Judgment of the Court
J.-This is an appeal from the judgment of the local judge of the Nova Scotia Admiralty District, the Chief Justice of Nova Scotia (16), holding the schooner Reliance responsible for a collision which took place between her and the schooner Carrie E. TH
Sayward on the night of September 6th, 1900, on Quero Bank in the North Atlantic.
The learned judge held that the Sayward was not in any respect to blame, and that the collision was caused by the negligent Davies J. and careless navigation of the Reliance. The facts of the case are stated by him as follows :- The Carrie E. Sayward, a fishing schooner of the Port of Provincetown, United States of America, while in pursuit of her fishing voyage was at anchor on Bank Quero, about one hundred miles east of Sable Island on the morning of the 6th September, 1900. schooner had a crew of twelve men all told and had nearly completed her cargo of fish, when about three o'clock on the morning of the day mentioned she was run into by a schooner afterwards ascertained to be the Reliance of Nova Scotia, also fishing on the Bank Quero. result of the collision was that the Carrie E. Sayward sank at her anchors, and the vessel and cargo were totally lost. The wind was blowing about a three or four knot breeze from the W. S. W. or S. W. The Carrie E. Sayward had occupied the berth at which she was anchored when the collision took place for about a fortnight, and three other fishing vessels, the Lottie Burns, A. K. Damon, and the Hattie Western were anchored southerly from her at distances varying from half a mile to a mile and a-balf.
The Reliance had also been fishing in the neighbourhood for some weeks at a distance of three or four miles from the Carrie E. Sayward, and having resolved to change her berth her master was, when the collision occurred, sailing through and among the vessels anchored in the immediate neighbourhood of the Carrie E. Sayward.
Some hours before the collision the Reliance had passed and spoken the Lottie Burns while sailing N. N. W. or N. W. on the port tack, and having tacked was sailing a course near south and on the port tack when the collision occurred.
At the time of collision the Reliance had all her sails set and was making between two and one half and three miles an hour speed.
It is generally admitted on both sides that during the early part of the night of the 5th September the weather was fine, the sea smooth with a slight ground swell, a bright moonlight and clear starlight.
The moon sank about 2 a.m. on the 6th September, and there is much discrepancy as to the state of the atmosphere after the moon had disappeared, one party alleging that the night became dark and cloudy, while the others declare that it continued fine and clear till the collision took place. There is no question that the Reliance struck the Carrie E. Sayward a square blow about midships, and that from the effects of that blow the The appellant contends, first, that the burden of proving negligence lay upon the plaintiff, the Sayward, and that if in the end the case is left in "even scales" and does not satisfy the court that the loss was occasioned by the neglect or default of the Reliance, the plaintiff cannot succeed.
He further contends that the fault was solely that of the Sayward, and that at the worst both vessels were in fault and the damages should be divided.
This court has time and again laid down the rule that the decision of the trial judge on disputed questions of fact will not be reversed unless it is clearly shown that the evidence is against the finding. Santandarino v. Vanvert (1); Village of Granby v. Mdnard
Such a rule is peculiarly applicable to cases of collision at sea, where there is almost invariably a great conflict of testimony and the judge must necessarily be largely influenced by the demeanor and conduct of the witnesses when examined.
The contention of the appellant as to the onus of proof is admitted. The court before condemning the defendant must be first satisfied that the loss was occasioned by his neglect t9ol and further that the plaintiff was not guilty of any breach of the regulations which by possibility could have contributed to the collision.
As to these legal e. ,propositions, there is no dispute.
CONWELL.
The sole and only questions in this case are of fact Davies J. and they turn mainly, if not altogether, upon the single question whether, on the night and at the time in question, the Carrie E. Sayward exhibited such a light as the statute requires of a vessel lying at anchor. If she had and displayed such a light, then it cannot be argued that the navigation of the Reliance was not unskillful or careless, and did not cause the accident. On this crucial question the finding of the trial judge is clear and explicit.
He says :
The evidence of the master and crew of the "Carrie E. Say ward " is very clear and positive as to the sufficiency of the light during the whole voyage up to the time of the collision, and after giving a few of the more important parts of that evidence he goes on to say :
This evidence of those on board the vessel, who have best opportunity of learning and knowing the facts as to which they testify, has not in my opinion been seriously, if at all, shaken or impugned by testimony on the part of the defendant vessel, while it is corroborated very strongly indeed by the evidence of those on board the schooners in the immediate neighbourhood of the Carrie E. Sayward, on the night of the collision, and as to the general character of the light on board the Carrie E. Sayward not only on the night and morning of the collision, but during the whole period of her voyage on the banks. These witnesses are Brier, master of the Lottie Burns ; Silver, master of the Ada K. Damon ; Marshall, master of the Hattie Western ; and Gasper, a fisherman on the Ada K. Damon.
The contention of Mr. Harris, for the appellant, that the evidence does not justify this finding, he based upon two distinct grounds, one, that the lantern itself was defective, having been carelessly or badly repaired during the fishing voyage and after the vessel had left her port of departure, and the other, that even if the lantern was a good and efficient one, the light was insufficient and not up to the regulations on the particular night in question, and especially at and for some time previous to the moment of the collision.
On the first point it seems sufficient to say that the learned Chief Justice had the lantern. in court at the trial before him and therefore had the best possible opportunity of deciding whether it was as alleged leaky and otherwise defective" But in addition to that the evidence shows that the crew of the Reliance took possession of the lantern, which belonged to the Sayward, at the time of the collision, produced it in court for a time, and then took it away and have since retained it. If it was leaky or otherwise inherently defective, they surely would have given positive evidence on the point either from experiment or by ocular demonstration.
The presumption against them from their not having done so, is to my mind conclusive. Then on the question whether the light was insufficient on the night in question and not up to that prescribed by the regulations, I think the findings of the learned Chief Justice fully justified by the evidence. It is true there is conflicting evidence. There generally is under the like circumstances.
But while the three men who were on the deck of the Reliance testifled that the light was not seen by them until just before the collision, it must be borne in mind that this is purely negative testimony and that it comes from witnesses who may fairly be classed as interested. On the other hand, not less than seven or eight witnesses testified positively that at the time or immediately before the collision took place they saw the light of the Sayward and that it was burning clearly and distinctly. While several of these witnesses belonged to the crew of the Sayward and might also be classed as interested, at least three of them were wholly disinterested and belonged to the vessels Lottie Burns, Ada K. Damon and Hattie Western, which were riding at anchor some distance from each other and at a distance of about a quarter of a mile, a mile and a mile and a .
half respectively from the Sayward.
The overwhelming weight of testimony therefore establishes the fact J. that on the night in question and at the time of the collision the Sayward had her light burning and that it complied fully with' the regulation.
That fact being once established, the negligence and carelessness the Reliance in runniing into the Sayward follows as of course. The conclusion is then irresistible that the latter vessel was so negligently navigated as to have caused the collision.
It was however contended that just before the Reliance ran into the Sayward, the look-out, or some one of the latter vessel, shouted out " keep her off," and that the look-out man of the Reliance repeated the order, which the steersman of the Reliance immediately acted upon by starboarding the helm, whereas if the order or shout had been to luff the two vessels would or might have cleared or at most met side to side.
Whether the predicted result would have followed the suggested order to " luff" is little more than conjecture, it might perhaps be correctly called a pious hope. As a matter of fact the Reliance does not appear to have answered much, if any, to the starboarding of her helm, and there is no good reason to believe she would have answered more readily to it had it been ported. But leaving all such speculations aside, we find that the vessels were at that moment in immediate peril of collision, only in fact a few yards apart. The exclamation, shout, or order, whatever it may be termed, was one given in presence of an immediate and pressing danger, a natural cry coming from the lips of some one unknown at the moment, when it was evident the vessel he was aboard of was in immediate peril of being run down.
To ask this court to hold that such a cry was under the circum- Tax stances an order for which the owners of the Sayward should be held responsible as they would be for an
. improper order given by a person in authority, when navigating his own ship, is to ask something in sup- J. port of which I venture to say no principle or authority could be cited.
As a matter of fact the immediate order in which the helmsman of the Reliance acted when he starboarded his helm came from the look-out man of the Reliance.
He says he took it up and repeated it from the cry he heard from the Sayward.
But he was surely in as good a position to judge of the proper order to be given as was the unknown man aboard the Say ward, and if the order was a wrong one and contributed to the collision, those navigating the
Reliance have themselves to blame.
On all the material disputed facts the learned Chief
Justice has found in favour of the Sayward, and in my opinion his findings are fully justified by the evidence.
The appeal therefore should be dismissed with costs.
Appeal dismissed with costs.
Solicitors for the appellants: Harris, Henry 4- Cahan.
Solicitors for the respondent: Borden, Ritchie 4- Chisholm.
ABATEMENT-Premption d'instance-Re- ACTItN-ontined.
trospective legislation- Arts. 1 & P.
onsent and the payment had under Art. 454 C. P.
duress and in error further, that there had been no ratification the consent to the deduction of the amount by the subsequent payment, because the denial to the hooks and ACCESSION - ' itle land-Description- vouchers caused him to continue the same Plan of subdivision -Change in street line error which vitiated consent the first Troubles de droit-Eviction place, and, further, that, even the consest given couldbe regarded asamountingtotransaction, it would voidable account error ACCOUNT - Debats compteas to fact.
r.
lsues reddition-Amount in controversy- Jurisdiction.] In an action reddition 2--"
Pharmacy Act
Retroactive compte, where items in the account exceed- legislation
Suit for joint penalties Second ing in the aggregate two thousand dollars have ofences-Unlicensed of drugs-O c. been contested, the Supreme Court Canada 7-R. Q. Arts. has jurisdiction to entertain an appeal.
4052.]-The amendment to the "Quebec Pharmacy Act" Vict.
adding Art. 2--Contract- Unlaujul consideration-Repetition de l'indu - Public policy - Monopolyinstituted for penalties under the Act before Trade combination-Conspiracy-Malum pro- the amendment into lorce.
Penalties hibitum-Malum in se-Interest on adrancesseveral under the said Act may Foreign laws-Matters 7udicially noticed amount sufficiently large, the action may brought the Superior Court court urisd iction the ACQUIESCEMENT action may properly taken the name the Pharmaceutical Association the Province Quebec-It improper an action to describe the subsequiently charged ACTION-Rdpdtition del'indu-Actio condictio second under the statute, indebiti-Duress-Transaction-Payment under cannot arise until there has been threat of criminal prosecution-Error-Ratifica- demnation for penalty upon first tion-Arts. 0.]
About the charged.
DE time a dissolution partnership was imminent one of the partners was accused of embezzlec ment funds and, supposing thathe was liable for an alleged shortage and under threat criminal prosecution, he signed a consent that the amount should be deducted from his share as a member the
He was denied access to the books and vouchers and, some weeks afterwards, upon settlement the affairs the partnership, the amount charged to him was paid over to the other partners.
It was subsequently shewn that this partner had made his returns correctly and had not appropriated any part the missing funds. Held, that was entitled to recover back the amount paid in an action condictio indebiti both the
3-- Statement' of claim - Action on joreign Judicature Act.]
Under the Ontario Judicature Act, before it, the declaration action on a foreign judgement may include counts claiming to recover on the original promoter joint stock company borrowed money for the purposes the company giving his own note as security. The lender was informed at the time the manner in which the loan was to be, and was, applied.
Held, that the company did not exist at the time the loan it could not be ACTION-Continued.
ADMIRALTY LAW-Collision-Appreciathe principal debtor nor the borrower mere twa evidence-Findinqs of fact-Appealguarantor. The latter was, therefore. primarily Proper navigation-Negligent lookout-Anchor liable for repayment the loan.
Judgment-of light.) In action claiming compensation the Court Appeal (Bugbee Clergue, loss the fishing schooner "Carrie Say- Ont. App. R. affirmed.
ward" being run into and sunk while at RY
66anchor the "Reliance" the decision mainly 66depended on whether or not the lights the lost schooner were burning the admiralty toarede womnautotime the accident. The zation of husband-Pgropre de communautd- Actionpititoire.] Quere.-Is adeed sale
Hudg ga judg
"eilands Quebec to married woman, without w
Hed
, t tog the evicien the authorization her husband, sufficient towastiotradtory, t waml sulcintt support pretitory action ?
tify te udmn which Soulddnot 224 m
.*,b itre napa.Snadr
24 in v.Vauvert R. and 'The Village of Granby Mdnard Can. 5---Municipal contract-Condition as to letting-Consent of council-Pleading non-performance of condition-Right of action-Replication-Joinder of
6--Voluntary conveyance of land-13 Eliz.
ch. 5-Solvent vendor-Action mortgagee-91
"
7--Action in damages - Contract -Pleading
-Conversion-Defect in plaintiff title-Statute
8--Cause of action-Contract correspondence-Acceptance post letter-Domicile--186
9--Assessment and taxes-Appeal from assessment-Estoppel-Judgment conflrming decision of municipal committee-Payment of taxes under judicata- "
10--Municipal corporation - Water commissioners-Statutory body - Powers - Contractc. (Ont.)-Right of action - 11--Municipal ains-Continuing trespass- Limitation of actions-Actions ex delictu-58
ADULTERY-riminal Conversation-Damages-Statute of Limitations
ADVOCATE.
AFFIDAVIT-ontroverted election-- Status of petitioner-ertified copy of voters' list-mprint of Queen's Printer- Evidence-- Form petition-Jurat affidavit of verification-Preliminary
AMENDMENT-Parties appeal-Practice-Proceeding in name of party deceased- Amendment in Court of Review -Jurisdiction- Interference with discretion appeal - APPEAL- Practice appeal--Supplementary evidence-Objections not taken at trial-Amendment ofpleadings.] the hearing the appeal, objection was taken for the first time to the sufficiency plaintiff's title, whereupon tendered supplementary deed to him the Exchange Bank of Canada Gilman R. that the court must refuse to receive the document as fresh evidence not admitted upon appeal.
Held, that the defendant could not raise the question as to the appeal.-In that the allegations and conclusions the plaintiff's declaration were deficient and the court, under the Supreme and Exchequer Courts Act, ordered all necessary amendments to be made thereto for the purpose determining the real controversy between the parties as disclosed by the pleadings and evidence. Pichd City of Dig. ed.) Gorman v. Dixon Can. R.
2--Jurisdiction-A mount in controversy-60
& (c) and (f).]
1, sub-sec. (U)
& Vict. providing that appeals from the Court Appeal for Ontario
"whenever the right to appeal dependent upon the amount in dispute, such amount shall understood to that demanded, not that recovered, if they are different," inoperative, being repugnant to sub-sec. (c).-The fact that sub-sec. (f) placed last in point order the section not require the court to strue it as indicating the latest mind Parliament the whole section came into force the time.
3--Jurisdiction-A mount in dispute-R. S.C.
In an action the lessee lands leased for years and monthsat rental per annum, to have the lease jurisdiction-Costs.] Under the provisions section sub-sec. the Supreme and Exchequer Courts Act, leave to appeal direct from the final judgment the divisional court the High Court Justice for Ontario be granted in cases where there a right appeal to the Court Appeal for Ontario, the fact that an important question constitutional law is involved and that neither party would satisfied with the judgment the Court Appeal, is sufficient ground for granting such leave.
7--Jurisdiction- Motion to quash appeal- Dismissing appeal for reasons in court The court dismissed an appeal on the merits with costs, without determining a question as to the jurisdiction raised the respondent at the hearing by motion to quash the v-. the lease, owner the property leased :
Held, that amount $2,000 or upwards was 8--Expiration of time limit -Foreiture dispute, and that as the appeal did not relate to any title to land or tenements, nor to annual rihto appection recedet-OWatero rents within the meaning (b) R. jrisdiction-ObjeCioten4 court
Wiser-c. it could not be entertained the provisions V. SIo the Province Quebec, limiting the time for inscription and prosecution 4 -- Negligence-Trial judge without a jury appeals the Court Queen's Bench, not -Findings offact-Evidence-Reversal ap- conditions precedent to the jurisdiction the pellate court.] In an action for damages for court to hear the appeal and they may therepersonal injuries, the trial judge, who heard fore be waived the respondent.
Cimon the case without jury, and before whom the The witnesses were examined, held that the -Art. C. P. Q. applies to appeals Petition Right.
entitled
The judgment was reversed the Court 9-Appealsfrom Court ofReriew-Legislative Review and its decision affirmed further ap. jurisdiction Act, 8. The Parliapeal the Court Queen's Bench.
ment Canada had power to pass & V. peal to the Supreme Court : Held, that as the c. authorising appeals from the Court judgment at trial judgment the trial judge restored.
14 10-Right appeal-Dbts compteIssues reddit iou-A mount in rout roversy-Juris- Quashing appeal - With- diction.] In an action reddition corpte, drawal defence raising constitutional question
-R. S. (a).] Where motion the aggregate two thousand dollars have to quash an appeal has been refused the contested, the Supreme Court Canada ground that decision upon a constitutional jurisdiction to entertain the appeal. ment that question cannot affect the jurisdiction the Supreme Court Canada to en- 11--Practice-Appeal Privy Council tertain the appeal.
Stay of execution.] judge in chambers the QUtBEc
43 Supreme Court Canada will not entertain application to stay proceedings pending 6--Appeal per saltum--Divisional Court judg- appeal the judgment the court to the ment-62 V. (Ont.)-Consti- Judicial Comittee the Privy Council. tutional
Indian lands
& AN45JCMUIT,1
Appeal per saltum-Jurisdiction-R. S.
c. ] Leave to appeal direct to the Supreme Court from a judgment a
Divisional Court the High Court Justice under sub-sec. the Supreme and
Exchequer Courts Act, cannot be granted unless it is clear that there is a right appeal from such judgment to the Court Appeal
13--Ontario appeals-Special leave-60 & c. 1
Special leave to appeal from under & Vict. 1 will granted where the questions involved are not public importance and the judgment the Court Appeal appears to well founded.
14-Title land-Troubles de droit-Eviction
-Legal warranty-Issues appeal-Parties.]
fait title, take judgments maintaining both the principal warranty warranty facto see 2
15-- Issue on appeal
Church discipline- Domestic tribunal.] Where an appeal raised to interfere, the matter complained being within .he jurisdiction the Conference.
16--Exchequer appeal-Assessment of damages-Interference with findings of Exchequer contradictory testimony awarded damages to the respondents.
The Crown appealed the that Held,
JJ. that it did not appear from the evidence that there was error in the judgment appealed from, the
Supreme Court would ::ot interfere with the
17--Parties on appeal-Practice-Proceeding in name of deceased party-A mendment-Jurisdiction-lnterference with discretion appeal. 1 Between the hearing a case and the rendering the judgment in the trial court, the fendant died. His solicitor inadvertauce inscribed the for revision in the name the deceased defendant.
The plaintiffs allowed a term the Court Review to pass without noticing the irregularity the inscription but, when the was ripe for hearing on the merits, gave notice motion to reject the inscription.
The executors the deceased defendant then made motion for permission to amend the inscription substituting their names is qualitd. The Court Review allowed the plaintiffs' motion as to costs only, permitted amendment and subsequently reversed the trial court judgment the merits.
The Court King's Bench (appeal side), reversed the judgment the Court Review the ground that it had no jurisdiction to allow the amendment and hear the case its merits, and that, consequently, all the orders and judgments given were nullities.
Held, reversing the judgment appealed from, R. K. The Chief Justice Tasehereau dissenting, that the Court Review had jurisdiction to allow the amendment and that, there had been abuse discretion and parties prejudiced, the Court King's Bench should not 18--Arbitration - Condition precedent-New grounds taken appeal-Assessment damages-Interference appellate court.] objection as to arbitration and award a condition precedent an action damages which had been waived or abandoned in the Court Queen's Bench, cannot be invoked an appeal to the Supreme Court.-On a cross appeal the Supreme Court refused to interfere with the amount awarded for damages in the court below upon its appreciation contradictory evidence.
New points-Concurrent findings-Evi- 20--Assessment and taxes-Appeal from assessment-Judgment confirming decision of municipal committee-Failure appeal Supreme Court-Payment of taxes under protest-Ret 21--Nuisance-Operation of electric railway -Powerhouse machinery- Vibration, smoke and noise-Injury adjoining property- -Evidence -Assessment of damages-Reversal on questions 22--Findings of jury-Answers to questions- Verdict reversed on appeal- 23---Collision-Proper navigation-Negligent outlook-Sufficiency anchor light-Findings
Jact -Appreciation of evidence-Practice
ARBITRATION AND AWARD--Riparian rights--Building dams-Penning back water- Improvement of watercourses-Art. R.S.Q.
grounds on appeal-Assessment of damages- Interference appellate court
- -- ON
PUBLIC
AC- COUNTS OF PROVINCE OF CANADA.
Doisuso
ASSESSMENT
TAXES - Appeal from assessment--Judgment conftrming--Payment under protest-Res judicata.] J., having
St.
council and then applied to the Supreme
Court New Brunswick for writ certiorari to quash the assessment, which was refused.
again assessed under the same circumstances, appealing to the Supreme Court Canada from and took the same course with the addition the judgment refusing certio-ari, and that court held the assesement void and ordered the writ to issue for quashing,
J. then brought action for repayment the amount paid the assessment in
Held, affirming the judgment the Supreme Court New Brunswick, that the judgment refusing certiorari to quash the assessment in was res judicata against J., and he could not recover the amount
ASSIGNMENT
FOR
BENEFIT
CREDITORS-Lea.se-Forfeiture - Company
-Shareholder-Personal liabslity under nant-Waiver
ATTORNEY-AT-LAW.
BANKS AND BANKING-Markedcheque
- Fraudulent alteration - Payment third party-Liabilityfor loss-Negligence.] A man dealing with others under no duty to take precautions to prevent loss to the latter
BANKS AND BANKING-Continued. third law.-B., amount in the Bank Hamilton, had a cheque for dollars marked good, altering it to make it cheque for had it cashed the Imperial Bank. day it went through the clearing house and was paid by the Bank Hamilton to the Imperial The error was discovered next day the former, and repayment demanded from the the Imperial Bank the sum overpaid the cheque.
The defendant contended that the cheque as presented to be marked good was drawn as to make the alteration an easy matter, and the plaintiff's act marking it that form was negligence which prevented recovery.
Held, affirming the judgment the Court Appeal Ont. R. which affirmed that at the trial 0. R. that there was nothing the circumstances to take the case out the rule that money paid mistake recovered back, and the Bank Hamilton was therefore entitled to judgment. (Leave to appeal to Privy Council has been granted.)
2--Security for advances-Bank Act -Chattel mortgage- Conversion.]
H. held a that at sequent incumbrancers.
Two months later gave H. second mortgage said property to secure note for
Shortly after this a contractor applied to for a large quantity lumber for building purposes.
being unable to purchase the logs asked the Merchants Bank for an advance.
The bank, knowing to financially embarassed, refused the advances to him but agreed to make them if reliable person would purchase the logs, which was done G.'s bookkeeper, and in consideration an advance $3,500 G. assigned the tractor's order to the bookkeeper and agreed to cut the logs at price fixed and deliver them to the bookkeeper at the mill site. The latter then assigned to the bank all monies accrue in respect to the contract, which assignment was agreed to by the contractor. and day two after also assigned to the bank three logs numbers in addition to one assigned the Bank Act.
Two or three days later G. made an assignment for benefit his creditors, previous to which, however, the logs had arrived at the mill and were mixed with BANKS AND BANKING-Continued.
other logs
The greater part had been converted into lumber when H. seized them under his chattel mortgage.
Held, affirming the judgment the Supreme Court British
Columbia Rep. that no property the logs assigned the bank had passed to and H. having no higher right than mortgagor, could not them under his mortgage. -Shortly before G's assignment benefit his creditors his bookkeeper transferred to the bank a chattel mortgage given him to secure payment judgment appealed from ordered the assignee in bankruptcy to pay the bank the balance due on said mortgage. Held, reversing said judgment, that the assignee had guilty acts conversion and was not liable to repay this money.
The mortgage was not given to secure advances and did not give the bank a the same position if it had received the mortgage directly from G. when was notoriously insolvent.
BILLS AND NOTES - Promissory note- Indorser-Bills of Exchange Act,
Chattel mortgage--Consideration.] Under
The Bills Exchange Act, person who indorses promissory note not indorsed the payee may liable an indorsee to the latter.-The provisions the Ontario
Chattel Mortgage Act requiring the consideration a mortgage to expressed therein satisfied when the mortgage recites that the indorsement note the consideration then sets out the note.
Only the facts need be stated, not their legal
2--Contract correspondence-Acceptance- Mailing of letter-Domicile-Indication of place of payment-Delivery of goods sold
BOUNDARY - Title land - Trespass
Overhanging roof-Right of view-Evidence- Boundary line-Servitude.] In the defendants constructed toll-house close to or on the boundary their land with windows overlooking an adjoining vacant lot, and roof projecting over it about three feet.
This was done with the knowledge and consent persons who were then proprietors, and was objected to them or any subsequent owner till after the purchase the lot the plaintiff in when he complained that the overhanging roof interfered with the gable a house was building it. He cut the roof to permit the construction the gable and defendants paid the costs the necessary alteration.
In the plaintiff instituted the present action against defendants to have the
BOUNDARY-Continued.
remaining projection the roof demolished and the windows closed up.
There no evidence that there had ever been a division line established between the properties and the actual width the land purchased and taken possession by the plaintiff in was left in uncertainty.
Held, affirming the judgment appealed from, Strong J. dissenting, that the plaintiff had not satisfied the onus that was upon proving title to the strip land in dispute and consequently that his action not maintained.
CADASTRE - Title to lands - Metes and bounds-Description-Sale bloc-Possession beyond boundaries-P rescription-Construction of deed
Cadastral plan and description- Notice.]
purchased lands en by a which described it metes and bounds, but also making reference to its number the Cadastral Plan the Parish which described as greater width. Held, that the description left the true limits the emplacement subject to determination according to the title held by C's. auteur which granted only the narrower width ; that the registered title charged with notice, actual or implied, the width held, and he could not invoke an acquisitive title strip consequence the cadastral description. CANADA, PROVINCE Or.
FUND.
CANVASSER-Contract-Lex loci-Lexfori -Fire insurance-Principal and agent-Payment of premium-Interim receipt-Repudiation FIRE, 4.
CASES-The
Asbestos and Asbestic v. Durand Can. R. discussed and 2--Archibald Town of Truro N. 3-Ash Methodist Church Ont. R.
4--Association Pharmaceutique de Livernois reversed - 5-Association St. Jean-Baptiste Brault Can. R. followed
- - v. - 7--Bailey King Ont. App. R. affir- CASES-Continued.
CASES-Continued.
Bank of Hamilton Imperial Bank of 32-- Hogan City of Montreal Canada distinguished
9--Bannerman Hamelin R. K. 33- Ince City of Toronto Ot. -Bastien
Filiatrault de Jur. 34--Keefer Phomiz Insurance Ot. reversed
11--Beauchemin Cadieux R. K. 35--Kent Ellis
Rep. Bielow The Queen N. Rep. 36- -King, The v. Adams (Q.R. restored
13--Biggs Freehold Loan and Savings 37--Larose The King Ex. 14--Brown v. London Street Railway 1 38--Littlejoha Soper Ont. L. Out.
reversed
15--Bugbee v. Clergue Ont. R. 39--Lisgar Etection Can. 1) 16--Burrard Election Case; Duval Maxwell,
McDonald Lake Simcoe Iee and Rep. affirmed
- - Storage Ont. R. reversed 17--Conwell I
18--Cooke Millar R. 446; R. L.
41----Macso gaindson
(
O.
ffirmed
19--Delormze Cusson Can. R. 66)142
-Magnnn Anger (Q. R. Girouard versed
20--Drysdale Dugas Can. R. 43- Merchants Bank Halifax Houston Rep. affirmed part and reversed 21--Ducondu Dupuy Cas. part
563'44- -Msenger Town of Bridgetown 22---Exchange Bank of Canada v. Gilman Rep. affirmed
Can. S. C. R. followed
- - Can.S. . H.108 folowel
145--Metropolitan Railway Wright 23--Eckhardt v. Lancashit-e Insurance followed
Ont. App. R.
- . afirme
- 46-Millard Darrow S. Rep. 24--Fraser Price R. K. 511)reversed
25--General Engineering v. Dominion 4rR
Cotton Mills Ex. R. reversed
-Monarque Banque Jacques-Cartier The George Matthews Bouchard affirmed
Can. R. followed
- 49-Montreal, City of, Hogan R. 8 27--Gorman varied
- - - Ottawa Electric o. St. Jacques (1 Ont. 28--Granby, Village of Menard Can.S. reversed
29--Grand Trunk Railway Coupal (2851-Perera Perera fol- -Guthrie v. Canadian Paci:e Railway 52--Pichd City of Dig. 31---Hargrove Royal Templars of Tempe- 53--Queen, The Cimon Can. R. rance O3t. L. R. affiyed
CASES-Continued.
54--Ritz Schmidt Man. L. R. re- 55--Robinson Mann Ont. L. R.
56-Rolland v. La Caisse d'Economie,
Can. R. discussed
- - 57--Ryan Willoughby Ont.
58---Salomon Salomon &
59--Santanderino Vanvert Can. S.C.R.
60--Short Federation Brand Salmon Canning Rep. affirmed
- 61--Sinclair Preston Man. L. R.
62---Suell v. Toronto Railway Ont.
63--Standard Life Ansurance Trudeau
R. affirmed
- - 64--Summers Commercial Union Assurance Can. R. followed - 65--Sun Life Assurance Elliott
66---Underwood Maguire R. B.
67--Union Bank Morris Ont. App. R.
68--Union Colliery v. The Queen
69-- Wilson v. Hotchkiss Ont. L. I.
70-- Wilson Windsor Foundry
CERTIORARI-Nova Scotia Liquor License
Act, 1895-Conviction magistrate-Jurisdiction- Application ]or certiorari - Affidavit- Constitutional law-Poers of pvovincial legislature-Matter procedure.] The Supreme Court of Canada affirmed the decision appealed from,
N. Rep. which it had been held that section the Nova Scotia Liquor
License Act, was intended to operate,not in the sense of abolishing the writ of certiorari but merely prescribed mode procedure providing that, in the absence the affidavit nying the commission the charged, as required by that section, the court had power to grant a writ certiorari and, consequently, application for a writ was dis.
CERTIORARI-Continued.
missed.
Mr. Justice Gwynne, dissented and was opinion that question raised as to the constitutionality the Liquor License ought to have decided before entering upon the technical point respecting the prod 2---Assessment of taxes -Appeal from assessment-Estoppel-Judgment confirming decision of municipal committee-Payment of taxes undcr protest-Res judicata
CHATTEL
MORTGAGE - Security for advances-Banks and banking-Bankrupt Act, 74-Conversion.] H. held a chattel mortgage on a sawmill belonging to with the lumber therein, and all lumber that might at any time thereafter brought the premises.
The mortgage not being registered gave no priority over subsequent incumbrances.
Two months later gave H. second mortgage said property to secure a note for
Shortly after this a contractor applied to for a large quantity lumber building purposes.
being unable to purchase the logs asked the Merchants Bank an advance. The bank, knowing to financially embarassed, refused the advances to him but agreed to make them if some reliable perwould purchase the which was done G.'s bookkeeper, and consideration an advance assigned the contractor's order to the bookkeeper and agreed cut the logs at price and deliver them to the bookkeeper at the mill site.
The latter then assigned to the bank all monies accrue in respect to the contract, which assignment was agreed to the contractor, and a day or two after also assigned to the bank three booms logs numbers in addition to one assigned previously.
This purported to be done under the Bank Act. Two or three days later made an assignment for benefit his creditors, previous to which, however, the logs had arrived at the mill and were mixed with other
The greater part had converted into lumber when H. them under his chattel mortgage. Held, affirming the judgment the Supreme Court British Columbia Rep that no property the logs assigned to the bank had passed to and H. having no higher right than his mortgagor, could not claim them under his mortgage.-Shortly before G.'s assignment benefit his creditors his bookkeeper transferred to the bank a chattel mortgage given him secure payment for judgment appealed from ordered the assignee in bankruptcy to pay the bank the balance due CHATTEL MORTGAGE--Continued.
CIVIL CODE-Continued, said mortgage.
Held, reversing said judg- 2--Arts. 85,94, 1164,1173, 1175,1176 ment, that the assignee had been guilty no P. (Oppositions judgments, acts conversion and was not liable to repay this money.
The mortgage was not given to secure advances and did not give the bank a 3--Arts. and P. Q. (Pdrenption the same position it had received the mortgage directly from when he was notoriously insolvent.
4--Art. P. (Pdremption d 2--Promissory note - Indorser
Bills of
Exchange s. 56-Chattel mortgage 5-Arts.
P.
(Actions in Under the Bills warranty)
Exchange Act, a person who indorsesS promissory note not indorsed the payee may liable an indorser to the latter. -The
COMMON SCHOOL FUND -Accounts provisions the Ontario Chattel Mortgage Act Proince of canada-ommon school fund requiring the consideration a mortgage to and lands-Administration Ontario-Remitexpressed therein is satisfied when the mort- tinq price of land sold-Default in collectionsgage recites that the indorsement a note Wthholdingland- rom sale-Uncollected balanthe consideration and then sets out the note. ces-Jurisdiction Dominion arbitrators.] Only the facts need be stated not their legal the submission April, amongst effect.
484 other matters submitted to the 1)oininion Arbi- CHURCH - Decision of domestic tribunal trators were the following:
"(h) The ascer- Oonerece f Mthoist6'hrchchuch is-tainnent and determination the principal Conference of Methodist Church-Church disciplie
497of the Fund, the rate intercipline ---- -------- -----est which would allowed such fund, and the method computing such interest the ascertainment the amount CIVIL CODE-Arts.
-arbitrators are to take into consideration only the the Government f Dominion of Canada, but also the amioui.' 2---Art. (Married for which Ontario liable, and also the value the lands which have not yet been Arts.85,86 (Electionofdomicile)-186 sold."
The Province claimed that Ontario was liable (1) for the purchase money lands which may have remitted 4--Arts.
the Province Ontario to the purchasers; - - - - 224'for purchase moneys which might, dilihad been used, have been collected from purchasers Ontario, but to the neglect default the provincial 5---Arts.
have not collected but have been lost ; for lands which might have been sold but have not been sold; and all uncollected balance purchase nioney. 6-Art.
(Unworthy heir)
Gwynne J. (dissenting)
, that the Dominion arbitrators have jurisdiction, under the submission, to hear and adjudicate upon the claims made (Warranty bytheProvinceof
Vendor)
In re Co-u 8--Art. (Conditional obligations)
COMMUNITY-Husband andwife-Married woman-Judicial separation as property Debts ity- Obligation wife-Art. CIVIL CODE OF PROCEDURE - Arts. C. C.-Nullity-Public policy-Dation 0. P. (Appeals)
paiement.]
The Supteme Court affirmed, the judgment appealed from Rev. COMMUNITY-ontinued.
which it had that conjoints could avoid the urohibition decreed Art.
disguising contract made with third party after the community between them had judicialy dissolved ; that, after dissolution community, the wife cannot held liable the debts ot the community, even where may have made payment through error, any greater part such debts than that by law and could not oblige herself therefor with her husband nor guarantee his obligations respect thereto, and that, after the dissolution, the husband remained liable debts the community contracted him, saving his recourse against his wife or her heirs
(should they accept the community) for the moiety such debts.
2--Construction of deed - Sale to married woman--Propre communautd-Arts.
COMPANY LAW-Promotion of joint stock company-Loan promoter - Personal liability.] promoter a joint stock company borrowed money for the purposes the pany giving his note as security.
lender was informed at the time the manner in which the loan to and was, applied.
Held, that the company did not exist at the time the loan it could not be the principal debtor nor the borrower mere guarantor.
The latter was, therefore, primarily liable repayment the
Judgment the Court
Appeal (Bugbee Clergue, Ont. R.
Criminal
Manslaughter-Indictment against body corporate--Crim. s. 213-Fine.] Under the Criminal corporation may be indicted for omitting, without lawful excuse, to perform the duty avoiding danger to human from anything its charge or under its control.-The fact that the consequence the omission to perform such duty might have justified an indictment for manslaughter the case an individual not ground for quashing the indictnient.-As provides punishment for the the common law punishment a may imposed.
3-Principal and agent-Promoters of pany-Agent solicit subscriptions--False representations-Ratification---Benefit.] Promoters a company employed an agent to solicit subscriptions for stock and W. was induced to sub- COMPANY LAW-ontinued.
scribe false representations the agent the number shares already taken up. In action W. to recover the amount his subscription from the promoters : Held, the judgment the Court Appeal Out. L. R. that the latter, having benefited the sum paid by were liable to repay though they did not authorize it and had knowledge the false representations their express authority to make the representations nor subsequent ratification or participation in benefit were necessary to make the promoters liable the rule respondent superior as in other cases agency.
4--Joint stock company-Payment for shares- Equivalent for cash-Written contract.] and each agreed to take shares in a Joint Stock Company paying portion the price in and receiving receipts for the full amount the balance to be paid for in future services. Beld, the judgment the Court Appeal Ont. App. R. that, as there was no agreement in writing for the payment the difference money's worth instead cash under the Companies Act, & were liable to pay the balance the price the shares to the liquidator the company.
5--Lease to Joint Stock ompany-Sharoholders-Personal liability-Assignment for creditors-Forfeiture
COMPENSATION-Pleading - Declinatory exception-Incompatible pleas- Waiver-Jurisdiction-Opposition judgment-Arts , 0. P. Q.-Arts and Post
2---Overcharges on fees-Counterclaim in suit sherif-Signed bill of
"
CONDITION-Municipal contract-Condition as sub-letting-Consent of council-Pleading non-performance of condition-Right of action-- Replication---Joinder of issues.
2--Forfeiture of right appeal-Expiration of time limit-Ouster of jurisdiction-Condition CONDITION-Continued.
CONSTITUTIONAL LAW-Continued. precedent- Waiver-Objection taken the court enact the third section & c. -Arts P.
authorising appeals from the Court Review. merits, appeal allowed with coast, Gironard J. dissenting, Asnriatin Jean-Raptiste Braudt followed. 3--Deed of lands-Riparian rights-Building dams-Penning back water- Warranty- Imdam-Pnnig ackwaer-Warany-[in 1CONTRACT-Municipal work-Condition as provement of watercourses. Arts. .to sub-letting -- Consent of council-Pleading- Condition precedent- Assessmeat~~~~~ odaae
Joitler issue.] of damages
534,- m corporation that Seebe sub-let without the consent the ration it incumbent on the contractor to 4--Location of Crown Lands-Suspensive obtain such consent before sub-letting, and dition-Sales local agents fails to cannot maintain action against proposed sub-contractor for not carrying on the portion of the work he agreed to Ido.-ln action against the sub- coiltractor CONSPIRACY - Contract- Unlanful the latter pleaded the want assent the Rdpetition l'indu - Account -'council, whereupon the plaintiff replied that the Public policy- Monopoly-Trade combination- assent was withheld at the wrongful request Conspiracy-Malum prohibitum-Malum in and instigation the defendant, and order -Interest advances-Foreign laws-Matters wrongfully to benefit said defendant and enable him, possible, to repudiate and abandon the Seecontract.
Issue joined this replication. .
Held, that the only issue raic ed the plead- "ings was whether not the defendant had CONSTITUTIONAL
LAW - I wrongfully caused the consent to withheld Pleadings raising constitutional and that the plaintiff had failed to prove questions-Withdrawal of plea-R.
that issue.
has been refused the ground that a decision upon constitutional question involved, the
Contract correspondence-Acceptance subsequent abandonment that question Mailing-Domicile-Indication of place of paynot affect the jurisdiction the Supreme Court met-Bills end notes-Delivery of goods sold.] Canada to entertain the appeal.
In the Province Quebec, the rest Canada, in aegotiations carried on by correspoudence, it not necessary the completion the contract that the letter accepting 2--Appeal per saltum -Divisional Court judg- should have actually reached the party making ment-62 c. (Ont.)-Constitutional it but it complete the mailing such question-Indian lands, Legislative jurisdiction letter the general
Underwood -"osts.]
Maguire R. overruled. Article sub-sec. the Supreme and Exchequer Courts'84 the Civil amended Vict. Act, leave to appeal direct from the final judg- providing that the indication ment a divisional court the High Court a place payment any note writing Justice for Ontario may granted in cases should equivalent to election domicile at where there is right appeal the Court the place indicated, requires that place Appeal for Ontario, and the fact that an im- should actually designated the contract. portant question constitutional law [The judgment appealed from, affirming the involved and that neither party would decision the Superior Court R. satisfied with the judgment the Court reversed].
Appeal, sufficient ground for granting leave.
3-Sale of land-Vendor and purchaser- 'A rtifice- M isrepresentation
3---Legislativepowers-Appealsfrom the Court contract-Error-Laches
Possession and adof Review.] The power Parliament under ministration Ratification
Waiver -Estoppel the N. Act, respecting a general -Arts.
having a court appeal for Canada, not restricted to hotel scheme under promotion, agreed to purorder to had it CONTRACT-Continued.
might it for brewery and thereby a nuisance and ruin his enterprise. R.
falsely representing that had a serious for the purchase or lease the property the purpose brewery, induced to his agreement, and take a deed the property, the payment the price being ferred.
discovery the falsity these representations notified R that he repudiated the contract, and invited him to bring an action to test its validity he was unwilling to give a release and take back the property. The vendor delayed time in taking action for the recovery the price and, the meantime, B remained possession and collected the rents.
Held, that, under the provisions the Civil
Code, as the vendor had made false representations which deceived the purchaser as to the principal consideration for which tracted, he could not recover; that the purchaser had right to have the contract rescinded on the ground error; that, under the circumstances, the delay in bringing the action could not imputed laches the defendant, waiver his right to have the contract aside, and that defendant's administration the property in the meantime could not construed ratification the contract.
4-- Unlawful consideration
Rdpdtition de findun-Account- Public policy - Monopoly- Trade combination-Conspiracy-Malum prohibitum-' Malun in se-Interest advances- Foreign Laws--Arts.
0. C.-Matters judicially noticed.] In action to recover advances with interest under an agreement in respect to the manufacture binder twine at the Central Prison at Toronto, the defence was the general issue, breach contract and an incidental demand damages for the breach.
The judgment appealed from maintained the action and dismissed the incidental demand, giving the plaintiffs interest according to the terms the contract.
per Sedgewick, King and Girouard JJ. that the evidence disclosed a conspiracy and that, although under the provisions the Civil the advanced could recovered back, yet no interest before action could allowed thereon, as the law merely requires that the parties should be replaced in the position they respectively occupied before the illegal transactions took place. Rolland La Caisse d'Eronomie Notre-Dame de R.
discussed and 'Association St. Jean-Baptiste de
Montrdal Brault, R. referred to. Held also, that laws public order must be judicially noticed the court expropro snoth, and that, in the absence any proof to to be similar to that the forum having juris- CONTRACT-Continued.
diction in an action ex contractu.-Per Taschereau J. (dissenting.)-1. new point should never be entertained appeal, evidence could have been brought to affect it, had objection been taken at the trial.
In the present the concurrent findings both courts below, amply supported evidence ought not to disturbed, and the company itself prevented the performance the condition the agreement in question requiring the assent the Government to the transfer the binder twine manufacturing contract, its non-performance cannot admitted as a defence to the action upon the executed contract. -Gwynne J. also dissented the ground that the judgment appealed from proceeded upon wholly inadmissable evidence, and that, therefore, the action should have been dismissed and further, that the evidence which was received and acted though inadmissible for the purposes for which it was intended, showed that the action was based upon a contract between the plaintiffs and defendant for the commission indictable offence; that neither party could recover either action or counter-claim upon such a contract and, therefore that the incidental mand, well as the action, should be dismissed.
5--Sale of goods- Evidence to vary written instrument - Admission of evidence.] The Supreme Court Canada affirmed the judgment appealed from N. Rep. which effect held, under the special circumstances the case, involving dealings with two panies connected in business and having almost similar names, that it was not inconsistent with written agreement with the plaintiff to prove that defeadant supposed was dealing with another party with whom he had made other arrangements in respect to payment for purchased.
al. V. FouN- 6--Interim receipt-Insurance against fire- Principal and agent-Lex loci-Lexfori--Acts of sub-agent.] The lex fori must be presumed to the law governing contract unless the loci proved to different.
FIRE 7-Contract Duration Repugnant clauses.] contract for supplying light to hotel contained the following provisions:
"This contract isto continue in force for not lessthan consecutive calendar months cancelled (in writing) by the parties hereto.
This contract to remain in force after the expi- CONTRACT-Continued.
COPYRIGHT-Continued.
ration of the said months for the term that plained treated almost all its subjects the party the second part renews his lease the exact words the dictionary first for the Russell House."
After the expiration published and repeated greater number the months the lease was renewed for errors that occurred the plaintiff's work. years longer.
Held, reversing the judgment Held, affirming the judgment appealed from, the Court Appeal (1 Ont L R. that that the evidence made out primdJacie neither the parties to the contract had a piracy against the defendants which justified right to cancel it against the will the other the conclusion that they had infringed the during the renewed term.
copyright.
636 CORPORATIONS.
8--Action in d'mages-Con tract--Pleading- Conversion-Defect inplaintifs title-Statute
LW.
frauds
.
letter- Privileged communiction-Malice Charge jury--Evidence
COSTS-Appeal per saltum-Divisional Court ,udgment-62 c. s. (Out.)-Consti- 10--Illegal consideration-Lottery- rela- tutional question-Indian lands-Legislatire tire jurisdiction.] special the plaintiff to appeal direct from the judg- Division 11--Sale of land-Action for price--Counter- High claim-Specific perjormance-Costs- appeal per saltun was granted the ground that an important question constitutional law involved, and that neither party would be satisfied with any judgment that might li--Afunicipal corporation-Water commis- obtained the Court Appeal for Ontario. sioners-Statutory body-Pocers - Contract- Under the circumstances the the appli- V. c. (Ont.) -Right action cation were directed to be costs the cause to the successful party.
13--Condition of policy offire insurance- Breach -Further insurance-Interest of insured
-Mortgagor as owner-- Pleading-Practice- Waiver-Estoppel
CONVERSION-Action in damagestract-Pleading -- Defect in plaintiff's titleoffrauds
2--Banks and banking-Advances security
Chattel mortgage-insolvent debtor
COPYRIGHT - Publication of dictionary- Source of information-Inlringement-Eidence
-Textual copy.] In an action for infringement copyright in dictionary the unrebutted evidence shewed that the publication
2--Contract for
Action for price- Counterclaim--Speciic performance-Costs.] In an action for the price land under an agree. ment for sale, or the alternative for possesdefendant counterclaim for performance, and paid into court the amount the purchase and interest demanding therewith a with covenants warranty Plaintiff proceeded with his action and recovered judgment at the trial for the amount claimed and costs, including costs the counterclaim, the decree directing to give the deed demanded the defendant the costs were paid.
The verdict was affirmed the court en Held, that the defendant had succeeded his counterclaim should not have been ordered to pay the costs before receiving his and the decree was varied by a direction that he was entitled to his deed at with costs appeal to the court below and to the Supreme Court Canada, against plaintiff. Parties to pay their own costs in court first instance. Held, per Gwynne J.-Defendant should have all costs subsequent to the payment into court. S. C. R.. VOL., XXXI.] I
COSTS-Continued.
3--Injuries sustained through obstruction highway- Municipal corporation-Negligence-- 4--Counterclaim solicitor against sherif s fees-Signed bill ofcosts-Set off
"
COUNTERCLAIM - Solicitor and client- Action sherifflor fees-Pleading-Setting off claim for overcharges in bills paid-Signed bill of In an action the sheriff against a solicitor for and charges, the solicitor cannot counterclaim for overcharges in former bills paid to the sheriff him in respect matters in which the solicitor may have acted the parties interested, because any such overcharges, if recoverable from the sheriff, do not belong to the solicitor but to the clients whom he acted, but, in such an action, the solicitor may set up way counterclaim his costs suit in which he had appeared for the sheriff notwithstanding his omission to render a signed bill the costs prior to the filing of the counterclaim.
2--Action for price of land-Counterclaim for performance of contract-Order for veyance and payment-Costs
COUNTY COURT-Statute-Amending Act
-Retroaction-Sale lands
Judgments and orders. Until it was the practice
Manitoba for the Court Queen's Bench to grant orders for the sale lands judgments the County Court under rules the Queen's Act, In that year the
Court Queen's Bench decided that this practice was irregular, and in the following the legislature passed an Act providing that
" the a County Court judgment, application may be made under rule or rule the may be.
This amendment shall apply to orders and judgments heretofore made or entered, except in where such orders or judgments have been attacked before the passing this amendment."
Held, Sedgewick J. (dissenting)
, that the words " orders and judgments" in said clause refer only to orders and judgmentsof the Queen's Bench bale lands on County Court judgments and
COUNTY COURT-Continued.
not to orders and judgments the County Courts.
Held further, reversing the judgment the King's Bench L. R. Davies J. dissenting, that the clause had retroactive operation only to the extent that orders sale the Queen's Bench County Court judgments made previously were valid from the date which the clause came into force but not from the date which they were made.
Held, per Sedgewick J., that the clause had retroactive operation at all. COURT OF REVIEW-Appeal-Jurisdictioon-Legislative powers-Constitutional Law 2-Partes on appeal-Practice-Proceeding in name of party deceased-Amendment review -Jurisdiction-Interference with discretion CRIMINAL CONVERSATION-Statute oJ limitations-Damages.] The statute limitations not bar to an action for criminal conversation where the adulterous intercourse between defendant and the plaintiff's wife continued to period within six years from the time the action brought.
Quaere- Does the statute only begin to run when the adulterous intercourse or the plaintiff only entitled to damages for intercourse within the six years preceding the action ?
LAW - Negligence Manslaughter-Indictment against body corporate- Crim. Code, 213-Fine.]
Under the Criminal a corporation may indicted for omitting, without lawful excuse, to perform the duty avoiding danger to human life from anything in its charge or under its control. The fact that the consequence the omission to perform such duty might have justified indictment for manslaughter the case individual not ground for quashing the indictient.-As p-ovides punishment for the the common law punishment a fine may be imposed on corporation indicted under it.
2-Quashing appeal - Jurisdiction-Raising constitutional question-1Withdrawal of plea- Pharmacy Act "-Retroactive legislation-Suit for joint penalties-Second " Pleading exception-Incompatible pleas- Waiver-Cause of action-Jurisdiction-Domicile - Opposition tojudgment
CROWN-Negligence-Militia class firing- Government rife range-Public work-Officers and servants of the Crown- Injury the person- & (D.)-R. S. ss.
rifle range under the control the
Department Militia and Defence not a
" public work " within the meaning the Exchequer Court Act, & Vict. ch.
(c).-The words "any or servant the Crown " in the section referred to, do not include and men the Militia. Gironard
CROWN LANDS-Scire facins-Grant made in error-Adverse claimn-Cancellation- c.
(Que.)-R. The provisions the Quebec statute respecting the sale and management public lands Vict.
11; R. Art. do not authorize the cancellation letters patent the
Commissioner Crown Lands where adverse claims to the lands exist.
Timber licenses-Sales local agent- Location ticket- Suspensive condition -Title to lands-Art.
C.-Arts. et and seq. R.
During the term license to cut timber on ungranted lands the Province Quebec, the
Crown Lands Agent made a sale a part the lands covered the license, and issued location tickets or licenses occupation therefor under the provisions Arts. seq.
the Revised Statutes Quebec, respecting the sale Crown Lands.
Subsequently the timber license was renewed, but, at the time the renewal license was issued, there had not any express approval by the Commissioner
Crown Lands the sales made the agent provided Art. R. Held, affirming the judgment appealed from, Tascherean and Davies JJ. dissenting, that the approval required Art. R. Q. not a suspensive condition, the fulfilment which would have retroactive effect from the date when the sales the local agent were made, and that, the time the issue the renewal license, the lands in question were still ungranted lands the Crown for which the timber license been validly issued.
- DAMAGES-Expropriation municipal corporation-Abandonment of proceedings-Illegal detention of lands-Measure of damages.] Ex- DAMAGES-Continued.
street were commenced and after the plaintiffs lands had been occupied the municipal corporation and incorporated with the street, the proceedings were abandoned in virtue of a statute to that without paying indemnity or returning the lands which had been occupied.
Held, that the plaintiff had illegally dispossessed his land and was entitled to have it returned to him the state in which it was at the time was evicted, and also to recover compensation for the illegal detention. Held, further, that, under the circumstances the case, the measure damages, as representing the rent, issues and profits the lands usurped, should be the interest upon the value the property during the period illegal detention.
2---Expropriation
Estinesses examined wrong in principle. Grand Trunk Railway Coupal R. followed.
3-Operation of electric power house-Vibraand noise-Assessment of damagesment appealed from, the Supreme Court, the interest both parties, assessed damages, for all, at an amount deemed to indemnify the plaintiff for all injuries, past, present and future, resulting from the nuisance complained should elect to accept the amount estimated in full satisfaction thereof ; trial Injuries sustained through obstructson highway-Municipal corporation-Negligence- 5--Criminal conversation--Damages-Statute 6--Exchequer court appeal - Assessment damages-Interference findings of Exche- DAMAGES-Continued.
7--Riparian rights - Building dams-Penning back waters- Warranty-Improvement watercourses-Art. R. S Q.-Arbitration
-Condition precedent-Assessment damages
DAMS - Riparian rights
Building dams- Penning back waters-Improvement of watercourses Art. R. S. Q.
Condition precedent - Assessment of damages
DtBATS DE COMPTE
DEBTOR AND CREDITOR-Loan to Promoter of Joint Stock Company-Personal liability.] promotor a joint stock company borrowed money for the purposes the company giving.his own note as security.
The lender was informed at the time the manner the loan was to and was, applied.
Held, that the company did not exist at the time the loan, it could not the principal debtor nor the borrower mere guarantor. The latter therefore, primarily liable for repayment the loan.
Judgment the Court
Bugbee Clergue Ont. app. R.
Voluntary conveyance of land-13 Eliz. c. 5
(Imp.)-Solvent vendor-Action mortgagee.]
voluntary conveyance land is void under
Eliz. (Imp.) as tending to hinder delay creditors though the vendor was solvent when it was made, if it results denuding all his property and rendering him insolvent thereafter. mortgagee whose security admittedly insufficient may bring an action set aside such conveyance and that without first realizing his security.
Judgment the Supre- Court British Columbia (7 Rep.
reverse, Gwynne J. (dissenting)
.
3-Interest-Debt certain and time certain-3
& IV, (Imp.)
To entitle a
(Imp.) the written instrument under which it claimed must show its terms that there was a debt certain, payable at a certain time.
It not sufficient that the same may be made certain by process calculation act to performed in the future. Six- DEED-Title tolands-Metes and bounds-Prescription-Sale en bloc-Possession beyond boundaries-Prescription-Construction deed- DEED-Continued.
Sale married women-Propre de communautd -Cadastral plan and description.] deed him, which described the emplacement as interruption prescription and limits the grantee's title to the lesser frontage. Construction of Deed of lands-Riparian rights-Building dams-Penning back waters- Warranty-mprovement of watercourses-Art. Q.]-A the vendor's lands bordering a stream granted the privilege constructing dams, etc., therein, with the proviso that, ages being caused through the construction any such works, the vendor or his successors title to the adjoining lands should be entitled to have the arbitrators that the purchasers should pay the amount awarded.
Held, that, under, the deed, the purchasers were liable, not only for damages caused the flooding lands, but also for other damages occasioned the building dams and other works in the stream by them; and, that the provisions Art. Q., did not entitle them to construct or raise such dams without liability for all damages thereby caused.
3-Construction of warranty clause-Sheriffs deed-Sale of rights in land-Claimant under prior title-Eviction
DEMOLITION- Trespass-Overhanging roof Waiver-Servitude.] Delorme Cusson R. that, the plaintiff and his auteurs had waived objection to the manner in which the toll-house had DOMESTIC
TRIBUNAL - Decision domestic tribunal - Conference
Methodist Church-Church
Contract correspondence- I DRUGS
Pharmacy Act Acceptance-Mailing of letter-Domicile-Idi- ac/ire legislation -Suit for join penaltiesration of place of payment-Bills and notes- Secondofences-Unlicensed saleofdrugs. Delirery of loods sold.]
ient DURESS edtion l'indu- Ac/o ctio indebiti-Transction-Pu yn/ that threat of crimial prosecution-Error-Ra/ifca/n -Ar/s.
suppoing that DOMINION ARBITRATORS--Accounts that schoolfuncls Admuis/ pice qflalct,tdold-Dbet
]om balanres-J soliseqoetly hd nissing indbit eo ascertainnent that een
Qebec that lible ence] shortly testators thirty fori
~
~
~
~
~ fnd.
thatn entitled tote ed nto JJ. that tator tiie TE that ini
Ferera Perera, that DRAINS-unicipal drainsContinuin tres- that pass-Limitation of action--Ac/ios ex delict
N.S.)
E &SEMENT-Rightof way-User-Prescrip- ELECTION LAW-Continued.
tion-l arm Crossing.] The user passage Elections Act" regulating the franchise the temporarily left under a railway trestle cannot Province substituted therefor ripen into title prescription the right thereby, to deprive the petitioner a right to way nor give right to farm crossing.
n
PACIFIC RAILWAY V.
deprived of a vote that ho had no status petitioner.
In the Election Court, evidence taken issues joined and the judge, holding that no corrupt practice the part the petitioner hai been proved, dismissed the ELECTION LAW-Election petition-No re- preliminary objections.
appeal to the turn member-Illegal deposit-Parties pe- Supreme Court Canada: Held, that, tition.]
petition under the Dominion rupt practices had not been proved, the questroverted Elections Act (R. alleged
Pe tw yne J.ethe aendmen t h e that respondent, who had obtained a majority the votes at the election was not Franchise Act Vict. 14(D.) and properly nominated, and claimed the seat for & Vict.
has not introduced his opponent, and that it should held that into the Act provisions section T. duly elected his election should set
Q aside for corrupt acts himself and agents person properly the list voters for a Held, that the petition framed came within Dominion right to vote at snch the provisions the Act and that T. election r.URr
POIRa
314'
2--Controverted election-Status of petitioner lininat- objections.] Where copy -Eridence-Certified copy of voters' list-Im- petition was not left with the prothonotary print of Queen's Printer-Form of Petition- when the petition was and, deposited Jurat- c. s. (D.)] the hearing later, the forty days within which the petition preliminary objections to controverted had tiled had expired : Held, Gwynne J. Printer, tisgar Election Case 1) Per y name the petitioner appeared as person court differently constituted it clearl right at pears to be erroneous.
ficient proof the status the petitioner.
that Queen's
Printer makes proof its contents without ELECTRIC LIGHTING Contract-Durafurther verification.
jurat the affidavit I lion Right cancel-Repugnant clauses.] A accompanying the petition was subscribed contract forsupplying light to hotel contain- "Grignon & Fortier, Protonotaire de la Cour the foloing provisions.
This contract District less than bonne."
Per Gwynne J.-An objection to the seentive calendar months from eate first regularity the subscription to the jurat and theresfter until cancelled writnot constitute proper matter to inquired ing the parties hereto.
Special force after the expiration of the said 36 months the that the party the second part lease for the Russell House." After Controverted election-Preliminary the expiration the mouths the lease was tions-Status ofpetitioner-61 ; & renewed for years longer.
Held, reversing c. (D.)--59 c. (Que.)-Dom- the judgment the Court Appeal Ont. inion franchise-Construction of statute.] The R. that neither the parties to the contract principal contention preliminary objections had right it against the will the to a controverted election petition was that the other during the renewed term.
petitioner the election, and that, the effect the statutes Vict. and &
Vict. the Dominion Franchise Act ELECTRIC RAILWAY.
repealed, and the provisions the p oQuebec EMPLOYERS LIABILITY-Negligence- ESTRAYS-Cattle straying on highwayof dangerous materials--Proximate cause Raitway fencing-Protection at watercourses of accident-Injuries to workmen-Employers' -Cnlvert-Inju-y train-Negligence liability-Presumptions-Findings of jury lained
7.EVICTION-Title land-Legalwarranty Description-Plan o/ subdivision-Accession ERROR-Consideration Contract-Misre- Troubles droit-Eviction-Issnes appeal presentation-Artifice-Ratification- Wairer ee AE
2-Special Warranty-Sheriffs' deed (Vaim- ESTOPPEL -Condition ojpolicy insurance ant prior title
Breach-Further insurance-Pleading- Wairer.]
if the assured should have or obtain other I insurance, whether valid or the EVIDENCE-Supplememary property.
assured applied for other insu- appeal -Objections raised for frst time but before being notified the appeal.] court ref used plaintiff permis ance his application the premises were lion to supplementary deed proof of that laids Connercial first taken the appeal, the ground that Assurance Temple Can.
it had jurisdiction to adnit such fresh enfollowed.- In one count his declaration dence upon the appeal.
The Exchange Bank of Canada Can. R. but that trial'followed.
counsel agreed that the facts pcoved the against the Commercial Union should taken 2-Libel statement in letter- Pri-ileqed communication Jlnlice-Materinl ld, erniig
Forfeiture of right appeal-Expiration -Copyrght
Ifrineet-Textual copyof tine limit-Ouster of jurisdiction-Conditin Common sources of information.] In an action precedent- Waiver-Object ion taken the court for infringement dictionary - 165 uirebutted that ary first published and repeated a great number Waiver-Ratification-A dninistration Held, purchaser possesion-Laches
234,that evidece primffacie piracy against the defendants which justified ~I
4--Title land-Legal warranty -Descrip- I 4--ontroct-Sale ofgoods-Evidence vary tion-Plan ofsubuirision-Accession-Troubles iestrument
Admission evidence.] droit-Eviction-Issues appeal-Parties hel, LAND, similar names, that it not 46k
EVIDENCE-Continued.
EVIDENCE-ontmed.
sistent with a written agreement with the damages caused the operation electric plaintiff to prove that defendant supposed power house, the evidence was contradictory, was dealing with another party with whon. and the courts below gave to the testihad made other arrangements in respect to mony scientifc witnesses preference payment for goods purchased.
WILsoN al. that persons acquainted with the locality. Held, Tashereau
. dissenting, that notwithstanding the concnrrent findings the courts Nglienc ofcla geo is atrias-below, the witnesses equally credible, Proximate cause of accident-Inuries to work- the evidence those spoke from personal man - Employer's liability
Presumptions - i knowledge the facts ought to have been pre- Findings of jury sustained courts forred that of persons giving opinions based there no responsibility the part merely scientific observations.
there positive testimony, or presumptions weighty, precise and consistent, that the employer 8-Public order-Matters judictally noticedchargeable with negligence which was the Foreign latePresumption immediate, necessary and direct cause the accident which led to the injuries suffered, it employer liability in where there evidence to the immediate cause an explo- 9
Maittnance streets ieqligette-Acsion dangerous material which caused the cumtlatiot snow and ire-Cross Negligenceinjuries, notwithstanding that the finding '.
8. 0. c.
jury judge, I courts below.
Tascherean J. dissented, taking different view the evidence and being 10-Trespasq
Overhanging roof-ight oJ opinion that the findings the jury, concurred line sonable presumptions drawn from the evidence, and that, following The Matthews
11--Collision-Proper tavigatio-Negligent v. Bouchard R. and The Metro- lookout"ufficiency of anhor light-Findings o politan Railway Wright App. Cas. fact-Appreciation ofevidence-Practice The Asbestos and Asbestic
Durand R. discussed and ap- 392 E ePON.
6--Controverted election-Status of petitioner
-Evidence-Certifed copy of voters' list-Inm- EXCHEQUER COURT print of Queen's Printer-61 V. c. (D).] appeal-Assessment o domages -Interference the hearing preliminary objections to a wethfindttgs ofExcheqser Court Judge controverted election petition the production a list appearing its face to be an imprint emanating from the Queen's Printer, certified EXECUTION
Practice
Appeal Privy the Clerk the Crown in Chancery to a Vototil-Stay of execution.] judge chancopy the voters' list used at the election, and applcton stay penin appeal fommte
Printer
2--Solicitor and client-Territories Real Pro. 437 perty Act
Unregistered transfers-Chargitg lands
Levy under execution
Indemnity sheriff-Tort- Pleading
Inter-pleeder.]I In a 7..-Expert testimony-Appreciation dance-Reversal questions oj fact.] In respect alleged irregular levy under writ action the owner adjoining property for execution, the sheriff not obliged to inter- EXECUTION-Continued.
EXPROPRIATION-Continued.
FENCES-Cattle straying iray-Railpart fencing-Protection iaterconrses-Cnt vert-Injnry bytrain-Neliynce
FINE-Criiinal Manslaughter-Negli -Indictment
EXPROPRIATION
213-Goninon improrenent-Occupation and of of pleadings-Abandonment expropriation-Aleasure of inder FOREIGN JUDGENT.
FOREIGN le Poit-v
FOREIGN PATENT- Ptemil of invcnton priority--Expirationi 2- Municipal patent-Constrtion statute-R. charter--Loral Expropriation 8-55 for widening for indeminity-52
(Wie.)
Fc. Canaian conns- forin tatute le obtainig
ILS FRANCHISE
Coitrorerted Prelirinary Stales of petitioner-Doof fraiclise fstatute
FRAUD-fisepreentation vendor-Consideration of contract-Error-Estoppel - FRAUDULENT
CONVEYANCE - Foluntary conveyance of land - Eliz. 5
(Imp.)-Solvent vendor-Action mortgagee.]
voluntary conveyance land void under 13
Eliz , (Imp.) as tending to hinder and delay creditors though the vendor was solvent when it was made it results denuding all property and rendering him insolvent thereafter.-A mortgagee whose security admittedly insufficient may bring an action first realizing his security.
Judgment the
Supreme Court British Columbia (7 B.
Rep. reversed, Gwynne J. dissenting.
2---Banks and banking-Advances on security
-Chattel mortgage - Insolvent debtor - 74-Uonversion
BANKING,
HABEAS CORPUS-Practice-Habeas corpus-Binding of judgment in provincial court.] An application for a writ habeas
Court the province and, after hearing, the application was refused.
application subsequently made to Mr. Justice Sedgewick,
HIGHWAY-Obstruction on highway-Repair of municipal streets-Negligence.] The Supreme from Rep. which held that permitting mound earth about eight inches gence the part the municipality and ing the plaintiff guilty want proper care in approaching during the darkness the danger- Tows
2--Injuries sustained through obstruction highway-Municipal corporation-A egligence- HIGH WAY-Continued.
3--Maintenance of streets-Negligence-A cumulation of and ice-Gross negligence- S. 0. c.
- - " 4.
-- Cattle straying on highway - Railway fencing-Protection at watercourses-Culvert- Injury train-Negligence
5--Title to land-Legal warranty-Prescription-Plan of subdivision-Change in strect line -Accession-Troubles de droit-Eviction-474 6--Operation of tramway Care at street crossings--Speed cars-Nelivnce - HUSBAND AND WIFE-brarried women -Judicial separation as to property-Debts community-Obligation wIfe-Art. -Nullity-Public policy- Dation paiement.] The Supreme Court affirmed the judgment appealed from Rev. de Jur. which it had been held that conjoints could not avoid the prohibition decreed art. disguising contract made with third party after the community between them had judicially dissolved; that, after dissolution community the wife cannot held liable may have made payment through error, an amount greater than that law and hand to guarantee his obligations, respect thereto, and, that after the dissolution, the husband remained liable for debts the inunity contracted saving his recourse against his wife or her heirs, (should they 2---Criminal concversation-Damages-Stat ute ICE
Watercourses
Navigable waters Cutting ice--Trespass water lots.] An waters at distance the shore may any reasonable means conveying it to their ice-houses, and for that purpose may cut which to the
Judgment appealed from Ont. App. R. reversed, and that MacMachon J. at the trial 0. R. restored, Strong C.J. and Taschereau 1. dis- ICE-Continued.
INSURANCE FIRE-continued.
senting.
unpaid vendor agreement with 130 vendee, has insured the property sold, may 2---Maintenance of streets-Accumulation and ice-Gross the vendee own-The fact that the vendor not the owner not INDEMNITY
Property
Act-Charging lands execution-Tortjudge 0. restored.
againstire-ondition Interest
INDIAN LANDS-Question Further
"if the property whether owner, INJUNCTION-Patent of incention-combidevices-Norelty--New that mortgagor 1 said condition.-By another condition the the assured should INSOLVENCY of Eli-abeth-Solvent vendor-depletion the property.
The assured applied of estate-Debtor and creditor-Action gagee the acceptance of his application, the premises were destroyed
Held, that there was Assurance Temple S. . followed.- -In one count of his declaration 2---Banks and security that
74-Conversion- Actiec
361against shewed, the (Icision the previous 3---Cocenant agreen theappellant premises-Forjeitunre-Payment of rent-Payment
--------------------violation the condition.
r.
INSURANCE FIRE-Fire insurance-Stat ustatutory and purchaer-Insurance fire itte Unpaid
-Contract-Lex fori-Fire unce-Principal and aUent-Payment mium-Interim receipt-Repudiation fori Ution lowed.-The [S. C. R. VoL. XXXL. INSRANCE FIRE-Continued.
INTEREST-Continued.
the payment premiums in
He nine per cent payable half yearly, contained pretended to insurance behalf payment for two months any portion the which he countersigned agent for the conhereby secured shall become payable.** pany, taking promissory note payable three Provided that on default payment any months to his own order for the amount the the instalments hereby secured, or insurance premium.
Held, that the canvasser could not any part thereof at the times provided, interest bind the company a contract on the terms at the rate above mentioned shall paid all assumed to make, the agent himself sums arrear, and also the interest had such authority. Held, further, that this proviso secured at the end every half even the agent might said to have power year that the same shall unpaid." to appoint sub-agent for the purpose solicit- reversing the judgment appealed from Ont. ing insurances, the employment the canvasser R. that the principal for that purpose did not confer authority to becoming due for non-payment under the conclude contracts, to sign interim receipts, first the above provisos was not instalnor receive premiums for insurance.
ment arrear under the second which the rate INSURANCE LIFE- Cancellation of policy nine per cent per annum. Baos U.-Unworthy ficiary of assured-Exclusion from succession.] 2--Charing4 interest-Debt certein and certain-3 Wm.IV. (Imp.)] written 3---Contract-Unicwful that tition l'indu
Account
Public policy loinproyhibide that Llaien prohibition se-Inteu-e4 ife r ha shwasacinga lgt~stin chadranes - Foreign - Matters judiciall ada)?o oeinlts
Mtersjdcal ISSUES--Municipal contract-Condition R. was of council-Pleading non- Supreme Court Canada.
peuformance of condition - Right of actiona/. of issues
INTERPLEADER-Levy under execution- JOINT STOCK COMPANY
Charging lands under Territories Real Property:
Act-Indemnity tosheri/j -Pleading joint pleas.]
In suit against the sheriff and an execution creditor respect alleged irregular JUDGE-Trial without jury-Findings offact -Reneroal appellate cort
615 JUDGMENT
Stateunet of claim-Aetioi Ontaio Judicatnre Act.]
INTEREST -Mortgage - Rate oj interestaction foreign judgment may include Payment instalnients.] mortgage given counts claiming to recover the original . Practice of JURY-Continued.
of Canada-Bindig jud'ment oured to explain, then there would action against him."
statement JURISDICTION-Pleadig-Declinatory ex- point directly affecting the proof an reption-Incompatible -Waiver-Cause of the burden upon him. Domicile-Opposition to'judge's charge not open to In peti-'want of Civil Procedure the Province Quebec, consisted hard things said the defendant JJ. egligence matei- J'roxiiate eaue arrident-InJurie, court.-1n
-'re ioptions 2--I-Ff'-itre oj right appeal-Expiration JUSTICE OF THE PEACEdVo.- Scotia jninis-tioi 18b9iiCon be p-ecedtfor certioruri -Artu.
lou'--Poirers prouerei atfiried appealed
Rep. land- 'froi, that a17 AppeclPa-ties iten writ certiorari, iit merely g proviling that, the cor-se i-oceeuls
0party mendint had ismied. Justice ald JURISPRUDENCEupon preie derixiiis-El-ction jetitiom-P,piouction liminary ojectioiis
LIDE,
,PATICE,
KING'S PRINTER
JURY- Libel -Priileged
Malice- jiry-Eaidepce.
trial LACHES atotion-Error ''if
Lease
Covenant -Forfeiture-Company - Shareholder
Personal liability- Waiver.) A lease to a joint stock company provided that in case the lessee should assign for the benefit creditors months rent should immediately become due and the lease should forfeited and void.
The two lessors were principal shareholders the company and while the lease was force one them, at meeting the directors, and the other seconded, that by-law passed authorizing the company to make assignment which was afterwards done, the lessors executing the assignment as creditors assenting thereto. Held, reversing the judgment the Court Appeal Ont. L. R.
that the lessors and the company were distinct legal persons and the individual interests the former were not affected the above action.
Salomon Salomon & followed.-The assignee the company held possession the leased premises for three months and the lessors accepted rent from him for that time and from sub-lessees for the month following.
Held, also reversing the judgment appealed from, that the lessors had claimed the months accelerated rent under the forfeiture clause in the lease and testified at the trial that they had elected to forfeit; the assignee had statutory right to remain possession for the three months and collect the rents; the evidence showed that the receipt the lessors the three months rent pursuance a compromise with the assignee respect to the acceleration; and the months rent from the sub-tenants was only compensation the latter for being permitted to use and occupy the premises and for their accommodation ; the lessors could not said have waived their right to claim a forfeiture the lease.,-Mortgagees the premises having notified the sub-tenants to pay rent to them the assignee paid them in satisfaction their claim with the assent the against whose demand it wascharged.
Held, that this also was waiver the lessors' right claim a forfeiture. Quere. Was a covenant the company to supply steam and power its sub-tenants anything more than a personal covenant the company or would it, on surrender the original lease, have bound the lessor and purchaser from him the fee?
LEASE-Simulated lease-A nucd rents- Title to land-Appeal - Amount in dispute-R. c.
In an action the lands leased for years and 9 months rental per annum, to have the lease cancelled being simulated as was, at the time the lease, owner the property leased : Held, that amount or upwards was in dispute, and that as the
LEASE- Continued.
appeal did not relate to any title to land tenements nor to annual rents within the meaning (b) R. c. it could not entertained the Supreme Court Canada. 2--Assignment lessee-Covenant in Forfeiture-Company -Shareholder- Personal liability.] lease joint stock company provided that in case the lessee should assign for the benefit creditors six months rent should immediately become due and the lease should forfeited and
The two lessors were principal shareholders in the company and while the lease was in force one them, at a meeting the directors moved, and the other seconded, that by-law passed authoriing the company to make an assignment which was afterwards done, the lessors executine the assignment creditors assenting thereto. Held, reversing the judgment the Court Appeal (1 Out. L. R. that the lessors and the company were distinct legal persons and the individual interests the former were affected the above action.
Salomon Salomon & followed. Was covenant by the company to supply steam and power to its sub-tenants anything more than personal covenant the company or would it, on surrender the original have bound the lessor and purchaser from him the ? LEGAL MAXIMS-" Respondent Superior" LEGISLATION - Pdremnption d'instance - Retrospective legislation-Arts. 1 & P. Q.-Art.
LETTER-Libel statement in letter-Priileged comnrunication- falice-Charge jury LEX FORI-Contract-Lex loci-Lex fori- Fire insurance-Principal and agent-Payment premiun- -Interim receipt-Repudiation LEX LOCI-Contract-Lex loci- Lex fori- Fire insurance-Principal and agent-Payment of prenium-Interim receipt-Repudiation of 48g FIRE,
LIBE .- Statenment in letter-Pricileged munication
Malice
Charge jury-Eidence.] the trial an action claiming damages for libel alleged to contained a judge charged the jury privilege and added the
LIMITATION OF ACTIONS-Continued. to run when the adulterous intercourse or is the plaintiff only 5ntitled to damages intercourse within the years preceding the defendant made the communication bond fide, 2-nicipal dreins-Continning trespassbelieving it to be true, and the privilege existed Limitation of actions delictn-58 V. c. S. that I have endeavoured to explain, then there (N.
Verdict.] Action trespass would action against him."
Held, that reason the municipal corporation constructplaintiff entitled to more explicit state- ing and maintaining drain through the ment the law point directly affecting plaintiffs land.
The jury found that it had the proof an issue the burden which was constructed "by virtue the upon him.-One portion the communication street commissioner's power containing the alleged libel might read as plaintiff; though aware its existence at the importing a grave charge against the plaintiff time, made objection till when the or as an innocuous statement fact.
Held, land
The court held that to prove malice the writer's knowledge Rep. that the jury had found that the the falsity the fact was the material point defendant had constructed the drain its the sense which may have used the words agent, and that, the trespass being continuing was the governing consideration.
The judge's the action not barred the llmitacharge was not open to objection for want tion provided the "Town's Incorporation an explicit reference to pre-existing unfriend- Act for actions delicto against liness between the parties as proof malice towns.
This judgment airmed the where the only evidence unfriendliness Supreme Court Canada. sisted hard things said the defendant the plaintiff. Judgment the Supreme Court 3-Pdrenption d'instance-Retrospectiee Nova Scotia Rep. affirmed, XJUi
Arts. 1 and C. P. Q.-Art. Gwynne and Sedgewick JJ. dissenting.
.P]
Wenteprodo eepto menced after the prom ulgation the LICENSES-" Pharmacy "-Re- ceptions declared tie fourth paragraph troactive leidation-Suit for joint penaltiesits first article not prevent the perenuption ofences-Unlicensed suit pending at the time it eans into under the Jimitation proided article Millar,
2--Scde lands-'Timber ferred to. r. condition-Location
LIQUOR LAWS -ova
Liquor Li- 1895-Conriction nruistcte-Jnrisdictron-Application for certiorari-Affidavit ee ofprorincial lateeMatte- of The Supreme LIEN-Banks and banking-Adrunces 4pealed security- mortyyf-Insolvent in the sense abolishing the writ certiorari, merely prescribing procedure pro- LIGHT AND AIR-Boundary land - LIMITATION OF ACTIONS -Statute of.quently, application lisconversation-Damages.]
statute wasofopinion thataquestion astothe plaintiff's
LOAN-Advances loaned promoter of joint stock company-Peronal liability-Debtor and
LOCATION TICKET-Crown lands-Sales hy local agent-Suspensive conditions-Timber licenses-Priority title
LOTTERY-Illegal of
MACHINERY-Nuisance-Operation of tric railtiay-Poner house machinery- Injliry perty-Eridence--Assessment of damages-Rerof fact- MALICE-Statement in letter-Pririleged lnuinzication-harge jury-Erideure.
MISTAKE -Continued.
2-Marked cheque-Fraudulent alteration- Payment a third party - Liability for loss- ,
MONOPOLY-Contract-tUnlawful consideral'indu-Acount Public combination-Conspiracy-Malum -Malum advances-Foreign laws- Matters MORTGAGE-- Voluntary conveyance-13 Eliz. c. (imp.)-Solvent vendor-Actionby thereafter.-A iay MARRIAGE LAWS- Title lands-Prc- action to set aside ,uci conveyance and that scription-Construction deed-Sale married women-Propre communaute-Arts. C.]
. Rep. reversed, J. dissent- Is deed witiout suticient
2----Rate of intere.t-Payncnt instalnlnts paynent 22that iontlis METHODIST tic el-Confercnec of suns MILITIA-Public Militia Held, Oirers and that Crown-Injury person-50 (D.)-R.
BICs
(c).-The fire-Conditionin MISTAKE-Payment under threat of criminal ycation
I'indu-Transaction t
MORTGAGE-Continued.
I MUNICIPAL CORPORATION-Con. Charter- Expropriation icidenit' Action for iidemnity-52 (Qte.)- (Quc.)-9
(ty
MUNICIPALpossession
MUNIIPALCORORATON-oralmi-October, prorcment-, stretts-Epropriation- that le oflands-Measure of ] statute Ieceiber appointmnt ih~d that ease,
A'yiieitce -Mnintenoice of. treu.1-A inlation ittlignce- 2--C'ontroct for inicipal ?ork-Coilitioi a.t. toiib-lett cotitih.]
wiow daages un'er Capbells 34, at
~
~ ~ ~ ~ ~ ~~~/1 canse-ele pole-Third party-Costs.]
thaving ijury that CIYOTRNO
- ruining that
-Water contissiouers--Statntory accident.-In ,Poiaers---Coitract-37 ration.
improving the the city supplying the funds to pay for the
The total MUNICIPAL CORPORATION--Con.
not more than $20,000 can be expended any one year without vote the ratepayers.
Held, affirming the judgment the
Court Appeal Ont. R. that the
Board merely the statutory agent the city in carrying out the purposes the Act, and a contract for work to performed connection with the waterworks, not authorized by-law the council, and incurring expenditure which would exceed the statutory limit not binding contract. Held also, that if an action could have been brought on such contract the city corporation would have necessary party.
Quare.-Would not the city corporation have been the only party liable to sued?
WINDSOR-326
7--Obstruction highway--Repair of municipal streets-Negligence.]
N. Rep. which held that permitting part the municipality and holding the plaintiff guilty want proper care approaching during the darkness the dangerous place r.
8--Municipal drains -Contin uing trespn-s- Limitation of actions delictu--58 c.
(N.S.)-Verdict.]
the municipal corporation constructing till when the land caved
The court held N. Rep. that the jury had found that the defendant had constructed the drain its agent, and that the trespass, the limitation provided in the "Towns'
Incorporation Act for actions delicts
Supreme Court
9--Assessment and taxes--Appealfrom assessment-Estoppel-Judgment confirming decision of municipal committee-Payment of taxes under protet-Res judicata
"
NAVIGABLE WATERS - Watercourses- Cutting ice-Trespass water lots.] An
NAVIGABLE WATERS- Continued. any reasonable means conveying it to their ice-houses, and for that purpose may cut a channel through private water lots through which to float the
Judgment appealed from Ont. R. reversed, and that MacMahon J. at the trial 0. R. NAVIGATION -Collision-Appreciation evidence-Findings of fact-Appeal -- Proper narigation-Neglieat lookout-Anchor light.] In an action claiming compensation for though the evidence given was contradictory, it was amply sufficient to justify the said judg- Santanderino R. and The Village of Granby Mdnard
NEGLIGENCE - Municipal corporation - Highcay-Damages for injuries -Proximate cause-Telephone contact with telephone pole lawfully placed there, cannot maintain action for damages if it clearly appears that his horses were running away and that their violent, uncontrollable speed was the proximate cause the accident. 2-Criminal law - Indictable negliqence ration-Criminal Code 213--Common lawo control.-The indictment.-As [S. C. R. YOL. XXXI. NEGLIGENCE-Cntnued.
NEGLIGENCE-Continued.
Electric railway-Motorian-TWorkmen's plaintiffs actin Marking itin thatform Compensation Act-Injury conductor.] The negligence which prevented recovery. motorman an electric car may " person affirming the judgment theCourtof Appeal who has charge or control" within the meaning which that the Workmen's Compensation Act the trial 0. R. that there was nothing (R. 0. and if negligently the circumstances take the out the allows open car to into contact with rule that ntoney paid mistake recovpassing vehicle whereby the conductor, who ered hack, and the Bank Hamilton standing the side discharge his duty, therefore entitled to struck and injured the electric company v. liab damages for such injury. Judgment the Court Appeal Out. App. R. 6-Yegligcnce
Railway company-Injury passengersinseeping berth.] S.Inelderlylady, 241was travelling train the Canadian Railway Company from -Montreal to Toronto. 4eglience-ilaintenance of.streetc-Aren- While sleeping berth at night, believing nulation of and ice-Gross
R. 0. s.
About tried to turn a. morning January man walkinga and injured eventually died.
His widow brought an for damag action for damages under Lord Campbell's Act, compny it not and the trial it shown that there had tle been considerable fall snow for two or three where anyideft incthe rodbdca te days before the accident, and the day preattriuted.
Held, reversing the judgment ceding there had been thaw followed tie Supreme Court Nova Scotia, that the hard frost at night. There was evidence, also, accilent could not le attributed any neglithat early in the morning the day thei accident employees the city had scattered servn thepywi but high
SMITH-367 Appeal Ont. R. that the facts 7-of dangerons materials
Proximate evidence were not sufficient to show that the Cruie of accident Injuries workman Em injury to the deceased was caused by " gross I ploycr'a liability
Presumptions Findings negligence " the Corporation within the Jury conrts bo.]
there 323 injuries sustained employee the 5--Marked cheque-Fraudlent alteration- positive testimony. presumptions weighty, Payment third party-Liability for loss.] precise and consistent, that tie employer person dealing with others under no chargeable negligence which the iineduty to take precautions to prevent to diate, necessary and direct cause theaccident the latter the criminal acts third which to the injuries suffered, it the duty persons, and the omission to not, in an appellate court to relieve the employer for small amount in the Bank Hamilton the imiediate cause explosion had cheque for dollars marked and dangerous material caused the injuries, altering it to make it a cheque for notwithstanding that the findigs jury had it cashed the Imperial Bank.
The faxour plaintiff,not assentedto bythetrial same day it went through the clearing house judge, have sustained two courts and was paid the Bank Hamilton to the Taschereau J. dissented, a different Imperial Bank.
The error was discovered next the evidence and being opinion that day the former, and re-payment demanded findings the jury, concurred both from the Imperial Bank and refused.
The courts were based upon reasonable pre. Bank Hamilton then brought an action to sumptious drawn the evidence, and that, recover from the Imperial Bank the sun following The Ceoye Matthews Bouchard overpaid the cheque.
Tile defendant con- R. and The Metropolitan Railtended that the cheque presented to way Wright those marked good was drawn as to make the findings ought not to reversed appeal. subsequent alteration an easy matter, and the The Asbestos and Asbestic Durand S C. RV
XXXI.]
NE(LIGENCE-Continued.
NOTICE- je lands-Akte-s and bounds- R. discussed and approved escript cosruction -392 itorie d-Pr opre oe coma 8--Railivay company - Fencing - Cdert- i'id-Cada.trcd plan and description-Arts. Negligence-Cattle on highway-51 c.
194-53 V. .s. 2.]
railway company C.
The registered title land charges a is under obligation to erect or maintain subsequent grantee with notie. either actual on each side culvert across water- implied, the limitations the description course and where cattle went through the tie land containel the registered culvert into and thence to the high- under which vendor acquired title. killed, the company was not liable to their
AN owner.
Taschereau J. (dissenting)
.
a.
0 Soicior nd cien
Brads f dty
NUISANCE- Operation of electric railway- 9---SolicitorPower hoe machinery- Vibrations, nd Misconduct-Adrice ficen client.] A solicitor noise-Injurytoadjoiing props mty-Evidcnceadvising client according to the establishedA jurisprudence the court which proceedings fact.] Notwithstanding the privileges are taken not guilty actionable negligence ferred its Act Incorporation, an although the decision upon which relied electric street railway company tie giving the advice may subsequently over- structiop aid operation electric tramway ruled.
615 upon the public thoroughfare tie city the compaiy is responsible in danages to the owners property adjoining its power-house for any structural iiijuries the vibra- 10--Operation of tranway-Strect crossingstions prodced its machinery anl the dimi- Speed and control of car-Findings of jurynotion rentals and value thereby Contributory negligence.] In action founded ]rysdale Dugas R. followed.on personal injuries caused street car the In action the owner adjoining property jury found that defendants' negligence the for damages thus caused the evidence was cause the accident and also that plaintiff had tradictory and the courts below gave been negligent in not looking out for the car. the testimony scientific witnesses in Held, reversing the judgment the Court ference that persons acquainted with the Appeal L. R. that as the charge lncadity
Held, Taschereau J. (dissenting)
, that the jury had properly explained the law to'notwithstanding the concurrent findings the contributory negligence the latter finding must courts below, the witnesses were equally be considered to mean that the accident would credible the evidence those who spoke from not have occurred but for the plaintiffs personal knowledge the facts ought to negligence and he could not recover.
LoNDos preferred to that persons giving opinions Co.
642 based merely upon scientific observations. reversing the judgment appealed from, the - Obstruction highway-Repair
Supreie Court, the interest both parties, cipal streets - Contributory negligence.]
The assessed damages, all, at amount inent appealed from Rep. which all injuries, past, present and future, resulting held that permitting a mound earth about from the nuisance complained should eight inches in height to remain at filling elect to accept the amount estinated full over trench dug to lay a pipe across public satisfaction thereof ; otherwise, the record street was not serious or unusual obstruction ordered to be transnittcd to the trial court due negligence the part the muni- to the aioint damages determined. cipality and holding the plaintiff guilty want proper care in approaching during the darkviously seen daylight in the same condition. NULLITY
Husbaad and
Married Towx onan-Juclicial separation as to property- Injury to the person-Militia class frin Debts of community-Obligation ife-Art. 12-lnjery
0. C -Pblic policy-Dation pcsiemnt. rifle rnUge-Public work-Officers and servants of the urm
Cutafredtejdmn appealed from Rev. Jur which it CRow..
had held that conjoints could not avoid the prohibition decreed by Art. C. dis- NULLITY-Continued.
PATENT OF INVENTION-Continued. 2--combination of dereces-ilorelfy anount that solder.
The defence claimed the ONTARIO INSURANCE ACT-oastruc- possessed advantages superior the plaintiff's tion of statute-Fire insurance-Statutory cditions-Variations -Co-iniurane.]
r.
statutory PATENT OF LANDS-Scirefacias-Crowu lands Grant mode (rioi-Adrerse claim of patent-32 PAYMENT
Contract-Lex Lerfori- Fire insurance--Principal and agent-Paginet ONTARIO JUDICATURE ACT-Action foreign judgment-Original
OPPOSITION-Pleading-Declinatory tion-Incompatible pleas-lVairer-Cause ofacjudgiment
PARTNERS
IP-- Partnership
Traiisaction-Error-Payment prosecition-Dures-Rdpetitioi l'indut-Artio indctiti
2-farked cheque-Fradiulent alteration- Payment third party-Liability for loss-- Joint company-Payment Jor shaes -Kquirlent for
Y priority-Expiration of forigUn patentquetion of C. 8-55
Art"Retroacive eighth Patent
PPREMPTION D'INSTANCE
AbateIt sane day, ofaction riie legie/ationiArts. Q.-Art. P.] Procedre DosIJON Province the exceptions delared CoM. the fourth paragraph its first article nt prevent the perenption suit pending PtRE1IPTION D'INSTANCE-Continued.
the time it came into force under the limitation provided article v. Millar, R.
L. 446; R. L. referred to.
Scawon
TOWN
PETITION OF RIGHT-Arts.
P. Q.-Forfeiture of right appeal- Waiver.] Art. P. Q. applies to appeals in Petition Right.
PHARMACY ACT "-" Pharmacy
Act "-Retroactice legislation-Suit for joint penalties-Second oftences-Unlicensed sale
PLAN OF SUBDIVISION-Title to land
-Legal warranty
Description -Change street line-Aceession-2roubles de droit- PLEADING -on-performance of condition contract-Replication- Joinder of issue.] In an action against municipal sub-contractor the latter pleaded the want assent by the council required under condition respecting sub-letting the contract for municipal work, whereupon the plaintiff replied that the assent was withheld at the wrongful request and stigation the defendant and in order wrongfully to benefit said defendant and enable him, if possible, to repudiate and abandon the tract.
Issue was joined this replication.
Held, that the only issue raised by the pleadings was whether or not the defendant had wrongfully caused the consent to withheld and that the plaintiff had failed to prove case that issue.
2--Statement of claim - Action on foreign
Judicature Act.] Under the Ontario Judicature
Act, before it, the declaration in an action on foreign judgment may include counts claiming to recover the original considera- Action in damages-contract-Conversion
-Defect in plaintif's title-Statute of frauds.]
In an action claiming damages for the conversion goods the plaintiff must prove an unquestionable title himself and if it appears that such title based contract the defendant may successfully urge that tract void under the Statute Frauds,
PLEADING-Continued.
though such defence pleaded.-It where the action is between the parties to the contract which one them seeks to enforce against the other that the defendant must plead the Statute Frauds if wishes to avail himself it.
Judgment the Supreme Court Nova Scotia N.S. Rep. affirmed. 4-Declinatory exception-Incompatible pleas Donicile-Procedure-Opposition tojudgment- P. Q.-Arts. C.-Post An was made letter dated and mailed at Quebec, the defendant's acceptance being letter dated and mailed at Toronto. In a suit upon the contract in the Superior Court at the defendant, who was served substitutionally, opposed judgment entered against him default petition in revozation judgment, first preliminary objection taking exception to the jurisdiction the court the cause action and then, constituting himself incidental plaintiff, making cross-demand for damages to be set against plaintiff's claim. Held, that in forming an opposition obliged to include therein any cross-demand he may have by way set-off or compensation the plaintiff's claim and, unless he cannot afterwards it right.-A cross-demand with a petition for revisjudgment not waiver declinatory exception previously pleaded therein, nor acceptance the jurisdiction the court.-In order take advantage waiver inary exception to the competence the tribunal over the cause action on account subsequent incompatible pleadings, the plaintiff must invoke the alleged waiver the objection in his answers.
The judgment appealed from, affirming the decision the Superior Court, District Quebec R. was reversed.
r.
5--Election petition-No return of member- Illegal deposit-Parties petition.] petition under The Dominion Controverted Elections Act (R. C. alleged that respondent, had obtained majority the votes at the election was not properly nominated, and claimed the seat for his opponent, and that if it should be held that T. was duly elected his election should set aside for corrupt acts himself and agents.
Held, that the petition framed came within the provisions 5 the Act and that T. was properly made a respondent.
PLEADING-ontinued.
6--Controverted election-Form of petition- Jurat-Preliminary objections.] The jurat the affidavit accompanying the petition was subscribed " Grignon & Fortier, Protonotaire de la Cour Sup6rieure dans et pour District de Terrebonne."
Per Gwynne J.-An objection to the regularity the subscription to the jurat does not constitute proper matter to be inquired into way preliminary objection to the petition.
Two
7--Levy under execution Charging lands under Territories Real Property Act-Indemsherifi Pleading joint
Interpleader- Counterclaim -Signed bill of
In suit against the sheriff and an execution creditor in respect alleged irregular levy under writ execution, the sheriff obliged to interplead but may joined properly in defence with the execution creditor.
an action the sheriff against a solicitor for fees and charges, the solicitor cannot counterclaim for overcharges in former bills paid to the sheriff him respect matters in which the solicitor may have acted for the parties interested because any such overcharges, if recoverable from the sheriff, not belong to the solicitor but to the clients whom be acted, but, in such an action, the solicitor may set up by way counterclaim his costs in suit in which he had appeared the sheriff notwithstanding his omission to render a signed bill costs prior to the filing the counterclaim.
S-Statement of claim-Amendment allowed or appeal
- - - - - 9-Quashing appeal Jurisdiction-Raising constitutional question- Withdrawal of pleas- " Pharmacy "-Suit for joint penalties-Second ofences-Unlicensed sale of drugs
10-Parties to action- -Municipal corporation
Statutory
Poers-Contract-37 c. (Ont.)-Right action
- - -- PLEADING-ontinued.
Condition o/ policy fire insurance- Breach-Further insurance-Interest of insured -Mortgagor as owner - Practice - Waiver- See 1.
1 -Title land-Legal warranty-Troubles de droit-Eriction - Issues appeal-Parties POSSESSION-Title to land-Metes and bounds-Description- Sale bloc-Possession beyond boundaries-Prescription-Construction of deed-Sale to married woman-Propre de communautd--Cadastral plan and description C. - - - - - --- Vendor'smisrepresentation-Error in purchaser in possession-Estoppel- Waiver-Rati- POST OFFICE-Contract correspondence- Acceptance-Mailing of letter-Domicile-Indication place of payment -Bills and notes- PRACTICE-New evidence tendered appeal -New points raised at hearing-A nendment pleadings.1 the hearing the appeal, objection taken for the first time to the sufficiency plaintiff's title, whereupon tendered supplementary deed to him the lands Bank of Canada Gilman Can. R. that the court must refuse to receive the document as fresh evidence can not admitted upon appeal. Held, also, that the defendant could not raise the question as to the sufficiency the plaintiff's title, for the first time, appeal.-In this case it appeared that the allegations and conclusions the plaintiffs declaration were deficient, and the court, under the Supreme and Exchequer Courts Act, ordered all necessary amendments to be made thereto for the purpose of determining the real controversy between the parties disclosed by the pleadings and evidence. Pichd City of (Cass. Dig ; Gor- PRACTICE-Cntinued.
man Dixon R. followed.
r.
2- -Negligence-Trial byjudge withoutajury- Findings offact-Eridence-Reereal appellate court.] In an action for damages for personal injuries, the trial judge, who heard the case without a jury, and before whom the witthat the of the witnesses for the defence was entitled credit and dismissed the action.
The judgment was reversed the Court
Review and its decision affirmed on further appeal by the Court Queen's Bench.
the judgment at the trial was supported evidence, it should not have been disturbed.
Judgment appealed from reversed and judgment the trial judge restored.
Jurisdiction-Mot ion quash appeal- Dismissing appeal for reasons in court
The court dismissed an appeal on the merits with costs, without determining a question as to the jurisdiction raised the respondent at the hearing motion to quash the appeal.
4- Appeal to Privy Council-Stay of tion.] judge chambers the Supreme
Court Canada will not entertain an application to stay proceedings pending an appeal from the judgment the court to the Judicial
- 5-Appeal per saltum-Jurisdiction-R. S.
Leave to appeal direct to the Supreme Court from judgment a
Divisional Court the High Court Justice under the Supreme and
Exchequer Courts Act, cannot granted unless it is clear that there is right appeal from such judgment to the Court Appeal
6--Practice- Habeas corpus -. Binding grect of judgment in procincial court.] An applicavince and, after hearing, the application was refused.
application subsequently made to Mr. Justice Sedgewick, chambers. Held, that, under the circumstances, it would improper to interfere with the decision the re
-Ontario appeals-Special leace-60 &
PRACTICE-Continued.
under & Vict. ch. 1 (e) will be granted where the questions involved are not public importance and the judgment the Court Appeal appears to well founded. 8--Negligence-Proxim ate cause of accident -Injuries ioorkman-Employer's liability- Presumptions-Findings of jury sustained by courts As there can no responsibility an employee the course his employment, unless there positive testimony, presumptions weighty, precise and consistent, that the employer chargeable with negligence which was the immediate, necessary and direct cause the accident which led to the injuries suffered, it the duty appellate court to relieve the employer liability, in case where there no evidence to the immediate cause explosion dangerous material which caused the injuries, notwithstanding that the trial tained two courts below.
Taschereau J. dissented, taking a different view the evidence, and being opinion that the findings were based upon reasonable presumptions drawn from the evidence, and that, following The George Matthews Bouchard R. and The Metropolitan Railway Wright those findings ought not to reversed appeal. Asbestos and Asbestic Durand discussed and approved.
9---Jurisprudence of Supreme Court Canada -Binding efect decisions-Election petition -Deposit of copy
Preliminary objections.] Where copy an election petition was not left with the prothonotary when the petition was and, when deposited later, the forty days within which the petition had to had expired.
Held, Gwynne J. (dissenting)
, that the petition was properly dismissed Rep. Lisgar Election Case Can. 1) followed). Per J.-The to overrule judgment the court differently 10--Decision domestic tibunal--Interferappeal-Ckurch discipline.] Where appeal raised thequestion the properor improper exercise disciplinary powers the ference the Methodist Church, the Supreme PRACTICE-Continued.
PRACTICE-Continued.
Court refused to interfere, the matter con precedent-Waier Objection taken court plained being within the jurisdiction the -Ars. P.
Exchequer appeal-Assessment ofdamages
Pleading-Declinatoryexception-In - Interference with findings of Exchequer
Judge.] The Exchequer Court Judge p a heard witnesses and upon his appreciation diction
Domicile
Opposition judgment the respondents.
The Crown appealed the that Held,
Gwynne and Girouard JJ. (dissenting)
, that as did not appear from the evidence, that there 16--ondition of policy offre insurancewas error in the judgment appealed from, the Breach Further insueance-Interest of insured Supreme Court would not interfere with the -Morgago as owner-Pleading- Wairerdecision the Exchequer Court Judge.
Estoppel- - - - - 12--Parties appeal-Proceeding of deceased party-Amendment Jurisdiction- Interference with discretion appeal.] Between the hearing a the rendering the 17-Controcerted election Status ofpetitioner judgment in the trialcourt, the defendant died. -Certified copy of raters' list-Imprint ol His solicitor by inadvertence inscribed the case Queen's Printer-Eridence -Form of petitionfor revision in the name the deceased defend- Jurat affidavit of rerification-Jreliminary ant.
Court objections
Review to pass without noticing the irreguripe for hearing the merits, gave notice motion to reject the inscription.
The executors
Nuisance-Operation electric railway the deceased defendant then made motion. -Power hou.e 9nachinery-Vibration, for permission to amend the inscription and noise-injury adjoining prope-ty Ensubstituting their names qualitd. The Court dence-Assessment of damages
Reversal Review allowed the plaintiffs' motion as to questions of fact costs only, permitted the amendment, and subsequently reversed the trial court judgment the merits.
The Court King's Bench (appeal
Pdremption dinstauce
Limitation side), reversed the judgment the Court
Abatement -Retrospective legislation that jurisdicon the and that, consequently, all the orders and judgments given were nullities.
. Legal judgment Paries
R. K. the Chief Justice
Review had jurisdiction to allow the amendment and that, there had been no abuse 21-Improemet watercourses Art. discretion and no parties prejudiced, the Court R. Q.-Arbitration-Condition precedentof King's Bench should not have interfered. New grounds appeal -A .sessmeII of damages -Imterjerence appellate court
Injuries sustained highway-Municipal corporation-Neligence- 22-Findings of Jact-Appreciation of enpoles-Parties suit-Costs-Proxi- dence-Appeal snate of
PRESCRIPTION Railway crossing -Userorfitue o
01appal Exp caionRight of Easement.]
tine. jurisdiction -Condition title tie PRESCRIPTION-Continued.
PRESCRIPTION-Continued.
right way nor entitle the person using it to scriptive title to lands beyond the boundaries farm crpssing.
limited by the description the conveyance cn only acquired thirty years possession.-Qucere.
Is a lands "
in to married woman Without the authorization her husband, sufficient to 2- Title land-Metes and bound-s-Descrip- I ction such tion-Sale bloc-Possession beyond bon- article to serve the ground for a daries- deed-Sale married woman-Propre -Cadastral plan and description-Arts.
C.] 3-Statute oj lisitations-Crintinnl concerto his F, an described
S stated thirty feet frontage, " tel que tout actuellement et que l'acquereur dit PRINCIPAL AND AGENT-Lie insurbien connaitre" declaring, in the deed, that ance-Ageney-Art. C
Unwar/by the donation had actually been made ficiaryurder of assured fron although no had been executed, that succession.] The action to cancel policies F and erected the buildings thereon.
Under this holder murdered his and her title lover were executed the murder. and had issue surviving.
possession as owner in and also that judicially deprived all rights beneficiary had acquired prescriptive title under the policy and the will, unworthy ten years possession, at the time the succession.
The company charged the remainaction in to recover possession the ing beneficiaries with endeavouring to take six feet then in occupation the defendant, advantage fraud and the felony.
The judgwhom plaintiff alleged to a trespasser. ment appealed from held that there was Held, that the in operated an evidence that, at the data the policies, interruption prescription and limited the assured was aware the evil intentions his title thirty that ageit described.-The plaintiffs wife purchased from ing the assurances, the fact that might F in deed describing the emplacement 1 then have had such intentions and subsequently in manner similar to the description the murdered her husband would not have the donation, but also making reference to its discharging the insurer from liability the policies towards the legal representhat the description in the deed left the (Q. R. Q. was the true limits emplacement subject to determi- Supreme Court Canada.
nation according to the title held the plainal. auteur which granted only thirty frontage; that the registered title, the plaintiff was charged with either actual or company-Agent to solicit plied notice this fact and that, consequently, subscriptions -False esentations-Ratfcaon he had not, in faith, possessed more than
Beneft.] Promoters company employed the thirty feet frontage under this deed and agent to solicit subscriptions for stock could not invoke an acquisitive prescription and NA. was induced to subscribe false title to the disputed six feet ten years pos- representations the agent the number that shares already taken up.
In action nentation to recover the amount his subscription take place consequence the cadastral from the promoters ; Held, atfirning the judgdescription the emplacement in question.usent rie Court Appeal Ont. The words " Tel que le tout est actuellen:ent et that the having benefited l'acqu4reur dit deed gift, cannot interpreted in contra- though they did not authorize and had diction the special description that precedes knowledge the false representations their them and can only construed as extending agent.
feld, per Strong C.J., that neither dans linites ci-dessus d6critess" ; pre- express authority to ake the representations C. R. YOL. XXXI. PRINCIPAL AND AGENT-Continued.
PUBLIC LANDS.
respondeat
PUBLIC POLIOY-Contract-Unicmful Rdpdtition d lindu -- Account- Monopoly-Trade combination-Conutpiracy isrneMalune prohibitum-Maluie in -Interest Contract-Lex loci-Lex fori-Insurance adaces-oreig laws Arts. agent-Payment of receipt C.-Matteri judicially notied.] -Repudiation of acts sub-agent.] andi authority at
Sumnners The sutrance sir that elde, tat cnvaser ouldnotbindthepied La d'Economie Notre-Dane l'Asauthority.
Held, that Jean-Baptiste Bra ut, Isurthat proprio that, Per 4-Municipal corporation-ers
Statutory body
(Ont.)-Right dence, ought not di-turbed, and the PRIVY
Priry Council-Stay of judge tract the purpose stich it was intended, Statsjpetion r-Ri-deneor of eition anp inietable ary otjtioa i43
Luw,
PUBLIC POLICY-Continued.
RAILWAY-Continued.
action should dismissed.
passed over the northern half lots and 244 34 respectively, of the eighth concession of North luomfries, having trestle bridge over a PUBLIC PRINTING-Controverted election ravine on 34, near the boundary of G,, the petition-Imprint Queen's Printer-ertified owner lot (except the part owned by the of list-Evidence-Status of peti- railway company) for number years the passage under the trestle bridge reach a lane foe south half lot over which could pass to village west side, PUBLIC WORK - Government rifle range- predecessor title, owned all these lots, Militia having used the route for the purpose. 206 The company having up the ravine, Cuows.
applied for injunction to have it re-opened. Held, reversing the judgment appealed from Out. Ap.
f thatsuch user could never " QUEBEC ELECTIONS ACT "- Contropetitioner-Dominion statute-Right
"QUEBEC PHARMACY ACT" - Retrolegislation-Suit for drugs-50Y.
Q. Arts.
The amendment to the "Quebec
Pharmacy
Act" Vict. c. s. adding Art.
R. Q.-Penalties for several under the Act may joined in one action the aggregate amount sufficiently large, the action may brought the Superior
Court court competent jurisdiction under the statute.
action may properly taken in the name the Pharmaceutical Association the Province Quebec.-It improper such action to describe the subsequently charged as second offences-under the statute, second cannot arise until there been a condemnation for a penalty upon first charged.-The sale in the
Province Quebec, an unlicensed person, drugs retail, whether or not such drugs poisonous, or partially composed poison, or absolutely free from poison, violation the prohibition contained in Art. R.
Q., whether or not the articles sold enumerated in the " Quebec Pharmacy Act"
as poisonous or as containing an enumerated poison.
Judgment the Court Queen's
Bench (Q. R. reversed.
Taschereau and Gwynne JJ. (dissenting)
.
L'AssociA- QUEEN'S PRINTER
RAILWAY--Easement-ight say--User- Prescription-Fari ripen into title prescription the right way nor entitle to farm crossing lot company-Injury was travelling train the Canadian Pacific Railway Company from Montreal to Toronto. While in sleeping berth at night, believing that she was riding with her back to the engine she tried to turn around in the berth, and the car going around a curve at the time she was thrown out to the and injured her back.
the trial an action against the company for damages, it was not shown that the speed the train was excessive nor that there was any defect in the roadbed at the place where the accident occurred to which it could attributed.
Held, reversing the judgment the Supreme Court Nova Scotia, that the accident could not attributed to any neglithe servants the company which would make it liable in damages to therefor. V. SMITH-367 3--Railway a. erect or maintain a on each side a culvert across water course and where cattle went through the culvert into a and thence to the highway and straying to the liable to their owner.
Taschereau J. (dissenting)
. JAMES-420 4-Negligence Act-Injury RATIFICATION-Payment Transaction-Mistake-Rdpitition RATIFICATION-ontinued.
2-Principal lations-Benefit
REAL PROPERTY ACTS.
"
REGISTRY LAWS--Misconduct duty-Established jurisprudence-Territories transfers-Charging lands-Levy their
RtPtTITION DE L'INDU-Actio
RES JUDICATA-Continupd.
judicata varranty-Description-- Plan appeal-P'Irties
RESPONSIBILITY.
REVIEW, COURT OF.
indcbiti-Duress-Error-Payment REVOCATION--Pleading-Declila tion-1omutible Waier-Ca Jurisdiction-Domicile Contract-Unlawful consideration--Aeeout defendant,in -Malun advanes-Foreiqn
Matters
244may 24of right.-A 3--Marked ateration-Paythird party-Liability for exceptin preous pleaded theeintno an 1.liiary tiff must invoke the alleged waiver the the decision the Superior Court , District RES JUDICATA-Assessnent and
.
confirina- De assessed personal property as RIFLE RANGE nag Neglirile crown-Pabli, mon council and then applied to the Supreme
Court New Brunswick for writ certiorari
[S. C. R. VoL. XXXP RIPARIAN RIGHTS - Building dams - -Arbitration-Condition
RIVERS AND STREAMS-Deed of lands
-Riparian rights-Building dans-Penning satcrs-Warranty-improvement
Q.-Arbitration-Condition deed conveying a portion the vendor's lands bordering a stream granted the privilege constructing dams, etc., therein, with the prothat, in case damages being caused through the construction any such works, the vendor or his successors title to the a1joining lands should entitled to have the damages assessed arbitrators and that the purchasers should pay the amount awarded.
Held, that, under the deed, the purchasers were liable, not only for the damages caused the lands, but also for all other damages occasioned the building and other works the stream them; and, that the provisions Art. R. did not entitle them to construct or raise such dams without liability for all damages thereby caused.
Held, also, that an objection to arbitration and award being condition precedent to action for such damages which had been waived or abandoned the Court Queen's Bench, could not invoked an appeal to the
Supreme Court.
cross-appeal the Supreme
Court refused to interfere with the amount awarded for damages the court below upon its appreciation contradictory evidence.
ice-Trespass
SALE OF GOODS-Contract - E-idence ritten instrument-Adnission
The Supreme Court Canada affirmed the judgment appealed from N. Rep.
which in held, under the special circumstances the involving dealings with two companies connected business and having sistent written agreement with the plaintiff to prove that defendant supposed he was dealing with another party with whom had al.
2--Costract
Maiing letter-Doaicile-Indication
SALE OF LAND-Contractjorsale-Action for
Costs.] In an action for the price land under judgmentat trial defendant had succeeded his counterclaim their Held, J.-Defendant v1.
2--Title tion-Sale Prescription-Construction woman-Propre lands-Ter- Act-Tort-Indemnity SCIRE PACIAS-Crown lands-Grant made claim-Cancellation-32 (Que.)-B. Q. the patent SERVITUDE- -Overhanging roof-Right air, iea-Evidence-Boundary OFF-Pleading Waiver-Jurisdiction-Oppotojudgment-Arts. Q.-Arts. C.-Post SET-OFF-continuled.
SHERIFF-cointiuad.
order to comply with Art. the Code court which proceedings are taken not Civil Procedure the Province Quebec, guilty actionable negligence although the obliged to include therein any cross-demand decision upon which relied giving the may have way set-off or in compensation advice maybe subsequently overruled.--Neither the plaintiff's claim and, unless solicitor sheriff tort-feasor, against he cannot afterwards it as right.-A transferee transfer unregisteret, cross-demand with petition for registering, the discharge their respective revision judgment not waiver a declina- duties, an execution judgment against tory exception previously pleaded therein, nor lands the judgment debtor.-The delivery an acceptance the jurisdiction the court. execution with requisition to the sheriff to order to take advantage waiver pre- charge and levy upon lands apparently belongliiinary exception to competence the ing the execution debtor not give rise tribunal over the cause action on account to any implied or express obligation the subsequent incompatible pleadings, the plain- part the solicitor record to indemnify the tiff must invoke the alleged waiver the sheriff against or damage consequence objection his answers.
The judgment ap- irregular levy, under tin execution.-In pealed from, affirming the decision the action the sheriff against solicitor Superior Court R. was reversed. fees charges, the solicitor cannot counterclaim for overcharges former bills paid to the sheriff by him in respect of matters which the solicitor may have acted for the Suitfor sherif's parties interested because any such overcharges, charges-Sined recoverable the sheriff, not belong t the solicitor but to the clients for whom Seeacted but, such an action, the solicitor SHARHOLER
*vhich had appeared for the sheriff not- SHAREHOLDER Joint withstaing his o for shares-Equirulent for cash-Written costs prior tisin ne aoined in Joint Stock Company paying a portion land-Sherig'sodeal-Wartitle-Eviction
Held, affirming the judgment the Court that there was no agreement in writing for the payment the difference money's worth instead cash under The Companies Act, \J
SNOW AND ICE-famntennnce of streetspriceAcumulation icc-ross the shares to the liquidator the company.
2-Principal and agent-Pootoers of iossRa
SOLICITOR-Solicitor sisconupt drti-Adtising jurispradente-Territori Act-os
SHERIFF-Solicitor cie Neeligec 1sds-Lea tisconductBreach duty-Advising
Tort tbr ged ant an creditor, alleged cxcution-Itdsnity irregular under writ execution, -Peaing-Inteeplealer sheriff ht obliged interplead, but Signed of In suit against the sheriff properly joined defence with and ama execution creditor irregular levy under writ execution, the ing to thn established jurispruence thn sheriff iot obliged interpleat but may court which proceedings are taken with the execution creitor. advising reie
SOLICITOR-Continued.
a solicitor nor sheriff tort-feasor, against a transferree, whose transfer unregistered, by registering the discharge their respective duties an execution a judgment against lands the judgment debtor.-The delivery an execution with requisition to the sheriff to charge and upon lands apparently belonging to the execution debtor, not give rise to any implied express obligation.-In action the sheriff against a solicitor for and charges, the solicitor bills paid to the sheriff in respect but he acted, but, such an action, the his costs suit in which he had appeared the sheriff notwithstanding his omission to render a signed bill the costs prior to the spEciric PERFORMANCE-Contractfor land-Action for
STATUTE-Continued.
absolutely free from poison, violation the prohibition contained Art. R. Q., whethet not the articles enumerated the ' Quebec Pharmacy Act' as poisonous or containing an enumerated poison.
the Court Queen's Bench R. Q. reversed.
Taschereau and Gwynne JJ. priority- Expiration statute-R. 8-55 Under the provisions the eighth section " The Patent Act " as amended & Vict. 1 it only in the the applicant exercising the option obtaining patent patent that patent patent sagistrete-Jrisdictio-Applicatioe ccrtiorari-Affidacit Tie Supreme -Jurisdiction-Amount incontro- Court rersy-80 & c. I (c) and (f).]
Rep. which it had 1 subsec. ()of60 & Vict. 34,providing that held that section the Nova Scotia Liquour in appeals from the Court Appeal for Ontario License was intended operate, not that that recovered, they are different," inoperative, denying the concession the charged, (c).-The that constitutionality the Liquor License Act Act'-Unlicensed for jointupon 56'ontreverted
-Status tuted franamendment came into force.
V. c. chises-The principal contention preli- (Que.); Art. R. Q.-The sale in the Pro- uinary objections to controverted election le nd STATUTE-Continued.
STATUTE-4ontin
Act"-Stutory Elections Act" regulating the franchise the
&e 1.
Province Quebec substituted therefor thereby, to deprive the petitioner right to STATUTE OF ELIZABETH-Voluntary (Imp.)-Sot deprived vote that had no status as Action voluntary conveyance petitioner.
In the Election Court, evidence lad under Eliz. (hup.) was taken on issues joined and the judge, tendin to hinder anl delay creditors though ing thatno corrupt practice upon the part the the vendor solvent when it was made petitioner had been proved, dismissed the pre- results in denuding all property, liminary objections.
appeal to the Supreme and rendering him insolvent thereafter. A Court Canada : Held, that as corrupt mortgagee whose security admittedly insofpractices had not been proved, the question as ficient may bring an action to set aside to the the statutes did not arise. Per conveyance that without first realising his Gwynne J. -The amendment to the Dominion security.
Judgment the Supreme Court Franchise Act Vict. and & British Colunsia (7 B. C. rexersed, Vict. has not introduced into that Owynne J. dissenting.
Sux Quebec Elections Act' as to deprive per- STATUTE OF FRAUDS-A-/joe c. plaintifs forthe 6--Construction statute-Antending itappears that title -Retroaction-Sae thatsuch undertheSatute ofFrauds, Manitoba for the Court Queen's Bench to though no defence pleaded.-It only the action between the parties to the the Queen's Act,
In that year the
Court s decided that this against the other, that the defendant must plead ofQuen sBenh dcidd tat histhe Statute Frauds to avail hios- STATUTES-13 Eli. (Prudeshall apply to orders and judgments heretofore conveyances.)
made or entered, except in cases where such frauds) & IV., B
Acts.
which
Hild, that
(Post Art) Act-Statrraent
'. fortigu jiud/ent
STATUTES-Continued.
STATUTES-Continued.
R. C. (Militia Act) 22---60 & c. 1 and (f) (D.)- (Appeals Supreme Court front Court of Appeal for 8-R.
c. (Patents of Invention)
9-R.
S. G. c. (Companies Act)
10-R.
S. (Winding-up Act)- 11-R.
S. [Supreme Court
12-R.
c. (a) (Supreme Court)
R. c. . (b) [Supreme Court
14--50 & c. s. (c) (Exchequer
15--51 c. [Territories Beal perty Act]
- 23--61 c. [Controverted Elections[ 24--61 c. (Controverted Elections-447 25--60 & V 1 [Supreme Court 26--63 & V. c. [Controverted Elections] - - 27-37 V. c.
[Windsor Waterworks] n
28-R.
S. 0. c. ('Ontario Insurance 4ct'
29-R.
c. (" Ontario Judicature R. S. 0. c. (Workmen's R. S.0. c. [Maintenace ol streets.]
32-62 V. (Ont.) [Special leave c. [Sale of Crown Lands] 19--53 V. c. [Bills of Exchange :t]-484
34-B. S. Art. (Sale of 'roi lands) 20--54 & (Supreme Court
35-B. Arts. seq.; Arts. (Sales ald Licenses of Crown Lands ald 21--55 & c. s. 1 (Patents Invention) Tinber Berths.)
See 2.
16-51 V. c. (Railway Act)
17-53 c. s. (Railways)
18--53 V. c. [Bank Act]
- STATUTES--Continued
I TELEPHONE COMPANY
Oh.structing Rer. Stats. Arts. 4035, 4039b, highway-Damages for injuries-Negligence- Proximate cause-Telephone pole-Third party- (Pharmaceutical profession.) Cst person drivin public highway wh43 ustains injury to his person and property "
the carriage contact telephone law iily placed there, cannot main- 37-R. S. Q. Art. (Ihnprorement of tabs an action for damages it clearly appears courses.)
that his horses were running away, and that their violent, uncontrollable speed was the proximate cause the accident.-In an action V. c. (Pharmacy Act) against the city corporation for damages such the latter was ordered to pay the costs the Telephone Company brought in [Montreal City Char- third party, it being shown that the company ler.]
placed the pole where was lawfully, and authority of the corporation.
40- V. c. Charer.]
LICENSE-Crown lands-Timber 1iga-Soales aoent tiget- V. c. ( Q [Electoral fran- 42c. [Montreal City
43--V. c. [Montreal City Charter.]
44- V. c. [" Pharnacy
45-58 V. c. (N. s. (Certiorari victions under Liquor License Act, - Suspensire condition-Title lands- Art. C.-Arts. and S. Q.] During the term license to cut timber ungranted lands the Province the local Crown Lands Agent made sale part the lands covered the license, and issued location tickets or licenses occupation therefor under the provisions Arts. the Revised Statutes Quebec, respecting the sale Crown Lands. Subsequently the timber license was renewed, but, at the time the renewal license was issued, there had not any express approval the Commissioner Crown Lands the sales made by the local agent provided Art. R. Held, affirming the judgment appealed from, Taschereau and Davies JJ. dissenting, that the approval required Art. R. was not a suspensive condition, the fulfilment which would have retroactive effect from the date when the sales by the local agent were made, and that, at the time the issue the renewal license, the lands question were still ungranted lands the Crown for which the timber license had been validly issued. lion for actions ex delictu against towns.]- TITLE TO LAND-Metes andbonds- Descrtption
Possession boundaries
Construction of married woman-Propre eommunautd - Cadasrl plan and description
47--60 V. c.
[Orders jor sale C. In June, deed gift, P granted to F, an emplacement, described and bounds and stated to have thirty frontage, tel tout est No. of t'acqeeur dit Bildonation had actually been made although no deed had been executed, and that since then F had been in possession as owner S. C. R. YOL. XXXI.]
TITLE TO LAND-Continued.
and erected the buildings thereon.
Under this donation the donee and his vendees claimed title to thirty-six feet frontage having actually occupied by him and them since F took possession owner in and that plaintiff had acquired prescriptive title by ten years possession, at the time the action in to recover possession the six feet then in occupation the defendant, plaintiff alleged to trespasser.
Held, that the deed in operated as interruption prescription and limited the title to the thirty feet frontage as therein described.-The plaintiffs wife purchased from
F deed describing the emplacement in manner similar the description the donation, but making reference to its number the Cadastral Plan the Parish which described it as greater width. Held, that the description in the deed left the true limits emplacement subject to determination, according to the title held the plaintiff's auteur, which granted only thirty frontage; that by the registered title, the plaintiff was charged with either actual implied notice this fact, and that, consequently, had not, good faith, possessed more than the thirty feet frontage under this deed, and could not invoke an acquisitive prescription title to the disputed six feet ten years possession thereunder ; and further, that no augmentation the lands originally granted could take place consequence the cadastral description the emplacement question.-The words "Tel que le tout actuellement et que l'acquireur bien connaitre" the deed gift, cannot interpreted contradiction the special description that precedes them, and only construed as extending "dans linites ci-dessus dicrites. "-A prescriptive title to lands beyond the boundaries limited the description the deed conveyance can only be acquired by thirty years possession.
Qw-ere.-Is deed lands Quebec to married without the authorization her husband, cient to support petitory action? Would such a deed null for defect form and insufficient, under article to serve as the ground for prescription ten years possession.
2--Legali warranty-Description-Plait division-Change appeal-Parties.] vendor land, described according to an existing plan subdivision, with customary legal warranty, not obliged to defend the purchaser against troubles resulting from the exercise subsequently, municipal authorities, powers respect to
TITLE TO LAND- Continued.
the alteration the street line.-A party called into petitory action, to take up the Jait et case the defendant therein, warrantor the title, may take up the defence for the purpose appealing from judgments maintaining both the principal action, and the action in warranty, although may have refused to the court first instance, but, should the appellate court decide that the action in warranty was unfounded, it ipso facto ousted jurisdiction to entertain or decide upon the 3--Trespass- In the defendants constructed tollvacant lot, and a roof projecting over it about three feet.
This was done with the knowledge and consent persons who were then proprietors, and was not objected to them or any subsequent owner till after the purchase the lot the plaintiff when he complained that the overhanging roof interfered with the gable house was building upon it.
He cut the roof to permit the construction the gable and defendants paid the costs the necessary alteration. instituted action against defendants to have the remaining projection the roof demolished and the that there ever had been division line estabwidth the land purchased and taken possession the plaintiff was left in unin dispute, and consequently that his action could not maintained.
Held further, that, as the plaintiff and his anteurs 4--Sale land-Warranty ded-Sherif lands-Ericprior conveyance the vendor declared that he TITLE TO LAND-Continued.
TRAMWAY-Continued.
therein mentioned and which he was actually trol" within the meaning the in possession, and that the immovable belonged men's Compensation Act (R. 0. to him having acquired at the sheriff's and if negligently allows an open car to sale.
Held, reversing the judgment appealed contact with passing vehicle whereby from, the Chief Justice and Tasehereau J. dis- the conductor, standing the side senting, that the warranty covenanted the discharge his duty, strnck and injured the vendor had reference merely to the rights electric company liable in damages for may have acquired the lands under the injury.
Jndgment the Conrt of7Appeal sheriff's deed and did not oblige him to pro- Ot. R. affirmed.
tect the purchaser against eviction by person claiming under prior title to portion the
Dupuy eetric Duouis
Power Vibrations, an 5--Sintulated Injury Notwithrersy-R.
waters-Cuttin, its power-honse for any strnctnrai injnries 7--Crown machinery and the dininution rental and vale duet-Breach ilutg-Advising crossins wInjries jurisprudee-Tertories -eidings jury
Inan negligence was tie canse the accident and TORT -'hrgingj lnds execution-Levy that .solicitor-Terrioie2s Protort-feasor a transferee that the acci-j ent would not have occurred hut plaitiff's not recover.
LonON agnst
- 615Duase
TRADE COMBINATION - Contract- Uncount-Public tion-Conspiracy-Malunt Malut se-Interest
TRAMWAY-Negligence- Act-Injury
. 48 p indcbiti-Error
TRESPASS -Cutting
2-Municipal Limitatia MNICIPAL S. C. R. XXXI.]
TRESPASS-Continued.
VENDOR AND PURCHASER-Con. view-Boundary ridence-Demolition field, tnder sentatius dcived the purchaser to tion-Farm crossing.] railway line passingover chaser had right to the contract rescinded the northern half lots and respec- the ground error ; that, tnder the tively, the eighth concession North Dum- stances, the delay bringing the action fries, having trestle bridge over ravine not imputed as laches the defendant, near the boundary the owner lot nor waiver his right have the contract set (except the part owned the railway aside, and the defendant's administration pany) for number years used the passage the property the meantime could not under the trestle bridge to reach a lane the strued ratification the contract. south half lot over which could pass to village the west side, his predecessor
3--Volsntary creditor-Aetion injunction have it re-opened.
ing the judgment the Court Appeal
Out. R. that user could ripen into title prescription the right
4--Title carranty-Description- V. plat VENDOR AND PURCHASER-Insurance fire-Insurable interest-Unpaid
An unpaid vendor, who by an agreement with rights-Baildisl daessPenning sater-Warranty-Improve- VIEWthat lend-Boundary al. p.
2--Sale
-VOTER-£osdroeerted
Prelisnars Error-Lache'-Pos- franion-Ratification- Act"-Construction prevent it from falling into the hands per- VOTERS' LIST
Controverted Imprint Printer list-Evidence-Status falsely representing that had a serious for the purchase or lease the property for the purpose brewery, induced to WAIVER-Appeal-Expi-atioa tiue lisit court-Waieer ferred.
discovery the falsity these -Arts. C.P.
The provisions representations notified R that he repudi- articleg and the Civil ated the contract and invited him to bring Procedure the Province limiting action to test its validity if was unwilling to the time for inscription and prosecution give release and take back the property. The appeals to the Court Queen's Bench, are not vendor delayed time taking action for conditions precedent to the jurisdiction the the recovery the price and, the meantime, court hear the appeal and they may there- WAIVER-Continued.
Petition of
WAIVER-Continued.
-Error pur- Dclinatorp
Incoipleas-Waier Juris- 5-Condition insurnee Farther
Phading F right.-A ferene applate
WARRANTY lands-Legal droit-preises-Assignment fail moths firt acon wairaty hal deed-Slte anld Eition prior that that judgent lease.-Mortsubtenants assigne sherifs Dpny followeie.
WARRANTY-Continued.
3-Deed -Riparian dana- WATERCOURSES-Narigable waters-Custice-Trespass
\WATERS.
WATER LOTS-Navigable waters-Cutting
WATERWORKS- Municipal placed under the management Board
Commissioners who are to collect the revenue, pended any one year without vote the the Court Appeal Ont. App. R. that city carrying out the purposes the Act, penditure which would exceed the statutory such contract the city corporation would have
Quere.-Would the party
WILL fluence.] codicil to will executed shortly before the testator's death, increasing the prothirty ha- JJ. testator better Perera Peres WINDING-UP-Joint Company-Payshares-Equivalent WINDOWS--Right air, light and riewline-Evidence-Trespass- WORKMEN'S COMPENSATION ACTrailway-Negligence-Motermuan-nijury WORKMEN materials-Proximate accident-Injuries liability-Presumptionsjury