement was not satisfied Res judicata-Arts.

assignment any patent that might afterpartner entrusted with possession waris obtain ; that bound to obtain and goods his for the purpose sale may, assign patent for the machine described the either partner the business factor for caveat referred the agreement ; and that the pledge them for advances made to the evidence showed the variation therehim personally and the lien the pledgee will fron American patent to most naterial, remain valid as the security had been and to deprive the purchasers feature the given the absolute owner the goods not- machine which they deemed essential, withstanding notice that the contract was with not entitled to recover.

Hel further, Owynne agent

J. dissenting that and accepted the PATENT OF INVENTION-Continued.

PLEADING-Cntinued.

Canadian patent and pail portion the pur- that there error the judgment which chase money in consideration thereof, and held the not proved the respondent they took the benefit it, worked it for their would entitled to decision his plea ultra tires the appeal would therefore PAYMENT -- Municipal corporation-Rail-15 ,

Mnicial

By-lais

Txt)-Procedur statute--Voluntary payment-Action reptition-29 s. (Can.)-29

73'6 late rrentio PETITION OF RIGHT-B. N. Act, s.

liability of ommittire demand-Incompatible (Can.)-A ration and Award

]etitoir

Posssoire Nintregraude PLEADING-Artion- Alleation ofpeformace.]

Prescription-Arts

22, Reservtion for.future camayes-Judicial admis -nt-rruption of pi-scription -No Appeal-Ju-isdiction plea-Incidental

PLEDGE-Ayency

-Factor-Arts. 3-Appeal

IPOSSESSIONtat tte. limitations -Appeal-Jurisdiction

Final

Patition Plea of prescription-Judyment

Eastmen'-Sale land-Unity of followed.-An mortis causd Diiery ;hi inoient.

Ditribunal 4---Appeal-Jurisdiction--Action statute--Judgment

Urouds-R.

Party

'all nats ultra

PRACTICE

Landlord

PRACTICE-Continued.

rendered upon pleadings admitting and relying treal Exchange, and proved that they at upon a written instrument, an objection to the about per cent premium.

The judge validity the instrument taken for the first charging the jury directed them the time appeal to the Supreme Court damages upon the extent the injury Canada too late and cannot enter- plaintiff received indepeulent what these tained.

people may or whether they are rich tio-Goditin peceent ligationpoor."' The plaintiff obtained verdict with Action-Condition precedentdaages.

cross-examinaperformance-Burden of proof.] Under the tion the witness defendant's counsel the Ontario Judicature Act the performance door not fur re-exaination to the ditions precedent to a right action must still selling price the stock that the alleged and proved the plaintiff.

amount the verdict it was quite likely that the general observation the judge charge Appeal-Juridiction-Case originating i not remove its the jury the County Court - Transfer High Court]cial ability the company to respond in There no appeal to the Supreme Court damages.-The injury for plaintiff Canada in in which the action was was foot being crushed, and the day commenced the County Court and trans- the accident the medical staff the hospital ferred order to the High Court Justice where had taken held consultation ferred~~~~~ byodrt hihCuto and were divided to the necessity for which all subsequent proceedings were carried

-- Per Gwynne J. contra.

Where the cause tation.

Dr. thought limb might transferred because the pleas ousted the saved, was, four days later, appointed Curt

Jrisictin appal the company, at the suggestion plaintiff's County Court of Jurisdiction an appeal lies.- _

Leave to appeal cannot granted under aorney, to co-operate with plaintif V. c. I in not appealable sici.

Eventually the foot was amputated under the general provisions R. and plaintiff made good recovery. trial plaintiff's physician swore to coversa- V.YOUN

185tion Dr. NV. four days after the first 4 - Divisional court judment sultation, and three days before the amputa- Appeal direct--R. s. 26 s.s.

tion, when Dr. stated that could iniuce Appeal from order in chambers.] Held, per plaintiff's attorney to it from surgeon's Strong and Gwynne J., (Tasehereau and standpoint, and not use it to work the Sedgewick JJ. contra.) that under pathies the jury might consider more the Supreme and Exchequer Courts fully the question amputation.

The judge Act, to appeal direct from judgment his charge referred to this conversation and a divisional court the High Court Justice told the jury that it seemed very imporfor Ontario may granted in cases where taut Dr. W. was using position there right appeal to the Court the hospital staff to keep the limb IMPERIAL should have taken and that bethought it very reprehensible, feld, Strong C.J. J1. dissenting, that Dr. WV. did not Negligence-Action for damages-Impro- represent the company at the first consultation per evidence-Misdirection-60 24 when opposed amputation; others the (N.B.)] Viet. 370 staff took the and there new trial is not to be granted on the ground proof that amputation was delayed through misdirection, or the improper admission instrumentality; and the jury would certainly rejection evidence unless the opinion consider the judge's remarks bearing the the court substantial wrong or miscarriage contention made plaintiffs behalf that has been thereby occasioned the trial the amputation should have taken place the the trial action against the very day the accident, it must have affected Electric Street Railway Company for damages the amount the verdict.-To tell jury to account personal injuries, the vice-presi- ask themselves "If I were plaintiff much dent the company, called plaintiffs behalf, ought I paid the company was asked direct examination the amount injury ?" not proper direction. opening to the jury having stated that the pany was making large sums money out 6-New triul-Verdict-Fiiding of jury the road.

cross-examination the witness Question of fact lisapprcheision.] was questioned to the disposition the pro- has properly submitted to the ceeds debentures and re-examination jury and their fiiding the facts are plaintiff's counsel interrogated him at length iight be the conclusions reasonable to the price the stock the trial will not granted the PRACTICE -- Continud.

!PRINCIPAL AND AGENT

Contined. :"Can Jurisdiction-Final tt Plea of cription-Judlgment udgentdimisingple Iswitchboard, -Costs-R.S.C. 24-Art. 0.]

lut cne followed.-An tying

Starr affiing EsmppCoQue of costs-Practice that ony enertin

~n~o r. DowER

9--Appead-Questions of fact.] - MuxII 2--Partnership Mandate -Factor Pedge 1 -Lien-Notice-Right of ation-nterrEntion _Resjudicata-Arte. 10--Adrocate tribunal-Powers

11---Refernece master-Vendor and Pur- renin Art of oner totfrom Final

Appeal that of Canada

PROHIBITION

12--Arts. P.-Pight of Irregiarprocedure--Donmestictribunal action-Married croman-Eception la

Arts. Q-58 PRESCRIPTION

31 PROMISSORY NOTE-Poers of A/canting

PPINCIPAL AND AGENT-Sae RAILWAYS- -Goermet employdLord apbent's Acts

RAILWAYS-Continued.

Robinson Canadian Pacifie Railway distinguished.-A worku.an may contract with employer as to exonerate the latter from liability for negligence, and such renunciation would an answer to action under Lord Campbell's Act.

Griffiths

Earl Dudley 13. 1) followed.-In the Government Railways Act (R.

providing that " Her Majesty shall not relieved from liability any notice, condition or declaration in the event any damage arising from any negligence, omission or default any employee or servant the Minister," the words " notice, condition or declaration " do not include contract agreement which employee has renounced his right to claim damages from the Crown injury from negligence his fellow servants.

Grand Trunk Railway Co.-v.

R. disapproved.

An employee the

Intercolonial Railway became member the

Intercolonial Railway Relief Assurance Association, to the funds which the Government contributed annually In consequence contribution rule the association provided that the members renounced all against the Crown arising from injury or death the course their employment.

ployee having killed discharge duty negligence fellow servant. Held, reversing the judgment the Exchequer Court

Ex. R. that the rule the association was an answer to an action his widow under Art. to recover pensation for his death.-The doctrine employment does not prevail the Province Quebec.

The Filion Can.

R. followed.

2-Municipal corporation-Railways-Taxation-By-laws-Construction of statute-Voluntary payment-Action rdptition-29 V. c.

(Can.)-29 & c. (Can.)

statute Vict. (Can.), consolidating and amending the Acts and Ordinances incorporating the City Quebec, by sub-section section authorises the making by-laws to impose taxes persons exercising certain callings, " and generally all trades, manufactories, occupations, business, arts, professions or means profit, livelihood or gain, whether hereinbefore enumerated or not, which now or may hereafter carried exercised or in operation in the city; and all persons the same are or may be carried exercised or put operation therein, either their own account or agent for others;

and the premises wherein or whereon the same are or may carried exercised or put in operation."

Held, that the general words the statute quoted are sufficiently compre- RAILWAYS-Continued.

hensive to authorise the imposition business tax upon railway companies; and further that the power thus conferred might validly exercised by the passing by-law to impose the tax the same general terms as those expressed in the statute.

Judgment the Court Queen's Bench R. Q. affirmed.

3-Negligence-Grass on siding.] For railway company to permit grass and weeds to grow side track is not such negligence will make it liable to compensate employee who injured in consequence such growth while walking the side track.

Woon V. 4--Negligence- Railway accident-Shunting cars - Warning--Proof of negligence.] in driving towards his home on night September, had to cross a railway track between nine and ten o'clock, a level crossing near a station.

Shortly before a train had arrived from the west which had to be turned for trip back the same direction, and also pick passenger car a sidiig. After switching the train was made up, and just before coining to the level crossing the engine and tender were uncoupled from the cars to proceed to the round house.

the engine pass, but apparently- failed to perceive the cars, and started to cross, when struck by the latter and killed.

There warning the approach the cars which struck him. action his widow under Lord Campbell's Act the jury found that the railway company was guilty negligence, and that a man should have been on the crossing when-making the switch to warn the public.

verdict the plaintiff was sustained the Court Held, affirming the judgment the Court Appeal, Gwynne J. dissenting, that it was properly left to the jury to determine whether or not, under the special circumstances, it was necessary for the company to take greater precautions than it did and to more careful than in ordinary cases where these conditions did not exist ; and that the case not raise the question the jury's right to determine whether or not railway company could compelled to place watchmen upon level highway crossings to warn persons about 5---Farm crossings-Servitude--Arts. O.-Right of way-Grand Trunk Railway Canada- Interpretation of statute-" The Railway of Canada, 191-16 c. s. RAILWAYS- Continued,

- REGISTRY LAW-Continued.

V. c. 4-14 c. 51-42 V. c. owner of the land described or referred (D.)-Constitutional law-Jurisdiction of to the register for such an estate freeprovincial legislature.] An owner whose lands hold as may possess."

*

* adjoin a railway subject to "The Railway Act" I affirming the judgmentof the Supreme Court Canada, upon side only, not entitled British Columbia (7 Rep. sub to have crossing over such railway under the Kzrk Kirkland) that a certificate title provisions that Act, and the special statutes I issued registration deed from the assessor in respect to the Grand Trunk Railway taxes issued to a purchaser at tax does Canada not impose any greater liability in not itself oust the prior registered owner respect to crossings than " The Railway Act" the land described in the register, but the holder The Midland Railway must prove that all the statutory provisions to Gribble and The Canada authorize a sale for taxes had been complied Southern Railway S.C.R. with.

referred to.-The provincial legislatures

Canada have jurisdiction to make regula- 2--Mining claim -Registered descriptiontions in respect to crossings or the structural Error-ertficate of improvements-Adverse condition the roadbed railways subject to -R. S. B. c.

the provisions

The Railway Act

MINERALs 3. The Canadian Pac9c Railway

The Corporation the Parish RELEASE-Mortgage-Assagnment of lease- (e Bonsecours

Discharge-Abandonment of security - Co. -485

6--Constitutional lair-Powers of Canadian

Parliament-Prohibited contract-The Consoli- 2-Partnership-Isolrent frm-Assignment dated Railway Act,

MACDONALD or creditor-Compoitiou-Dischargc debt-Release

7--Construction contract-Condition precedent payment-certificate of engineer.

114'RES JUDICATA-Treaties with Indians- Contingent annuities- B. N. Act Debt Provin Can ada- -Res jndicata.]J 8---Nelience-Damages-Eridence- Misdirection c. (N.

determined that certain payments made the Dominion Canada virtue the Prompt interest from in excess of the fixed annuities with 10---Bonusby-law-ExemptionfronmMunicipal rates-School taxes.

558,Pro;ince Canada mentioned the section the British North America Act, REGISTRY LAW-Registration of tax that of title-Priority earlier tifcate-R.

Ill.]

British Columbia Land Registry Act (R. Attorney General of Canada The Attornyprovides that person claim- General Ontario C. and that registration thereof and the registrar, being recoverable from the Provinces Ontario and that prini facie original annuities.

"Register I

; ife registrar

2--Right action PlcadiIntervetionprinid Notice-Pledge.] res judicata facie against party who been any represented former suit deciding the same " the registered owner an matter controversy.

bsolute shall dee to the primh te- - S. C. R. XXX.]

SALE OF GOODS-Continued.

oinary action for debt and cennot claim TREA S stonel<any lien upon the goods themselves nor the RIVERS ANDrice received them.

Acquiescement-Floatable waters- Water

-River improvements-Joint user-Serritude- Arts. and C.] Where 3

-Sale of goods agent mission a riparian lands lower level had Agent been permitted the plaintiffs, for number years, to take water power necessary to operate his mill through he had structed along the river bank partly upon the plaintiffs' land connecting with the plaintiffs' mnation--ate ofpremises-Parol agreement mill-race, subject to the contribution half oirpre

Quitonjonta hes the expense keeping their mill-race and damo preises used sa fact conte thi repair, and these facts had been recognized poiin rvddta nteeeto h in deeds and written agreem en to lessor disposing the factory the pintiffds and wrtertenremnt pihte benxacate the premises, necessary, months' plaintiffs and their auteurs had been parties,noie"Hlrvsngtejd the plaintiffs no longer claim exclusive not.

Hel r si tnt rights to the enjoyment such river improvvCouapeal

O

.

ments or require the demolition the inens reuir th demliton te fumeparol agreement for the the premises, notwithstandingthat they were absolute owners not enforceable under the Statute the strip land upon which the mill-race Fra w said provision entitling the lessor to give the City of v. North Shore l'ailray ( notice to acate.

Held, further, that the Can. R. and La Brthier having, faith, represented that he had Denis Can. R. referred to. sold the property, with reasonable grounds SALE OF GOODS- Con tract -Sale of ltmber

-Inspection.]

contract for the sale lumber was made wholly by correspondence, aid the letter which completed the bargain contained the following provision : " The inspection this lumber to made after the is to agreed upon between buyer and and inspection to

Held, reversing the judgment the Court Appeal, that was not essential for the parties to agree upon andaparty chosen the buyer havinginspected the lumber and before his work was completed the seller having agreed to accept him as inspector, the contract was satisfied and the inspection and bindingon the parties.

2-Mandate-Partnership

- Agency -Factor

-Pledge -- Lien -Notice - Right of action- Intervention-Arts.

partner entrusted with possession goods his for the purpose sale may, either partner the business or factor for the firm, pledge them for advances made to personally and the lien the pledgee will remain valid the security had been given the absolute owner the notwithstanding notice that the contract was with agent only.-Where consignment goods has been sold and they remain no longer specie, the only recourse perclaims interest therein is sentation entitling the lessee to damages if no sale within the meaning the provision had actually made, nor was there any eviction or disturbance constituting breach the covenant for quiet enjoyment.

2--Parol agreement for sale of leased premises -Termination of lease-Alisrepresentation - 3-- Easement-Sale of land-Unity of possesson-Severance-Continuous user

4--Title to land-Warranty-Special agreement-Knowledge of cause of eviction-Art. C.-Damages

"SAWLOGS DRIVING ACT

R. S. 0. 121-Arbitration action on award- Ricer improvements-Detention of logs - - SCHOOL TAX - By-law - Exemption fron Municipal

SECURITY- Mortgage -Assignment lease Di.scharle-A bandon ment of security StPARATION DE CORPS-Supreme Court

Act- Jurisdiction-Money demand - - SERVITUDE. - Estoppel - -Acquiescement- Floatable waters- Water power-Rirer improvements-Joint user-Arts. 549,550, and

Where a riparian owner lands a lower level had been permitted the plainfor a number years, to take waterpower necessary to operate his mill through a he had constructed along the river bank partly upon the plaintiffs' land connecting with the plaintiffs' mill race, subject to the contribution half the expense keeping their millrace and dam repair, and these facts had recognized in deeds and written agreements to which the plaintiffs and their auteurs had been parties, the plaintiffs could no longer claim exclusive rights to the enjoyment such river improvements or require the demolition the flame notwithstanding that they were absolute owners the strip land upon which the mill race and a portion the flume had constructed. City of North Shore Railway Can. R. and La mune de Berthier Denis Can. R.

referred to.

Appeal-Jurisdiction

Servitude--Action confessiore - Execution of judgment therein- Localization ofright ofway -Opposition writ possession-Matter in controversy- Title of land rights

3---Farm Crossings-Arts

Jurisdiction of Provincial Legislature. - SHIPPING-Bill of lading-Ship's agent- Mandate-Custom ofport--Delivery-Carriers.

SOLICITOR

STATUTE - Constitutional law - B. N.

Act, 111-Debts of Province of Canada-Deferred liabilities- Toll bridge at Chambly-8 V. c. (Can.)-Reversion Crown- Indemnity-Arbitration and award-'ondition precedent-Petition of right-Remedial process- Vendor's lien.] toll bridge with its necessary buildings and approaches was built and maintained Y. at Chambly, in the Province

Quebec, in under franchise granted to him act Vic. the late

Province Canada, on the condition therein expressed that on the expiration the

STATUTE-continued.

term fifty years the works should vest in the Crown a free bridge for public use and that Y., or his representatives should then works arbitration and award. Held, affirmada Ex. R. that the claini of the suppliants for the value the works at the time they vested in the Crown on the expiration the fifty years' franchise was a liability the late Province Canada coming within the operation the 111th section the British that that presently payable at the date the passing the British North America Act, was immaterial.

The Attorney-General of Canada v. The Attorney-General of Ontario, 199; R. The Judicial Committee the Privy Council refused leave to appeal from the judgment. -Government railway - Injury employee -Lord Campbell's Act. -Art.

C.-Exoneration from liability-R. S. c. Art. embodies the action previously given ing Lord Campbell's Act. Robinsonv. Canadian Pacific Railicay distinguished.-In section the Government Railways Act (R. providing that " Her Majesty shall not be relieved from liability any notice, condition or declaration the event any damage arising from any negligence, omission or default any employee servant the Minister,' the words " notice, condition or declaration " do not include tract or agreement which an employee has Crown for injury from negligence his fellow servants.

Grand Trunk Railway 3-Alunicipal corporation-Railways- Taxation--By-laws-Voluntary payment-Action en repdtition--29 V. c. s. (Can.)-29 & V. (Con.)] The statute, Vict. sub-section section authorises the making by-laws to impose taxes persons exercising certain callings, "and generally all trades, manufactories, occupations, business, arts, professions or means profit, livelihood or gain, whether hereinbefore enumerated not, which or may hereafter carried STATUTE -Continued.

tax the same general terms those expressed the statnte. Judgment the Court

Queen's Bench Q. affirmed.

GRAND

Rivers and streams-Floatable watersof statute-" The J)riving

Act"-R. 0. 121-Arbitration- Action upon award-River inprovements-Detention logs-Damages.] When being floated down stream are unreasonablydetained reason others being massed in front them the owner entitled an arbitration under the Sawlogs Driving Act to determine the amount his damages for such detention and not restricted to the remedy provided that Act, namely, removing the obstruction.

Judgment the Court Appeal

Ont. R. reversed.

&

5-Appeal'- Divisional Court judgment

Appeal direct-R. S. C. c. s.s.

Appeal from order in chambers--Rivers and streams

Driving

Obstruction--Dan- R. S. 0. c. 1 and Held,

JJ. that

Appeal.-By R. 0. 1, feld,

6--Assessmient and taxsOt~i

STATUTE-Continued.

statute--Arrears of taxes-Distress.] The pro- Judg- R.

Municipal assesment-59 (N.B.) -Donicile

8-..

S. N. S. -Statute Limitations - Possession - Tenants in comnon 9--Appeals Supreme Court of Canada in Ontario cases-60 & c. s.1 (a) (D.)-304 10--54 & c. (D.)-54 c. V. c. ) wards arbitration respecting accounts of Province 11- Registration of tax deed - Certificate of title-Priority-R. S. B. .C. - - STATUTE OF LIMITATIONS

STATUTES-14 Geo. III, c s. (Imp.) Act, 1774; wills

- - III, c. (L.C.) (Wills in Lower 3- -Lord Campbell's Act

5-B.

N. Act, (Debts Province of Canada.)

- - - 6---B. N.

- Act-B. S. 0. c. 193-Construction

STATUTES-Continued.

& V. c. (Can.) Railway Clauses

Consolidation Act)

- - 9--16 V. c. (Can.) (Railways) - 10--iS y.c. s.4 (Can.) (Grand Trunk Railway

11--29 (Can.) (Charter of City

12--29 & V. (Can.)'(City of

13--R. S. c.

14--R. (Supreme Court

15---R.S.C. (Supreme Court of Canada)

16--R.S.C. c. (Appeals Supreme

17--?. (b)

18--R. S.

R. S. (a)

(Appeals

20-R.

S. (Lotteries.)

-- 21--51

Railway

STATUTES-Continued.

V. c. 1 (a) (Supreme of Canada)

25--60 & V. 1 (e) (D) (Supreme of Canada)

26--R. 0. c. (Vendors and Pur- 27--R. S. 0. and 5 28--R. S. 0. (Saw-logs Driving 29--R. 0. (Ontario 30--36 c. The Ontario Drain- 31--36

The Municipal Drainage Aid Act.")

32--54 V. c. (Ont.) (Awards Dominion rbitrators)

'333--57 c. (Ont.) The Drainage Act, 34--R. Art. (Lotteries). 35--Arts.

36--58

37--52 V.

(Montreal Street Widening)

- - 38-- (Lotteries.) - 22--54 & V. (D) (Awards Dominion c. e. 6

(Awards by Arbitrators)

Domnion Arbitrators.)

&

(Criminal c. (Widening Moi- STATUTES-Continued.

41--55 & c. (Widening

42--57 c. (Widening Montreal

43--R. (N.S.) Ser.) c. (Married

Property)

44--R. (N.S.) Ser.) (Statute

Limitations)

45--53 V. c. (N.S.) Valley and

Lansdowne Railway Company

46--59 V. (N.B.) (Assessment Act

47--60 V. (N. B.) (New trials)- 48--R. S. (B.C.) (Land Registry)-344

49--R. (B.C.)'c. (Mining Loca- 50--46 & V. (Man.) (Validating Winnipeg bons Canadian Pacifie Railway)-558

STREAMS

STREET RAILWAY- Negligence-Electric car-Excessive speed-Prompt action

Contributory negligence.] cab driver was endeavouring to drive his cab across the track an electric railway when it was struck and damaged.

In action against the Tramway Company for damages it appeared tbat the accident occurred part cown grade ral hundred feet long, and that the motorman after seeing the cab tried to stop the car with the brakes, and that proving ineffectual reversed the power, being then about a car length from the cab.

The jury found that the car was running at too high rate and that there was negligence the failure to reverse the current time to avert the accident ; that the driver negligent not looking more sharply for the car ; and that notwithstanding negligence on the part the driver the accident could have been averted the exercise

STREET RAILWAY-Continued. reasonable care.

Held, affirming the judgment the Supieme Court Nova Scotia Rep. Gwynne J. dissenting, that the last finding neutralized the effect that contributory negligence; that as the car was a down grade and going at an excessive rate speed it was incumbent on the servants of the company to exercise a very high degree skill and care in order to control it if danger was threatened to any one the highway; and that from the evidence given it was impossible to say that everything was done that reasonably should have been done to prevent damage from the excessive speed at which the car was being run.

SUCCESSIONS.- Will-Codicil - Testamentary succession-" Heir "-Universal legatee- Arts, C.-14 Ill., (hap.)-41 III c. 4 (L. I R. who died Montreal in had, his will made there in bequeathed to and her heirs, one-fourth his residuary estate.

died in leaving will appointing her children her universal legatees. R. A.subsequently took communication the will the deceased and made a codicil to his own will in the terms following :- " With respect to the share the residue property which I bequeathed my will to and desire that her said share said residue shall to her heirs."

, that under the provisions the Civil Code Lower Canada, the words " her heirs " the codicil must strued meaning the persons to whom the succession devolved as universal legatees under her will.

SURETYSHIP - Conditional warranty - Notite -Possession of goods-Art. wrote a letter agreeing to guarantee payallowed, should occasion arise, to take over the goods consigned.

Shortly afterwards the creditor, without giving any notice to closed the agency, withdrew the goods and permitted others to seized in execution and removed beyond the reach T.

The creditor did not give T. any authority to take possession the goods as stipulated in the letter guarantee : Held, that the condition the guarantee had not been complied with the creditor, and that he could not hold the warrantor responsible.

TAXATION

TAX DEED.-Registry law-Registration of TITLE TO LAND-ontinued.

tax deed-Certifeate of title-Priority over lad possession of the land as against his earlier certificate-R. S. B. C. c. Ill. -- 344 cmo earler ertficae-i.

B.

. c the bringing an action ejectmeut their joint names and entry judgment TENANTtherein gave fresh right entry both and TENANTinterrupted the prescription accruing favour the tenant possession.

Judgment the TENANTS

COMMON

Trustees

Supreme Court Nova Scotia Rep. Powers--Party wall- Tenants in conmon.] 1) affirmed.

owner two warehouses, Nos. and (the 3-Lasent-Sale of land Unity of dividing wall being necessary for the support Severance-Continows user.] When both) executed deed with power sale No. two properties belonging to the same owner way marriage settlement on his daugh- are sold at the same time, and purchaser ter.

having died, his executors executed a notice the sale to the other, the right to deed confirmation to the purchaser No. any continuous easement passes with the from the trustees the marriage settlement an absolute legal right.

But the easement description which, it was claimed the pur- must have enjoyed te former owner chaser, conveyed absolutely the freehold estate at the time the

Therefore, purin the party wall and the land covered it. chaser could not clain the right to dam An action being brought the executors his land such way to cause the water to have it declared that the wall question to hack the other property, where was a party wall : Held, reversing the judg- right, it had ever enjoyed the former ment the Court Appeal, that the trustees owner, had been abandoned years before the the trust declared in the instruments under which they derived their powers, and even it 4--Appeol-Jridiction Solicit nde-A ction could be shown that the confirmation deed had confessoire-Execution of judgment thereinthe effect conveying greater quantity Localization right of way-Opposition writ land than the deed from the trustees the o/ possession-Matter in controversy-Fntnre marriage settlement, such a voluntary convey- rights.]

opposition to writ possession ance in favour one beneficiary, which would issued execution judgment allowing a operate prejudically to the interests the other right way over the opposant's land not beneficiaries would breach trust and raise question title to land nor bind future sequently

Held, that upon the execution rights, and such the Supreme Court the deed way marriage settlement Canada has no jurisdiction entertain No. the wall common to the two warehouses, appeal.

O'Dell Gregory S.

Chanbertnndv. Fortier owners the warehouses were tenants in and Mcoey Leniy 173'S. distinguished.-If thejurisdiction the court doubtful the appeal must 2--Partition of lands-Statute of limitationsquashed.

Langevin Les Con d'tcole Possession--R. S. N. ( 5 ser) - St. Marc followed. TITLE TO LAND.-Right of way-Ease- 5--Registry law-Registration tax ment-User.] right way granted as an Iertificate of title Priontg over earlier easement incidental to specified property tilcate-R. B. C. c the British not used the grantee for the same pur- Columbia Land Registry Act C. in respect to any other property.

l11) provides that person claiming ownership land may apply for registration and the registrar, being satisfied 2--Partition of land-Tenants in commonafter examination the title deeds, that a Statute of limitations--Possession.] Under the prbnd facie established shall register Nova Scotia Statute Limitations N. I the title the Register Absolute Fees." ser.) possession land order to which authorizes the registrar to issue ripen into title and oust the real owner, must certificate title to the person registeruninterrupted (luring the whole statutory contains the orovision

Every certificate period.

If abandoned at any time (luring such title shall received primet Jacie evidence period the law will attribute it to the person all courts justice the province, the having title. -Possession series persons particulars therein set forth.' during the period will bar the title though

"

registered owner an absolute shall such persons were not in privity with their deeed to le the prisndai predecessors. -tWhere or two tenants laud described referred to the register for TITLE TO LAND-Continued.

such an estate freehold as he may possess."

Held, the

Supreme Court British Columbia (7

Rep. sub nom. Kirk Kirkland) thatacertificate title issued on registration a deed from the assessor taxes issued to purchaser at tax sale does not itself oust the prior registered owner the land described the register but the holder must prove that all the statutory provisions to authorize a sale for taxes had been complied with.

KiRK

6--Sale of land- Warranty-Special agreement-Knowledge ofcause of eviction-Damages

-Art. title panying sale lands not constitute the special agreement mentioned in Article the Civil Code Lower Canada in respect to liability to damages for eviction.

7--Lease-Transfer lease-Alienation rent-Emphytenis- Bail rente--Bail a longues anndes-Droit mobilier-Cumulative demand- Incompatible pleadings-Action pdtitoire-Arts.

C.-Arts.

P. Q. -Possessory action-Rdintegrande

-Dduonciation de nouvel An instrument by which lands were leased for sixteen years at an annual rental, subject to renewal for further term twelve years, providei for the construction certain buildings and improvements the upon the leased premises, and hypothecated these contemplated ameliorations to secure payment rent and performance the obligations of the lessee.

Tbe leased premises were transferred the by deed sale, and disturbance action, with both petitory and possessory conclusions, was brought the transferee against alleged trespasser, who pleaded title and possession in himself without taking objection to its cumulative form.

Held, affirming the judgment appealed from, that under the cumstances the action should be treated petitory only ; that the contract under the instrument described was neither emphyteusis nor bail 4 rente (lease in perpetuity), but merely an ordinary contract lease which did not convey title to the land nor real rights sufficient to confer upon the transferee the right instituting petitory action his own name. Held, also, that the transfer the deed sale such leased premises would not support the petitory action, as the could not convey proprietary rights which he did not himself possess.

- 8---Mining claim--Registered description- Error - Certificate of improvements- Adverse action-R. B. c. 28.]

If the

TITLE TO LAND-Continued.

a certificate work done the first locator land not included in such description and covered the subsequent claims.

9--Appeals Supreme Court of Canada from Ontario-Jurisdiction-Injunction-Ditches wvatercourses-Title land-60 & c. 10--Estoppel - Acquiescement - Floatable eaters-Water power-River improvements- Joint user-Servitude-Arts. TOLLS-Constitutional law -Administration Yukon-Franchise over Dominion lands- Tolls.] The Executive Government Yukon Territory may lawfully authorise the construction a toll tramway or waggon road over Dominion lands in the. territory, and 2--Toll Bridge-8 (Can.)-Indemnity -Liability of Province of Canada-Remedial TORT-Bodily iniuries-prescripion-Resertvation in judgment-Future damages Arts TRADE CUSTOM-Shipping-Bill lading -Ship's agent-Manlate-Custom of Port- Delivery-Carriers.] trade its existence, and, in any case, the terms a bill lading, inconsistent with and repugnant to the custom a port, must prevail against such custom.

Judgment appealed from reversed, the Chief Justice dissenting. TREATIES.

TRUSTS-Trustees-Pozvers - Party wall- Tenants in common.] owner two warehouses, Nos. and (the dividing wall being TRUSTS-Continued.

VENDOR AND PURCHASER-Appealhaving died, his executors executed deed -Ad ofrviene Appefromcetifiate confirmation to the purchaser No. from the -Fil

Ce).]

trustees the marriage settlement descrip- Where master, reference under the tion which, it was claimed the purchaser, dor and Purchaser Act to settle the title under conveyed absolutely the freehold estate in the party wall and the land covered it. An Written agreement for ruled that action being brought by the executors to evidence might given to show what covenants a tio beng dtattewlli usto the lease should contain, an appeal does not have it declared that the wall question a party wall.

Beld, reversing the judgment the Court Appeal, that the trustees the affrmng such ruling it not being final jufgwill and marriage settlement were bound ment and the not coming within the prothe trust declared the instruments under visions

(e) the Supreme and which they derived their powers, and even it Exchequer Courts Act relating to proceedings could be shown that the confirmation deed had Equity.

Gwynne J. diasenting.

land than the deed from the trustees the VERDICT marriage settlement, such a voluntary conveyance in favour one beneficiary, which would operate prejudicially to the interests WAIVER-Annicipal corporation Waterthe other beneficiaries would be breach msorks-Rescision of contract-Notice Mise trust and consequently void.

Held, that upon demeure Long user

Wairer rt. 10670. the execution the deed way marriage contract for the construction and maintenance settlement No. the wall common to the ofa

Waterworks required them two warehouses, Nos. and 7, became a party comp wall which the owners the warehouses were tenants in common.

LEWIScontractors days after notice to put the works in satisfactory 2--Donatis mortis cansa-Delivery Key third

TUTORSHIP. -Appeal- Jurisdiction-Matter in controversy-R. S. s.

Tutorship-- Petition for cancellation of appointment-Arts. C.-Tutelle proceedjurisdiction to entertain appeal from a judgment pronounced in a controversy tutrix

ULTRA VIRES-Plea to statute -Action for penalties- Judgment upon other grounds-Appeal to Supreme Court qfCanada.

improvementserved a protest upon the contractors complainout specifying particular defects, but made use the works complained for about nine years forfeiture the works under conditions in the contract. Held, that after the long delay, when the contractors could not be replaced in the original position, the complaint must deemed to have been waived acceptance and use the waterworks and it would, under the circumstances, inequitable to rescind the or 2--Insurance policy-Allegation and proof performance of condition precedent to action- Judicature

WARRANTY-Sale of land-Special agreeight et-Knoledge of cause of iction-D6ma4es sale lands not constitute of contract-Notice-Mise user-Waiver-Art. - 4--Easement- -Sale of land- Unity of posses- 2--Coastitutional government-Notice-Possion-Secerance-Cauntinuous user.

-session ofgoods-Art. C.

USER-Water power-River

Joint user--Estoppel.

- S. C. R. XXX.]

WATERCOURSES - Rivers and streams- I WILL-Continued.

Floatable waters-Construction of statute-"The a

Sawlogs Driving Act"-R. S. c.

im-and indorse notes that might required -Arbitration-Action upon award-Rver to settle and liquidate the affairs his provements - Detention of logs - Damages.]

When logs being floated down a stream are subsequent clause in his unreasonably detained reason others being his executors "all necessary rights and massed front them the owner entitled powers at any time to pay to any his said children the age years the whole to an arbitration under the Saw-logs Driving

Act to determine the amount his damages for such detention and not restricted to the eir assistance either in establishment prvidd bysee 3 tht Ac, nmely tase need, the whole according to the discreremedy provided sec..3 that Act, prudence and wido said executors," removing the

Judginaent of the a

Court Appeal Ont. App. R. reversed.

sco-0 recover the amount promissory notes given the executors and discounted by them as -- Rivers and streams - Driving log order secure loan money the purpose advancing the amount his legacy Obstruction-Dam-R. S. 0. c. I to the children who was need funds R. 0. 1, all to pay personal debts.

Held, the persons are prohibited from preventing the judgment appealed from, that the two clauses passage saw-logs and other timber down a the will referred to were separate and river, creek or stream felling trees or placing tinet provisions which could not construed any other obstruction or across the same. together giving power to the executors to Held, reversing the judgment the Queen's raise the loan upon promissory notes for the Bench Division 0. R. that placing purpose advancing the share the river or stream which the supply beneficiaries under the will.

water therein was diminished as to interere t t passage was an truc under this Act.

- Injunction - Ditches and watercourses-Title to land.] Proceedings to restrain the owner of land from constructing ditch thereon under the Ditches and Watercourses Act to prevent injury to adjoining property, not involve any question title to land or any interest therein within the meaning & Vict. ch. 1, subsec. (a) relating to appeals to the Supreme

Court Canada in Ontario cases.

The fact that the adjoining land was to taxed benefit construction the ditch would not authorize an appeal under subsec. (d) as relating to the taking a duty or nor as affecting future rights.

4--Easement-Sale of land-Unity of posses.

sion-Severance-Continuance user

WATERWORKS - Municipal corporation- Rescission of contract-Notice-Mise en demeure

-Long user- Vaiver-Art.. - 2-- Codicil-Testamentary succession-"Beir" -Universal legatee-Arts. 1I., c. (Imp.)- III., c. (L. C.)]

R. who died Montreal in had, his will made there in bequeathed to and her heirs, one-fourth his residuary estate.

died in leaving a will appointing her children her universal legatees.

R. subsequently took communication the will the deceased and made a codicil to his will the terms following: " With respect to the share the residue my property which I bequeathed my will to my sister, the late * * * my will and desire that her said share said residue shall go to her heirs." Held, Gwynne and Girouard JJ. dissenting, that under the provisions the Civil Code Lower Canada, the words " her heirs " in the codicil must construed meaning the persons to whom the succession devolved as universal legatees under her will. WITNESS - Expert opinions report-s.] Where there direct contradiction WILL-Powers of executors-Promissory note between equally credible witnesses, the evidence -Advancing legatee's share.] who was those who speak from facts within their permerchant, his will gave special directions sonal knowledge should preferred to that for the winding up his business and the experts giving opinions upon extra division the estate among a number his cln t

~ ~

~

~ ~

INI)EX

WORDS AND TERMS-" Disposition" WORDS AND TERMS-Continud. 2-"Heir"

5-"

Outlet liability"

4See

YUKON EXECUTIVE GOVERNMENT -Franchise granted over Crown lands-Tolls 3--"

"

- - - - S. C. R.7You XXX.]

Majority

GNyune J. (dissenting)

Gironard J. (dissenting)

Held, Gwynne and Gironard JJ. (dissenting)

Statutes and regulations cited