Turnbull Estate Co. v. The King / Corkery et al. v. The King / Debury et al. v. The King

Majority

APPEALS from three judgments of the Exchequer Court of Canada awarding damages and increasing the compensation offered by the Crown, based on valuations by appraisers, on the expropriations of the appellants' lands taken for a Rifle Range at St. John, N.B., as follows, respectively, to the Turnbull Real Estate Company $7,425 to David Corkery and Johanna Corkery, $2,500, and to Lucy Gertrude Visart DeBury, $850.

The matters at issue in the three cases were of a similar nature and the cases were submitted together at the arguments. In the Exchequer Court the decision was, in effect, that as the lands at the time of the expropriation had a prospective value for residential and other purposes beyond that which then attached to them as lands used for agricultural and other similar purposes, such prospective value should be taken into consideration in the assessment of the sufficient and just compensation that ought to be paid by the Crown upon the expropriations for public purposes to be used in such a manner as would, in various ways, affect the lands injuriously and diminish their prospective values.

In assessing the :-Sir increased compensation awarded the Exchequer Court Judge looked at the assessed valuation of the lands as shewn upon the municipal assessment rolls, not as a determining consideration, but as affording some THE assistance in arriving at a fair valuation of the property taken.

After hearing counsel for the parties, the Supreme THE Court of Canada reserved judgment and, on a subsequent day, dismissed the appeals with costs.

Turnbull Real Estate Company.

Pugsley K. C. for the appellants, Corkery et al. Coster K.C. for the appellants, DeBury et al. McAlpine K. C. for the respondent.

ACTION-Public work-Negligence ACTION-ontinued.

officials--Right of action-Liability of the Crown The Canada Atlantic Railway & c. ss. 58-Jurisdiction of the Exchequer Court - Prescription-Art. Cn

Canal were injuriously affected through 1

Municipal corporaton

Construction of ing caused by the negligence the Crown cials in failing to keep a siphon-tunnel clear and in proper order to carry the waters a

1en d.

of plaingi-Pract stream which been diverted and carried , s laintiff o under the canal and also part the landsh being spoiled dumping excavations upon it. land which the defendant was illegally Held, reversing the judgment appealed from (7

The courts below dismissed the Ex. R. Davies J. dissenting, that the action the ground that the proper remedy owner had a right action and was entitled to was action bornag or an pdtitoire. In recover damages for the injuries sustained and that the Exchequer Court Canada excluada, without directing any amendment sive original jurisdiction in the matter under the pleadings, reversed the judgments the the provisions the 16th, 23rd and 58th courts below, directed that the record should tions the Exchequer Court Act.

Quen remitted to the trial court for the purpose ofe ascrtaein th xeto tepoe v. Filion R. approved

The City of v. The Queen Can. affected the trespass and ordered the re- R. referred to.-The prescription storation thereof to the plaintiff.

established Art. the Civil Code

Lower Canada applies to the damages claimed I appellant in his petition right.

4-Contract under seal-- Undisclosed p-imcxpal-Partership.] P. sold mining areas 35and paid part the price.

The purchaser signed an agreement under that would organize company to work the areas 2--Assessment of damages-Reserration re- and P. stock for the balance at the market course for future damages-Expropriation -Res

H. organized company which received judicata--Riqht oj action.] lessee pre- deed the land and did work but mises used as an ice-house recovered indemnity finally ceased operations.

small part the city for injuries suffered in consequence the stock sold and none was given to P. the expropriation part the leased pre- took action against the purchaser and H. mises and, in his statement claim, had claiming that the latter was partner the purspecially reserved the right further recourse chaser and that the agreement was signed for damages resulting from the expropriation. behalf both.

The purchaser did not defend In an action brought after his death by his the

Held, that action could lie universal legatee to recover damages for loss against H. the agreement under seal not the use the ice-house during the unexpired signed even it for his benefit and a Held, judg- was not necessary.

ment appealed from, that the reservation in the first action did not preserve any further right 5-Leased lands-Emphyteusis-Injuries action in consequence the expropriation property

Trespass-Recovery of lands-Reand, therefore, the plaintiffs action was pro- coreryof damages-Legal and beneficial estatesperly dismissed the courts below, as, in such Adding parties.] Where lands have been leased cases, all damages capable being foreseen for long term, amounting to an emphyteusis, must assessed once for all and defendant tie right action au petitoire for the recovery cannot twice sued for the same cause.

The the lands from third party in adverse City of Montreal v. McGee pation in the lessor and the action to recover Chaudiore Machine anv.

damages for injuries caused to the leased lands ACTION-Continued.

lies in the lessee. -Where the petitory action has been brought the lessor with for damages for injuries caused to the leased lands the defendant, the lessee may be added, on application to amend, as party plaintiff to the action for the purpose recovering the damages.

-Railway embankment - Trespass - Nuisance-Continuing damages - Right of action.]

7-Insurance policy

Contract

Mortgage clause-Right of Action Mortgagee

ADMIRALTY LAW-Navigation-Narrow channels. " White law " R. 24-Right of way- Meeting ships-Collision.] Rule 24 the

" White law " governing navigation in United

States waters provides " that all narrow channels where there a current, and the rivers St. Mary, St. Clair, Detroit, Niagara and St. Lawrence when two steamers are meeting the descending steamer shall have the right and shill, before the vessels shall have arrived within the distance one-half mile each other, give the signal necessary to indicate which side she elects to take."

this rule has no reference to the general course navigating the waters mentioned but applies only to meeting vessels

Therefore, a steamer ascending the St. Clair with tow not fault when followed the custom going vessels to hug the United States shore.- The " Shenandoah " with tow ascending the St. Clair River and hugging the

United States shore.

The " Carmona " 'was coming down the river and they sighted each other when hundred yards apart.

They simultaneously gave the port and starboard signals respectively and the port signal was repeated the "Carmona."

The "Shenandoah " then gave the port signal and steered accordingly.

The " Carmona," thinking there was not to pass between the other and lying at the elevator dock, reversed her engines.

She passed the " Shenandoah "

but going ahead again collided with the vessel in tow. Held, reversing the judgment the local judge Ex. R. 1) that the

" Shenandoah " was not in fault, and that the judge had found the " Carmona " not to blame, and her captain's error in judgment, it was such, in thinking had not room pass between the two vessels was mitted while in the agonies collision, his judgment as to her should affirmed.

Co.

APPEAL-Special leae-60 & V. c. -Error in judgment-4Concurrent jurisdiction -Procedure.]

Special leave to appeal from a judgment the Court Appeal for Ontario, under subsec. & Vict. will not granted on the ground merely that there error in such judgment.-Such leave will granted when it certain that similar application to the Court Appeal would be refused.-The Ontario courts have held that a person acquitted criminal charge can only obtain copy the record the fiat the Attorney General.

having been refused such fiat applied for writ mandamus which the Division Court granted and its judgment was affirmed the Court Appeal. that the mandamus having been granted, the public interest did not require special leave to given for appeal from the judgment the Court Appeal though it might have had the writ been refused.

The question raised the proposed appeal if not practice, a question the control Provincial Courts over their own records and with which the Supreme Court should not interfere. 2---Jurisdiction-Matter in controversy-Reof executors-Acquiescence in trial court judgment-Right appeal-R. c. 29.] The Supreme Court Canada has no jurisdiction to entertain an appeal in a where the matter in controversy has become an issue relating merely to the removal executors though, the action, an account for over had been demanded and refused the judgment at the trial against which the plaintiff had not appealed. Noel Chevrefils Can. R. followed; Laberge The Equitable Lj/e Assurance Society Can. R. distinguished.

3--Libel-Question privilege-Proof malice-Improper admission of evidence-Misdirection-Power to grant trial on appeal- N. S. Judicature Act, 0. R. 5; 0. R. Where in tried with a jury thedefendant asked only for a new trial in the court appealed from the Supreme Court Canada cannot order judgment to entered for the appeal.

--- 4-Findings of Courts appealed from-Evidence-Questions of fact-Reversal on appeal.], prevents the Supreme Court or an intermediatethe trial on the facts.

Held, per Gironard J., following Village of Granby Mdnard Can. R. that the evidence being contradictory and the trial judge having found for the- APPEAL-Continued.

defendant, which finding the evidence warranted, his judgment should not have been reversed on appeal.

5-Concurrent findings of courts below-Rerersal on questions of fact-Improper rulings

Reversal on a matter of procedure.] Where the findings the trial courts were manifestly erroneous and the trial appeared to have irregularly conducted, the Supreme Court

Canada reversed the concurrent findings the courts below and also reversed the concurrent rulings those courts refusing leave to amend the statement claim alleging an account stated.

granted, August,

6-Assessment of damages - Estimating by guess-Concurrent findings-Reversal appeal

-New trial.] The evidence being insufficient to enable the trial judge to ascertain the damages claimed for breach contract, stated that was obliged to guess at the awarded and his judgment was affirmed the judgment appealed from.

APPEAL-Cotinued.

sessoire.] In a possessory action with conclusions for damages, the defendant admitted plaintiffs title and claimed the right occupying the premises as her tenant.

appealed from affirmed the trial court judgment, dismissing the possessory conclusions and adjudging for rent the premises question.

Held, that the defendant had no right of appeal to the Supreme Court Can- Practice - Adding alternative claims- Amendment

Discretionary orders Duty Appellate Court.] Where the court the exercise judicial discretion refused leave to amend the pleadings the Supreme Court would not interfere with exercise their 11--Questions of law-Findings of fact-Reversal on appeal.] questions law, the judgment appealed from was reversed, Davies J., dubitante, but the findings, on conflicting testimony, respect damages, by the trial judge, were not disturbed on the appeal. Mrscould obtained by sending the back for BOUNDARY

Railways

Construction new trial and, therefore, allowed the appeal deed-Location of permanent way-Laying out and dismissed the action, thus reversing the boundarie-Fencing-Riparian right-Notie concurrent findings both courts below. of prior title-Registry laws-Possession-Ac- Armour J., however, was opinion that the quisitive prescription.] In the conveyance proper course was to order new trial.

lands for the permanent way the deed described 323lands sold the railway company bounded an unnavigable stream, selected and Jurisdiction-Interlocutory proceedinglaid out" for the railway.

Stakes were plant- Final judgment.]

An order R. K. to show the side lines, but the railway requiring opposants afin de charge to fur- fences were placed inside the stakes the nish security that lands in execution, if water's edge and the vendor allowed resold the sheriff subject to the charge possession the strip land between claimed, should realize sufficient to satisfy the the and the middle the bed the claim the execution creditor, merely an stream.

The deed was duly registered and, interlocutory judgment from which appeal subsequently, the vendor the rest his lies to the Supreme Court Canada.

Lacroix property including water rights, mills, and Moreau R.

referred to. dams constructed the stream to defendant's 340 auteu, descrb the river which not included in the right Jurisdiction-Amonnt in confroversyway, etc."

Held, 1. That the description Secretion of estate insolvent-Contrainte par the deed included, exjure naturn, the river ac corps-A rts- 0. P. Q.]

contesta- medium filum aquw and that the company's tion a statement an insolvent trader a title thereto could not defeated the subcreditor claiming a sum exceeding 82,000, the sequent conveyance, notwithstanding that they judgment appealed from condemned the appel- had not taken physical possession all the lant, under the provisions Art. p.

lands described the prior conveyance to three months' imprisonment for secretion them That the failure the vendor a portion his insolvent estate, to the value deliver the full quantity land at least

Held, that there was no to the company and their absention pecuniary amount controversy and there troubling him and his grantees could no appeal to the Supreme Court the could not be construed 343 conduct placing construction upon the deed different its clear and unambiguous terms Jurisdiction-Matterin controrersy-Right or limiting the area the property of appeal-Prsonal condemnation-Action pos- veyed to exclude the strip outside the [S. C. R. Vot. XXXIII. BOUNDARY-Coniinued.

fences or the bed the stream ad medium flum; And That such possession by the vendor and his assigns was not possession which ripen into a title acquisitive prescription the property in question.

CARRIERS-- Railways-Carriage of goods- Special instructions-Acceptance consignee- Warehousemen-Negligence -Amendment.]

Bros., dealers in scrap iron at Toronto, time prior to and after had sold iron to a Rolling Mill at Sunnyside Toronto

West. The G.T.B. had no station at Sunnyside the nearest being at Swanses, a mile further west, but the Rolling had a siding capable holding three or four cars.

In F. instructed the G.T.R. to deliver all cars addressed to their order at

Swansea or Sunnyside to the Rolling Mills and October, they had contract to sell certain quantities different kinds iron to the company and shipped to them at various times Jan. 2nd, cars, one addressed to the Company and the others to themselves at Sunnyside.

Jan. 10th the

Company notified F. Bros. that previous shipments had contained iron not suitable for their business and not the kind contracted for, and refused to accept more until a new arwas made, and about the middle

January they refused to accept part of the cars and the remainder before the end

January.

Feb. 4th the cars were placed siding to be out the way and were there frozen

Feb. 9th F. Bros. were notified that the cars were there subject to their orders and two days later F., one the firm, went to Swansea and met the Company's manager.

They could not get at the cars where they were, and F. arranged with the station agent to have them placed on the pany's siding and he would have what the company would accept taken to the mills teams.

The cars could not moved until the end April when the price the iron had fallen and F. Bros. would not accept them, but after considerable correspondence and negotiation they took them away the following

October and brought an action against the

G.T.R. founded on the failure to deliver

It appeared that in previous shipments the cars were usually forwarded to the rolling mills receipt order therefor from the company, but sometimes they were sent without instructions, and Feb. 3rd the station agent had written to F. Bros. that the cars at Swansea and would sent to the rolling mills. Held, affirming the judgment the Court Appeal, that the Rolling

Mills were consignees all the cars and that they had the right to reject them

CARRIERS-Continued.

exercised such right the railway company were not liable as carriers, the transitus having to an end at Swansea the refusal the company to receive them.-The Court peal, while relieving the railway company from liability carriers, held them liable as warehousemen, and ordered a reference to ascertain the damages that head.

Held, reversing such decision, Mills J. dissenting, that the action was not brought against the railway company as warehousemen, and as they only be liable as such for gross negligence and the question negligence had never raised nor tried the action must be dismissed in toto, with reservation the right F. Bros. to bring further action should they fit.

OP 2--Contract--Shipping receipt--6Oarriers--Limitation of liability--Salefor non-payment offreight -Principaland agent-- Varying terms of contract.] Conditions in a shipping receipt relieving the carrier from liability for or damages arising out "the safe keeping and carriage the goods " even though caused the negligence, carelessness or want skill the carrier's servants or workmen, without the actual fault or privity the carriers, restricting claims to the cash value the goods at the port shipment, do not apply to cases where the goods have been wrongfully sold or converted the carrier.-A shipping receipt with terms above was for carriage the defendants and other connecting lines transportation and made the freight payable delivery the goods at the point destination.

The defendants had previously made special control with the plaintiff but delivered the receipt to his agent at the point shipment with a variation the special terms made with in respect to all shipments to him as consignee during the shipping season the variation being shown a clause stamped across the receipt which the plaintiff had no knowledge.

the shipments was sold at an intermediate point the line transportation on account nonpayment freight the companies control a connecting line to which the goods had been delivered the defendants. Held, that the plaintiff's agent at the shipping point had no authority as such to sent to a variation the special contract could the carrier do inserting the clause in the receipt without the concurrence plaintiff ; that the sale, made at the intermediate point, amounted wrongful version the goods the defendants that they were not exempted the terms the shipping receipt liability for their full CARRIERS-ontinued.

value under the terms. -As the evidence showed definitely what damages had been sustained, there being no good reason for remitting the case back for a new trial, the Supreme Court

Canada, in reversing the judgment appealed from Rep. ordered that the damages should be reduced to those proved respect the goods sold and converted.

Armour J.

however, was opinion that the judgment

Craig J. at the trial should restored.

- CASES-Agricultural

Savings & Loan v. Liverpool & London & Ins. Ont.

2--Attorney General ofNora Scotia Lovitt

3-Attorney General for Ontario Scully (4

Ont. L. R. leave to appeal refused - See 1.

4--Barter Smith Ex. R. over- Canada Atlantic Railway City

Ottawa (4 Ont. L. R. affirmed

- 6--Chaudidre Machine and Foundry

Canada Atlantic Railway Can. R.

The King R. K.

8- Fowlie Ocean Accident and Guarantee

Corp. Ont. L. R. affirmed

9-Georgian Bay Navigation v. Ships

Shenandoah and Crete Ex. R. 1) reversed

10-Gilbert Blasting and Dredging The

King (7 Ex. R. affirmed

- 11-Granby, Village of Menard Can.

C. R. followed Girouard J.

- CASES-Continued.

12-Grifinv. Toronto Railway (7 Ex. 13-Hamburg'American Packet The King Ex. R. affirmed

- 14-Hanson Village of Grand' Mere R. 15-Harrison Western Assurance Henning v Maclean Ont. L. R. 17--Laberge Equitable Life Ins. Can. distinguished

- Lacroix v. Moreau L. R. 19-Letourneux The Ex. R. 1) 20-Miller v. Green N. Rep. Montreal, City of v. McGee Can. Montreal and Ottawa Railway City of Ottawa Ont. L. R. affirmed 23-Myers Sault Ste. Marie Pulp and Paper Ont. L. R. affirmed - 24- McDonald McDonald Rep. 25- Noel v. Cheorefils followed

- - - - - Osborne v. Morgan App. CASES-Continued.

27-Quebec, City of The Queen

28--Queen, The Filion Can. R.

Thorne Parsons Ont. L. R.

Wilson Canadian Development (9

CIVIL CODE-Art. (Emphyteuis) - 2--Arts. (Donations)

- 3-Arts.

(Contract, Damages)-418

4--Art. (Marriage Covenants)

5--Arts. (Sale)

6--Art. (Alienation for rent)

7--Art.

8-Arts.

(Possession, Prescription)

Arts. (Prescription) - 10--Art. (Prescription)- - - CIVIL CODE OF PROCEDURE-Art.

11--Arts. (Contrainte par corps)-343

CHOSE IN ACTION- Will -Devise of all testator's property-Debt due devisee.] A devise all "my real estate and property whatsoever and what nature and kind ever " at a place named not include a debt due the devisee, who resided and carried business at such place, to the testator.

Ont.

COMMUNITY OF PROPERTY-Marriage contract- Universal community-Don mutuel- Registry laws-Construction of contract-Divisibility-Arts.

- CONSTITUTIONAL LAW-construction B.N.A. Acts-Representation of Provinces in House of Commons-Aggregate population Canada.] In determining the number representatives to which Ontario, Nova Scotia and New Brunswick are respectively entitled after each decennial census, the words "aggregate population Canada " in subsection section the B.N.A. Act, mean the whole population Canada including that provinces which have been admitted subsequently to the passing that Act.

2---Constitutional law-.B. N. Act, Representation of P. E. Island in House of Commons.] The special terms which the Province Prince Edward Island was admitted into the Dominion do not exempt that province from the general operation the clauses the B. Act, to representation the House Commons after the decennial census. Leave to appeal to the Privy Council granted 11th November,

CONTRACT--Public work--Abandonment and substitution of work-- Implied contract.] The suppliants contracted with the Crown to certain work on the Cornwall Canal the contract providing that they should provide all labour, plant, etc.. for executing and completing all the works set out or referred to in the cations, namely, "all the dredging and other works connected with the deepening and widening the Cornwall Canal on section No. 8 (not otherwise provided a date named; " that the several parts this contract shall be taken together to explain each other and to make the whole consistent; and if it found that anything has omitted or misstated which necessary for the proper performance and completion any part the work templated the contractors will, at their expense, execute the same as though it had been properly described; " and that the engineer could, at any time before or during struction, order extra work to be done changes to be made, either to increase diminish the work to done, the contractors to comply with his written requirements therefor.

section it was declared that contract the part the Crown should implied from anything contained the signed contract or from the position the parties [NDEX.

CONTRACT-Continued.

any time. After a portion the work had 4-Coract for construction icorN-Deducbeen done the Crown abandoned the scheme tiousfor portions omitted-Partial cancellation constructing dams contemplated the of contract-Arts. 0.-Appeal tract and adopted another plan the work special questions-Bc/erred payment-Coipuwhich was given to other contractors.

After it tation interest-Payments in adeance-ewas completed the suppliants Petition bates-Powers of appellate court.] The pro- Right for the profits they would have made had visions article the Civil Lower it been given to them. Held, affirming the Canada not give the ovner works being judgment the Exchequer Court Ex. R. constructed under contract at price that the contract contained no express the power cancelling the contract part and covenant the Crown to give all the work I maintaining it another part; the contract done to the suppliant and section prohibited must, under that article, either cancelled any implied covenant therefor.

Therefore the in toto not at all.

The nunicipality Petition Right was properly dismissed. agreed to pay for works to constructed & promissory notes payable in two years with- 21 out interest, notes to delivered to the contractor tile completion the works and 2-Fire insurance Void policy-Renewal-to a date assumed to the men date insane

- By

7of rrhentario completion the works carried detail. Afortgage claus~e.] By sec. of The Ontario Tealuto h oe ersne h rc Insurance Act mercantile risk can only be tes represted pi insured for one year and may be renewed the municipality reserved the privilege makrenewal receipt instead policy.

reversing the judgment the Court Appeal g pa es the accepanc fro Ont. L. R. and restoring athat at the from . R ad rstorng hat time to time, without interest or previous notice trial 0. R. Girouard J. contra, that "en ddduisant int6rts coinosis taux the renewal not a new contract insurance. six pour cent par

Therefore, where the original policy was void

4chir aprs dn for non-disclosure prior insurance the re- pain lss ptatonipris dae newal was likewise nullity though the prior insurance had ceased to exist in the interval.

he ntes forthe a-Ice Held, per Girouard J. that the renewal was a due were delivered in

The trial court new contract which was avoided non-dis- a closure the concealment the application payments from the dates which they had to but SAviNSs CO.

--- 94the judgment appealed from disallowed all interest prior to the pay- Contract works-Speci- Jcations-" From" and streets-Reference Held, that plan-Construction deed-Mistake the court mentioned in specifications for the construction advance payments correct. -The court appeal, however, calculated this interest the ing a plan annexed to and declared basis the actual price the works tento form part the contract are not necessarily dered

Held, reversing exclusive and, the case question, where appealed this point, that the interest the agreement provided that the works should should calculated the the price be constructed " along Notre-Dame street from actually mentioned the contract, and upon Berri street to Lacroix street as shown on said the actual amount the advance payments made-Certain the were not executed, shows along Notre-Dame street but not exceed- the municipality and, this ing the most distant side Lacroix street. head, the trial court refused to deduct Mills and Armour JJ. dissenting, were 82,442.50 from the plaintiffs claim. opinion that the plan was annexed to the writ- Judgment appealed from, did deduct this ten agreement merely for the purposes illus- amount the judgment favour the tration and that the words in the agreement plaintiff. It appeared, however, that the plainlimited the contract that the works under- tiff had, at least tacitly, conseited to this dimitaken would not include constructions shown notion and made protest respect thereof. on the plan over any portion either Berri Held, that, under the circumstances, the plainstreet or Lacroix street.

tiff could not claim the sum in question 396 under articles and the CONTRACT-Continued.

5-Shipping receipt-Carriers-Limitation liability - Damages - Negligence - Connecting lines- Wrongjul conversion--Sale of goods for non-payment freight-Principal and agent- Varying terms of contract.] Conditions in a shipping receipt relieving the carrier from liability for or damage arising out " the safe keeping or carriage the goods"

though caused the negligence, carelessness or want skill the carrier's servants or workmen, without the actual fault or privity the carrier, and restricting claims to the cash value the goods at the port shipment, do not apply to cases where the goods have been wrongfully sold or converted the carrier.-A shipping receipt with terms as above was for carriage the defendants' and other connecting lines transportation and made the freight payable on delivery the goods the point destination.

The defendants had previously made special contract with the plaintiff but delivered the receipt to his agent at the point shipment with a variation the special terms made with him in respect to all shipments to him consignee during the shipping the variation being clause stamped across the receipt which the plaintiff had knowledge.

One the shipments was at an intermediate point the line transportation account nonpayment freight the companies control connecting line to which the had delivered the defendants.

that the plaintiffs agent at the shipping point had not authority, to consent to a variation the special contract, nor could the carrier do inserting the clause the receipt without the concurrence the plaintiff ; that the sale, made at the intermediate point, amounted to a wrongful conversion the goods the defendants and that they were not exempted from liability in respect thereof, at their value, under the terms the shipping receipt. As evidence showed definitely what damage had been sustained, and there being good reason for remitting the back for new trial, the Supreme

Court Canada, reversing the judgment appealed from Rep. ordered that the damages should reduced to those proved in respect the goods and converted.

Armour J. however, was opinion that the judgment Craig J. ht the trial should be restored.

- - - - - refused July,

CONTRACT-ontinued.

6-Marriage contract- Universal commenity -Don mutuel-Registry laws-Construction contract - Divisibility- Arts. 0.0.

- 7-Sale of monument sample-Evidence contract-Findings on contradictory evidence- Reversal appeal-Practice

8-Contract under seal- Undisclosed principal-Partnership-Amendment

Lease for years-Contrat innommd- Emphyteusis-Bail &

CONTRAINTE PAR CORPS- Appeal Jurisdiction-Amount in controversy-Secretion of estate insolvent Contrainte par corps- Arts. P. Q.]

contestation statement an insolvent trader creditor claiming a sum exceeding $2,000, the judgment appealed from condemned the appellant, under the provisions Art. P. to three months' imprisonment for secretion a portion his insolvent estate, to the value at least

Held, that there was no pecuniary amount in controversy and there could no appeal to the Supreme Court CONVERSION -Carrier's contract-Shipping receipt-Limitation of Liability-Damages- Negligence-Connecting lines- Wrongful conversion-Sale of goods for non-payment oJ Jreight -Principal and agent- Varying terms of lieving the carrier from liability for damages arising out "the safe keeping and carriage the goods" even though caused the negligence, carelessness or want skill the servants or workmen the carrier, without his fault or privity, and restricting claims to the cash value the goods at the port shipment, agreed for the carriage the defendants' and other connecting lines transportation and made the freight payable delivery the goods at the point destination. The defendants had previously made a special contract with the plaintiff but delivered the receipt to his agent at the point shipment with a variation the special terms made with him respect to all shipments to. him as consignee during the season the variation being shown clause stamped across the receipt the plaintiff had knowledge.

One the shipments sold an intermediate point the line transporta- CONVERSION-Continued.

CRIMINAL LAW-Coniinued.

tion on account non-payment freight by person accused but also compelled to one the companies in control connecting testify.

Mills J. (dissenting)

.-Evidence the line to which the goods had been delivered by the person accused acts performed the defendants.

Held, that the plaintiff's her under directions sent to her agent at the shipping point had authority, the accused to the directions, not a as such, to consent to a variation the special communication from the husband to his contract, nor could the carrier do insert- respect which the Canada Evidence Act ing the clause the receipt without the bids her to testify.

Mills dissenting.-Per currence the plaintiff; that the sale, Gironard J. (dissenting).

The communications made at the intermediate point, amounted to a between husband and contemplated the wrongful conversion the goods the de- Canada Evidence Act, may rerbo, fendants, and that they were not exempted ]acto or corpore. Sexual intercourse from the liability respect thereof, at their full such comnunicaaion and the under peal neither the evidence by the accused that lood-stains upon his clothing were caused a refused July, unwell, nor the testimony wife contradiction statement to her COSTS-Provincial bonds-Succession dutiescondition, ought to have been received.-Per Exempted securities-Sale under will--Duty Mills J. (dissenting).

Under the provisions proceeds-Proceedings -Costs.]

Costs will given for or against the husband accused perthe Crown other

Jurisprudence competent witness only behalf Privy Council and Supreme Court Canada the accused and may not give testimony stated as settled number cases specially the part the Crown.-Per Taschereau, C.J. report debates in the House tions-"From and to annexed plan-Mistake-Apportionment were fully adopted, the appeal was allowed CROWN-Public work-Navigation of Rirer r St. Lawrence-Negligence-Uepai- of channel Parliamentary appropriation-Discretion as xpenditure.] CRIMINAL LAW-Perjury-Judicial pro- River St. Lawrence ship-channel which hsd ceeding-De Jacto tribunal-Misleading justice deepened by the Department Public -Jurisdiction-Construction of statute-R. Works and subsequently swept The sup- Q. Arts. 5561-riminal pliants contended that the Crown obliged suming to act a Justice the Peace having amounted to negligence.

Es. R. that the querCourtAct(1887).

Julginent

2--Canada Evidence Act, within the discretion the Governor and witness-" cation"-Construction of statute-Privilege- Directions legal adviser-Practice-Reference Court affirmed the judgment appealed from. 1"ansard debatcs-Method of r. appeal to tle Privy Council granted, only competent witness for or the July,

OROWN-continued.

2-Mines and minerals-Placer mining regulations-Stakng claims-Overlapping locations

-Renewal grant

Unoccupied Crown lands.]

In August, staked and received a grant for a placer mining on Dominion

Creek,

Yukon, which, however, actually included part existing creek claim previously stated W.

In he applied and obtained a renewal grant for the same area,

W.'s having lapsed in the meantime, and was continuously in undisputed possession that area, with his stakes standing from the time his original location until March, when and T staked bench-claims for the lands embraced V.'s expired location which had overlapped M.'s claim, as being unoccupied Crown land.

Held, affirming the judgment appealed from, Davies and Armour

JJ. (dissenting)

, that the application for the renewal grant after W.'s claim had lapsed, for the identical ground had originally staked and continuously occupied, gave him valid right to the location without the necessity formal re-staking and new application, and that, following the rule in Osborne

Morgan the possession

M. under his renewal grant should not disturbed.

V. MERCIER

-Provincial bonds-Succession duties -Exempted securities-Sale under will-Duty proceeds-Proceedings or against the Crown

Costs will given for or against the

Crown in other

Jurisprudence

Privy Council and Supreme Court Canada stated settled number cases specially referred to.

4-Railway subsidy-Dominion Lands Act- Reservation in grant.] an equal division opinion, the Supreme Court affirmed the cision the Exchequer Court Ex. C.R.

by which it held that lands granted as subsidy to railways under Vict. (d) were subject the existing regulations respecting reservation baser minerals the grants thereof, notwithstanding that there was no reference thereto the Orders in Council alloting the lands to the railway, and that the grant was expressed in the statute to be a free grant subject merely to cost survey.

& granted, July,

5-Inury from public work-Negligence

Crown officials-Right of action-Liability

Crown-50 &

Jurisdiction of Exchequer Court-Prescription

-Art. 0.0.

DAMAGES - Nuisance-Trespass-Continuing damage.] In the Canada Atlantic Railway Company ran their line through Britannia Terrace, street in Ottawa, connection with which they built an embankment and raised the level the street.

In the plaintiffs became owners land said street which they have since carried their foundry business.

In they brought action against the Canada Atlantic Railway Company alleging that the embankment built and level raised unlawfully and without authority and claiming damages the flooding their premises and obstruction to their ingress and egress consequence such work. Held, that the trespass and nuisance any) complained committed and the then owner the property might. have taken an action which the damages have been assessed for all.

His right action being barred lapse time when the plaintiff's action was taken the same could not maintained.

Estimating guess-Concurrent finding-Reversal appeal -New trial.] The evidence being insufficient trial judge damages claimed for breach contract, stated that he was obliged to guess at the awarded and his judgment was affirmed by the judgment appealed from.

Canada was opinion that no result could obtained sending the back new trial and, therefore, allowed the appeal and dismissed the action, thus reversing the current findings both courts below. Armour J., however, was opinion that the proper course was to order new trial.

Assessment of damages

Reservation recourse ./or future damages-Expropriation- Res judicata-Right of action.] lessee premises used as an ice-house recovered indemnity from the city for injuries suffered sequence the expropriation part the leased premises and, statement claim, had specially reserved the right further recourse for damages resulting from the expropriation. In an action brought after his death his universal legatee to recover damages the use the ice-house during the unexpired term the lease.

Hield, affirming the judgment appealed from, that the reservation in the first action did not preserve any further right action consequence the expropriation and, therefore, the plaintiffs action was properly the courts below, as, in such cases, all damages capable being foreseen must assessed for and a defendant cannot twice sued for the same DAMAGES-Continued.

DEED -Continued.

cause.

Montreal v. McGee to the railway company bounded an S. R. and Chaudidre Machine and un-navigagle stream, "selected and laid out" Foundry v. Canada Atlantic Ry. for the railway.

Stakes were planted show Can. R. followed.

the lines, hut the railway fences were or placed inside the stakes above the waters edge and the vendor allowed remain Emphyteutic lease-Injuries to leased lends session the strip land between the action-Domaine utile-Recovery

The right action for damages to the middle the bed the stream. leased lands lies the lessee an emphyteusis teed solt rest hi enlyd who has the beneficial estate therein and, ing water-rights, mills, and dams constructed where the owner the legal estate has brought inte stream defendant's nuteur, described a petitory action to eject an adverse occupant "including th and for the lessee may added a I atcpartdof the ri er Hdi party, plaintiff in the action, for the purpose not

1 That the description the deed included, recovering any damages that may shown to have s.

and that the company's title thereto 1'.REEDcould not defeated the subsequent 5- Contract for construction of works-Deduc- veyance, notwithstanding that they not tions for portions omitted -- Partial cancellation taken physical all the lands desofcontract- Arts. C.-Deerred .ried the prior conveyance to them payments--Computation of interest - Payments T'at the failure the vendor to deliver the in adVance-Rebates full q'antity land to the and their abstention from troubling him 4,5nd his grantees possession the could 6--Contract

Shipping receipt-- Carriers- not construed conduct placing a Liability limited special conditions -Negli- struction upon the deed different from its clear genceand unambiguous rs limiting the area tran

-aeofgosorton the property conveyed to exclude the Wrongul coniersion-Sale of for ousdth payment offreight- Principal and agent- Vary- strip or the the stream ngad medium flum, That such possession ing cotrac

432by and assigns- not sion which could ripen into title acquisi- Scsintive prescription the property question. DEBENTURES -Prorincial bondS-Sucession dutie-- Property exempt-Sale under will- Duty vince Nova Scotia are, statute, "not DELIVERY -Donatio mortis causd-Deposit liable to taxation for provincial, local or muni- receipt-Cheques and orders-Delivery for cipal purposes " the province.

L. his ficiaries- Corroboration Construction of statwill, after making certain bequests, directed that the residue his property, which included some these debentures, should converted into to invested the executors and 2-Commencement of insurance contractheld on certain specified trusts. This direction Delivery of policy-incontestability Operation was carried out after his death, and the At- conditions.

torney General claimed succession duty the whole estate. Held, affirming the judgment appealed against Rep. Sedgewick DEMOLITION

G'onstruction of sidemalk and JJ. dissenting, that although the Trespass-Damages-Removel of debentures themselves were not liable to the structed.

duty either the hands the executors or the purchasers, the proceeds their sale when passing to legatees were.

LoviTT ,

2--Riparian rihts-mquiry through roustrur- 350 tion of dams-Removal of obstrurtions. DEED

Rrilayays

Co.strution of deed to s Location of permanent iay-Laying out bound- DEPOSIT RECEIPT-Donatio mortis aries- Fencing Riparian qhts-aNotice t n

-Deposit receiptaled ordemrs-Deiiery prior title--Registry

Possession Aqui- or iaries- orroborauion-dostrntio siire precription.] Intheconveyanceoflands tatute.

the deed

GIT

A89 ELECTION LAW-Continued.

order May 31st was to Nov. 17th as the date commencement the trial that the DOMAINE UTILE.

time between May 31st and Oct. 10th when the, judgmeit of the Supreie Court on the pre- I litninary objections was given, should not DONATION-Atarriage covenant- Universal counted part the months within community-Registry laws.the tria begun, and that 4th which it was begun was therefore within the said six mouths.

Held, that the order 31st could not considered fixing day for the trial, it stay proceed- DUTIES-Provincial lands-Succession duties iugs and the order Mr. Justice Lavergne -Property exempt-Sale under will-Duty o7 Nov. proper.

the disqualificaproceeds.] Debentures the Province Nova tiou the member elect the judgment Scotia are, statute, " not liable to taxation appealed the members the court were for provincial, local or municipal purposes "equallydivided and thejudguentstoodaffirmed. the province.

L. his will, after making certain bequests, directed that the residue his property, which included these debentures, should converted into money to EMINENT DOMAIN.

invested the executors and held certain specified trusts. This direction was carried out after his death, and the Attorney General claimed succession duty the whole estate. Held, affirming the judgment appealed ent against Rep. Sedgewick and occu i tory Mills JJ. dissenting, that although the debenyeas-ures tures themselves were not liable to the duty be Rigt oa for aagsw nership.] either the hands the executors or the ti heased aoraia orued purchasers, the proceeds their sale wh entopeaigcm nesfr99yr, ofther sle henreserving rental payable at stated times and passing to legatees were.

proper operation by the lessees. In the brought an pdtitoire for the recovery ELECTION LAW - Controverted electionpart the leased lands from adverse occupant Stay of proceedings pending appeal on prelimi- and damages caused to the line railway nary objections - Trial within six months the defendant, the plea raised questions Extension of time-Disqualification. ] Prelimi- that the lease actually alienation all nary objections to an election petition on plaintiffs' interests the laids occupied 22nd February, were dismissed Lor- I the railway and left them without any right anger J. on April 24th, and appeal was taken I action either to recover the possession or to to the Supreme Court Canada.

31st May obtain damages for injuries sustained the Mr. Justice Loranger ordered that the trial lands.

Held, affirming the judgment appealed the petition adjourned to the thirtieth jun- from, that the lease amounted emphydical day after the judgment the Supreme teutic assigning the donaine utile the Court was given, and the same was given dis- railway and all the plaintiffs' rights respect missing the appeal Oct. 10th, making Nov. thereof reserving, however, the domaine direct 17th the day fixed for the trial under the order and, consequently, the plaintiffs had the right 31st May.

Nov. 14th motion was made bringing the action au pdeitoire which before Loranger J. behalf the member the party having the legal estate, and that the elect to have the petition declared lapsed for might, application for an amendnon-commencement the trial within six added parties plaintiffs in the months from the time it

This was'action for the purposes recovering any refused 17th Nov., but the judge held that damages shown sustained upon the trial could not proceed that day the the lands, the action which would order for adjcurnment had not fixed certain lie only in the holder the beneficial estate time and place, and motion the petitioner therein. The trial was begun that day and resulted in the member elect being unseated and disqualified.

appeal from such judgment the ESCROW-Commencement of contract-Policy objection to the jurisdiction the trial judges of life insurance-Delivery was renewed,

Held, that the the,

ESTOPPEL-Railways of pernma-'EVIDENCE-Continued.

nent way-Fencing-Laying out boundaries- Construction of deed-Estoppel conductmuc t d bunesso Word i of limitation - Description of lands- '

I ould, I left the attention certain mat- Registry laws-Notice of prior title-Riparian tes hands the understandrights- Possession- Acquisitire prescriptionthat would attend to them and remit Tenant suferance-Right of action-Adding,

Teat sP race-Rh ofacin-ddn our representative.

I that he partiesPractice.has collected money which up to the present time, have unable to get to report, and told that doing and saying all EVIDENCE-Donatio mortis caus& -Deposit sgainst myself and the company. receipts - Cheques and orders-Delivery Jor receipt for your premium due 30th, beneficiaries -,Corroboration

Construction of days grace June you have statute.] being ill and not expecting to settlement the premium with Miller recover, requested his wife, his brother being your policy will, course, maintained present at the time, to get from his trunk a ail shall hin for the returns bank deposit receipt for which then in due course ; but I have thought that handed to his brother telling him that he would part the plan Miller at wanted the money equally divided among his time declared would order to brother and a sister.

The brother then, our business possible, that his suggestion or that drew would allow your policy lapse through matout three cheques or orders for $2,000 each tention.

As1 have thoughttllat you would not payable out the deposit receipt to the respec- like to have it prompted write you tive beneficiaries which signed and this letter and shall glad you advise returned to his brother who handed to Mc's whether or not you made settlement the one payable to her and the receipt with Miller.

not, what your wish and she placed them in the trunk from which with regard to continuing the policy ?" In she had taken the receipt.

died eight action for libel it shown that had days afterwards.

Held, affirming the jdg-the agency but wanted ment appealed against N. Rep. larger commissions continuing, which were Sedgewick and Armour JJ. dissenting, that refused and that was not defaulter but this was a valid donatio mortis caus the dilatory making his returns. deposit receipt and the sum it referred to not- trial Mrs. Freeman gave evidence, subject to withstanding there was a small amount for objection, her understanding the letter as interest not specified in the gift.

N. imputing to wrongful retention money. that evidence action against the estate deceased received and there miscarriage justice person cannot succeed the evidence him- its admission.-The judge at the trial self or his wife or both unless it corroborated charged the jury that ''if the neaning the other material evidence.

Held, that such first part the letter that he dismissed the evidence may corroborated circumstances plaintiff, and decide that did not or fair inferences from facts proved.

The evi- the plaintiff, and it was not correct dence additional witness is not essential. statement, that malice beyond all doubt.

145 The protection which gets the privioccasion

He it entirely. 2-Libel-Pririlce -Proof of malice-Ad- The way with the part. If it inissibility of evidence - Misdirection - New nut true it malicious and his protection trial.] local manager for Nova Scotia the taken away."

Held, that this was misdirection Confederation Association which had that the question for the jury not the been local agent, wrote to Mrs. Freeman, treth falsity the statements hut whether policy holder, the following letter.

" I think not, if false, the defendant honestly believed you know that at the time my recent visit to true, that it was misdirection on Bridgetown I relieved Mr. 0. Miller our vital point.

The majority the Court local agency.

you and your husband have opinion, Gironard and l)avies JJ. contra, evidently taken kindly interest Miller, that defendant asked for trial I might say to you without entering into details the Court this Court could not order to the causes which compelled take this judgment to entered him and trial action, an explanation which would hardly granted.

Judgment the Supreme Court appropriate here, that we have tried for Nova Scotia S. Rep. reversed. considerable time past to get Mr.

attend properly to our business, and that was only because it was clearly necessary that 3--Criminal law-'anada Eridence Act, the change made.

In order to give and wie

Competency of EVIDENCE- Continued.

EVIDENCE-Continued.

'Communication "-Construction of statuteplied substantially that ordered and the Privilege -Directions legal adviser.- Practice judgment appealed should stand. -Reference

Hansard debates

Method of per Gironard J.

That, following Village interpretation.] Under the provisions " The Cranby Adncrd C. Canada Evidence Act, the husband or ings contradictory evidence ought not wife person charged with an indictable reversed Appellate Court.

not only competent witness for or LEWIS-292 against the person accused but may compelled to testify.

Mills J. (dissenting)

.- 5egligence-Ijesy workman-Proxi- Evidence the the person accused mate cause Ontario Factories Act-Fault under fellow workman sel sent to her the accused to give the directions, not communication from the husband to his wife respect which the 6-Proof accidental death- 'Canada Evidence Act forbids her to testify. condition inpolicy-Finding jury-Verdict dissenting.-Per ing). The communications between husband

,and contemplated by the Canada Evidence

Act, may rerbo, facto or cor- 7-Possession of lands

Verdict- Statute pore.

cation and the under appeal neither the evidence the accused that blood-stains his clothing were caused by having such inter- EXCHEQUER COURT OF CANADA- -course at time when his was unwell, nor Injury from public work-Negligence of Crown the testimony his wife contradiction Right of action -Liability of the Crowa such statement as to her condition, ought to & 55-Jurisdiction have received.-Per Mills J. (dissenting). of Exchequer Court Act, and its amendments the husband or wife accused person competent a witness only behalf of the accused and may EXECUTORS AND ADMINISTRAnot testimony the part the Crown.- TORS-Appeal Jurisdiction-Matter in Per Taschereau C.J.

The reports debates Removal of executors cquiescence in the House Commons are not appropriate irial court judgment

Right of appeal sources information to assist the interpre- 135, c. 20.] The Supreme Court of tation language a statute.

Canada has jurisdiction to entertain v. TE appeal a the matter cutro- 4--Sale sample-Evidence of contract- Findings of fact.] In an action for the price

-a tombstone the defence was that it was not the ordered.

It had been ordered from photographic samples and an order form was filled which, when produced at the trial,

-contained the words " Lewis Reporter

Design " which the defence claimed was not in it when it signed the purchaser but which there two or three hours later handed to the vendors his foreman

-who had taken the order and the form.

The evidence at the trial conflicting the Chancellor, trying the case without jury, decided for the defence and dismissed the

His judgment was reversed the

Court Appeal.

Held, per Taschereau J., that the evidence establishes that the words dispute were the order when it was signed and the plaintiffs were entitled to recover.

Held, per Sedgewick and Davies JJ., Mills J.

.hesitante, that these words were originally the order the circumstances disclosed evidence show that the design supversy become an issue relating merely to the removal executors though, the action, an account for over $2,000 had been demanded and refused the judgment atthe trial against which the plaintiff had not appealed. Chevrefils Can. R. followed; Laberge The Equitable Lsfe Assurance Society R. distinguished.

EXEMPTIONS-Succession duties-Property exempt-Sale under will- Duty proceeds.) Debentures the Province Nova Scotia are, statute, " not liable to taxation for provincial, local or municipal purposes" the province.

his will, after making certain bequests, directed that the residue his property, which included these debentures, should be converted into money to invested the executors and held on certain specified trusts. This direction was carried out after his death, and the Attorney General claimed succession duty the whole estate. Held, affirming the judgment appealed against Rep. Sedgewick and Mills JJ. EXEMPTIONS- Continued..

dissenting, that although the debentures themselves were not liable to the duty either in the hands the executors or the purchasers, the proceeds their sale when passing to legatees

- EXPROPRIATION OF LANDS-Assessment of damages-Reservation of recourse for future damages-Expropriation-Res judicata

-Right of action.] lessee premises as an ice-house recovered indemnity from the city for injuries suffered in consequence the expropriation part the leased premises and, in his statement claim, had specially reserved the right further recourse for damages resulting from the expropriation.

In an action brought after his death by his universal legatee to recover damages for the the ice-house during the unexpected term the lease : Held, affirming the judgment appealed from, that the reservation the first action did not preserve any further right action in consequence the expropriation and, therefore, the plaintiff's action was properly dismissed the courts below, in such all damages capable being foreseen must be assessed for all and defendant cannot be twice sued for the same cause.

The City of Montreal v. McGee

Can. R. and The Chaudiire

Machine and Foundry The Canada

Atlantic Railway Can. R.

2-Construction of raslway-Crossing and using highways- Compensation to municipality

-Terminus " at or near " point named - FAULT.

FENCES-Location of railway-Laying out boundarics-Construction of deed-Estoppel by conduct - Riparian rights -- Possession Pre- GIFT-Donatio mortis cancd--Deposit receipts

-heques and orders-Delivery for beneficiaries

- Corroboration - Construction being ill and not expecting to recover, requested his wife, his brother being present at the time, to get from his trunk bank deposit receipt for which he then handed to his brother telling him that wanted the money equally divided among his brother and a sister. The brother then, his suggestion or that drew out three cheques or orders for $2,000 each payable the deposit receipt to the respective bene- GIFT-Continued.

ficiaries which McD. signed and returned to his brother who handed to McD's wife the one payable to her and the receipt and she placed in the trunk from which she had taken the receipt.

McD. died eight days afterwards. Held, affirming the judgment appealed against N. Rep. Sedgewick and Armour JJ. dissenting, that this was valid donatio it referred to notwithstanding there was a gift.-By from facts proved. The evidence an addi- - - - - 2-Marriage covenant- Universal comunity- Don mutuel-Registry laws rts.807, C. C.-Construction of contract.] A marriage appartenir an premier mourant jour son survivant durant, that the donation was one within the provisions art. and, such, did not IIGHWAY

Highway crossing-Conpensation municipality-Terminus "at or near" point named.] Authority to company to construct a railway empowers them to cross every highway between the terat MIGHWAY-Continued.

Prescott and Russell.

Held, that if it were necessary the railway could pass through

Carleton county, though it was not named.

Held, also, that in this Act the words " at near the city Ottawa " meant in or near the said city.

Judgment appealed from Ont.

L. R. 56; Ont. R. affirmed.

- - 2-Operation of tramway-Municipal regula- .tions-Powers-By-law or resolution-Construcion of statute- of streets-Crossings - 'HOUSE OF COMMONS-Constitutional law

-Construction of B. N. Acts-Representalion provinces in House of Commons-Aggregate population Canada.] In determining the number representatives to which tario, Nova Scotia and New Brunswick are respectivelyentitled after each decennial census, the words " aggregate population Canada "

in subsection the N. Act, mean the whole population Canada including that provinces which have been admitted subsequently to the passing that

Act. In re

2-Constitutional law-B. N. Act,

Representation of P. Island in House of Comnons.] The special terms which the province

Prince Edward Island was admitted into the Dominion do not except that province from the general operation the clauses the

N. Act, as to representation the

House Commons after decennial census.

Leave for an appeal to the Privy Council has been granted.

HUSBAND AND WIFE - Criminal Law

-Procedure at trial-Canada Evidence Act,

1893-Husband and wsje as competent witnesses

-" Communications "-Privilege-Construction of statute-Directions given legal adviser.

- INSOLVENCY-Appeal-Jurisdiction retion-Contrainte par corps

INSURANCE, ACCIDENT-Accidentinsurance-Proof of Waiver-Finding ofjury- Verdict.] The proofs were furnished within the time limited by the policy without objection as to their sufficiency, but payment

INSURANCE, ACCIDENT-Continued. was refused on the ground that the circumstances came within the clause against liability where death occurred through suicide, etc. Objection to sufficiency proofs was taken the first time in the statement defence delivered a couple years afterwards. was affirmed, holding that the proofs were sufficient and the right to object had waived.

The body was lying railway track, having been run over a train; it was seen the engineer before it was struck ; shots had been heard shortly before and pistol was found near ; two holes, which might have caused pistol bullets, were found the cap deceased.

The policy was for death accidental bodily injury through violent external means; R.S.O., to be read with the policy, defines " accident " bodily injury ternal force happening without intent the person injured, or as the result his intentional act, such act not amounting violent negligent exposure to unnecessary danger. The evidence did not satisfy the jurors that deceased came to his death his own hand, but that came to his " death external injury " unknown to them.

Held, affirming the judgment appealed from that the finding was too vague to construed as finding accidental death.

& INSURANCE, FIRE-Fire Insurancepolicy--Reneval--Mortgage clause.] Bysec. The Ontario Insurance Act mercantile risk only insured for one year and may renewed renewal receipt instead a policy.

Held, reversing Ont. R. and restoring the judgment at the trial. 0. R. Gironard J. contra, that the renewal not contract insurance.

Therefore, where the original policy was void for non-disclosure prior insurance the renewal was likewise a nullity though the prior insurance had ceased to exist the interval.

Held, per Girouard J. that the renewal was new contract which was avoided non-disclosure the concealment the application for the original policy. The mortgage clause attached to policy insurance against which provided that " the insurance as to the interest only the mortgagees therein shall not be invalidated any act or neglect the mortgagor or owner the property insured, applies only to acts the mortgagor after the policy into operation and cannot invoked against the concealment material facts the mortgagor in his application for the policy? Quare. Would the mortgage clause entitle the mortgagee to bring an action in own name alone on the policy ? & *694

INSURANCE, FIRE-Coninued.

Fire

Untrue

-statement

Materiality

Statutory

In an application for insurance against

.among the questions to the applicant were :

-" Have you ever had any property stroyed ?" Ans.

" Give date and, if insured, name company terested?

Aus. " National and London

& Lancashire."

The evidence showed that there was a fire the applicant's properties and two in and the insurance by the policy granted on this application was on property which replaced that destroyed the latter fires. Held, reversing the judgment appealed from N. Rep. that the above questions were material to the risk and the answers untrue. The first statutory dition, therefore, precluded recovery the

INSURANCE, LIFE-Continued. to those committed subsequent thereto, and as the three years expired 27th Sept., the insured dying three days later the company was liable.

INTEREST - Contract for construction works -Deductions for portions omitted-Partial cancellation of contract-Arts. -Deferred payments-Computation of interest -Payments in advance-Rebates

JUDGMENT-Appeal-Special leace-60 & rror in judgment-Concurrent jurisdiction-Procedure-Mandamus- 2--Criminal law-Perjury-Judicial proceedig -De jacto tribunal - Misleading justice- Construction of statute

S. Q. arts. 5561-Criminal

INSURANCE, LIFE-Commencement of in- 3--Injury Jrom public work-Negligence surance contract - Delivery of policy -Incon- Crown official-Right of action-Liability the testability-Operation of conditions.] An appli- Crown & 58cation for life insurance dated 16th Sept., Jurisdiction of Exchequer Court-Preecription and made part the contract to effected, Art. C.

provided that the issue a policy in the usual form and delivered should the only acceptance thereof and that the place contract all purposes should the head the LANDLORD AND TENANT-'onstruction company at Toronto.

The policy insured the of deed-Laying out boundaries-Ripariau applicant's to 5th Oct., and provided rights

Possession

Prescription.) Where a that it would not be until the first railway built above the water a premium had been paid and accepted and the non-navigable stream, which stated the receipt delivered to the insured, and the attest- boundary lands conveyed to the company, ing clause stated that the company its the possession the strip laud left unenclosed seal and the President and Managing Director and the stream ad medium flum the .signed and delivered the contract at Toronto vendor and his assigns, after the conveyance to " this 27th day September, A.D. The the company, not possession animo domini insured lived British Columbia and the policy required for the acquisitive prescription and receipt were mailed at Toronto on 27th ten years under Art. C. but merely Sept. to the company's agent at Winnipeg, and occupation tenant sufferance upon which forwarded him on Oct. to the insured such prescription based. whowould notreceive ithefore7thOct. Insured

C.J. dissenting, that the policy and receipt were delivered, and the contract insurance I LEASE-Emphyteusis-Alienation- Petitory was completed, at least as early as 27th Sept., action Damages

Right of action.] when the papers were mailed at Toronto.plaintiff had leased lands for years and The policy provided that after being in force brought petitory action to recover from for three years only certain specified conditions third party in verse occupation.

demand therein should be binding the holder and was made damages alleged to all other respects the liability the company caused to certain the leased lands the thereunder should not be disputed. The insured defendant.

question raised as to plainviolated a condition, but not one tiffs right action to recover the lands and for that would have avoided the policy but for this the damages, it was Held, affirming the judgclause.

Held, that said provision covered meut appealed from, that the lease amounted breaches conditions made during the three to emphyteutic assigning the domaiae years the policy was and not futile, reserving, however, the domaine direct LEASE-Continued.

and, consequently, the plaintiff had the right bringing the action an pdtitoire which lies the party having the legal estate, although the right action for the damages, if any, sustained would belong to the lessees. Held, also that had right to the petitory conclusions as holder of the legal estate although could not recover the damages the right action for which accrued only the lessees as owners the domaine utile (beneficial estate)-.Semble that, if necessary, the lessees might have allowed to added as parties, plaintiffs in the action, order to recover any damages which might have been sustained, if there had any satisfactory proof that damages had caused through the fault the defendant.

LIBEL-Privilege-Proof of malice-Admissibility evidence-Misdirection-New trial.]

manager Nova Scotia the federation Life Association which had been local agent wrote to Mrs. Freeman, a policy-holder, the following letter.

" I think you know that at the time recent visit to

Bridgetown I relieved Mr. 0. Miller local agency.

As you and your husband have evidently taken a kindly interest Mr. Miller,

I might say to you without entering into details as to the causes which compelled to take this action, an explanation which would hardly appropriate here, that have tried for a considerable time past to get Mr. Miller to attend properly to our business, and that was because it was clearly necessary that the change made.

In order to give Mr.

Miller an opportunity to get the benefit missions as much outstanding business as I could, I left the attention certain matters

Mr. Miller's hands the understanding that he would attend to them and remit to our representative.

I now find that he has collected which up to the present time, we have been unable to get him to report, and

I am that is doing and saying all against myself and the Company.

The receipt for your premium fell due 30th, days grace June 30th.

If you have made settlement the premium with Mr. Miller your policy mill, course, maintained force, and shall to him for the returns in due course;

but I thought that it would part the plan Mr. Miller at time declared he would follow order to cease as much our business as possible, that he would allow your policy to lapse through inattention.

As I have thought that you would not like to have it I prompted to write you this letter and shall be glad if will advise us whether or not you have made settlement with Mr. Miller.

If not, what your wish in regard to continuing the

LIBEL-Continued.

policy ?" In an action for libel it was shown that had not dismissed from the agency but wanted larger commissions in continuing, which were refused and that was not a defaulter but was dilatory making his returns. the trial Mrs. Freeman gave evidence, subject to objection, her understanding the letter as imputing to a wrongful retention of money.

Held, that such evidence was properly received and there was a miscarriage of justice its admission.-The judge at the trial charged the jury that " if the meaning the first part the letter that he dismissed the plaintiff, and you decide that he did not dismiss the plaintiff, and it was not a correct statement, that malice beyond all doubt.

The protection which gets from the privileged occasion is all gone.

He loses entirely.

The same way with the second part. If it not true it malicious and his protection taken away."

Reid, that this was misdirection that the question for the jury was not the truth or falsity the statements but whether or not, false, the defendant honestly believed them to true, that it misdirection vital point.-The majority the Court were opinion; Girouard and Davies JJ. contra, that as defendant had asked for new trial only the Court below this court could not order judgment entered for him and new trial was granted.

Judgment the Supreme Court Nova Scotia Rep. reversed. LIMITATION OF ACTIONS - Title to lands-Statute of limitations-Possession.] In obtained grant land from the Crown, and in permitted his eldest to enter into possession.

The latter built and lived the land and cultivated large portion it for more than ten years when he removed to a place a few miles distant after which pastured cattle on it and put up fences from time to time. His father before he left the land.

In deeded the land to his four sons who sold it in and different conveyances the title passed P. in the descendants the younger children gave a deed this land to who proceeded to cut timber from it.

In an action trespass P. : Held, affirming the judgment appealed from, that the jury the trial were justified finding that the eldest had the and exclusive possession his land for twenty years before which had ripened into title. If not, the deed to the sons gave them exclusive possession and, if they had not a perfect title then, they had twenty years after,

INI)EX.

MANDAMUS-Appeal-Special leace-60 c. (e)-Error in judgment-Concurrent jurisdiction-Procedure.] Special leave to appeal from judgment the Court Appeal

Ontario, under subsec. (e) & Vict.

will not be granted the merely that there error such judgment.

Such leave will not be granted when it certain that a similar application to the Court Appeal would refused.-The Ontario courts have held that person acquitted criminal charge can only obtain copy the record the the Attorney General.

having refused such fiat applied writ mandawhich the Div. Court granted and its judgment was affirmed the Court Appeal.

over their own records and with which the Supreme Court should not interfere.

- - MARRIAGE LAWS-Marriage covenant- -Universal community-Don inutuel-Registry laws-Arts. 0. C.-Construction of contract.] marriage contract contained the following clause: " futurs epoux sont faits et font par pr4sentes an survivant d'eux, acceptant, donation viag6re,

4gale et r4ciproque de tons les biens et imneubles, acquits, conqukts, propres et autres biens gindralement quelconques qui trouveront tre et appartenir premier mourant an jour de de quelque nature qu'ils soient, et quelque lieu qu'ils snient situds, pour par dit survivant jouir usufruit sa durant, caution juratoire et gardant viduite."

It admitted that the only thing affected consisted property belonging to the community.

Held, affirming the judgment appealed from, that the donation was within the provisions Art.

and, as such, did not require registration, as the clause divisible and the stipulation in question as to universal community merely marriage covenant and not subject to the rules and formalities applicable to gifts.

MARRIED WOMAN.

MINES AND MINERALS-Placer mining regulations-Staking claims-Overlapping locations - Renewal grant - Unoccupied Crown lands.] In August, 1. staked and received a grant a placer mining claim

MINES AND MINERALS-Continued. Dominion Creek, Yukon, which, however, actually included part an existing creek claim previously staked WN. In applied for and obtained renewal grant for the same area, W.'s claim having lapsed in the meantime, and was continuously nndispute'l possession that area, with his stakes standing from the time his original location until March, when and staked bench claims for the lands embraced in expired location which had been overlapped claim, being unoccupied Crown land. affirming the judgment appealed from, Davies and Armour JJ. dissenting, that the application for the renewal grant 31., after W.'s claim had lapsed, for the identical ground he had originally staked and continuously pied, gave him valid right to the location without the necessity formal staking and new application and that, following the rule in Osborne Morgan the possession 1. under his renewal grant MISTAKE-Construction of ivritten contract -Specifications-".From and " streets- Referenceto annexed plan--Mistake-Apportzon- MORTGAGE--The mortgage clause attached to policy insurance against which provided that " the insurance to the interest only the mortgagees therein shall not validated any act or neglect the mortgagor or owner the property insured, &c," applies only to acts the mortgagor after the policy comes into operation and cannot invoked as against the concealment material facts the mortgagor his application the policy.

Q uere.

Would the mortgage clause entitle the mortgagee to bring an action in his own name alone on the policy? MUNICIPAL CORPORATIONS -- Waterworks-Guarantee debentures--By lawof ratepayers

Approral of Lieutenant-Gorernor-60 ss. (Que.)] Judgment appealed from K. affirmed, (Girouard J. dissenting,) holding that a by-law to authorise the guarantee waterworks debentures issued a company under60 Vict. 7 and must approved the ratepayers and L.-G.-in-Council before it legally binding upon municipal corpora- 2-- Tramway-Operation of railwaystreets - Municipal regulations - Crossings - MUNICIPAL COR ?ORATIONS-Con.

NAVIGATION-otinued.

Powers-By-law or tesolution c. "Carmona"

coiing down the river and (N. S.)-R. S. N. c. ss.

they sighted other when a hundred Construction of statute.] the Nova Scotia yards apart.

They sinultaneonsly gave the statute, Viet. the tramway port and starboard signals respectively and the pany was granted powers as to the and port signal repeated the "Carmona." crossing certain streets the town, subject The " Shenandoah" then the port signal to regulations as the town council might and steered accordingly.

The "Carmona" from time to time to make to secure the thinking there not to pass between safety persons and property. field, reversing the other vessel and at the elevator the judgment appealed from, Davies J. dis- reversed her engines.

passed the that regulations could only but going ahead again made by-law and that the by-law making collided with the tow. Heldieversiug such regulations would be subject to the pro- th judgment the local judge Ex. visions section " The Towns Incor- that the "Shenandoah" not fault, and poration Act."

(R. N.

that the jndge had found the "Carv. mona" not to blame, and as her captain's errar jndgnent, it thinking had to pass between the two was -- Railicay charter - Highway crossing while the aonies collision, Control of streets

Compensation judgient to her should pality-Terminus at near"

Authority to a company to construct a railway highway betweenl the termini without permission the municipal authorities being necessary and without liability to compensate the municipalities the portions the highways taken for the road.-A charter authorised construction a railway from Vaudreuil to point at or near

Ottawa, passing through the Counties Vandreuil, Prescott and Russell. Held, that were necessary, the railway could pass through

Carleton County, though it was not named.

near the City Ottawa" meant in or near the said city.

Judgment appealed from Ont.

L. R. 56; Ont. R. affirmed.

Ry. CO.-376

NAVIGATION-Admiraltylaw-Navigation

-'arroiw channels-" White R. Right of way-Meeting ships--Collision.] Rule

Stat's that rivers St. Mary, St. Clair, Detroit, Niagara and St. Lawrence, two steamers are meeting, the descending steamer shall have the right way and shall, before the vessels shall have arrived within the listance one-half

Beld, that this rule has reference to the general tioned but applies only to meeting vessels.

Therefore, a steamer ascending the St. Clair with tow was not fault when she followed the custom up-going vessels to hug the

United States shore.-The "Shenandoah " with tow ascending the St. Clair River a fog and hugging the United States shore. The

Public work-Navigation of River St. Lawrence - Negligence - Repair of channel- Parliamentary appropriation-Discretion as expenditure.]

for damages to " Arabia " sustained striking obstruction the River St. Lawrence ship-channel which deepened the Department Public Works and subsequently swept suppliants contended that theCrown was obliged to keep the channel clear and that failure to do amounted to negligence.

appealed from (7 Ex. held that the channel not public work after the work deepening was completed and, even if it was, no negligence had been proved to make the Crown liable under (c) the Exchequer Court Act

It also decided that the department charged with the repair and maintenance the work with money voted parliament for that purpose was not obliged to expend the appropriation such matters were within the discretion the Governor-in-Council and Minister were responsible only to Parliament respect thereof.

The Supreme Court affirmed the judgment appealed from. Co. KIso.

- ---- NEGLIGENCE-Injury workmen-Proximate cause-Ontario Factories Act.] worktake the pulp away from drier, had to the drier.

The step ladder was movable and placed to a revolving wheel. returning from the drier one occasion another workman, accidentally or intentionally, remov- NEGLIGENCE-Continued.

i NEGLIGENCE-Continued.

ed the ladder was about to step it and before balance caught in the wheel and crushed that it

Leave to appeal to the Privy Counil had to amputated.

In an action against the refused July, factory owners the jury found that the injured workman was not negligent or careless; that 4-Neligence Employer and employee-Inthe removal the ladder would not have secure scafold-Disobedience to rules-Dangercaused the accident the wheel had been way, work, or machinery.] The Supreme properly guarded and the ladder fastened to Court affirmed the judgment appealed from the floor; and that the non-guarding and which affirmed the decision the Court tening constituted negligence the part Review, at Quebec reversthe defendants.

Held, affirming the judgment ing the trial judgment and holding that it the Court Appeal Ont. L. R. that 'the duty the employer not only to order the the evidence justified the findings; and that discontinuance dangerous operations the proximate cause the accident was the insecure but also to take measures to want proper guard on the wheel and fas. ensure the carrying out such orders and that, tening the ladder to the for which the 'in the event an accident occurring through defendants were liable.

neglect or disobedience orders, the employer was liable in damages for injuries caused thereby.

Public work-Negligence of Crown officials

-Right of action-Liability of the Crown-50

& c. 58-Jurisdiction of Ex- Railways-carriers - Special instructions chequer Court -Prescription-Art. -Acceptance consignee- Warehosemen- Lands the vicinity the Lachine Canal Amendment - -- - were injuriously affected through flooding' caused the negligence the Crown I in failing to keep siphon-tunnel clear and in 6

Pnblic lork-Naviqatioi of Firer proper order to carry the waters stream which had been diverted and carried under the are shian canal and also part the lands being spoiled reversing the judgment appealed from Ex.

R. Davies J. dissenting, that the owner NEW TRIAL-Libl-Question ofpri'ilegehad a right action and was entitled to re- Proofofinalice-Impoper admision oferidnce cover damages for the injuries sustained and

Misdirection Power grant new trial that the Exchequer Court Canada had appeal-A. Judicature Act, 0. clusive original jurisdiction in the matter under 0. R.

Where tried with the provisions the 16th, 23rd and 58th jury the defendant asked for tions the Exchequer Court Act.

The trial in the court appealed from, the Supreme Filion Can. R. approved ;Court

Canada cannot order judgment The City The Can. S. to entered for the appeal. R. referred to.-The prescription estab- Evidence to how the recipient letter lished art. the Civil Code Lower understood it imputing to the person pellant in the Petition Right.

money should not received the trial an action for libel making proof actual Imalice the reception such evidence the 3--Carriers-Special contract-Limitation liability transportation-Sale of trial.-Where for non-payment of freight.] Conditions jury that the question to decided the 'truth libellous letter it misdirection that gave or want skill the carrier's servants statements were the defendant honestly or workmen, without the actual fault believed them true.-Order rule privity the carrier, and restricting claims the Nova Scotia Judicature Act applies only to the value the goods at the port ship- cases tried judge without jury and order nent, not apply to cases where the rule applies to tried with jury. have wrongfully sold or converted the

47J

NEW TRIAL--Continued.

I NUISANCE-Continued.

Assessment damages-Estimating property might have taken an iction which gues.s-Concurrentjindinvs--Reversal appeal the dantages would have assessed trial.] The evidence being insudficient to

His right action being barred lapse enable the trial judge to ascertain the damages time when the plaintiffs action taken claimed for breach contract, stated that the could not maintained.

lie obliged to guess at the sum awarded

& and judgment affirmed the judgment appealed from.

Canada was opinion that result could 2-xpropriation of lands-Uses be obtained sending the back for new acent property-Depreciation prospectrial and, therefore, allowed the appeal and ti-e raluc dismissed the action, thus reversing the current findings both courts below. Armour

J. however, opinion that the proper ONTARIO FACTORIES ACT-Negligence course was to order trial.

Injury workman-Proximate co-we-On- 323 trio Factories Act-Fant of Jellow workman. - 3-Etidence as to damages

Dilscretionary order-New trial.] In a where the dence showed definitely what damages had OWNERSHIP

Etaphyteutic sustained where thcre appeared to ptitoire- Right of action r damagesie Legal for remitting the the and beneficial estates.

trial court to take further evidence the Supreme

Court Canada, in reversing the judgment appealed refrained ordering uew PARTITION-OPening of snbstitution Legtrial but directed that the damages found substitutes-Pareition per .tirps a the trial judge should reduced to the amount capita proved respect certain Wrongfully converted.

Armour J.

however, opinion that the judgment the trial PARTNERSHIP-Contract nder seal-Unought have restored.

disclosed principal --- 'rtnership-A mendment. to appeal refused Privy Council,

PATENT OF INVENTION - wEpiry 4-Garriage railwvays--Special instruct ions patent of intuentioll-Mann~tnctnr)e--EPtensionb of - Warehousemen time-Acting patent invention ---------------------- 115 expires two years its date or at the expiration of a lawful extension thereof if the dinventor has not commenced and - Registry laws

Prior coneyance-Cont e carried its construction or manufacture structie

457! Canada that any person desiring obtainitor cause itto bemiade.-A patent tis not kept alive after the two years have NUISANCE

Embankment-Flooding preexpired the fact that the patentee thses Obstructio Trespass-continuing dam- alway furnish the article or license age.] In the Canada Atlantic Railway the it to any person desiring to it Company ran their line through Britannia Tar- has not commenced to manufacture Can. race, street Ottawa, connection with ada.

Barter Smith R. overwhich they built embankment and raised the ruled this point.-The power extension level the street.

In 189o the plaintiffs beyond the years given the Commissioner owners land said street which Patents or deputy only exercised they carried their foundry basi- Can it exercised Actness.

In they brought action against ig Deputy Commissioner a the Canada Atlantic Railway Company alleging that the embankment built and level raised unlawfully and without authority and claiming PERJURY-Criminal laze-Jndicial proceeddamages the flooding their premises and ing-De acto tribunal Misleading justiceobstruction to their ingress and egress Jurisdictio-Constrction op statide-R. Q. sequence such work.

Held, that the tres- arts, 551, -Criminal Code, 145.]-The pass nuisance any) complained were hearing charge magistrate assuming committed and the then owner the to act Justice the Peace having authority [S. C. R. YOL. XXXIII. INI)EX

PERJURY- Continued.

to hear it, judicial proceeding within the meaning section the Criminal Code, and person swearing falsely upon such hearing may properly convicted perjury, notwithstanding that the magistrate had no jurisdiction over the subject matter the complaint.

Judgment appealed from R. K.

affirmed, the Chief Justice and Mills J. dissenting.

Kixo - - .PLAN

ContractJor of

"and "to"streets-Referannexed-Construction of

Mistake-Costs

POSSESSION- Title to land-Possession- \I.

latter put that jury trial

Railway-Adrerse tration prior

PRACTICE- Controrerted election-Stay preliminary lions- -Trial within tion.] Preliminary objections to an election

31st Mr. Justice Loranger thirtieth

PRACTICE-Continued.

petition declared lapsed for non-commencement the trial within six months the time it trial trial trial; that within which the trial was to begun, and indings below-Rerersal of ridings-Rerersal of Where the findings the trial courts were manitrial the courts below, and also reversed the 3--Municpal sidetwalks-Trespass-Action bornage-Petiaction-Amendment pleadings-Practice his action to recover the value strip land au below, directed that the record should remitted to the trial court for the purpose ascertaining the extent the property PRACTICE-continued.

PRESCRIPTION-Continued.

thereof to the plaintiff.

0.-Art.

P. railcompany purchased land from bounded 'by at non-navigable river, " selected and Adding alternative claims-Amendmentout' for the permanent way.

Stakes were Discretionary orders-Duty of appellate court.] planted show the side lines, but the railway Where the court below, in the exercise fencing was placed inside the stakes above the judicial discretion refused leave to amend the'water line, although the company not have pleadings the Supreme Court Canada refused the quantity land conveyed unless they took to interfere with this exercise their discretion possession ad mediumfilum aqne. remained appeal.

possession the strip land between the and the water's edge and the bed 5-Findings offact-Reversal questions of stream and, subsequently the registration law-Amendment-Action lessor-Eim phy- the deed to the company, the rest his tensis-Alienation-Right of action-Adding property includig water-rights, illsand dams parties.] The judgment appealed constructed the stream defendant's auteer, reversed the questions law, Davies J. describcd including that part the river dubitante, but the findings conflicting testi- which not included the right way, etc." mony respect to damages made the trial plaintiffs never operated the railway but, judge were not disturbed the appeal. immediately its completion, under powers Semble that where a lessor bad the domaine their charter, and The Railway Act, & 15 direct and the lessees the domaine utile in Vict. it years another lands and the lessor brought action petitoire and the railway since to recover the lands and for damages, there operated other companies under lease. had been damages proved, an amendment The action pdeitoire, including claim for damshould have been allowed adding the lessees as was met, amongst other defences, parties, plaintiffs in the action in order to pleas; that the right never extendet that heyon' the fencing, being the interpreta- Libel-Questions of pririlege-Proof ad medi malice-Admission gounif;th at trial-Canada

"-Privilege tothe -Construction of statute-Directions given tion appeal the Supreie Court, held-I. legal adviser

That the description the deed the railway company included, jure natura, the river ad medium filnm incident the landa Findings of fact -Reersal oj questions thereby granted their title could not fact- Anendment-Action lessor-Emphy- defeated under the subsequent conveyance teusie-Alicnation-Right of

Adding that they maynot have taken physicial PRESCRIPTION

Damages arising strip land and the waters and bed the public work-Negligence oj Crown officialsriver ad mediumfiliis the vendor and his Limitation of action-Art.

prescription established article the not the possession animo damini required under for injuries to property caused the negli- Art. but merely occupation as gence Crown keep a public work tenant sufferance upon pres- TiE cription based.

3.-That the failure deliver the full quantity land and the company's abstention from Railways -Locaion oj permanent waytroubling his possession the could Fencing-Laying out of boundaries-Construc- not construed conduct placing a construction of deed-Registry laws-Notice of prior title tion upon the different from its clear and -Riparian rights- Possession animo dominiunambiguous terms limiting the area Acquisitie prescription-Arts, the lnds conveyed.

4.-That the terms the PRESCRIPTION-Continued.

PRINCIPAL AND AGENT-otinaed. auteur the that 2-Contract seal-Undisclosed princi- Partnership-Amendment part donini

PUBLIC OFFICER-Expiry PRINCE EDWARD ISLAND-Constituixntion in Canada-Ex/en lair-B.

1867-Represen- stu tine limit-Acing WORK

Contract-Public NA. Abandonent and work-lathat plied SETTO

OFP- FC'MN raned apea totheprovide Privy Council. Prix

''all PRINCIPAL AGENT-Carrier,' riript-Limitation liability onsectionno.S(notocheriee jor ona named;

that partaof of freight-Principal and tininish tything tne.

Afterit that that PUBLIC WORK-Continued.

'PUBLIC WORK-Continued.

done to the suppliant and prohibited 4-Expropriation of lands-Damages Jor nse any implied covenant therefor.

Therefore the rie range-Mode of a-sessent-Valuation Petition Right was properly dismissed. roll-Present uses-Prospecti-e caine-Evi- & v.

The judgments appealed Ex. decided that the lands 2-Shi chanel-aigtionofRcer tatien fore a~s part rifle range, at the Ship channel-Navigation of River t.value

Lawrence--Negligence-Repair-Parliamuentary for residential and other beyond that which appropriation-Discretion as expenditure.] then attached to them lands for agri- Action for damages to Arabia sustained ctural and other siuilar purposes, prostriking an obstruction in the River St. Law- spective values should taken into considerrence ship-channel which had been deepened a by the Department Public Works sub-sufficient seuty oe

Theli suppsiansuco just compensation to paid upon the exprosequently priation the lands public tended that the Crown was obliged to keep the would various ways, affect the lands channel clear and that failure to amounted injuriously anl diminish their prospective to negligence.

The judgment appealed from values.

In makin the assessment such Ex. R. held that the channel was not g a public work after the work deepening was cipal assessment rolls, not determining completed and, even if it was, negligence sideration, hut affording assistance had proved to make the Crown liable arriving at fair valuation the lands exprounder section (c) the Exchequer Court printed

Supreme

Act

It also decided that the depart- affirmel the judgment appealed ment charged with the repair and maintenance

Turnbull Real Estate v. The King; orkery the work with money voted parliament at The King; DeBury at. The King for that purpose was not obliged to expend the discretion the Governor-in-Council and min- QUORUM-Territorial ourt of Yukon Terister were responsible only to parliament

-itory-Quoruni constitute court for hearing in respect thereof.

The Supreme Court affirmed appeals.]

Whether under the prothe judgment appealed from.

isions the Yukon Territory Act, & ITict.

(Leave to appeal to Privy Council granted 'R- thereby made applicable to the Territorial Court Yukon Territory, three judges that court are necessary to constitute a Injury from public work-Negligence of quorum for the hearing appeal judg- Crown officials-Right of action-Liability of ments rendered upon the trial causes therein. Crown-50 &

Jurisdiction of Court-Precription-Art. C.

Lands the vicinity the Lachine Canal were injuriously affected RAILWAYS-Carriage

Special inthrough flooding caused the negligence structions

Acceptance the Crown failing to keep a siphon- hon-semen-Negligence-A neadment.] F. Bros., tunnel clear and proper order to carry dealers scrap iron at Toronto. time the waters a stream which had been diverted prior to and after iron to and carried under the canal and also by part ing Mills at Sunnyside Toronto West. the lands being spoiled dumping excavations The G.T.R. had station at Sunnyside, the upon it.

Held, reversing the judgment ap- nearest being at Swansea, further west, pealed (7 Ex. R. Davies J. dissent- hut the Rolling Mills had siding capable ing, that the owner had right action and holding three four

In F. Bro, was entitled to recover damages for the injuries instructed the G.T.R. to deliver all cars sustained and that the Exchequer Court addressed to their order at Swansea Sunny- Canada had exclusive original jurisdiction in to the Rolling and the matter under the provisions the 16th, they had contract to certain quantities 23rd and 58th sections the Exchequer Court different kinds iron to the company and Act.

The Queen Filion Can. R. shipped to them at various times Jan. approved; City of The 2nd, cars, addressed to the Can. R. referred to.-The prescrip- pany and the others to themselves at Sunnytion established Art. the Civil

Jan. 10th the company notified F. Lower Canada applies to the damages claimed that previous shipments had contained by appellant his Petition Right.

iron not suitable for their business and not Te KINC kind contracted and refused accept [S. C. R. YOL. XXXIll. RAILWAYS-Con tinued.

RAILWAYS

Cantinned.

more until new arrangement was made, and Vaudreui point at near Ottawa passing about the middle January they refused through the counties Vandrenil, Prescott accept part the cars and the remainder and Russell.

Held, that if it were necessary before the end January.

Feb. 4th the the railway could pass through Carleton county cars were placed a siding to out the though it not named.

Held, also, that way and were there frozen

Feb. 9th F. this Act the or near the city Bros. were notified that the cars were there Ottava" meant near" said city. Judgsubject to their orders and two days later F., ment the Court Appeal (4 Out. one the went to Swansea and met the affirming the judgment at the trial Rv.

company's siding and would have what the company would accept taken to the mills 3Location of permanent

Fencing boundaries-Gonstruction tstoppel conduct-Words limitationprior title-Biparin Posession-Acquicitice tion they took them away in the following Tenant sufferance-Arts.

October and brought an action against the' , C.-Art. 77 G.T.R. founded the failure to deliver C. 1. Q-14 & Via. 51-25 that 15-Findings offact of direct-Domaine from the company but sometimes they were parties.] railway company purchased sent without instructions, and Feb. 3rd the P., hounded non-navigable river, station agent had written to F. Bros. that the 'selected and laid out' for their permanent cars were at Swansea and would sent down way

Stakes were planted to show the side to the rolling mills.

Reld, affirming the judg- lines, but the railway fencing was placed at ment the Court Appeal, that the Rolling the disputed points, above the water- Mills were consignees all the cars and although the company not have the that they had the right to reject them at Swan- quantity land conveyed unless they took sea if not according to contract.

Having session the the river.

P. remained ercised such right the railway company were the strip land hetween the not liable as carriers, the transitus having ail the water's edge and the bed the to end at Swansea refusal thc stream ad flum and, after the registra colpany to receive them.--The Court tion the deed the company, sold the rest peal, while relieving the railway company from his property including water ights, mills liability carriers, held them liable as ware- and dams constructe.I stream to the bousemen and ordered reference to ascertain defendant's autemr, describing the property the damages that head.

Held, reversing 'including that part the riverwhich such decision, Mills J. dissenting, that the not in-luded inthe right way, etc.' action not brought against the railway plaintiffs never operated their line railway company as warehousemen, they but, inunediately its under only be liable as such for gross negligence, and Powers conferred their charter and The the question negligence had never Railway Act, & Vict. leased it raised nor tried, the action must dismissed years to another company, and the railway in with reservation the right F. Bros. has ever operated other to bring further action should they fit. panies under the

The plaintiffs' action RNAY.

including claim damages, was 115 met pleas that the was aliena tion plaintiffs' interest the lands Railway-Highway Crossing -Control of pied the railway left them without any Municipality-Termi- right action that the right way nus

Authority to never extended beyond the fencing, being company to build railway empowers them the interpretation placed upon the conveyance to cross every highway between the termini permitting P. to retain possession the without permission the municipal authorities strip land question and the river ad being necessary and without liability to mediumftlum; that ten years possession pensate the municipalities for the portions owner faith under translatory title the highways taken for the road.-A charter the defendant had acquired ownership the authorized construction railway prescription ten years; and that, ly thirty [S. R.

RAILWAYS-Continued.

years adverse possession without title, the defendant and his auteurs had acquired title to the strip land and riparian rights question.

appeal to the Supreme

1. That the description in the deed to the railway included, jure nature, the river ad mediumflum aqua an incident of the grant and that their title could not defeated subsequent conveyance through their vendor and warrantor, notwithstanding that they may not have taken physical possession all the lands described in the prior conveyance.- That the possession the strip land and the waters and bed the river ad miediumflum the vendor and his assigns, after the veyance to the company, was not the possession animo domini required for the acquisitive prescription ten years under art.

merely occupation tenant bysuffrance upon which prescription could based.- That the failure the vendor to deliver the quantity land sold and the company's abstention from troubling him in his possession the same could not construed as conduct placing a construction upon the deed different from its clear and unambiguous terms or limiting the area the lands conveyed-4.

That the terms the description in the subsequent conveyance P. to the defendant's auteur were limitation equivalent to express reservation that part the property which had previously conveyed to the company and prevented the defendant acquiring title ten years prescription, and further that was charged with notice the prior conveyance through the registration the deed the company.-5. That the acquisitive prescription thirty years under art.

could not run favour the original vendor had warranted title to the lands conveyed to the company because, after his sale to them, not any part the property which had failed to deliver animo domini nor faith.-The judgment appealed from was reversed on the questions law summarized, Davies J. dubitante, but the findings, conflicting testimony in respect damages, made the trial judge were disturbed the appeal.-On the question raised as to the rigb action to recover the lands and for damages caused to the permanent way, it was Held, affirming the judgment appealed from, that the lease to the companies which held and operated the railway, amounted to an emphyteutic lease assigning the domaine utile and all the plaintiffs rights respect the railway reserving, however, the domaine direct, and, consequently, the plaintiffs had the right action au pdtitoire as owners the legal estate, although the right action or the damages, any, sustained would belong the lessees.-Semble that, if necessary, the

RAILWAYS-continued.

lessees might have been allowed to added parties, plaintiffs in the action, order to recover any damages which might have been sustained, if there had been any satisfactory proof that damages had been caused through the fault the defendant. Railway subsidy-Dominion Lands Act- Reservation in grant.] equal division opinion the Supreme Court affirmed the decision the Exchequer Court Ex. R. which it held that lands granted subsidy to railways under Vict. were subject the existing regulations respecting reservation baser minerals the grants thereof, notwithstanding that there was no reference thereto in the orders-in-council alloting the lands to the railway and that the grant expressed in the statute to free gran: subject merely to cost survey.

& al. granted, July,

5--Railway embankment

Trespass-- Nisance-Continuing damages- Right of action. Municipal regulations--Operation of tramway---Use of streets-Crossings -Powers-Bylaw or resolution-Construction of statute - REGISTRY LAWS-Marriage covenant- Universal community-Don mutuel-Registry laws-Arts. C.-Construction of contract.] marriage contract contained the following clause: " Les futurs epoux sont faits et font par presentes survivant d'eux acceptant, donation viaglre, mutuelle, et reciproque de tons les biens meubles et immeubles, acquats, conqults, propres et autres biens gmnuralement quelconques mourant jour de dics, quelque nature qu'ils soient, et quelque lieu qu'ils soient situds. pour par dit survivant en jouir usufruit h caution juratoire et gardant viduit."

It admitted that the only thing affected consisted property belonging to the community.

Held, affirming the judgment appealed from, that the donation was within the provisions Art. and, as such, did not require registration, as the clause divisible and the stipulation question as to universal community merely simple marriage covenant and not subject to the rules and formalities applicable to gifts.

REGISTRY LAWS- Continued.

of Land-Acquisition

Priority of

RES JUDICATA-Assessment of of future ecourse-Expropriation of leased prenises-Right of action

-- RIFLE RANGE-Expropriation of landsfor of range-Mode of roll--Present talue-Eidence.]

at valte just

Co Tin

Kiss;

RIPARIAN RIGHTS- Raibrays--Location of wray--Fencing-Layiny of limitation--Registry airs- Not/ccof priortitle

C.-Art.

Firt.

-Findings ojact- of

Enphytenic utie -Al/nation-Right

Adding parties.]

ad fl/tm

RIPARIAN RIGHTS-Continwd. strip ad flum; that that, thirty Held-1. jure nature, ad flum aqte fum 3.--That hin RIPARIAN RIGHTS-Coninued.

RIVERS AND STREAMS

Continued. tion thirty years under Art. could

(Leave to appeal Privy Council granted, not run favour the original vendor July, had warranted title to the lands conveyed to the company because, after his sale to them, 2-Railays'ostrctio of deed-Location not possess any part the property of permanent way-Laying out boundarieshad failed to deliver animo domini encing Riparian right-Notice of prior title nor good faith.-The judgment appealed -Registry laws-Possession-Acquisitive prefrom was reversed on the questions law scription.] In the conveyance lands for the summarized, J. dubitante, but the permanent way the deed described lands ings, conflictory testimony respect to the railway company bounded damages, made the trial judge were not dis- navigable stream, as "selected laid out' turbed on the appeal.-On the question raised the railway.

Stakes planted to show as the right action to recover the lands the side lines, but the railway were and for damages caused to the permanent way, placed inside the stakes above the water's it Held, affirming the judgment appealed' and the vendor was allowel to remain from, that the lease to the companies which the strip land between the held and operated the railway, amounted to an and the middle the bed the stream. emphytentic lease assigning the domaine utile deed duly registered and, subsequently, and all the plaintiffs' rights in respect the the vendor the rest property includrailway reserving, however, the donaine direct, ing water-rights, mills, and dans constructed and, consequently, the plaintiffs had the right instream to defendant's auteur, described action an pdtitoire owners the legal " including that part the river which not estate, although the right action for the ,included the right etc." Held, 1. damages, any, sustained would belong to the that the description the deed included, ex lessees.-Semble that, necessary, the lessees jure nature, the river ad medium flum might have been allowed to added as parties, and that the company's title thereto could not plaintiffs the action, order to recover any defeated the subsequent conveyance, notdamages which might have been sustained, withstanding that they had not taken physical there had any satisfactory proof that I possession all the lands described the damages had caused through the fault I prior conveyance to them ;-2. that the failure of the defendant.

Co. of the vendor to deliver the full quantity of to the company and their abstention from troubling at grantees possession the could nut RIVERS AND STREAMS- ?ublic strued conduct placing construction upon Nav iqation of Rirer st. Lawcrence-Negligence the different its clear and unam- -Repair of channel-Parliamentary appropria- bigous terms limiting the area the tion--Discretion as expenditure.] Action for property conveyed exclude the strip damages to " Arabia" sustained strik- outside the or the the strean ing obstruction the River St. Law medininflum; and-3. that such possession rence ship-channel which had been deepened the vendor and assigns was not possession the Department

Public Works and which could ripen into title acquisitive subsequently swept suppliants prescription the property question. contended that the Crown was obliged to Ry.

keep the channel clear and that failure to do amounted to negligence.

The judg- SALE-Successionm duties-kxenpted property ment appealed from (7 Ex. R. held -Proeincial bonds-dale under will-Taxation that the channel was not public work after of proceeds sale the work deepening was completed and, even it was, negligence had been proved to make the Crown liable under sect.

It also contract-Findings contradictory evidencedecided that the department charged with the Reversal appeal-Practice repair and maintenance the work with money voted Parliament for that purpose was not obliged to expend the appropriation such 3--Gontract-Skipping receipt matters were within the discretion the Liability limited pecial conditions-Negli. ernor-in-Council and Minister who were responsible only Parliament respect thereof.

Wrongful conversion-Sale of goods for non-pay- The Supreme Court affirmed the judgment of freight-Principal and agent- Varying terms of contract

THl

Kiwy-C

SHIPPING- Admiralty X arigation - STATUTE, CONSTRUCTION OF Narrow channels-" way-Meeting ships-Collision

3-Contitutionel li -Construct oj B. N. SOLICITOR

Criminal lair

Procedure

Ats-Representation oj P. Island in trial--Canada Evidence Act, 1893-Husband I'onve of The special terms which and witnesses-' tions Privilege

Construction of statute mitted into the Dominion do not except that STATUTE, CONSTRUCTION OF- Canada above stated.

it re interpre-594 tation-Competency of and wje nesses-Communications- Privilege-Reference 4

Donatio mortis causd-R. S. N. Hansard debates.]

535orrobative

"The Canada Evidence Act, the hushand or person charged with an indictable

5-R.

N. 264 Municipal rpyilntions-Operation of truiaydissenting.

performed her under directionsof his counsel, sent to her the accused to give the directions, 6-Perjury Judicial proceeding-Dy Ja-to not a communication from the husband to his tribnnal-Mileading justice-Jurisdiction-R. wife in respect which the Canada Evidence

Q. Arts. Criminal Act forbids her to testify. Mills dissenting.- Per Girouard J. (dissenting).

The communicathe Canada Evidence Act, 7--Construction of tatute-Railway charter de facto or de corpore. Sexual intercourse

Terminus "at or near" a point namd appeal neither the evidence the accused that blood-stains upon his clothing caused STATUTES-B. X. s. 51-475 wife contradiction such statement to her

S. c. (Supreme and Exdition, ought to have received.-Per I chequer Courts].

Mills J. (dissenting)

Under the provisions the Canada Evidence Act, and its amendthe husband or wife an accused person

C. c. [Supreme and Excompetent as witness only behalf the chequer Courts.]

and may not give testimony the part the Crown.-Per Taschereau The I reports debates in the House Commons are 4-50

& c. ;j, 58 [Supnot appropriate sources information to assist and Exchequer Courts.]

the interpretation language used

555 & J

(D) [Crimtinal 2-Conastitutional lai-Construction of British Code.]

North America Acts-Representation of I rorinces, House of Commons -Aygregate population of Canada.] In determining the c. [Canada Evidence Act.] Nova Scotia and NewBrunswick are respectively entitled after each decennial census, the words

" aggregate population Canada " subsec- 60 & c. 34,s.

. (e) [Supreme America Act, mean the whole population

Canada including that provinces which have admitted subsequently to the passing 8- & c. (Can.) [Railerays]- 457 that Act-IP reR

STATUTES-Continued.

9--25 (Can.) [Massawippi

10--R. Arts. [Trespass.]

11--60 [Stadacona

Light

12--R. N. c. 35[ Evidence.]

13--.

N. c. as. 263, 264

[Towns Incorporporation.]

14--63 (NS.) [Liverpool & Milton

SUBSTITUTION--Constructionof will--Opening substitution svbstitutes- -Legatee6 taking per stirpes or per capita.]

will, which created substitution,

A g6nralement

'ilaisserai lgue poser dits biens pleine propridt6 par parts et portions entre eux, a ter jour que la dite jouissance et usufruit donns h enfants cesseront. instituant mes 1gataires universels propridt6."

reversing the judgment appealed from, that all the grandchildren participated the legacy and that the property representing the fifth the revenue given to the testator's children, the opening the substitution created the will, for such portion his estate, should divided among all the grandchildren then living equal shares, the grandchildren taking per capita and not per stirpes.

SUCCESSION DUTIES-Provincial bonds- Succession duties-Property exempt-Sale under will-Duty proceeds.] Debentures the liable to taxation for provincial, local or municipal purposes " in the province.

L. his will, after making certain bequests, directed

SUCCESSION DUTIES-Contiinued. that the residue his property, which included these debentures, should converted into money to invested the executors and held certain specified trusts. This direction was carried out after his death, and the Attorney General claimed succession duty the whole estate.

Held, affirming the judgment appealed against Rep. Sedgewick JJ. dissenting, that although the debentures themselves were not liable to the duty either in the hands the executors or the purchasers, the proceeds their sale when Lovirr TENANT for drmages-Expropriation-Right of action-Fencing-Laying boundaries-Construction of deed-Estoppel by conduct - Words of limitation-Description lands-Registry laws-Notice of prior title- Riparian rights- Possession- Acquisitive prescription-Tenant sufferance-Right of action TITLE TO LAND- Will-Devise for life- Remainder to devisee's children-Estate tail.] children if any at her death," no children to ren when the will was made.

Held, that the devise to 1D. was not an estate in tail, but her death her children took the

2- Devise of real property-Condition of -Restraint on alienation.] devisee real estate under a will was restrained from selling or encumbering the property for a period twenty-five years after the death the testator. Held, reversing the judgment appealed from, that the restraint, if general, would have been void the limitation to time did not make it valid.

3-Possessory title -Statute of limitations.] In obtained a grant land from the latter lived the land and cultivated large portion it for more than ten years when removed to place a miles distant after which he pastured cattle it and put up fences from time to time.

His father died before left the In deeded the land to his sons who sold it in and different veyances the title passed to P. the descendants the younger children gave a deed this land to pro- TITLE TO LAND-Continued.

'TITLE TO LAND-Continued.

1-That that jure ra-the 4--Raiways--Location of medim

-Laying deed-Estoppel lais-Notice prior

Riparian rights-Possessionscription-Te Q.-14 deliverthefull 15-Findings fact tonaine

Donaine utile-Alienation-Right of

4.-That but that part ad mediumaflm 5-That ihirty that part doni faith-The dames action; that strip ad flum; TITLE TO LAND-Continued.

WATERCOURSES--Railcays--consutction the action, order recover any of deed--Location ofpermanentway--Laying damages which might have sustained boundanes-Fenesng-Riparian Rights-Notice satisfactory proof tlat of prior title -Registry lawcs-Possession-Acdamages had through the fault quisitive prescription.] In the conveyance the defendant. RY. Co v. lands for the permanent way the deed describing 457 lands sold to the railway company bounded non-navigable stream, " selected and laid TORT- Contract-Shipping receipt-Carriers out" for the railway.

Stakes were planted -Liability limited special conditions-Negli- to show the side lines, but the railway fences were placed inside the stakes above the water's Wronful of Jor payment of freight-Principal and agent possession the strip land between the Varying terms of contract fence and the middle the bed the stream. Varying

The deed was duly registered subsequently, the vendor sold the rest his prope- ty TRAMVWAY-Municipal corporation-Tram. including water-rights, and dams way-Operation of railwoay-Use of streetsstructed in the stream to defendant's auteur, Regulations - Crossings- Powers -By-Law or described as " including that part the river resolution-63 V. c. (N. S.)-R. S. IV. S. is not included the right 264--Construction of Held, 1. That the description the statute.] By the Nova Scotia statute, Vict included, ex jure the river ad medium the tramwayi company was granted filum aqute and that the company's title therepowers as the use and crossing certain to could not defeated the subsequent streeis the town, subject to such regulations conveyance, notwithstanding that they had not as the town council might from time to time taken physical possession all the lands fit to make to secure the safety persons scriLed the prior conveyance to them ;-2. and property.

Held, reversing the judgment That the failure the vendor to deliver the appealed from, Davies J. dissenting, that such full quantity land sold to the regulations could only made by-law and pany and their abstention from troubling him that the by-law making such regulations and his grantees possession the wouli be subject to the provisions section could not construed as conduct placing a " The Towns Incorporation Act."

(R. construction upon the deed diferent from its clear and unambiguous terms or as limiting Tows the area the property conveyed as to exclude the strip outside the fences or the 2--Occupation of leased lands-Injury to the stream ad flum, and-3. That leased property-Recorery of land and dam- such possession the vendor and his assigns title acquisitive prescription the property RY. Co. NERDICT

Proof of accidental death

REED.

Waiver of condition in policy-Finding of jury

WATERWORKS

Municipal By-law-Approval ratepayers and Lieutenant Governor-60 c. 27 of possession-Finding of jury

" WHITE LAW "-Admiralty law-Naviga. Railways-Oarriers-Special instructions tion-Narrow channels-" White law" R. 24- - Acceptance consignee - Negligence - Right of way-Meeting ships-Collision WILL--Devise for life - Remainder decisee's WARRANTY

Possession dominichildren-Estate tail.] possession-Acquiring prescription.1 warranty title to lands death," children testator's not estate tail, but her death WILL-Continued.

2-Condition in Will-Devise of real estate

-Restraint alienation.] A devisee real estate under will was restrained from selling or encumbering it for period twenty-five years after the testator's death. Held, reversing the judgment appealed from, that the restraint, if general, would have been void the limitation to time did not make it valid.

Costruction will-Survivorship-Intestacy.] H. his will provided for disposal his property in case his wife survived him but not in case her death first. The will also contained this provision: " In both and myself should, by accident or otherdeprived life at the same I request the following disposition to be made after his wife but made no change in his will.

Held, affirming the judgment appealed from (4

Ont. L. R. 666; Ont. L. R. that II. and his were not deprived life at the same time and therefore died intestate.

4- Debt devisee testator- Devise of all testator's property-Chose in action.] devise all " real estate and property whatsoever and what nature and kind soever " at a place named not include a debt due by the devisee, resided and carried business at such place, to the testator; Ont. L. R.

affirmed).

Construction of will-Opening substitution-Legacy substitutes-Legatees taking per stirpes or per capita.] his will, which created substitution, the testator bequeathed the usufruct all his property to his widow, during her lifetime and, after her death, to his surviving children and, by the sixth clause, provided follows : " Quant i la propridtd de dits biens meubles et immeubles ginbralement quelconques que je ddlaisserai jour de dichs, je la donne et lgue aux enfants l4gitimes de enfants, qui seront mes petits-enfants;

pour, par, mes dits petits-enfants, jouir, faire

WILL-Continued.

et disposer de mes dits biens pleine propriitd et par 6gales parts et portions entre eux, compter du jour que la dite jouissance et usufruit donn6s enfants cesseront, les instituant lgataires universels proprit." Held, reversing the judgment appealed from, that all the grandchildren participated the legacy and that the property representing the fifth the revenue given to each the testator's childrem, the opening the substitution created the will, for such portion his estate, should divided among all the grandchildren then living equal shares, the grandchildren taking per capita and not per stirpes. 6-Succession duties-Exempted property- Provincial bonds-Sale under will-Taxation WITNESS-Husband and wjfe-Competency of witness-Criminal cases-Canada Evidence WORDS AND TERMS-1.

"Bounded the river"

"Communications"

4. "From" and "to"

- " Near." " At ornear"

" At or near" To,"-" and ''to"

Majority

Mills J. (dissenting)

JJ. (dissenting)

V. MERCIER

Mills J. (dissenting)

Mills J. (dissenting)

Statutes and regulations cited