Majority
Under these circumstances, I would give the appellants six dollars per square foot, the price they paid or
$14,916 with interest thereon from the 1st November, 1895, date of the expropriation and possession, for which amount, judgment should be entered against the respondent, the whole with costs before all the courts
Solicitors for the appellants: Archer & Perron. Solicitors for the respondent; Ethier & Arch ambault. HIS MAJESTY, THE KING, Ex rel.
THE ATTORNEY-GENERAL
OF
QUEBEC (PLAINTIFF)..........
THOMAS MONTGOMERY ADAMS
APPEAL from the judgment of the Court of Queen's Bench, appeal side, (Boss6 and Cimon JJ. dissenting), reversing the judgment of the Court of Review, at Quebec, which set aside the judgment of the Superior Court, District of Quebec and declared the letters Q.
patent of grant of the lands in question to the defendant null and void.
mKNG The facts of the case and questions at issue on this appeal sufficiently appear from the statement in His Lordship Mr. Justice Girouard
Judgment of the Court
Fitzpatrick K.C. (Solicitor-General of Canada) and L. A.
Cannon for the appellant.
The information seeks the cancellation of the letters patent granted to the defendant on the ground that they were so granted in error, the former letters patent granted of the same lands to the representatives of the late Hugh and John Montgomery having been illegally cancelled by the Commissioner of Crown Lands for the purpose of giving effect to an adverse claim.
See 32 Vict. ch. sec. 26; R. Q. art. 1299.
J. A. Lane for the respondent. The first letters patent issued were clearly wrong and consequently the commissioner had jurisdiction to cancel them. The information merely alleges that they were not legally revoked " by indorsement;" there is no allegation of the existence of any "adverse claim" nor any proof of such to demonstrate that the commissioner had so exceeded his jurisdiction.
This was a new point first raised on the appeal to the Court of Review and should not have been entertained. That judgment was ultra petita.
Thejudgment of the court was delivered by: J.-On the 13th of February, 1888, certain letters patent for lots twenty-eight and twentynine of the Township of Restigouche, were cancelled by the Commissioner of Crown Lands for the Province of Quebec, upon the ground that they had been issued by error to the legal representatives of John and Hugh Montgomery, instead of to the representative of Thomas Montgomery, and subsequently, to wit on the 28th of April, 1888, new letters patent for the *.
same lots were issued in favour of the said representative of the late Thomas Montgomery, who is the Jrespondent. The commissioner alleged in his decree of revocation that he was empowered to do so by section twenty-six of the Quebec Statute, 32 Vict. ch. 11.
He admits himself, and it is proved beyond doubt, that the representatives of the late John and Hugh Montgomery had an adverse claim.
He therefore acted without jurisdiction, and his act is ultra vires and utterly void.
He should have left the parties to their remedy in the ordinary courts of the province. The section in question reads as follows :
For this reason, which is more fully developed by Mr. Justice Andrews in the Court of Review, and Mr Justice Cimon in appeal, we are of opinion that the appeal must be allowed.
The judgment of the Court of Review is restored and the said letters patent granted on the 28th of April, 1888, to the respondent for the said lots of land are anulled and declared void and of no effect. but without costs as both parties were in error, the Commissioner of Crown Lands in exercising a power he did not possess, and the respondent in contending before all the courts that he had such power.
Appeal allowed without costs. Solicitors for the appellant: Fitzpatrick & Taschereau. Solicitor for the respondent: J. Lane.
........ THE BANK OF MONTREAL AND
THE KOOTENAY BREWING,
MALTING
AND
DISTILLING
COMPANY
MOTION on behalf of the appellants for an order to stay execution in the cause pending an application for leave to appeal to the Judicial Committee of His Majesty's Privy Council, from the judgment pronounced by the Supreme Court of Canada, on 19th February, 1901, dismissing the appeal of the said appellants from the decision of the Supreme Court of British Columbia.
The application was by motion, in chambers, before His Lordship Mr. Justice Girouard, prior to the entry of the judgment of ihe court.
Glyn for the motion.
Travers Lewis, contra.
After hearing the arguments of counsel, judgment was reserved until a later hour of the day when the following judgment was delivered.
J. (Oral.)-I find that, according to the uniform practice of this court, it is not possible to grant this application.
Since the argument upon the motion, I have had an opportunity of consulting with my brother judges, as to the question of practice, and they all agree that this couit has always refused to entertain applications of this nature.
Motion refused with costs. :-His