Majority
An action to annul municipal by-law will lie although the obligation thereby incurred may be conditional and the condition has not been and may never be accomplished.
Where a resolutory condition precedent to the payment a bonus under a municipal by-law in aid of the construction and operation of a railway has not been fulfilled within the time limited on pain forfeiture, an action will lie for the annulment of the by-law at any time after default, notwithstanding that there may have been part performance of the obligations on the part of the railway company and that a portion of the bonus may have been advanced to the company the municipality. In an action against an assignee for a declaration that an obligation has been forfeited and ceased to be exigible, on account of default in the fulfilment of a resolutory conditon, exception cannot be taken on the ground that there has been no signification the assignment as provided article the Civil Code Lower Canada.
The debtor may accept the assignee as creditor and the institution the action is sufficient notice of such acceptance.
The Bank of Toronto v. The St. Lawrence Fire Insurance ([1903] followed.
APPEAL from the judgment of the Court of King's Bench, appeal side, affirming the judgment of the Superior Court, District of Richelieu, which dismissed the plaintiff's action with costs.
*PRESET:-Sir Elz~ar Taschereau C.J. and Girouard, Davies, Idington and Maclennan JJ.
In 1894, the City of Sorel passed a by-law to aid the construction of a railway from Longueuil, opposite Montreal, to Levis, opposite Quebec, on the south side of the River St. Lawrence.
The by-law granted a s bonus of $50,000 to a syndicate then promoting a company for the construction of the railway and was subject, amongst others, to the conditions that the railway company should bridge the Richelieu River within the city limits; erect workshops in the city for the construction and repair of their rolling stock; construct and operate lines of railway between Sorel, Verch~res, Nicolet and Levis, with special reduced rates of fare upon accommodation trains running into Sorel every Saturday, and take their supply of water and gas at Sorel from the city works at rates specified.
It was provided that all these conditions should be fulfilled and that the workshops should be constructed, equipped with the necessary tools and machinery and be in operation within three years from the date of the bylaw, otherwise that the by-law should lapse and become void and that all sums payable thereunder should be forfeited.
The rights of the syndicate were assigned to the South Shore Railway Company, which subsequently sold and assigned them to the defendants, but the notice of such assignment was never served upon the city as required by art. 1571 of the Civil Code. After a portion of the construction of the railway into Sorel had been completed and put in operation, in 1896, one-half of the bonus was paid by the city, but the railway was never completed or operated as contemplated;
a blacksmith's shop with an anvil, a forge and three workmen was established instead of general railway workshops and, finally, the railway company became insolvent and discontinued the operation of the railway.
The city instituted an action, in 1904, to set aside the by-law for default in the fulfilment of the resolutory conditions to which it was subject, and to have a declaration discharging it from all liability as to the unpaid portion of the bonus, and further reserving its rights as to recovering back the portion of the bonus, $25,000, which had been advanced to the company in The plaintiff's action was dismissed at the trial and the judgment appealed from affirmed this decision, although differing somewhat from the reasons given in the court of first instance.
The material questions at issue upon the present appeal are discussed in the judgment of His Lordship the Chief Justice now reported.
Beaudin K.C. and Belcourt K.O., for the appellant. B6iqae K.O. and Robertson, for the respondents. CHEF.-Le 3 Mars, 1904, la cit6 de Sorel instituait contre la compagnie intime une action dont le rejet par la cour sup6rieure et par la cour du banc du roi a donna lieu an present appel. Par sa declaration elle demandait d'8tre relevie d'une obligation de $25,000 qu'elle a contract6e en 1894, en aide d'un certain chemin de fer, express6muent sous certaines conditions r6solutoires, qui n'ayant pas, d'apris elle, 6t6 remplies par l'intimbe ou ses auteurs, lui donnent le droit de demander l'annulation de la dite obligation dont l'intim6e est maintenant porteur. Deux questions pr6liminaires ont 6t6 souleves h 1'audition. La premidre est que, d'apris les alliguds de 1'appelante elle-mime, il apparait qu'elle n'a pas droit maintenant h ses conclusions, parce que, dit l'intime, ces $25,000 n'6tant pas encore exigibles, elle ne pent demander d'avance Fannulation d'une obligation h laquelle il est possible qu'elle ne soit jamais tenue. Cette objection, maintenue par la cour sup6rieure, a t justement dcart6e par la cour d'appel. Ces $25,000 sont au passif de 1'appelante et diminuent d'autant R. son credit et son pouvoir d'emprunter, limit6 par sa charte a 20% de la valeur de la propri6t6 immobilibre imposable par elle.
Une seconde objection de lintimbe contre 1action de Pappelante est qu'il n'existe aucun lien de droit entre elle et l'appelante, parce que, dit-elle, la vente et cession h elle du chemin de fer et des $25,000 en question, n'a pas t signifide A Pappelante. Cette objection n'a pas non plus pr~valu devant la cour d'appel, et ne le devait pas.
D'abord, Pappelante, par son action, reconnait et accepte lintime comme sa cr~anciare. C'est bien accepter, comme il lui 6tait parfaitement loisible de ce faire par son action, la cession h lintim6e des $25,000.
Bank of Toronto v. The St. Lawrence Fire Insurance Co. (1). Et l'intime ne peut aucunement s'en plaindre. Elle excipe, par cette objection, du droit d'autrui. Puis, si elle d6sirait avoir le vendeur de lintimbe en cause, elle n'avait qu'd ce faire elle-m~me.
Et, en supposant qu'un jugement dans I'instance soit d~fectueux ou ineffectif parcequ'il ne serait pas chose jughe avec les auteurs de l'intime, c'est Pappelante qui en souffrira, non F'intimbe. Maintenant tant qu'au m~rite mime du litige. L'action de Pappelante a t6 d6bout~e par la cour sup6rieure principalement sur le motif que la r6solution de droit sous-entendue dans tout contrat ne pourrait avoir application dans lespce parce qu'il y a en de part et d'autre un accomplissement partiel des obligations r~ciproquement contractdes et qu'il est impossible de remettre les parties dans 1'6tat o1 elles 6taient avant 1894.
Il y avait erreur.
C'6tait perdre de vue, et la cour d'appel l'a justement remarqu6, que par une clause expresse du contrat entre les parties, il est stipul6 que si les ateliers on usines de la compagnie
Le jugement de la cour d'appel, confirmant le dispositif de celui de la cour sup6rieure, rejette l'action sur le motif que la preuve ne d6montre pas qu'il y ait en par l'intim6e on ses auteurs une violation suffisante de leurs obligations pour entrainer la caducit6 du bonus en question.
Nous ne pouvons en venir la m~me conclusion.
Il nous semble 6vident que l'intim&e, en face de la preuve, ne peut pas soutenir qu'elle a raisonablement rempli ses obligations. Elle semble croire que l'appelante n'a pas droit h ses conclusions parce qu'elle n'a pas proc6d6 de suite en 1897 h demander la rdsolution du contrat d~s qu'elle, l'intimbe et ses auteurs, out t en d6faut. C'est tout en admettant ses fautes, se plaindre de ce que 1'appelante lui a accord6 un trop long delai pour remplir ses engagements et lui reprocher de ne pas avoir exerc6 son droit d'action avant 1901. Et cependant, elle a sp6cialement plaid6 que l'action est pr6matur6e. Il faudrait, d'apris elle, que l'appelante lui paie ces $25,000, puis prenne une action pour s'en faire rembourser.
Cette pr6tention, surtout de la part d'une compagnie insolvable, ne peut pr6valoir. Si l'appelante aurait droit de les recouvrer, les efit-elle pay6es, elle doit avoir le droit de demander d'8tre relev6e de P'obligation de les payer sans avoir h attendre pour ce faire dix, vingt on cinquante ans au gr6 de F'intimbe.
C'6tait A condition d'avoir le chemin de fer autoris6 par le statut, 57 Vict. ch. 72 (Que.), c'est-h-dire, un chemin de fer construit et compl6t6 dans cinq ans, que I'appelante a consenti a souscrire ces $25,000. Elle ne Ila jamais eu. Et tant qu'A son engagement d'avoir Justice. h Sorel des ateliers outills et en op6ration dans les trois ans du contrat, elle s'en est moquie comme des autres.
La preuve d6montre que durant sept ans elle n'a eu qu'une enclume, une forge et trois ouvriers. M3me depuis 1institution de F'action, toutes les r6parations importantes sont faites ailleurs parce que, dit son propre surintendant, "la shop n'est pas suffisament outill6e."
Or, quand elle s'est oblig6e d'avoir ses ateliers outills et en operation dans trois ans, cegi doit s'entendre "suffisament outill6s" pour toutes les fins du chemin de fer afin d'avantager la population de Sorel en compensation du bonus souscrit pour eux par 1appelante. Ds 1897 F'intimbe 6tait d~chue du droit de reclamer ces $25,000.
Or, rien depuis l'a relev~e de cette d~chdance.
Tant qu'a la construction du chemin jusqu'd Nicolet et le d6faut de tenir la partie construite en op6ration, le fait admis qu'elle est en faillite et dans 1Pimpossibilit6 de remplir aucun de ses engagements envers lappelante serait suffisant h lui seul pour faire maintenir 1'action s'il 6tait n6cessaire a Pappelante de F'invoquer. Arts. 1082, 1092 C.C.
L'appel est maintenu avec d6pens dans toutes les cours contre 1Fintim6e, l'action de lappelante maintenue et le r~glement No. 218 d6clar6 caduc et annul6 A toutes fins que de droit tant qu'd cette partie d'icelui concernant les $25,000, et 1appelante d6charg6e de payer h lintimbe ou h ses ayants cause ces $25,000 contempl6s par le dit riglement.
J.-Cet appel doit Atre accord6. Les contribuables de Sorel out vot6 un bonus de $50,000 pour la construction d'un chemin de fer qui a pass6 entre les mains de l'intim6e. Des conditions pr~cises sont impos6es et particulirement,
Il est incontestable que cette dernikre condition n'a pas kt remplie et la cons6quence est non une simple r6clamation en dommages, mais la r6siliation du contrat stipule au rglement. Le fait que la Ville de Sorel a pay6 la moiti6 du bonus avant l'expiration des trois ans, on qu'elle a attendu longtemps, avant de porter cette action on de se plaindre, n'est d'aucune importance. Le conseil de la Ville on ses officiers penvent avoir n~glig6 on manqu6 leurs devoirs, les avoir mal compris ou execut6s; ils ne peuvent changer les droits des contribuables garantis par un r~glement qu'eux seuls pouvaient voter.
J'abonde dans le sens du juge en chef de cette cour. J.-I concur for the reasons stated by their Lordships the Chief Justice and Mr. Justice Girouard J.-I concur for the reasons stated by His Lordship the Chief Justice.
J.-I agree that the appeal should be allowed.
Appeal allowed with costs.
Solicitors for the appellant: Ethier & Lefebvre.
Solicitors for the respondents: Bique, Turgeon, Robertson & B6ique.
ACTION-Appeal
Possessory action.] Possessory actions invoke title to land in a secondary manner and, consequently, are appealable to the
Supreme Court Canada. Pinsonneault
Hibert Can. S.C.R. 450); Gauthier v. Masson Can. S.C.R. 575);
Commune Berthier Denis Can.
S.C.R. 147); Riou Riou (28 Can.
C.R. 52); Couture Couture Can.
S.C.R. referred to. Cully v. Ferdais
S.C.R. 330);
The Emerald
Phosphate Co. v. The Anglo-Continental
Guano Works
Can. S.C.R. 422)
and Davis v. Roy (33 Can. S.C.R.
Railways-Farm crossings-Jurisdiction of Board of Railway Commis- Clauses Act of 1851-Grand
1888"-'Railway Act, 1903."]
Orders directing the establishment of farm crossings over railways subject to "The Railway Act, are exclusively within the jurisdiction of the Board of Railway
Commissioners for Canada.-The right claimed by the plaintiff's action, instituted in to have a farm crossing established and maintained by the railway company, cannot be enforced under the provisions the Act, Vict. ch.
incorporating the Grand Trunk
Railway of Canada.-Judgment appealed from reversed. Idington J. dissenting regard to damages and costs.
6.....
Railway aid
Annulment of by-laiw-Right of action- Assignment of obligation-Notice-Signification upon debtor-Art.
An action to annul a municipal by-law will lie although the obligation thereby incurred may conditional and the condition has not been and may never be accomplished.-Where a resolutory condition precedent to the payment of a bonus under a municipal by-law in aid of the construction and operation of a railway
ACTION-Continued.
has not been fulfilled within the time limited on pain of forfeiture, an action will lie for the annulment of the by-law, at any time after default, notwithstanding that there may have been part performance of the obligations on the part of the railway company and that a portion of the bonus may have been advanced to the company the municipality.-In an action against an assignee for a declaration that an obligation has been forfeited and ceased to be exigible, on account of default in the fulfilment a resolutory condition, exception cannot be taken on the ground that there has been no signification the assignment proided by article of the Civil Code of Lower Canada.
The debtor may accept the assignee as creditor and the institution of the action is sufficient notice of such acceptance.
The Bank Toronto v. The St. Lawrence Fire Insurance Co.
or
CO.......................686 4-Title to land-Conveyance in fee- 5-Limitation of actions - Unregistered deed-Subsequent registered mortgage-Possession-Right of entry....455 LAW-Navigation - Narrow channel-Rule of the road-Lookout-Meeting ships-Collusion-Special rule of port-Sorel harbour regulations -Lights and signals-Negligence-Evidence-Damages-Practice - Improper comments in factum-Appeal to Privy Order for bail.]
A pilot in charge of a ship, or a man at the wheel, is not a sufficient look-out within the rules of navigation for preventing lisions in narrow channels.
appealed from Ex. C.R. 67) affirmed.- Where meeting ships are in collision and one of them has neglected to observe the ADMIRALTY LAW-Continued.
regulations, there must be evidence gross dereliction of duty or want skill in navigation in order to make out a case for apportionment of damages against the other ship.-Where a ship navigating a narrow channel has no proper look-out and neglects to signal her course at a reasonable distance, thus perplexing and misleading a meeting ship, the former alone responsible for all damages caused collision, even if, in the agony collision a different manceuvre on the part of the other ship might have avoided the accident. Judgment appealed from Ex. C.R. reversed, Girouard
J. dissenting.-Comments in the appellants' factum relating to a judgment the Wreck Commissioner's Court, which did not form any part of the record, were ordered to struck out, with costs to the respondents.
......................
(See note at 592, respecting appeal to Privy Council.)
AIR-Title land
Servitude struction presentatives" - Right of passage
Private wall-Windows and openings line of lane-Arts. 533-538 0.0.....018
AMENDMENT-Omission to plead issue
-Setting aside fraudulent conveyance- Plea of nihil debet ................
APPEAL-Right of appeal-Jurisdiction
-Possessory action.] Possessory actions always invoke title to land in a secondary manner and, consequently, are appealable to the Supreme Court of Canada.
Pinsonneault v. Hdbert Can. S.C.R.
450); Gauthier v. Masson Can. SC.
R. 575); Commune de Berthier v. Denis
Can. S.C.R. 147); Riou v. Riou (28
Can. S.C.R. 52); Couture v. Couture
Can. S.C.R. referred to.
Cully v.
Ferdais
S.C.R. 330);
Emerald Phosphate v. The Anglo- Continental Guano Works Can. S.C.
R. 422), and Davis v. Roy Can.
R.
ARCAND..... ....................
2---Jurisdiction - Future rights-Toll bridge-Exclusive limits - Infringement of privilege-Matter in controversy.] The plaintiff's action was for for damages for infringement of his toll bridge privileges, in virtue of the Act, 58 III. 20 (L.C.), the construction another bridge within the limit reserved, and for the demolition of the bridge, etc. The judgment appealed from dismissed the action.
On motion to quash the ap- Held, that the matter in controversy affected future rights and, consequently, an appeal would lie to the Supreme Court of Canada.
Galarneau v. Guilbault
Can. S.C.R. 579) Chamberland v. Fortier Can. S.C.R. 3-Appeal per saltum-Time limit- Pronouncing or entry of judgment.] determine whether the sixty days, within which an appeal to the Supreme Court must taken, runs from the pronouncing or entry of the judgment from which the appeal is taken no distinction should be made between common law and equity runs the ing of judgment in all cases except those in which there is an appeal from the Registrar's settlement of the minutes where such settlement is delayed because a substantial question affecting the rights of the parties has not been clearly disposed by such judgment.
v. ROBERT....................27 4-Error in courts below on appeal-New trial.] Held, per Taschereau C.J. dissenting, that although not that there error the the trial the court at the time it did not appear that there was error in the judgment en banc, yet the latter judgment should stand, as the court en bano should not reversed unless the Supreme Court, on the appeal, be clearly satisfied that it was wrong. see NEw 1. Privy 5---Jurisdiction controversy-Warranty of title-Future rights -Hypothec for rent charges-R. s. 29.]
In an action for the price of real estate sold with warranty, a plea alleging troubles and fear eviction under a prior hypothec to secure rent charges on the land does not raise questions affecting the title nor involving future rights st far as to give the Supreme Court of Canada jurisdiction to entertain an appeal. The Bank of Toronto v. Le Curd et les Marguillers
Nativit6 Can. S.C.R. 25); Wineberg v. Hampson
Jermyn v. Tew Can. S.C.R. 497);
Waters v. Manigault (30 Can. S.C.R.
304); Frdchette v. Simoneau Can.
S.C.R. 13); Toussignant v. The County of Nicolet Can. S.C.R. 353; and
The Canadian Mutual Loan and Investment Co. v. Lee (34 Can. S.C.R.
224) followed.
L'Association Pharmaceutique Qu6bec v. Livernois (30 Can.
S.C.R. 400) distinguished.
SrEois ...........................
6-Extradition - Prohibition peal-Jurisdiction-Supreme Court Act, s. 24(g)-54 & V. s. 2-Con- Criminal proceedings.] A motion for a writ of prohibition to restrain an extradition commissioner from investigating a charge of a criminal nature upon which an application for extradition has been made is a proceeding arising out a criminal charge within the meaning
24(g)
of the Supreme Court Act, as amended by 54 & Vict. ch. 25, and in such a case, no appeal lies to the
Supreme Court of Canada.
In re Woodhall and Hunt v. The
United States U.S.R. 424) referred
AMrERICA................ 247 missed, 26th July,
7-Issue of fraud-Failure to plead nihil debet-Objections taken on appeal
-Amendment.]
In an action to aside a conveyance as made in fraud creditors, the defendant desiring to meet the action by setting up that there was no debt due and, consequently, that such fraud could exist, must allege these objections in his pleadings.
In the present case the defendant, having failed to plead such defence, allowed amend on terms, the Chief Justice dis- McGRADE..................251 S-Special leave-Judge in chambers to full court--Jurisdiction.] No appeal lies to the Supreme Court Canada from an order of a judge of that court in chambers granting or refusing leave to appeal from a decision of the Board of Railway Commissioners under 44(3)
of the Railway Act, fused, 2nd Aug.,
9-Concurrent findings in courts below -Reversing on appeal.] It is the duty of the Supreme Court, if satisfied that the judgment in appeal is erroneous, to reverse it even when it represents the concurring view of three, or any number 10-Appeal per saltum - Act-Application under sec. 76-Defective proceedings.]
Leave to appeal per saltum, under 26 of the Supreme Court Act, cannot granted in a case under the Dominion Winding-up Act.- An application under of the Winding-up Act, for leave to appeal from a judgment of the Supreme Court of New Brunswick was refused where the judge petition for a winding-up order and the proceedthe full court the nature of a reference rather than of an appeal from his decision.
11-Infringement of patent of invention-Exchequer Court Act, ss. and 52-Order postponing hearing of demurrer-Judgment-Leave to appeal.] Unless an order upon a demurrer a cision upon the issues raised therein, leave to appeal to the Supreme Court Canada cannot granted under the provisions of the fifty-first and fifty-second sections of the Exchequer Court Act, amended Edw. VII. 8. .................
Frivolous and vexatious proceedings-Quashing appeal - Supreme Court of Canada-R.S.C.
59-Arts. and An appeal to the Supreme Court of Canada, taken in bad faith, will be quashed, motion the respondent.-Per Girouard
J.
An order by a judge under Act dismissing an opposition, as being in bad faith, is a matter in the exercise of judicial discretion and the Supreme
Court of Canada, under section twentyseven of the Supreme Court Act, is deprived of jurisdiction to entertain an appeal therefrom.
PAYETTE.
AN see OrrosrnoN.
Controversy involved.]
The action was compel the Grand Trunk Railway Company to establish and maintain a farm crossing over their line of railway at the place where it severed the plaintiff's land, and for $50 damages.
respondent moved to quash the appeal the ground that the cost of establishing the crossing, together with the damages claimed were less than $2,000 and that the matters in controversy did not bring the case within the class appealable, from the Province of Quebec, under the provisions of the Supreme Court Act.
motion was dismissed.
v. PERRAULT..........
14-Evidence
Presumptions versal on findings of fact............13
Decree on appeal-Entry of judg- ............................
- Preferential assignment
-Debtor and creditor-Pressure-Knowledge insolvency
Yukon Con. Ord.
The effect the second section of the Yukon Ordinance, chapter Consolidated Ordinances, is to remove the doctrine of pressure in respect to preferential assignments and, consequently, all assignments made persons in insolvent circumstances come within the terms the ordinance.-In order to render such an assignment void there must knowledge of the insolvency on the part of both parties and concurrence of intention to obtain an unlawful preference over the
ASSIGNMENT-Continued.
other creditors.
Molsons Bank v. Halter Can. S.C.R. 88); Stephens v. Arthur Can. S.C.R. 446); and Gibbons v. McDonald Can. S.C.R. 587) AMERICA........... 2-Assignment of obligation- Notice -Signification upon debtor-Art. In an action against an assignee declaration that an been forfeited and ceased to exigible, on account of the default in the fulfilment of a resolutory condition, exception cannot taken on the ground that there has been no signification of the assignment as provided by article of the Civil Code of Lower Canada.
The debtor may accept the assignee as creditor and the institution of the action is sufficient notice of such acceptance.
The Bank Toronto v. The St. Lawcrence Fire Insurance Co. ( (1903) 59) followed. ........................
BAIL-Admiralty law-Collision-Practice-Appeal to Privy Council-Order for bail ..........................
BAILMENT-Sale. of goods-Suspensive condition
Term credit
-Indorsement of bills-Notice-Fraudulent transfer
Brokers and factors- Principal and agent-Resiliation of contice - Pleading..................406 BALLOTS-Controverted election - Secrecy of ballot-Act of D.R.O.-Numbering ballot.] Under the Dominion troverted Elections Act a ballot cast at an election is avoided if there are any marks thereon by which the voter may be identified whether made by him or not. Hence, when the deputy returning in a polling district placed on each ballot the number corresponding to that opposite the elector's name on the voter's list the ballots were properly rejected. Judgment appealed from Ont. L.R. affirmed, Sedgewick and Idington JJ. dis- BANKING-Sale of goods
-Suspensive condition-Terms of credit
Shipping bills
Bills of lading-Indorsement of bills-- Notice-Fraudulent transfer-Insolvency
-Bailee receipt-Brokers and factors- Principal and agent-Resiliation of contice-Pleading-52 V. 30, ss. 64,
(D.)........ .......--.
.....
- Constitutional law-Railway company-Negligence-Agreements for exemption from liability-Power of Parliament to prohibit ............................
BILL LADING-Sale of goods-Suspensive condition-Term of credit-Delivery-Pledge-Shipping bills-Indorsefer
Bailee receipt
Brokers and factors
Principal vendication absence the indorsement on bills of lading the consignee therein named is an outstanding interest goods represented places persons proposing to make advances upon the security of those bills upon inquiry in respect to the circumstances affecting them-On failure to take proper measures in order to ascertain these facts and obtain a clear title to the bills and goods, any pledge thereof must assumed to have been made subject to all rights of such consignee.
The Chief
Justice dissented.-feld, per Taschereau
C.J. dissenting: Where a sale of goods has been completed actual tradition and delivery the mere absence of the consignee's endorsement upon shipping bills representing the goods made in the name of the vendor cannot have the effect of reserving any right of property in the vendor.
If the goods have been sold upon terms of credit, the unpaid vendor has right to revendicate such goods after they have passed into the possession of a third person in the ordinary course business, and, in the present case, failure of the conservatory seizure and in the absence of any right of the plain- BILL LADING-Continued. tiff to revendicate the goods, the alternative relief prayed for his action should not be granted.
BILLS NOTES-Composition and discharge-Construction of deed-Novation-Reservation of collateral security Delivering up evidence of debt.......18 2-Pleading pensation-Arts. 203, 215, Damages-Construction clause-Arts. 1188 C.C.-Estoppel-Waiver ...................
BILLS SALE-Title to goods-Sale transfer-Retention of ownership-R.S. 0. [1897] 148, s.
K., a manufacturing furrier, by agreement with a retail trading company, placed a quantity of his goods with the latter which could sell them as they pleased, paying on each sale, within 24 hours thereafter, the price mentioned in a list supplied K. K. had the right to withdraw from the company any or all such goods at any time and all remaining unsold at the end of the season were to be returned. While still in possession of a quantity of K.'s goods the company made an assignment for benefit creditors and they were claimed the assignee.
Held, affirming the judgment of the Court of Appeal (9 Ont. L.R. 164), which maintained the verdict for defendant at the trial (7 Ont. L.R. that the property in and ownership of the goods never passed out of K. and the transaction was not one within the terms of [1897] ch. ERS
CANADA-Railways-Farm crossings-Jurisdiction of Board of Railway Commissioners for Canada-Statutory contract - Railway Clauses Act 1851-Grand Trunk Railway Act, 1888" -"Railway 1903"-Appeal - Controversy involved- Jurisdiction.] Orders directing the establishment of farm crossings over railways subject to "The Railway Act, 1903" RAILWAY COMRS.-Con.
are exclusively within the jurisdiction
Canada.-The right claimed by the plaintiff's action, instituted in to have a farm crossing established and maintained the railway company, cannot be enforced under the provisions of the Act,
Vict. ch. (Can.) incorporating the
Grand Trunk Railway of Canada.-Judgment appealed from reversed, Idington
J. dissenting in regard to damages and
2-Board of Railway Commissioners for Canada-"Railway Act, 1903"-ss.
- Construction, etc., of street railways and tramways - Removal tracks - Jurisdiction of Board-Condition precedent-Use of highways in cities and towns-Consent by municipal authority-Approval of by-law-Quebec Municipal Code, arts. 464, 481...........
BRIDGES - Construction of statute
Toll-bridge-Franchise-Exclusive limits
-Measurement of distance-Encroachment-58 Geo.
Indorsement of bills-Notice--Fraudulent transfer-Insolvency - Banking-Bailee vendication
BY-LAW-Railway aid - Municipal
Condition precedent
Part performance-Annulment of by-law-Right of action - Assignment of obligation- Notice-Signification upon debtor-Art.
C.C........................686
CANADIAN PACIFIC RAILWAY-Hudbury branch-Charter of the company- V. 1 and schedules-Construction of contract-Limitation of time- Branch lines ......................
CAVEAT-Constitutional law--Imperial Acts in force in Yukon Territory-Title to land-"Torrens System"-Transfer owner registration-Indorsement upon certifi- CASES-Assets Company v. Mere Roih6 Times L.R.
referred to and approved .........................
Aat, Association
Pharmaceutique de Qubbec v. Livernois (30 Can. S.C.R. 400) 3-Bank of Toronto v. Curd et Marguillers de la Nativit6 Can. R. followed................... 4-Bank of Toronto v. St. Lawrence Fire Insurance
A.C. 5-Beauchamp v. Banque d'Hochelega reversed......... Beauharnois Election Case Can. S.C.R. 447) distinguished.......... 542 7-Beaudreau v. Montreal Street Railway Co. K.B. reversed.329 8-Canadian Pacific Railway v. Blain(34 Can. S.C.R. 74) referred to.159 Canadian Mutual Loan and Investment v. Lee Can. S.C.R. 224) CASES-Continued.
10-Carstens v. Huggak N.S. Rep.
reversed.....................612
11-Chamberland v. Fortier (23 Can.
S.C.R. followed................26
12-Commune de Berthier v. Denis
Can. S.C.R. referred to.....23
13-Couture Couture Can.
R. referred to.................23
14- Cully v. Ferdais Can. S.C.R.
330) distinguished.................23
15-Davis v. Roy Can. S.C.R. 345)
16-Dokstader v. Clark B.C. Rep.
affirmed ......................
Emerald Phosphate Co. Anglo- Continental Guano Works Can. S.C.
R. 422) distinguished ..............
18-Frdchette v. Simoneau Can.
S.C.R. followed................221
19-Fritz v. Hobson D.
20-Galarneau v. Guilbault Can.
S.C.R. 579) followed.......
1 ........
21-Gareau v. Montreal Street Railway
Can. S.C.R. 463) distinguished ..........................
22-Gauthier v. Masson Can.
R. 575) referred to.................
CASES--Continued.
23-Gibbons v. McDonald Can. C.R. 587) referred to..............
24- Gosselin v. Ontario Bank 430) varied...................406 25-Grand Trunk Railway v. Mc- Kay Can. S.C.R. followed... 26-Hewson v. Ontario Power Co. (8 Ont. L.R. 88; Ont. L.R. affirmed
..............................
See 4. 27-Hunt v. United States U.S.R. 424) referred to ..................
28-Jermyn v. Tew (28 Can. S.C.R. followed.....................221 29-Langley v. Kahnert Ont. L.R. 356; Ont. L.R. affirmed......397 30-Lepitre v. Citizens' Light & Power S.C.R. 1) referred to.... 1 31-Madden v. Connell(30 Can. S.C.R. 32-Meisner v. Meisner N.S. Rep. affirm ed........................34 33-Molsons Bank v. Halter Can. 34- McArthur v. Dominion Cartridge followed.......180 35-McVity v. Tranouth Ont. L.R. 36-Oakley v. Kensington Canal & Ad. referred to........ CASES-Continued.
37-Peek v. Derry D. 541) followed ............................
38-Pinsonneault v. Hdbert Can.
450) referred to.............23
39-Riou v. Riou Can. S.C.R. 52)
40-Ryder v. The King. Ex.
affirmed
41-Stephens v. McArthur Can.
S.C.R. 446) referred to.............120
42-Toussignant v. County of Nicolet
(32 Can. S.C.R. 353) followed ...... 221
43-Wakelin v. London & South Western Railway Co. App. Cas. dis- .......................
44- Wentworth Election Case Ont.
followed.................221
45-Wetworth Election Ca8e Ont.
L.R. affirmed.................497
46-Whitehouse v. Fellowes C.B.
referred to..............329
47-Wineberg v. Hampson Can
C.R.
48-In re Woodhall (20 832)
49-Wordsworth v. Harley (1 B. &
CHATTEL MORTGAGE - Chattel mort- Registration
Subsequent purchase-Removal of goods.]
For purposes of registration of deeds the North- MORTGAGE-Continued. West Territories is divided into districts, and it is provided by Ordinance that registration of a chattel mortgage, not followed by transfer of possession, shall only have effect in the district which it is made.
It is also provided that if the mortgaged goods are removed into another district, a certified copy the mortgage shall be filed in the registry thereof within three weeks from the time of removal, otherwise the shall be null and void as against purchasers, etc. Held, reversing the judgment in appeal, that the "subsequent purchaser" in stich case must be one who purchased after the expiration ofsthe three weeks from time of removal, and that though no copy of the mortgage is filed as provided it is valid as against a purchase within
.......................
CIVIL CODE-Arts. 379, 380 (Distinction of things; Immovables) 2-Art.
2261 (Prescription) .. 329 3-Arts.
(Obligations).. ..
. .....................
4-Arts.
533-538 (Rights of view, etc.)......
. ...................
5-Art
(Signification of assignment)........................ CIVIL PROCEDURE - 339 (Pleading-Issues to proved) ...... ........
............ 2-Arts,
203, 217 (Pleading, Compensation, Cross-demands) .. 347 3-Arts.
726 (Oppositions to sales of immovables) ............ [S.C.R. Yoiu XXXVI. QUEBEC-Arts. 464, 481 Mun. Code Que.
(Approval of by-laws) .............
COLLISION-Admiralty law-Navigation
-Narrow channel-Rule of the road- Look-out-Meeting ships-Special rule port-Sorel harbour regulations-Lights and signals
Negligehce
Appeal to Privy
Council-Order for bail............
ADMIRALTY- Admiralty law-Navigation - Meeting ships
Collision
Negligence-Practice-Appeal to Privy
Council-Order for bail ............
LAW
Winding-up Act
Joint stock company-Contributories- Consideration for shares.] H. and others, interested as creditors and otherwise in a struggling firm, agreed to purchase the latter's assets and form a company to carry on its business, and they severally subscribed for stock in the proposed company to an amount representing the value of the business after receiving financial aid which they undertook to furnish. A power of attorney was given to one of the parties to purchase said assets, which was done, payment being made by the discount of a note for
$2,000 made by H. and indorsed by another of the parties. The company having been formed, the said assets were transferred and the said note was retired by a note of the company for
$4,000 indorsed by H., which "he afterwards had to pay. H. also, or the company in Buffalo of which he was manager, advanced money to a considerable amount for the company, which eventually went into liquidation.
After the company was formed, in pursuance the original agreement between the parties, stock was issued to each of them as fully paid up according to the amounts for which they respectively subscribed, and in the winding-up proceedings they were respectively placed on the list of contributories for the total amount of said stock. The ruling of the local master in this respect was affirmed
COMPANY LAW-Continued.
by a judge of the High Court and the Court of Appeal.
the judgment of the Court of Appeal, Davies and Nesbitt JJ. dissenting, that as all the proceedings were in good faith and there was no misrepresentation material facts, and as H. & had paid full value for their shares, the agreement by which they received them as fully paid up was valid and the order making them contributories shquld be rescinded.-Held, per Davies and Nesbitt JJ. that as they did not pay cash or its equivalent for any portion of the shares as such the order should stand. COMPENSATION-Pleading - Cross-demand-Arts. 203, 217, Practice-Damages-Construction of con- 0.0.-Estoppel A debt which is not clearly liquidated and exigible cannot be set in compensation of a claim upon a promissory note except by means of a crossdemand made under art. of the of Civil Procedure of the Province Quebec.
Judgment appealed from affirmed, Nesbitt and Idington JJ. dissenting.-By a clause in a contract specified time and in default of completion as stipulated it was agreed that the contractor should pay
"as liquidated of fifty dollars for every subsequent day until the completion."
The worxs were not completed within the time limited, and, in consequence, both parties joined in a petition to a municipal corporation for extension of the time during which subsidies it had granted towards the cost of the works could be earned. The petition was granted and the works were completed within the extension time allowed by the corporation. Nesbitt and Idington JJ. dissenting, that damages accruing under the clause question did not, upon mere default, become sufficiently liquidated and ascertained so as to be set in compensation against a claim upon a promissory note.-Held, per Girouard and Davies JJ. (Nesbitt and Idington JJ. contra), that by joining in the petition for extension of time the party in whose favour the penal clause might take had waived the right to claim damages COMPENSATION-Continued.
thereunder during the period of the extension so obtained in the interests both parties to the contract.
CO.............3. 47
CONDITION-Composition and discharge
-Construction of deed - Novation-Reservation of collateral security-Delivering up evidence of debt..............18 credit fer-Insolvency-Banking-Bailee receipt and factors - Principal and cation-Damages
..
.......................
3-Railway aid of by-law-Right of action
Assignment of obligation-Notice-Signification upon debtor-Art. C.C..686
LAW-Constitutional law-Railway company - Agreements for exemption from liability
-Power of Parliament to prohibit.] An
Act of the Parliament of Canada providing that no railway company within its jurisdiction shall be relieved from liability for damages for personal injury to any employee by reason of any notice, condition or declaration issued by the company, or by any insurance provident association of railway employees; or of the rules or by-laws the association; or of privity of interest or relation between the company and the association or contribution funds by the company to the association;
of any benefit, compensation or indemnity to which the employee or his personal representatives may become entitled to or obtain from such association; or of any express or implied acknowledgment, acquittance or release obtained from the association prior to such injury purporting to relieve the company from liability, is intra vires
CONSTITUTIONAL LAW-Continued. of said Parliament.
Nesbitt J. (dissenting)
. 1904 ..... Privy Council, 28th Nov., 2-Inter-provincial and international Establishment or creation Exclusive right Powers of Parliament-R.S.C. - V. 23(D.).]
R.S.C. Act respecting Ferries," as amended Vict. ch. is intra vires of the Parliament of Canada.-The Parliament Canada has authority to, or to authorize the Governor General in Council to establish or create ferries between a province and any British or foreign country or between two provinces. The Governor-General in Council, if authorized by Parliament, may confer, by license or otherwise, an exclusive right to any ferry.
3-Constitutional law-Imperial Acts in force in Yukon Territory-2 & V. 11(Imp.)-R.S.C. 50-Title to land -"Torrens
System"-Transfer by registered owner-Notice of lis pendens-Irregular registration-Indorsements upon certificate of title - Caveat-57 & 58 V. s. V. s. 14 (D.)].
The prothe Imperial
Vict. in respect to the registration of notices of litispendence and the protection of bond fide purchasers pendente lite are of a purely local character and do not extend their application to the Yukon Territory by the introduction of the English law generally as it existed on the fifteenth of July, under the eleventh section of the "North-West Territories Act," R.S.C. ch. McGRADE......
4-Constitutional law of statute-B.N.A. Act, s. s-s. -Legislative jurisdiction-Parliament of Canada-Local works and undertakings
Recital preamble Enacting olause-General advantage of Canada, etc.-Subject matter of legislation-Presumption as to legislation of Parliament being intra vires-Practice-Motion to refer case for further evidence.] In con- LAW-Continued.
struing an Act of the Parliament
Canada, there is a presumption in law that the jurisdiction has not been exceeded.-Where the subject matter legislation by the Parliament of Canada, although situate wholly within a province, is obviously beyond the powers of the local legislature, there is no necessity for an enacting clause specially declaring the works to be for the general advantage of Canada or for the advantage of two or more of the provinces.
Semble, per Sedgewick
Davies JJ. (Girouard and dington JJ.
contra). A recital in the preamble to a special private Act, enacted by the
Parliament of Canada, is not such a declaration as that contemplated by subsection 10(c) of section of the British North America Act, in order to bring the subject matter of the legislation within the jurisdiction of Parliament.-A motion made, while the case was standing for judgment, to have the case remitted back to the courts below for the purpose of the adduction newly-discovered evidence as to the refusal of Parliament to make the abovementioned declaration was refused with costs. HEWSON V. CO.
...............
CONTRACT-Statute of Frauds - Part performance-Evidence.] leased land to his two sons, and W., of which fifty acres was to be in the sole tenancy of W. In an action by M. against for waste by cutting wood on said fifty acres the defence set up was that, by parol agreement, in consideration of conveying one hundred acres of his land to W. he was to have deed of the fifty acres, and having so conveyed to W. he had an equitable title to the latter. M.
admitted the agreement but denied that the land to conveyed to was the said fifty acres.
Held, per Nesbitt and
Idington that the conveyance to W.
was a part performance of the parol agreement and the statute of frauds was no answer to this defence.-The majority of the court held that as the possession of the fifty acres was referable to the lease as well as to the parol agreement, part performance was not proved, and affirmed the judgment appealed from in favour of the plaintiff
N.S. Rep.
this and other grounds.
r. 1EIsNEB. ......
CONTRACT-Continued.
Raiways-Branch lines-Canadian Pacific Railway Co.'s charter-44 V. c. 1 and schedules contract-Limitation of tim e-Interpretation of terms-"Lay out," "Construct," "Acquire" - "Territory of Dominion"- Hansard debates-Construction of statute charter of the Canadian Pacific Railway Company (44 Viet. ch. 1 (D.)) schedules thereto appended, imposes limitations neither as to time nor point of departure in respect of the construction branch lines; they may be structed from any point of the main line of the Canadian Pacific Railway between Callender Station and the Paseaboard, subject merely to the existing regulations as to approval of location, plans, etc., and without the necessity of any further legislation.-On a reference concerning an application to for Canada for the appioval of deviations from plans of a proposed branch line, under section of "The Railway Act, 1903," it is competent for objections as to the expiration of limitation time to be taken by the said Board, its own motion, or by any interested party.
LINES; PAcfIc .............. 3-Sale of goods
Lowest wholesale prices-Special discount.] contract writing the agreed, for three years from the date thereof, to purchase for their business surgical instruments manufactured the K.-S. only, the latter contracted to supply their products at "lowest wholesale prices" and for all goods furnished from New York to allow a special discount of per cent. from the prices marked in a catalogue handed over with the contract. that under this agreement the K.-S. vould allow to purchasers of their goods in large quantities a greater discount from the wholesale prices than per cent. without being obliged to give the same reduction to the & Af. . ..
.........................
Cross-demand-Compenration-Arts. 203, 215, C.P.Q.- Practice-Damages-Construction of con- Arts. C.C.-Estoppel-- CONTRACT-Continued.
Waiver.] debt which is not clearly liquidated and exigible cannot be set in compensation of a claim upon a promissory note except means of a crossdemand made under art. of the of Civil Procedure of the Province
Quebec.
Judgment' appealed from affirmed, Nesbitt and Idington JJ. dissenting-By a clause in a contract specified time and in default of completion as stipulated it was agreed that the contractor should pay "as liquidated fifty dollars for every subsequent day until the completion."
The works were not completed within the time limited, and, in consequence, both parties joined in a petition to a municipal corporation for extension of the time during which subsidies it had granted towards the cost of the works could be earned. The petition was granted and the works were completed within the extension time allowed by the corporation. Held,
Nesbitt and Idington JJ. (dissenting)
, that damages, accruing under the clause in question did not, upon mere default, become sufficiently liquidated and ascertained so as to be set in compensation against a claim upon a promissory note.-Held, per Girouard
Davies JJ. (Nesbitt and Idington JJ.
contra), that by joining in the petition for extension of time the party in whose favour the penal clause might take effect had waived the right to claim damthereunder during the period of the extension so obtained in the interests both parties to the contract.
5--Joint operation of railway-Master ment-62 & V. (D.).]
the negligence the train despatcher engaged the Grand Trunk Ry. and under its control and direction, injuries were caused a collision of two Intercolonial Railway trains on the single track of portion of the Grand Trunk
Railway operated under the joint traffic agreement, ratified the Act, &
Vict. 5(D.), the company is liable notwithstanding that the train despatcher was declared the agreement to be in the joint employment of the Crown
CONTRACT-Continued.
and the any,
Crown was thereby obliged to pay a portion of his salary.
Judgments appealed from affirmed, Taschereau C.J. dubitante. 6-Sale tion-Terms of credit-Delivery-Pledge dorsement of bills - Notice-Fraudulent Bailee Railways-Farm crossings-Jurisdiction of the Board of Railway Commissioners for Canada-Statutory contract-Railway Clauses Act, 1851-Grand 1888"-"Railway Act, 1903"-Appeal to Supreme Court of Canada-Jurisdiction involved .............
Railways - Farm crossings - Jurisdiction of the Board of Railway Commissioners for Canada - Statutory contract-Railway Clauses Act, Grand Trunk Railway Act, 1852-"Railway Act, 1888"-"Railway Act, Appeal to the Supreme Court of Canada -Jurisdiction-Controversy involved.671 CRIMINAL LAW-Extradition-Prohibition-Appeal-Supreme Court Act-Con- Criminal proceedings ..............
CROSS-DEMAND-Pleading - Compensation-Arts. 207 Practice-Damages-Construction of con- Arts. 1076, C.C.-Estoppel- .........................
CROWN-Negligence-Common employment-Defence by
Compensation Act.]
Manitoba Workmen's Compensation Act does not apply to the Crown.
Idington J. dissent- CROWN-Continued.
ing.-In Manitoba the Crown as represented the Government of Canada may, in an action for damages for injuries to an employee, rely on the defence of common employment.
Idington J.
....
oint operation of railway-Master ment-62 & V. (D.).........655 evidence-Wilful trespass-Rule in assessing dam ages-Practice-Adding party
-Reversal on appeal.] In an action damages for entry upon a placer mining claim and removing valuable gold bearing gravel and dirt, the trial judge found the defendants guilty of gross carelessness in their work, held that they should be accounted wilful trespassers, and referred the cause to the clerk of the court to assess the damages.
feree adopted the severer rule applicable in cases of fraud in assessing the
The Territorial Court en bane reversed the trial judge in his findings of fact upon the evidence. Held, reversthe trial judge's findings should be sustained with a slight variation, but that the referee had erred in adopting the severer rule against the defendants assessing the damages, and that his report should be amended in view of such error.-Semble, that the record and pleadings should be amended by adding the plaintiff's partner as co-plaintiff.-Held, per Taschereau dissenting, that although not convinced that there was error in the judgment of the trial judge which the court en bane reversed, while at the same time it did not appear that there was error in the judgment en bane, yet the latter judgment should stand, as the court bane should not be reversed unless the Supreme Court, on the appeal, be clearly satisfied that it was wrong.
2-Neo
Decree of appellate a assaulted by a fellow-passenger during the passage.
The conductor was in- I S-Continued.
formed of the first assault immediately after it occurred and also of the second, but took no steps to protect action against the railway company B. damages assessed generally for the injuries complained of. The verdict was maintained by the Court of peal, but the Supreme Court of Canada ordered a new trial unless B. would consent to his damages being reduced Can. S.C.R. 74).
In the reasons given for the last-mentioned judgment written by Mr. Justice Sedgewick for the court, it was held that damages could be recovered for the third assault only, but the judgment, as entered the registrar, stated that the court ordered the reversal of the judgment appealed from and a new trial unless the plaintiff accepted the reduced amount Such amount having been refused, a new trial was had, on which again obtained a verdict, the dambeing apportioned between second and third assaults.
to the Supreme Court of Canada from the judgment of the Court of Appeal maintaining this verdict.
Held, Taschereau C.J. and Davies J. (dissenting)
, that as the decree was in accordance with the judgment pronounced by the court when its decision was given, and as it left the whole case open on the second trial, the jury were free to give damages for the second assault and their verdict should not disurbed.- Held, per Tasehereau C.J. that the decree of the court should have been framed with reference to the opinion giving the reasons for the judgment, and, if necessary, could amended as to be read as the court intended. 3-Mines and minerals-Vendor and purchaser-Sale of mining locations- Consideration in lump sun - Separate valuations and fraud-Measure and damages.1 Upon representations made by the vendor the plaintiffs purchased several mining locations, the consideration therefor being stated in a lump sum. In an action fraud and deceit brought the purchaser against the vendor the trial judge, in discussing the total consideration for the properties purchased, found that there was evidence to shew the values placed by the parties upon each DAXAGES-Continued.
of two of these properties as to which false and fraudulent representations had been made, and which had turned out worthless or nearly so. Held, reversing the judgment appealed from, the Chief
Justice and Idington J. (dissenting)
, that the finding of the trial judge as to the consideration ought not to be disturbed upon appeal and that the proper measure of damages, in such a case, was the actual loss sustained by the purchaser by acting upon the misrepresentations of the vendor in respect of the two mining locations in question irrespectively of the results or values yielded by the other locations purchased at the same time and as to which no false representations had been made. Peek v. Derry
Ch.
Council granted, 14th Dec.,
4-Operation of machinery-Continuing nuisance
Droits ance-Prospective damages
Method assessing damages-Art. 2261 0.0.] The permanent character of damages cannot in all cases be assumed from the manner in which the works may have been constructed, and, where the nuisance might, at any time, be abated by the improvement of the system of operation of machinery, etc., or the discontinuance of the negligent acts complained of, prospective damages ought not to be allitigation, be justified upon grounds of pealed from K.B. 531), reversed, the Chief Justice and Girouard J. dis- Fritz
Gareau v. The Montreal Street Railway Co. Can. S.C.R.
pensation-Arts. 203, 215,
Construction of contract
Liquidated damages-Penal clause-Arts.
By a clause in a contract for
DAMAGES-Continued.
specified time and in default of completion as stipulated it was agreed that the contractor should pay "as liquidated of fifty dollars for every subsequent day until the completion."
The works were not completed within the time limited, and, in consequence, both parties joined in a petition to a municipal corporation for extension of the time during which subsidies it had granted towards the cost of the works could be earned.
The petition was granted and the works were completed within the extension of time allowed by the corporation.
JJ. (dissenting)
, that damages accruing under the clause in question did not, upon mere default, become sufficiently liquidated and ascertained so as to be set off in compensation against a claim upon a promissory note.-Held, per Girouard and Davies JJ. (Nesbitt and Idington JJ. contra), that by joining in the petition for extension of time the party in whose favor the penal clause might take effect had waived the right to claim damages thereunder during the period of the extension so obtained in the interests of both parties to the contract. N. & W. Co...............347 Pleadings-Procedure-Evidence. .7 7-Constitutional law-Railway company-Negligence-Agreements for exemption from liability-Power of Parliament to prohibit ...............
8-Sale
-Term credit fer-Insolvency-Banking-Bailee receipt and factors - Principal and cation-Practice-Pleading ......... 406 Admiralty law-Navigation- Narrow channel-- Rule of the road-Look-out -Meeting ships-Collision-Special rule DAMAGES-Continued.
of port - Sorel harbour regulations- Evidence-Damages .................
DEBTOR CREDITOR-Composition and discharge - Payment of debt-Reservation of security-Novation.]
deed of composition and discharge the bank agreed to accept composition notes in discharge of its claim against the plaintiff at a rate in the dollar, special reserve being made as to the securities then held for the debt due the plaintiff.
The original debt was to revive in full on default in payment of any of the composition notes.
Upon receiving the composition notes the bank surrendered the notes representing the full amount its claim. Held, reversing the judgment appealed from, that the effect of the agreement coupled with the reservation made was that the debtor to be discharged merely from personal liability on payment of the composition notes, but that the securities were to be still held by the bank for the purpose of reimbursing itself, if possible, to the extent of the balance of the original debt.- Held, also, that the surrender of the original notes by the bank did not extinguish the debt they represented and under the circumstances there was no
. .....................
2-Preferential assignment - Debtor and creditor-Pressure - Yukon Con. Ord.
The effect of the second section of the Yukon Ordinance, chapter
Consolidated
Ordinances.
is remove the doctrine pressure in respect to preferential assignments, and consequently, all assignments made persons in insolvent circumstances come within the terms of the ordinance.-In order to render such an assignment void there must be knowledge of the insolvency on the part of both parties and concurrence intention to obtain an unlawful preference over the other creditors.
Molsons
Bank v. Halter
Stephens v. McArthur Can. S.C.R.
446) ; and Gibbons v. McDonald '(20 Can.
DEBTOR CREDITOR-Continued. 3-Assignment of obligation-Part performance-Notice of debtor-Acceptance of creditor suit to set aside obligation Signification of transfer of debt-Art. C.C................686 DECEIT-Mines and mining - Vendor and purchaser-Sale of mining locations -Consideration in lump sum-Separate and fraud-Measure of damages..... DECREE,
DEED-Composition and discharge-Construction
Novation
Reservation of collateral security-Delivering up evidence of debt....................18
2-Title to land-Conveyance in feepensation-Arts. 203, 217 -Practice-Damages clause-Arts. 1076,
1188 C.C.- Estoppel-Waiver .................
Limitation of actions-Unregistered Possession-Right of entry ......... 5-Title to land-Servitude-Construction of deed-Reservations-"Representatives"-Owners par individis-Common Windows and openings in line of lane- Arts. 533-538 C.C.................618 DELIVERY-Sale of goods-Suspensive condition
Term credit fer-Tnsolvency-Banking-Bailee receipt and factors-Principal and cation-Damages
.. DEMURRER-Appeal from Exchequer
Court
Judgment demurrer cision upon issues-Jurisdiction .....
DESCRIPTION-Construction of statute
Toll-bridge
Exclusive limits - Measurement of distance-Encroachment-58 III. (L.C.).224
DROITS VOISINAGE.
EJECTMENT-Title to land-Conveyance in fee-Reservation of life estate-Possession ...........................
ELECTION LAW-Controverted election
-Secrecy of ballot-Act of
Numbering ballot.] Under the Dominion
Controverted Elections Act a ballot cast at an election is avoided if there are any marks thereon by which the voter may be identified, whether made him not. Hence, when the deputy returning in a polling district placed on each ballot the number corresponding to that opposite the elector's name on the voters' list, the ballots were properly rejected.
Judgment appealed from (9
Ont. L.R. affirmed, Sedgewick and
JJ.
2-Controverted elections-Service petition-Service out of jurisdiction- Second service on agent - Nova Scotia
Election Court Rules.] Under the Dominion Elections Act service of an election petition cannot be made outside
Idington
J.
dissented.-By
Rule of the Nova Scotia Rules under the Election Act, a candidate returned at an election may, by written notice deposited with the clerk of the court, appoint an attorney to act as his agent in case there should be a petition against him. Held, that an agent so appointed is only authorized to act in proceedings subsequent to the service of the petition, and service of the petition itself on him is a nullity.
CASE......... .................
3-Controverted election - Service petition abroad-Subsequent service in Canada.] Service an election petition out of Canada being void,
ELECTION LAW-Continued.
does not invalidate a subsequent legal service in Canada.
CASE....................57 4-Controverted election-Preliminary objection-Status of petitioner-Corrupt acts-Evidence-Dominion Elections Act, s.
Section of the Dominion Election Act, 1900, provides that any person hiring a conveyance for a candidate at an election, or his agent, for the purpose of conveying any voter to or from a polling place. shall, ipso facto, be disqualified from voting at such election.
Held, that the right of an elector to present a petition against the return of a candidate at an election may questioned, by preliminary objection, on the ground that he is disqualified under the above section and that, on the hearing the preliminary objection, dence may be given of the corrupt act which caused such disqualification. Beauharnois Election Case Can. S.C.R. distinguished.-Held, also, that though, unless the commission of the corrupt act charged is admitted, it must be judicially established, such admission or judicial determination does not take effect merely from the time at which it is made but relates back to the commission of the act.
CASE; ....... EMPLOYERS'
LIABILITY - Crown-Workmen's Compensation Act.] The Manitoba Workmen's Compensation Act does not apply to the Crown. Idington J. dissenting.-In Monitoba the Crown as represented by the Government of Canada may in an action for damages for injuries to an employee, rely on the defence of common employment. Idington J. dissenting. ..
-..
..................
ERROR.
ESTOPPEl-Pleading-Objections taken Territorial Court Rules-Yukon Ordinances-Waiver.] In an action to set aside a conveyance as made in fraud of creditors, the defendant desiring to meet the action by set- ESTOPPEL-Continued.
ting up that there was no debt due and, consequently, that no such fraud could exist, must allege these objections in his pleadings.
In the present case the defendant having failed to plead such fence, was allowed to amend on terms, the Chief Justice dissenting.
.....
pensation-Arts. 205, 207 clause-Arts.
3-heriff's sale of lands-Opposition afin charge-Discretionary order- Default in furnishing security judicata-Estoppet record .......
EVIDENCE-Revendication - Statement claii-Pleadings-Procedure and C.P.Q.-Evidence-Judgment secundum allegata et probata-Ultra petita-Surprise.] In an action for revendication of books, documents and records retained by a fire insurance agent after his dismissal and for damages default of delivery thereof, several policy copy-books, which could not found at the time of the seizure, were delivered up in a mutilated condition by the defendant during the pendency of the action, the defendant being unaware such mutilation.
Some time afterwards the answers to defendant's pleas were filed and contained no reference to the mutilated and incomplete condition which these books were returned.
At the trial plaintiffs were allowed to give evidence as to the cost of replacing these books in proper condition, although fendant objected to the adduction such proof, and the trial court judge assessed damages in this respect at $200, and at $2,000 in respect of certain mutilated plans, at the same time declaring the revendication valid, etc. On appeal by the plaintiffs from the judgment the Court of King's Bench, reversing the as the defendant had been surprised, in so far as the issues affecting the policy copy books were concerned, he \#as entitled to relief as to the item of for damages in respect thereof. With regard to the item of $2,000 damages, however, as the defendant could not have been taken by surprise, he himself having mutilated the plans, the Supreme Court of Canada reversed the judgment appealed from and restored the trial court judgment as to that item the damages assessed.
NoRwIct INS. 2-Statute of Frauds-Part performance-Evidence.] leased lend to his two sons, and W., of which fifty acres was to be in the sole tenancy W. In an action by M. against for waste by cutting wood on said fifty acres the defence set up was that, by parol agreement, in consideration conveying one hundred acres of his land to W. he was to have a deed of the fifty acres, and having conveyed to W. he had an equitable title to the latter. admitted the agreement but denied that the land to be conveyed to was the said fifty acres.
Held, per Nesbitt and Idington JJ. that the conveyance to part the agreement and the statute of frauds was no answer to this defence.-The majority of the court held that as the possession of the fifty acres was referable to the lease as well as to the parol agreement, part performance was not proved, and affirmed the judgment appealed from in favour of the plaintiff N.S.Rer. this
AlEISNER.........................34 3-Negligence - Railway company - Excessive speed-Fencing-Railway Act, ss. 197-55 & 56 V. s. 6 (D.)-Reasonable inferences.] The proamending sec. of The Railway Act, and requiring at every public road crossing at road level the railway the fences on both sides of the crossing and of the track to be turned in to the cattle guards, applies to all public road crossings and not to those in townships only as is the case of the fencing prescribed by 194 of The Railway Act, 1888. Grand Trunk Railway Co. v. McKay (34 Can.
followed.-Three persons were near a public road crossing when a freight train passed, after which they attempted to pass over the track struck train coming from the direction opposite to that of the freight train and killed. The train running at the rate of forty-five miles hour, and it was snowing slightly at the time.
trial of actions under Lord Campbell's
Act against the railway company, the jury found that the death of the parties to "in violating the statute running at an rate of that
A verdict for the plaintiff in maintained the Court of Appeal.
Held, that the railway company was liable; that the had right to the track and there eviof want of their part the could not presumed; and, though there may not proof that the of the pany was the direct of the the jury could reasonably infer it from the facts proved and their finding justified.
McArthur v. Dominion
Cartridge Co.
([1905]
followed; Wakelin v. London & South
Western Railway Cas.
distinguished.-Held, that the fact of starting to the track two before being struck by the not proof of want of that owing to the snowstorm the and of the freight train they might well failed to the train if they had looked listened.
v. BREADY.....................180
4-Title to land-Conveyance of fee- Ejectment.] In D.
to his father and two sisters six land for their lives or the life of the survivor. A days later block of land to M. in "saving and ing" thereout six for the life the grantor's father and sisters or that of the survivor, or until the marriage of the sisters, the happening of said the six to remain the property of M., his heirs under said
Three months later M. the block of land to
R. M. in and when the life estate terminated, in the latter brought ejectment against the heirs of the life tenants who claimed the six the ground that the to M. tained grant of the and also the life tenant had adverse for than twenty years. Held, that the that the life tenants went into under R. M., the title of the latter could not disputed and the statute would not begin to run until the life estate terminated.-Held, per Idington that R. M. under his and that to his grantor had the reversion to the in the six after the life estate terminated.-The of the life estate given to R. M. with the other title on of the land to him and the trial it in evian ancient document relating to the title and coming from custody.
It was not. executed the and counterpart proved to in existence.
Held, that it was properly admitted in McDONALD........
..............
Corrupt acts Admissions-Dominion Elections Act, s. Though, unless the commission corrupt act is admitted, it must judicially established, mission or judicial determination take merely from the time which it is but relates back to the commission of the act.
NonH see LAw 6-Admissibility of evidence-Harmless error-New trial.] action was for the price of sold and delivered, and the that the were reby defendant plaintiff's and not otherwise. A new trial was the ground that plaintiffs' of account improperly in against the ant. The Court of the judgment from (37 restored the verdict the trial, holding that the were the taking of uncommission by the of both parties, and their reception could not afterwards objected to the general ground that they were irrevelant and immaterial to the issue.
7-Mines and mining ways etc.-Inspection of pit-Employer and employee-Negligence-Presumptions
-Reversal on findings of fact........13
8-Reference to "Hansard Debates"- Construction of statute............. 42
9-New damages-Practice - Adding party-Reversal on appeal...................152
10-Admiralty law-Navigation-Narrow channel-Rule of the road-Look-out
-Meeting ships-Collision-Special rule of port
Sorel harbour regulations- Evidence-Damages
Improper comments in factum. ..............
11-Practice-Motion to refer case for further evidence - Presumption as to legislative power of Parliament....596
12-Operation of railway trespassers on railway-Herding stock- Inferences as to facts..............641
EXECUTION-Sheriff's sale of lands- Opposition afin de charge
Discretionary order-Default in furnishing security judicata-Estoppel record- Frivolous and vexatious proceedings- Quashing appeal-Jurisdiction of Supreme Court of Canada-R.S.C.
EXTRADITION-Prohibition-Appeal - Jurisdiction-Supreme Court Act, s.
(g)-54 & V. s. 2-Construction of statute-Public policy-Criminal proceedings.] motion for a writ prohibition to restrain an extradition
EXTRADITION-Continued.
commissioner from investigating a charge of a criminal nature upon which an application for extradition has been made is a proceeding arising out of a criminal charge within the meaning section of the Supreme Court Act, as amended by 54 & Viet. ch. see. and, in such a case, no appeal lies to the Supreme Court of Canada. In re Woodhall (20 832) and Hunt The United States U.S.R. 424) refermissed, 25th July,
FACTOR-Sale goods
-Indorsement of bills-Notice-Fraudulent transfer
Bailee receipt-Brokers and factors- Principal and agent-Resiliation of conctice-Pleading ....................
FARM CROSSINGS-Railways-Jurisdiction of the Board of Railway Commis- Clauses Act, - Grand 1888"-"Railway Act, 1903"-Appeal to Supreme Court of Canada--Jurisdiction involved..............671 FENCES-Negligence-Railway tracks- Fencing crossings-Running of trains- Evidence-Reasonable inferences-Cattle guards-Protection for public ...... 2-Operation of animals-Negligence-Duty as regards trespassers on railsoay-Herding stock- Evidence-Inferences as to facts .... Interprovincial and international ferries - Establishment or creation of ferries- Exclusive rights- Powers of Parliament-R.S.C. 97-51 V. -Acts
Governor in Council.] Chapter R.S.C. "An Act respecting Ferries" as amended by Vict. ch. FERRIES-Continued.
is intra vires of the Parliament
Canada.-The Parliament of Canada has authority to, or to authorize the Governor-General in Council to establish create ferries between a province and any British or foreign country or tween two provinces.-The
Governor- General in Council, if authorized by Parliament, may confer, by license or otherwise, an exclusive right to any such ferry. In
FINDINGS FACT-Mines and mining-Dangerous ways, etc.-Inspection pit
Employer and
Negli- Presumptions versal on findings of fact............
FRANCHISE-Construction of statute- Toll-bridge-Franchise-Exclusive limits
-Measurement of distance - Encroachment-58 III. 20 (L.C.).] The Act,
III. 20(L.C.) authorized the erection of a toll-bridge across the River
Etchemin, in the Parish of Ste. Claire, road leading
Therbse, or as near thereto as may in the County of Dorchester," and section it was provided that no other bridge should be erected or any ferry used "for hire across the said River
Etchemin, within half a league above said bridge and below the said
JJ. (dissenting)
, that the statute should construed as intending that the privileged limit defined should measured up-stream and down-stream from the site of the bridge as constructed.-Per
Nesbitt and Idington JJ. that there the statute shewing a contrary intention and, consequently, that the distance should be measured from a straight line on the horizontal plane; but, per Idington J., in this case, as the location of the bridge was to be "opposite the road leading to
Ste. Therpse," and there was no proof that the new bridge complained of was within half a league of that road, the plaintiff's action should not be main- ......
2-Constitutional law-Inter-provincial and international ferries-Establishment or creation of ferries-License-Exclu- FRANCHISE-Continued.
sive rights-Powers of
Orders in Council-Dominion Acts in relation of ferries.................. 3-Abuse of powers - Operation machinery-Continuing nuisance-Dam- Constructive or equitable frauds-Title to land-Transfer registered owner "Land Titles Act, 1894"- Caveat
Litigious rights
Construction of statute.] The exception as to fraud referred to in the 126th tion of the "Land Titles Act, 1894," means actual fraudulent transactions which the purchaser has participated and does not include constructive frauds.
2-ilines and minerals-Vendor and purchaser-Sale of mining locations- Consideration in lump sum
Separate and fraud-Measure of damages.] representations. the the plaintiffs purchased several mining locations, the consideration therefor bein, stated in a lump sum.
In an action of fraud and deceit brought by the purchaser against the vendor the trial judge, in discussing the total consideration for the properties purchased, found that there was evidence to shew the values placed by the parties upon each properties false and fraudulent representations had been made, and which had turned out worthless or nearly so.
the judgment appealed from, the Chief Justice and Idington J. dissenting, that the finding of the trial judge as to the consideration ought not to be disturbed upon appeal and that the proper measure of damages, in such a case, was the actual loss sustained by the purchaser the misrepresentations of the vendor in respect of the two mining locations in question irrespectively the results or values yielded by the other locations purchased at the same time and as to which no false representations bad been made.
Peek v. Derry followed. FRAUD-Continued.
Privy Council, 14th Dec., 1905.)
trial-Contradictory evideice damages-Practice - Adding party-Reversal on appeal...................152
Indorsement of shipping bills of goods-Resiliation of contract
-Revendication
Damage
Pleading-Pedge to bank-Insolvency- Bailee receipt.....................406
FRAUDULENT
CONVEYANCE-Constitutional law-Imperial Acts in force in
Yukon Territory-Title to land-"Torrens System" - Transfer registered owoner-Fraud-Litigious rights-Notice of lis pendens-Irregular registration- Indorsement upon certificate of title- Construction of statute-Pleading-Objections taken on appeal-Yukon Territorial Court Rules-Yukon Ordinances,
17-Rules 117-Waiver
.......................
FUTURE RIGHTS.
TRUNK RAILWAY - Joint operation of railway-Master and servant
-Yegligence-Responsibility for act joint employee-Traffic agreement-62 (C
.
.- ..- .. ..
statute-Evidence
.-- ...-..-.
..
HERD LAWS-Operation of railway- Straying animals-Negligence-Duty as regards trespassers on railway-Herding stock-Evidence-Inferences as to facts.
--------------......
tracks-Fencing crossings - Running trains-Evidence-Reasonable inferences -Cattle guards-Protection for public. ........ -Pranchise-Exclusive limits-Measurement distance Geo. III. 20(L.C.)...............224 3-"Railway Act, ss. Construction, etc., of street railways and tramways-Use of highways in cities and towns-Consent municipal authority -Approved of by-law-Quebec Municipal Code, arts. 464, 481................369 4- Title to land-Servitude-Construction of deed-Reservations-"Representatives"
Otwners par indivis
Windows and openings on line of lane- Arts. 533-538 C.C..................618 - Composition and discharge-Construction of deed-Novation -Reservation of collateral security-Delivering up evidences of debt.] By deed of composition and discharge the bank agreed to accept composition notes in discharge of its claim against the plaintiff at a rate in the dallar, special reserve being made as to the securities it then held for the debt due by the plaintiff. The original debt was to revive full on default in payment of any the composition notes.
Upon receiving the composition notes the bank surrendered the notes representing the full amount of its claim.
the judgment appealed from, (Q.R. 13 K.B. that the effect of the agreement coupled with the reservation made was that the debtor was to be discharged merely from personal liability on payment of the composition notes but that the securities were to still held the bank for the purpose of reimbursing itself, if possible, to the extent of the balance of the original debt.-Held, also, that the surrender of the original notes the bank did not extinguish the debt INSOLVENCY-Continued.
they represented and, under the circumstances, there was no novation.
Preferential assignment - Debtor and creditor-Pressure insolvency-Yukon Con. Ord. 1902,
The effect of the second section of the Yukon Ordinance, chapter
Consolidated Ordinances, 1902, is to remove the doctrine of pressure in respect to preferential assignments and, consequently, all assignments made persons in insolvent circumstances come within the terms of the ordinance.--In order to render such an assignment void there must be knowledge of the insolvency on the part of both parties and concurrence of intention to obtain an unlawful preference over the other creditors.
Molsons Bank v. Halter Can.
S.C.R. 88); Stephens v. McArthur (19
Can. S.C.R. 446); and Gibbons v. Mc- Donald (20 Can. S.C.R. referred to.
... .....................
Sale of goods-Suspensive condi- -Resiliation of contract-Revendication
-Damages-Practice-Pleading .. 406
INSURANCE,
Constitutional
Negligence-Agreements for exemption from liability-Power of Parliament to prohibit ............................
INSURANCE, FIRE-Goad plans vendication-Mutilation agent-Dam- INSURANCE, LIFE-Constitutional law company-Negligence-Agreements for exemption from liability- Power of Parliament to prohibit....
INTERPRETATION TERMS.
JUDGMENT-Appeal per saltum-Time limit-Pronouncing or entry of judg- To determine whether the sixty days, within which an appeal to the Supreme Court must be taken, runs from the pronouncing or entry of the judgment from which the appeal is taken no distinction should be made between common law and equity cases.-The time runs from the pronouncing of judgment in all cases except those in which there is an appeal from the Registrar's settlement of the minutes or such settlement is delayed because a substantial question affecting the rights of the parties has not been clearly disposed of by such New trial-Decree of appellate B., a assaulted by a fellow-passenger during the passage.
The conductor was informed of the first assault immediately after it occurred and also of the second but took no steps to protect action against the railway company B. damages assessed generally for the injuries complained of. The verdict was maintained by the Court Appeal but the Superior Court of Canada ordered a new trial unless B. would consent to his damages being reduced (34 Can. S.C.R. 74).
In the reasons given for the last-mentioned judgment written by Mr. Justice Sedgewick foi the court, it was held that damages could be recovered for the third assault only but the judgment, as entered the registrar, stated that the court ordered the reversal of the judgment appealed from and a new trial unless the plaintiff accepted the reduced amount of damages.
Such amount having refused a new trial was had on which B. again obtained a verdict the damages being apportioned between the second and third assaults.
On appeal to the Supreme Court of Canada from the judgment of the Court of Appeal maintaining this verdict.
Held, Taschereau and Davies J. (dissenting)
, that as the cree was in accordance with the judgment pronounced by the court when its decision was given, and as it left the whole case open on the second trial, the jury were free to give damages for the second assault and their verdict should not be disturbed.
Held, per Taschereau that the decree of the court should JUDGMENT-Continued.
have been framed with reference to thd opinion giving the reasons for the judgment and, if necessary, could be amended so as to be read as the court intended.
BLAIN........
..................
3-Defective proceedings - Entry formal order-Winding-up Act ...... 494
4-Decision upon issues-Demurrer- Appeal from Exchequer Court ......
JURISDICTION-Railway Act,
Street railways-Removal of tracks- Authority of Board of Railway Commissioners for Canada-Highways in cities and toans-By-law--Quebec Municipal
Code, arts. 464, 481................369
2-Railways-Farm crossings-.Jurisdiction of the Board of Railway Commis- Railway Clauses Act,
Grand
Trunk Railway Act,
1852-"Railwoay
Act, 1888"-"Railway Act, 1903"-Appeal to Supreme Court of Canada-Jurisdication-Controversy involved......
CoImis- Receiver
Management business - Supervision and control- Neglect.] The receiver of a partnership who is directed by the court to manage the business until it can be sold should exercise the same reasonable care, oversight and control over it as an ordinary man would give to his own business and if he fails to do so he must make good any loss resulting from his negligence.-The fact that the receiver is the sheriff of the district does not absolve him from this obligation though the partners consented to his appointment knowing that he would not be able to manage the business in person.-The
Chief Justice and Maclennan J. dissented, taking a different view of the
PlIssoN v. ...... 647
LANES-Title to land-Servitude-Construction of deed-Reservations-"Representatives"-Owners par indivis-Com mon lanes-Right of passage-Private
I LANES-Continued.
lane-Arts. 533-538 C.C.............618 TITLES 1894"-Notice pendens-Caveat-Litigious rights- Irregular registration-Indorsements certificate of title statute.] Under the provisions "The Land Titles Act, 1894," section a bond flde purchaser from the registered owner of land subject to the operation of that statute is not bound or affected by notice of litispendence which has been improperly filed and noted upon the folio of the register containing the certificate of title as an incumbrance charge upon the land. The exception as to fraud referred to in the 126th section the Act means actual fraudulent transactions in which the purchaser has partireferred to and approved. LEASE-Title to land-Conveyance in fee-Reservation of life estate-Possession-Ejectment ..................
LEGISLATION-Constitutional law-Inter-provincial and international ferries- Establishment or creation of ferries- Exclusive rights- Powers of Parliament-R.S.C. 97-51 23(D.)-Acts
Governor in Council.] Chapter R.S.C. "An Act respecting Ferries" as amended by Vict. is intra vires of the 'Parliament Canada.-Tbe Parliament Canada has authority to, or to authorize the Governor-General cstablish or create ferries between a province and any British or foreign country or between two provinces.-The ernor-General in Council. if nuthorized by Parliament, may confer, by license or otherwise, an exclusive right to any ferry.
Constitutional lato of statute - B. Act, s. s-s.
- Legislative jurisdiction LEGISLATION-Continued.
Local works and undertakings-Recital in preamble-Enacting clause-General advantage of Canada, etc.-Subject matter legislation-Presumption as to legislation of Parliament being intra vires..596
LICENSE-Constitutional law-Inter-provincial and international ferries-Establishment or creation of ferries
Franchise-Exclusive rights-Powers of Parliament-Orders in Council - Acts in relation of ferries..........
LIGHT-Title to land-Servitude-Construction of deed-Reservations-"Representatives" - Owners par indivis-Common lanes-Right of passage-Private lane-Arts. 533-538 C-C.............
Title to land-Conveyance of fee-Reservation life estate
Limitation of action.]
Where it appeared that life tenants went into possession under the person to whom the lands had been conveyed in fee, the title the latter could not disputed and the statute would not begin to run until the life estate terminated.
Negligent operation of machinery- Vibration, smoke, noise, etc.-Series torts-Continuing nuisance-Limitations of actions-Prescription of actions in tort-Arts. and
Where injuries caused the operation machinery have resulted from the unskillful or negligent exercise of powers conferred public authority and the provisions art. of the Civil Code
Lower Canada and is prescribed the lapse two years from the date the occurrence each successive tort.
Wordsworth v. Harley & Ad.
Lord Oakley Kensington Canal
B. & 138); and Whitehouse v.
Fellowes referred to.
LIMITATIONS ACTIONS-Continued. 3-Operation of statute-Unregistered Possession-Right of entry.]
T. being about to marry W. T. and wishing to convey to him an interest in her land, executed a deed of the same to a solicitor who then conveyed it to her and W. T. in fee.
The solicitor registered the deed to himself but not the other, forging on the same a certificate of registry, and he, in 1895, mortgaged the land and the mortgage was duly R. T. and W. T. were possession of the land all the time from and only discovered the fraud practised against them in In the mortgagee brought action to enforce his mortgage.
Held, affirming the judgment the Court of Appeal Ont. L.R.
Davies and Nesbitt JJ. (dissenting)
, that the legal title being in the solicitor from the time of the execution of the deed to him the Statute of Limitations began to run against him then and the right of action against the parties in possession was barred in ..
.......... LIS PENDENS-Constitutional law-Imperial Acts in force in Yukon Territory to land - "Torrens System"- Transfer registered owner-Fraud- Irregular registration-Indorsements upon certificate of title-Construction statute-Pleading taken appeal-Yukon Territorial Court Rules Ordinances, c. 17-Rules 117-Waiver-Estoppel ... .251 LITIGIOUS RIGHTS-Constitutional tory-Title to land-"Torrens System"- Transfer registered owner-Fraud- Irregular registration-Indorsements upon certificate of title-Construction statute-Pleading-Objections taken appeal-Yukon Territorial Court Rules MASTER SERVANT-Negligence- Dangerous works-Ordinary precautions
-Employer and employee of risk-Contributory negligence-Voluntary exposure to danger.] An employer carrying on hazardous works is obliged to take all reasonable precautions, commensurate with the danger of the employment, for the protection of employees, and, where this duty has been neglected, the employer is responsible damages for injuries sustained by an employee as the direct result of such omission. Lepitre v. The Citizens' Light and Power Company Can. S.C.R. 1)
referred to by Nesbitt J.-In such a case it is not sufficient defence to shew that the person injured had knowledge of the risks of his employment but there must such knowledge shewn as, under the circumstances, leaves no doubt that the risk was voluntarily incurred and this must found as a fact.
2-Mines and mining ways, works, etc.-Inspection of pit- Employer and employee-Negligence- Presumption findings of fact.] While at work in the pit of an asbestos mine the pit foreman was killed by loose rock falling upon him from the wall of the pit.
Some time before the accident, after setting off a blast, the wall had been inspected by a competent person, under the personal direction of the pit foreman himself, and the particular spot from which the loose rock fell tested by sounding and prying with a crowbar and judged to be safe. In an action to recover damages the courts below inferred from the evidence that the wall of the pit had been allowed to remain in an unsafe condition, and held the defendants responsible on account of negligence this respect.
On appeal to the Supreme
Court Canada. Hield, reversing the judgment appealed from, Girouard J.
dissenting, that, as an inspection had been duly made by competent persons, using their best judgment in the honest discharge of their duty, who reported negligence imputed to the company in that respect, although it afterwards appeared that there had been error in judg- MASTER SERVANT-Con. ment or in the manner in which the inspection performed.-1ield, also, (irouard J. dissenting, that where there is evidence that makes it unnecessary to draw inferences or rely upon presumptions from facts proved, the findings of two courts below, which have acted upon such inferences or presumptions,
3-Constitutional law-Railway comemption from liability-Power of Parliament to prohibit................136 4- Common employment-Defence by Workmen's Compensation Act. ......... 5---Joint operation of railway-Master ment-62 & V. 5(D.) .......... BOUNDS-Construction Toll-bridge clusive limits-Measurement of distance Encroachment
..........................
MINES
MINERALS-Mines mining-Dangerous ways, works, etc.- Inspection of pit-Employer and ployee-2Negligence
Presumptions-Reversal of findings of fact.] While at work in the pit of an asbestos mine the pit foreman was killed loose rock talling upon him from the wall of the pit.
Some time before the accident, after setting off a blast, the wall had been inspected by a competent person, under the personal direction the pit foreman himself, and the particular spot from which the loose rock fell tested by sounding and prying with a crowbar and judged to be safe. action to recover damages the courts below inferred from the evidence that the wall of the pit had been allowed to remain in an unsafe condition, and held the defendants responsible on account of negligence in this respect. On appeal to the Supreme Court Cqnado. MINES MINERALS--Con.
from, Girouard J. (dissenting)
, that, as an inspection had been duly made competent persons, using their best judgment in the honest discharge of their duty, who reported the wall. to be secure, there could be no negligence imputed to the company in that respect, although it afterwards appeared that there had been error in judgment or the manner in which the inspection was performed.-Held, also, Girouard J. dissenting, that where there is evidence that makes it unnecessary to draw inferences or rely upon presumptions from facts proved, the findings of two courts below, which have acted upon such inferences or presumptions, should be reversed.
Co. GIB- 2-New
-Wilful trespass-Rule in assessing damages-Practice - Adding party.] In an action for damages for entry upon a placer mining claim and removing valuable gold-bearing gravel and dirt, the trial judge found the defendants guilty gross carelessness in their work, held that they should be accounted wilful trespassers, and referred the cause to the clerk of the court to assess the dam- The referee adopted the severer rule applicable in cases of fraud in assessing the damages.
The Territorial
Court en banc reversed the trial judge in his findings of fact upon the evidence.
from, that the trial judge's findings should be sustained with a slight variation, but that the referee had erred in adopting the severer rule against the defendants in assessing the damages, and that his report should be amended in view of such error.-Semble, that the record and pleadings should be amended by adding the plaintiff's partner as plaintiff.
Council refused, 4th Aug.,
3-Mining law
Staking claim-Initial post ground
Curative provision-R.S.R.C. s. - V. c. s. 4(B.C.).]
In staking out a claim under the mineral Acts of British
Columbia the fact that initial post No.
1 is placed on ground previously granted the Crown under said Acts does not necessarily invalidate claim, and
MINES MINERALS-Con. sub-see.(g) of see. 4 of Vict. ch. amending the "Mineral Act" (R.S.B.C. ch. may relied on to cure the defect.
Madden v. Connell Can. C.R. 109) distinguished.
Judgment appealed from B.C. Rep. affirmed, Idington J. dissenting
4-Vendor and purchaser mining locations-Consideration in lump sum-Separate valuations - Misrepresentation-Deceit and fraud-Measure MISTAKE-Mines and mining-Vendor and purchaser-Sale of mining locations -Consideration in lump sum-Separate valuations and fraud-Measure of damages ..... 279 MONOPOLY-Toll-bridge - Infringement of privilege-Exclusive limits - Future rights ............................
inent of distance-Encroachment - 20(L.C.)..............224 Constitutional law-Inter-provincial and international ferries-Establishment or creation of ferries - License - Franchise-Exclusive rights-Powers of Parliament-Orders in Council
Acts in relation of ferries.......... 206 MORTGAGE-Limitation of actions-Unregistered deed - Subsequent registered Right entry. . ..............................
MUNICIPAL CORPORATION-"Railway Act, 1903," ss. 184-Construction, etc., of street railway or tramway-Removal of tracks, etc.-Board of Railway Commissioners for Canada-Jurisdiction -Condition precedent-Use of highways in cities and towns-Consent municipal authority - Approval of by-law-- Quebec Municipal Code, arts. 464, 481.1 In the case of a street railway or tram- [S.C.R. YOL. XXXVI. MUNICIPAL CORPORATION-Con.
way or of any railway to operated as such upon the highWays of any city or incorporated town, the consent the municipal authority required by section of the "Railway Act, must be by a valid by-law approved and sanctioned in the manner provided the provincial municipal law, and, the absence of evidence of such consent having been so obtained, the Board
Railway Commissioners for Canada have no jurisdiction to enforce an order in respect to the construction and operation of any such railway. The order appealed from was reversed and set aside, the
Chief Justice and Girouard J. dissent- RAILWAY Co..369
Railway aid-Mu nicipal by-lauof by-law-Right of action.1
An action to annul a municipal by-law will lie although the obligation thereby incurred may conditional and the condition has not been and may never be acecomplished.-Where a resolutory condition precedent to the payment of a bonus under a municipal by-law in aid of the construction and operation of a railway has not been fulfilled within the time limited on pain of forfeiture, an action will for the annulment the by-law, at any time after default, notwithstanding that there may have been part performance of the obligations on the part of the railway company and that a portion of the bonus may have been advanced to the company the municipality.
....
NAVIGATION-Admiralty law-Navigation-Narrow channel-Rule of the road
-Look-out-Meeting ships-Collision- Special rule of port-Sorel harbour regulations - Lights and signals-Negligence-Evidence-Damages.] pilot charge of a ship, or a man at the wheel, is not a sufficient look-out within the rules of navigation for preventing collisions in narrow- channels.
appealed from(9 Ex. C.R. affirmed.- Where meeting ships are in collision and one of them has neglected to observe the regulations, there must be evidence of gross dereliction of duty want of skill in navigation in order to
NAVIGATION-Continued.
make out a case for apportionment damages against the other ship.-Where a ship navigating a narrow channel has no proper look-out and neglects to signal her course at a reasonable distance, thus perplexing and misleading a meeting ship, the former is alone responsible for all damages caused by collision, even if, in the agony of collision, a different manoeuvre on the part of the other ship might have avoided the accident. Judgment appealed from Ex. reversed, Girouard
NEGLIGENCE-Dangerous works-Ordinary precautions - Employer and employee - Knowledge of risk-Contributory negligence-Voluntary exposure to danger.] An employer carrying on hfizardous works is obliged to take all reasonable precautions, commensurate with the danger of the employment, for the protection of employees, and, where this duty has been neglected, the employer is responsible in damages for injuries sustained by an employee as the direct result of such omission.
Lepitre v. Citizens' Light and Power Company Can. S.C.R. 1) referred to by Nesbitt J.- In such a case it is not sufficient fence to shew that the person injured had knowledge of the risks his ployment but there must be such knowledge shewn as. under the circumstances, leaves no doubt that the risk was voluntarily incurred and this must be found as a fact.
& v. ......... 1 2--Mines and mining ways. works, etc.-Inspection of pit- Employer and employee-Evidence-Presumption-Reversal of findings of fact.] While at work in the pit of an asbestos mine the pit foreman was killed loose rock falling him from the wall the pit. Some time before the accident, after setting a blast, the wall had been inspected by a competent person, under the personal direction of the pit foreman himself, and the particular spot from which the loose rock fell tested sounding and prying with a crowbar and judged to be safe. action to recover damages the courts below inferred from the evidence that the NEGLIGENCE-Continued.
wall of the pit had been allowed to remain in an unsafe condition, and held the defendants responsible on account of negligence in this respect.
to the Supreme Court of Canada: - Held, reversing the judgment appealed from,
Girouard J. (dissenting)
, that, as an inspection had been duly made by competent persons, using their best judgment in the honest discharge of their duty, who reported the wall to be secure, there could no negligence imputed to the company in that respect, although it afterwards appeared that there had been error in judgment or in the manner which the inspection was performed.- Held, also, Girouard J. dissenting, that where there is evidence that makes it unnecessary to draw inferences or rely upon presumptions from facts proved.
the findings of two courts below, which have acted upon such inferences or presumptions, should be reversed.
V. GIRAD ........
3-Constitutional la-Railway comemption from liability-Power of Parliament to prohibit.1-An Act of the Parliament of Canada providing that no railway company within its jurisdiction shall relieved from liability for damages for personal injury to any employee by reason of any notice. condition or declaration issued by the company, or by any insurance or provident association of railway employees; or the rules or by-laws of the association;
or of privity of interest or relation between the company and the association or contribution of funds by the company to the association; or of any benefit, compensation or indemnity to which the employee or his personal representatives may become entitled to or obtain from such association; or of any express implied acknowledgment, acquittance release obtained from the association prior to such injury purporting to relieve the company from liability, intra vires of said Parliament. Nesbitt
1904...........
................
Council granted, 28th Nov.,
RailwaY company-Excessive speed
-Fencing-Railicay Act, ss. 194,
NEGLIGENCE-Continued.
- & 56 V. s. 6(D.)-Evidence-Reasonable inferences.] The provisions of & 56 Vict. ch. sec. amending of The Railway Act, and requiring, at every public road crossing at road level of the railway the fences on both sides of the crossing and of the track to be turned in to the cattle guards applies to all public road crossings and not to those in townships only as is the case of the fencing prescribed of The Grand Trunk Railway Co. v. McKay Can. S.C.R. Three persons were near a public road crossing when a freight train passed, after which they attempted to pass over the track and were struck by a passenger train coming from the direction opposite to that of the freight train and killed.
The passenger train was running at the rate of forty-five miles an hour, and it was snowing slightly at the time. On the trial of tions under Lord Campbell's Act against the railway company, the jury found that the death of the parties was due to negligence "in violating the statute running at an excessive rate speed"
and that deceased were not A verdict for the plaintiff in each case was maintained by the Court of Appeal. Held, that the railway company was liable; that the deceased had a right to cross the track and there was no evidence of want of care on their part and the same could not be presumed; and, though there may not have been precise proof that the negligence of the company was the direct cause of the accident, the jury could reasonably infer from the facts proved and their finding was justified.
McArthur Dominion Cartridge ([1905) followed; Wakelin v. London & South Western App. Cas. distinguished.-Held, also, that the fict deceased starting to cross the track two seconds before being struck the gine was not proof of want of care; that owing to the snowstorm and the escaping steam and noise of the freight train they might well have failed to see the passenger train if they had looked and listened.
BREADY....................180 &C.R. VoL. XXXVI.]
NEGLIGENCE-Continued.
5-Operation of machinery-Continuing nuisance
Droits ance-Prospective damages-Method
Arts. 377,
380 and 2261
Where injuries caused by the operation of machinery have resulted from the unskilful or negligent exercise of powers conferred public authority and the provisions of art. 2261 the Civil Code of Lower Canada, and is prescribed the lapse of two years from the date of the occurrence of each successive tort.
Wordsworth v. Harley (1 B. & Ad. ;
Lord Oakley v. Kensington Canal (5
& Ad. 138); and Whitehouse Fellowes referred to.-In the present case, the permanent character of the damages so caused could not assumed from the mdnner in which the works had been constructed and, as the nuisance might, at any time, be abated by the improvement of the system of operation or the discontinuance of the negligent acts complained of, prospective damages ought not to be allitigation justified upon grounds pealed from reversed, the Chief Justice and Girouard J.
dissenting. Fritz v.
Hobson
Gareau v. The Montreal Street Rail-ay
Can. S.C.R. distinguished.
6-mployees of the Croon-Common employv'ment-Defen-e Crown-Workmen's Compensation Act.1 The
Workmen's Compensation Act does not apply to the Crown.
Idington J. (dissenting)
.-Tn Manitoba the Crown as presented by the Government of Canada may, in an action for damages for injuries to an employee, rely on the defence of common employment.
Idington J. (dissenting)
.
..............
NEGLIGENCE-Continued.
7-Operation of trespassers-Herding stock-Evidence- Inferences as to fact.]
A railway company is not charged with any duty in respect of avoiding injury to animals wrongfully upon its line of railway until such time as their presence is discovered. Idington J. dissented though concurring in the judgment on the other grounds. PAcilic
Admiralty law-Navigation-Narrow channel-Rule of the road-Lookout-Meeting ships-Collision Spe6ial rule of port-Sorel harbour regulations -Lights and signals ages............................564
9-Laches receiver partnership - Management of business. .......... 10-Joint operation of railway-Master ment-62 V. 5(D.).........655 NEW TRIAL-Contradictory evidence- Wilful trespass-Rule in assessing damages-Practice-Adding party-Reversal In an action for damages for entry upon a placer mining claim removing valuable gold hearing gravel and dirt, the trial judge found the defendants guilty of gross carelessness in their work, held that they should accounted wilful trespassers, and referred the cause to the clerk of the court to assess the damages.
The referee adopted the severer rule applicable in cases of fraud in assessing the damages. The Territorial Court en bane reversed the trial judge in his findings of fact upon the evidence.
judgment appealed from, that the trial judge's findings should be sustained with a slight variation, but that the referee had erred in adopting the severer rule against the defendants in assessing the damages, and that his report should be amended in view of such error.-SRmble, that the record and pleadings should be amended by adding the plaintiff's partner as co-plaintiff.-Held, per Tascher- NEW TRIAL-Continued.
eau dissenting, that although not convinced that there was error in the judgment of the trial judge which the court en bane reversed, while at the same time it did not appear that there was error in the judgment en bane, yet the latter judgment should stand, as the court en bane should not be reversed unless the Supreme Court, on the appeal clearly satisfied that it was wrong.
Evidence-Admissibility-Har less error-New trial.] The action was the price of goods sold and delivered, and the defence that the goods were received by defendant as plaintiffs' manager and not otherwise.
A new trial was ordered on the ground that plaintiffs' books of account were improperly received in evidence against the defendant. The Supreme Court of Canada reversed the judgment appealed from
N.S. Rep.
and restored the verdict at the trial holding that the books were received on the taking evidence under commission by the express consent of both parties, and their reception could not afterwards be objected to on the general ground that they were irrevelant and immaterial to the issue.
3-Assessment of damages
Reasons for judgment-Decree of Court of Appeal.
..............................
NOTICE-Constitutional law
Agreements exemption from liability-Power of Parliament to prohibit................136
2-Constitutional law-Imperial Acts in force in Yukon Territory-Title to land-"Torrens System" registration-Indorsements upon certifItaken on appeal-- NOTICE-Continued.
3-Sale
-Term of credit ment of bills-Fraudulent transfer-In- -Resiliation of contract-Revendication -Damages-Practice-Pleading 4-Railway aid-Municipal by-lawof by-law-Right of action Assignment obligation
Signification upon debtor-Art. . . NOVATION-Composition and discharge -Construction of deed-Reservation collateral security
Delivering up evidences of debt.]
By deed of composition and discharge the bank agreed to accept composition notes in discharge of its claim against the plaintiff at a rate in the dollar, special reserve being made as to the securities it then held for the debt due by the plaintiff.
The original debt was to revive in full on default in payment any the Upon receiving the composition notes the bank surrendered the notes representing the full amount .of its claim. Held, the judgment from, that the effect of the agreement coupled with the reservation made was that the debtor was to discharged merely from personal liability on payment of the composition notes but that the securities were to be still held the bank for the purpose of reimbursing itself, if possible, to the extent the balance of the original debt.-Held, also, that the surrender of the original notes by the bank did not extinguish the debt they represented and under the circumstances there was no nova- NTISANCE-Operation of machinery- Continuing nuisance-Negligence-Droits du voisinage-Vibrations, smoke, dust, etc.-Series of torts-Statutory franchise ance-Prospective damages-hMethod - NUISANCE-Continued.
of machinery have resulted from the unskilful or negligent exercise of powers conferred by public authority and the provisions of art. 2261 the Civil Code.
of Lower Canada, and is prescribed the lapse of two years from the date of the occurrence of each successive tort.
Wordsworth v. Harley (1 B. & Ad.
Lord Oakley v. Kensington Canal Co. (5
& Ad. 138); and Whitehouse v. Pellowes 765) referred to.-In the present case, the permanenf character of the damages so caused could not assumed from the manner in which the works had been constructed and, as the nuisance might, at any time, be abated by the improvement of the system of operation or the discontinuance of the negligent acts complained prospective damages ought not to be allitigation justified upon grounds pealed from K.B. reversed, the Chief Justice and Cirouard J. dissenting. Fritz v. Hobson referred to.
Gareau v. The Montreal Street
Railway Co. Can. S.C.R. 463) dis- Co. v.
OPPOSITION-Sheriff's sale of lands- Opposition afin de charge-Discretionary order-Default in furnishing security- Res judicata-Estoppel record-Frivolous and vexatious proceedings-Quashing appeal
Jurisdiction of
Court of Canada-R.S.C. c. ss.
59-Arts. and
In proceedings for the sale of lands under execution, the appellants filed hn opposition to secure a charge thereon under the provisions of article 726 the of Civil Procedure, a judge the Superior Court ordered that th opposants should, within a time limited, furnish security that the lands, if sold subject to the charge, should realize sufficient to satisfy the claim of the execution creditor.
On failure to give security as required the opposition was dismissed, and, on appeal to the Supreme Court of Canada, the judgment dismissing the opposition was affirmed
Subsequently the
OPPOSITION-Continued.
proceedings in execution were continued and, on the eve of the date advertised for the sale by the sheriff, the opposants filed another opposition to secure the same charge, offered to furnish the necessary security, and obtained an order, staying the sale.
The judgment appealed from maintained a subsequent order made under art. 651 which revoked the order staying the sale and dismissed the opposition.
the judgment dismissing the opposition on default to furnish the required security was chose jugde against the appellants and deprived them of any right to give such security or take further proceedings secure their alleged charge upon the lands under seizure.- Per Taschereau C.J.
In a case like the present an appeal to the Supreme Court of
Canada would quashed, on motion respondent, as being taken in bad faith.-Per Girouard J.
As the order by the judge first instance was made in the exercise of judicial discretion the Supreme Court of Canada, under section twenty-seven of the Act, was deprived of jurisdiction entertain the
ORDER-Sheriff's sale of lands-Opposition afin de charge-Discretionary order Default furnishing security judicata-Estoppel record-Frivolous and vexatious proceedings - Quashing Jurisdiction of Supreme Court of Canada-R.S.C. ss. Arts. C.P.Q................613 ORDER law-Inter-provincial and international ferries-Establishment or creation of ferries
License
Exclusive rights-Powers of Parliament-R.S.C. 97-51 V. 23(D.)-Acts Governor in Council.]
Chapter R.S.C. "An Viet. ch. is intra vires of the Parliament of Canada.-The Parliament Canada has authority to, or to authorize Governor-General establish or create ferries between a province and any British or foreign country or between two provinces.-The Governor-General in Council, if authorized by Parliament, may confer, license or otherwise, an exclusive right IN COUNCIL--Continued.
to any such ferry. In re
......
Neto evidence-Wilful trespass--Rule in assessing damages- -Practice-Adding party
PARTNERSIP-Appointment of court official to act as receiver-Management of business-Supervision and control- Laches ..........................
PATENT INVENTION-Infringement of patent of invention-Exchequer Court
Act, ss. and 52-Order postponing hearing of demurrer-Judgment-Leave to appeal.1 Unless an order upon a demurrer a decision upon the issues raised therein, leave to appeal to the
Supreme Court of Canada cannot be granted under the provisions of the fiftyfirst and fifty-second sections of the Exchequer Court Act, as amended by Edw.
VII. ch.
Co..593
Cross-demand-Compensation-Arts. 203, 215,
.P.Q.-Practice struction of contract-Liquidated damages-Arts. 1188 C.C.-Estoppel-Waiver ....................
PLANS-Goad plan - Revendication
Fire insurance surveys - Mutilation agent-Dam ages ....................
Title to land--Servitude-Construc.
tion of deed-Plan of subdivision-Reservations-"Representative" - Owners par indivis
Common lanes-Right passage
Windows and openings on line of lane-Arts.
.......................
PLEADING-Revendication - Statement of claim-Pleadings-Procedure and C.P.Q.-Evidence-Judgment secundum allegata et probata
Ultra
PLEADING-Continued.
petita-urprise.] In an action for records retained a fire insurance agent after his dismissal and for damages in default of delivery thereof, several policy copy-books, -which could not found at the time of the seizure, were delivered up in mutilated condition by the defendant during the pendency the action, the defendant being unaware such mutilation.
Some time afterwards the answers to defendant's pleas were and contained no reference to the mutilated and incomplete condition which these books were returned. At the trial plaintiffs were allowed to give evidence as to the cost of replacing these books in proper condition, although defendant objected to the adduction of such proof, and the trial court judge assessed damages in this respect at $200, and at $2,000 in respect of certain mutilated plans, at the same time declaring the revendication valid, etc.
the plaintiffs from the judgment the Court of King's Bench, reversing the as the defendant had been surprised, in far the the copy-books were concerned, he was entitled to relief as to the item of for damages in respect thereof. With regard to the item of $2,000 damages, however, as the defendant could not have been taken surprise, he himself having mutilated the plans, the Supreme Court of Canada reversed the judgment appealed from and restored the trial court judgment that the 2-Objections taken on appeal-Sale of land-Setting aside fraudulent conveyance-Defence nihil debet-Amendment of pleadings.] In an action to set aside tors, the action by setting up that there was no debt due and, consequently, that no such fraud could exist, must allege these jections in his pleadings.
In the present terms,
Justice
PLEADING-Continued.
3-Cross-demand - Compensation
Penal clause- Estoppel-Waiver.] A debt which is not clearly liquidated and exigible cannot set off in compensation of a claim upon a promissory note except means of a cross-demand made under art. 217 of the
Code of Civil Procedure of the Province of Quebec.
Judgment appealed from affirmed, Nesbitt and Idington JJ. dissenting. N. & W.
............
see 4.
Common employment
-Defence
Crown-Workmen's Compensation Act.]
The Manitoba Workmen's Compensation Act does not apply to the Crown. Idington J. dissenting.- In Manitoba the Crown as represented the Government of Canada may, an action for damages for injuries to an employee, rely on the defence of common
Idington
J.
KING................462
5-Adding parties - Amendment ordered on appeal ..................
PLEDGE-Sale of goods fer-Insolvency-Banking - Bailee receipt-Brokers and factors - Principal ing-52 V. ss. 64, 73.] The absence of the indorsement on bills of lading the consignee therein named is notice an outstanding interest in the goods represented the bills and places persons proposing to make advances upon the security of those bills upon inquiry in respect to the circumstances affecting the
On failure to take proper measures in order to ascertain these facts and obtain clear title to the bills and goods. any pledge thereof must assumed to have been made subiect to. all rights of such consignee.
The Chief
Justice dissented.-Held, per Tascbereau
C.J. dissenting:-Where a sale of goods has been completed actual tradition and delivery the mere absence of the consignee's indorsement upon shipping bills representing the goods made in the name of the vendor cannot have the effect
PLEDGE-Continued.
reserving any right of property in the vendor.
If the goods have been sold upon terms of credit, the unpaid vendor has no right to revendicate such goods after they have passed into the possession of a third person in the ordinary course of business, and, in the present case, on failure of the conservatory seizure and in the absence of any right of the plaintiff to revendicate the goods, the alternative relief prayed for his action should not granted.
.................
POSSESSION-Title to land-Conveyance in fee
Reservation of life estate .......................
2-Limitation of actions-Unregistered Right of entry ....................
POSSESSORY ACTION.
PRACTICE PROCEDURE-Revendication-Statement claim-Pleadings- Procedure-Arts. and Evidence-Judgment secundum allegata et probata-Ultra petita-Surprise.] In an action for revendication of books, documents and records retained by a fire insurance agent after his dismissal and for damages in default of delivery thereof, several policy copy-books, which could not be found at the time of the seizure, were delivered up in a mutilated condition by the defendant during the pendency of the action, the defendant being unaware such mutilation.
Some time afterwards the answers to defendant's pleas were filed and contained no reference to the mutilated and incomplete condition in which these books were returned.
At the trial plaintiffs were allowed to give evidence as to the cost replacing these books in proper condition, although defendant objected to the adduction such proof, and the trial judge assessed damages in this respect at $200, and at $2,000 in respect of certain mutilated plans, at the same time declaring the revendication valid, etc.
the plaintiffs from the judgment of the Court King's Bench, reversing the PRACTICE PROCEDURE-Con.
ing the judgment appealed from, that, as the defendant had been surprised, in far as the issues affecting the policy copybooks were concerned, he was entitled to relief as to the item of $200 for damages in respect thereof. With regard to the item of $2,000 damages, however, as the defendant could have been taken surprise, he himself having mutilated the plans, the Supreme Court
Canada reversed the judgment appealed from and restored the trial court judgment as to that item of the damages assessed.
v. KAvANAGHn...............7
2-Appeal per saltum-Time limit- Pronouncing or entry of judgment.] To determine whether the sixty days, within which an appeal to the Supreme Court must taken, runs from the pronouncing or entry of the judgment from which the appeal is taken no distinction should made between common law and equity cases. The time runs from the pronouncing of judgment in all cases except those in which there is an appeal from the
Registrar's settlement of the minutes such settlement is delayed because a substantial question affecting the rights the parties has not been clearly disposed of such judgment.
.........................
damages-Adding party appeal.] In an action for damages entry upon a placer mining claim and removing valuable gold bearing gravel and dirt. the trial judge found the defendants guilty of gross carelessness in their work, held that they should be accounted wilful trespassers. and referred the case to the clerk the court to assess the referee adopted severer rule applicable in cases of fraud in assessing the damages. The Territorial
Court en bane reversed the trial judge his findings of facts upon the evidence.
from. that the trial judge's findings should sustained with a slight variation, but that the referee had erred adopting the severer rule against the defendant in assessing the damages, and that his report should be amended view such error.-Semble, that the record and pleadings shbuld amended adding the plaintiff's partner as
PRACTICE PROCEDURE-Con. plaintiff.-Held, per Taschereau C.J. dissenting, that although not convinced that there was error in the judgment of the trial judge which the court en bane reversed, while at the same time it did not appear that there was error in the judgment en bane, yet the latter judgment should stand, as the court en bane should not reversed unless the Supreme Court, on the appeal, clearly satisfied that it was wrong.
.......................
4-Reversing on appeal - Concurrent findings in courts below.] It is the duty of the Supreme Court, if satisfied that the judgment in appeal is erroneous, to reverse it even when it represents the concurring view of three, or any number successive courts before which the case has been heard.
..... 5-Appeal per saltum
Act-Application under s. 76-Defective proceedings.] Leave to appeal per saltum, under 26 of the Supreme Court Act, cannot be granted in a case. under the Dominion Winding-up Act.-An application under of the Winding-up Act, for leave to appeal from a judgment the Supreme Court of New Brunswick refused where the judge had made no formal order on the petition for a winding-up order and the proceedings fore the full court were in the nature a reference rather than of an appeal from Co........................494
6-Controverted elections-Servide petition-Service out of jurisdiction- Second service on agent-Nova Scotia Election Court Rules.]
Under the Dominion Elections Act service of an election petition cannot be made outside Canada, Idington J. dissenting.-By rule of the Nova Scotia rule under the Election Act, a candidate returned at an election may, by written notice deposited with the clerk of the court, appoint attorney to act as his agent in case there should a petition against him. that an agent so appointed is only authorized to act in proceedings subsequent to the service of the petition, and service PRACTICE PROCEDURE-Con.
the petition itself on him is a nullity.
CASE......520
7-Controverted election - Service of petition abroad service in Canada.] Service of an election petition out of Canada being void, does not invalidate a subsequent legal
8-Controverted election-Preliminary objection-Status of petitioner-Corrupt acts-Dominion Elections Act, s.
Section of the Dominion Election Act, provides that any person hiring a conveyance for a candidate at an election, or his agent, for the purpose of conveying any voter to or from a polliug place shall, ipso facto, be disqualified from voting at such election.
the right of an elector to present a petition against the return of a candidate at an election may questioned, preliminary objection, on the ground that he is disqualified under the above section and that on the hearing of the preliminary objection evidence may given the corrupt act which caused such disqualification. Beauharnois Election Case,
.........
9-Comments in factum-Appeal to
Privy Council - Order for bail in admiralty cases.], Comments in the appellants' factum relating to a judgment of the
Wreck
Commissioner's Court, which did not form any part of the record, were ordered to struck out, with costs to the respondents.
CO....................564
(See note at 592, respecting appeal to Privy Council).
10-Remitting case to court below- Motion while case pending for judgment
-New motion made, while the case was standing for judgment, to have the case remitted back to the courts below for the purpose of the adduction of newly-discovered evidence as to the re- PRACTICE PROCEDURE-Con. fusal of Parliament to make the abovementioned declaration was refused with costs.
....... 1 1-,--Order for new trial-Reasons for judgment-Decree entered registrar- Assessment of damages ............ pensation-Arts. of contract-Liquidated Penal clause
C.C.-Estoppel-Waiver..347 13-Sale
Bailee vendication-Damages-Pleading.....406 14-Admission of evidence-Harm less error-New trial...................612 15-Sheriff's sale of lands-Opposition afin de charge-Discretionary order-Default in furnishing security-Res judicata record - Frivolous and vexatious proceedings-Quashing appeal -- Jurisdiction of Supreme Court of Canada-R.S.C. ss. 27, 59-Arts. .......................
16-Signification of assignment Acceptance debtor-Right of action..686 PREFERENTIAL - Yukon Ordinance
38-Pressure of insolvency.......... PRESCRIPTION.
PRINCIPAL AGENT-Sale of goods -Suspensive condition-Term of credit- Delivery-Pledge-Shipping bills PRINCIPAL AGENT-Continued.
of lading-Indorsement of bills-Notice
Fraudulent
Brokers and factors-Resiliation of contract-Revendication-Damages-Practice--Pleading.
...............................
PRESUMPTION.
PRIVILEGE.
PRIVY
Privy
Admiralty cases-Order for bail.]
In an action in the Vice-Admiralty Court, an appeal was allowed the Supreme Court of Canada.
plication in chambers for an order under the rules established by the Colonial
Courts of Admiralty Act, (Imp.)
fixing bail to be given upon an appeal to the Privy Council to answer the costs of such appeal, after hearing both parties, it was ordered that bail to answer such costs, in the sum of £300 sterling, to the satisfaction of the Registrar the
Supreme Court of Canada, should given within a time stated; costs of the applicable to costs in the cause.
Co..........592 note.
see viii.
PROCEDURE.
PROHIBITION-Extradition
Prohibition-Appeal
Court Act, s. 24(g)-54 V. 25, s. 2-Construction of statute
Public policy - Criminal proceedings.]
A motion for a writ of prohibition to restrain an extradition commissioner from investigating charge of criminal nature upon which an application for extradition has been made is a proceeding arising out of a criminal charge within the meaning of 24(g) of the Supreme
Court Act, as amended & Vict.
and in such case, no appeal lies to the Supreme Court of Canada.
In re Woodhall and Uunt v. The United States U.S.
R.
PROHIBITION-Continued.
..............................
missed, 26th July,
PROMISSORY
PUBLIC POLICY-Extradition-Prohibition-Appeal-Supreme Court Act-Con- Criminal proceedings ..............
PUBLIC
PUBLIC WORK -Negligence-Employee Common employment - Defence by Crown
Workmen's Compensation Act ....................
RAILWAYS- Branch lines - Canadian Pacific Railway Co.'s charter-44 V. 1 (D.), and schedules- Construction contract-Limitation of time-Interpretation of terms-"Lay out," "Construct," "Acquire" -"Territory of Dominion"- Hansard debates-Construction of statute - 1903."I charter of the Canadian Pacific Railway Company
Vict. ch. 1 schedules thereto appended, impose limitations neither as to time nor point departure in respect of the construction of branch lines;-they may structed from any point on the main line of the Canadian Pacific Railway between Callender Station and the Paseaboard, subject merely to the existing regulations as to approval of location, plans, etc., and without the necessity of any further legislation.-On a reference colncerning an application to the Board of Railway Commissioners for Canada for the approval of deviations from plans of a proposed branch line, under section 43 of "The Railway Act, it is competent for objections as to the expiration of limitation of time to be taken the of its own motion, or by any interested party. 2-Constitutional law-Railway comemption from liability-Power of Parliament to prohibit.] An Act of the Parliament of Canada providing that no railway company within its jurisdiction shall be relieved from liability for damages for personal injury to any employee by reason of any notice, condition or declaration issued by the company, or by any insurande or provident association of railway employees; or of rules or by-laws of the company or association; or of privity of interest or relation between the company and association or contribution by the company to funds of the association; or of any benefit, compensation or indemnity to which the employee or his personal representatives may become entitled to obtain from such association; or of any express or implied acknowledgment, acquittance or release obtained from the association prior to such injury purporting to relieve the company from liability, intra vires of said Parlia- Nesbitt
J.
1904...............13Q
Council granted, 28th Nov., trial-Decree of appellate a assaulted by a fellow passenger during the passage.
The conductor was informed of the first assault immediately after it occurred and also the second, but took no steps to protect B.
In an action against the railway company recovered damages assessed generally for the injuries complained of.
The verdict was maintained by-the Court of Appel but the Supreme
Court Canad-t ordered new trial unless would consent to his damages being reduced Can. S.C.R. 74).
the reasons given for the last-mentioned judgmeAt written by Mr. Justice Sedgewick for the court, it was held that damages could be for the third assault only but the judgment, entered by the registrar, stated that the court ordered the reversal of the judgment appealed from and a new trial unless the plaintiff accepted the reduced amount of damages.
Such amount having been refused a new trial was had on which again obtained a verdict the damages being apportioned between the second and third assaults. peal to the Supreme Court of Canada fiom the judgment of the Court of Appeal maintaining this verdict. Taschereau C.J. and Davies J. dissenting, that as the decree was in accordance with the judgment pronounced the court when its decision was given, and as it left the whole case open the second trial, the jury were free to give damages for the second assault and their verdict should not be disturbed.- Held, per Taschereau that the decree of the court should have been framed with reference to the opinion giving the reasons for the judgment, and, if necessary, could be amended as to be read as the court intended. ..........
................
4-NTegligence - Railway company Excessive speed-Fencing-Railway Act, ss. 197-55 & V. s. 6(D.) - Reasonahle inferences.]
The provisions of & 56 Vict. see. amending of The Railway Act, and requiring, at every public road crossing at road level of the railway the fences on both sides of the crossing and of the track to be turned in to the cattle guards applies to all public road crossings and not to those in townships only as is the case of the fencing prescribed by see. 194 The Railway Act,
Grand Trunk Railway v. McKay, Can. S.C.R. followed.-Three per-on- were a public road crossing when a freight train passed after which they attempted to pass over the track and were struck by a passenger train coming from the direction opposite to that of the freight train and killed.
The passenger train was running at the rate of forty-five miles an hour, and it was snowing slightly at the time.
the trial actions under
Lord
Campbell's against the railway comniny, tbe iiiry found that the death of the parties was due to negligence "in violating the stiatute by running at an excessive rate speed"
and that deceased were A verdict for the plaintiff in each case was maintained by the Court of Ap- Held, that the railway company was liable; that the deceased had a right to cross the track and there was no evidence of want of care on their part and the same could not presumed; and, though there may not have been precise proof that the negligence of the company was the direct cause the accident, the jury could reasonably infer it from the facts proved and their finding was justified.
McArthur Dominion Cartridge ([1905] 72), followed; Wakelin v. London & South
Western Railway App. Cas.
distinguished.-Held, also, that the fact of deceased starting to cross the track two seconds before being struck by the engine was not proof of want of care;
that owing to the snowstorm and the escaping steam and noise of the freight train they might well have failed to see the passenger train if they had looked
"Railway Act, ss. 184- Construction, etc., of street railway tramway-Removal of tracks, etc.-Board of Railway Commissioners for Canada- Condition precedent-Use of highways in cities and towns-Consent municipal authority - Approval of by-law-Quebec Municipal Code, arts.
481.]
In the case a street railway or tramway or of any railway to operated as such upon the highways any city or incorporated town, the consent of the municipal authority required by sec. of the "Railway Act, must be by a valid by-law approved and sanctioned in the manner provided by the provincial municipal law, and, in the absence of evidence such consent having been so obtained, for Canada have no jurisdiction to enforce an order in respect to the construction and operation of any such
The order appealed from was reversed and set aside, the Chief Jus- CO............ 369
6-Operation of railway animals-egligence trespassers-Herding stock-Evidence- Inferences as to facts.]
pany is not charged with any duty respect of avoiding injury to animals its until such time as their presence is discovered, Iaington J. dissented though concurring in the judgment on other grounds. Co. v. 7-Joint operation of railway-Master ment-62 & V. 5(D.).]
the negligence of the train despatcher engaged by the Grand Trunk Ry. and under its control and directions, injuries were caused a collision of two Intercolonial Railway trains on the single track of a portion the Grand Trunk Railway operated under the joint traffic ratified the 02 Vict. ch.
the company is liable, notwithstanding that the train despatcher was declared the agreement to be the joint employ of the Crown and the railway the thereby obliged to pay a portion of his salary. Judgment appealed from affirmed, Taschereau
C.J.
dubitante. Co. v. et al. S-Farm crossings - Board of Railway Commissioners for Statutory contract Clauses Act, 1851-Grand Trunk Railway Act, 1852-"Railway Act, 1888"-"Railway Act, involved-Jurisdiction.]
Orders directing the establishment of farm crossings Act, are exclusively within the jurisdiction of the Board of Railway Commissioners for Canada.-The right claimed by the plaintiff's action, instituted in to have a farm crossing railway company cannot enforced under the provisions of the Act, Vict. ch. Railway of Canada. Judgment appealed from reversed. Idington in regard to damages and costs. .671 9-Appeal from Board of Railway Commissioners-Special leave--Jurisdiction of judge in chambers.......... 10-Railway aid
-Annulment of by-law-Right of action
Assignment obligation
Signification upon debtor-Art.
............
. . . . ..............
RECEIVER - Appointment court official-Management of business-Supervision and control-Laches.]
ceiver of a partnership who is directed the court to manage the business until it can be sold should exercise the same reasonable care, oversight and control over it as an ordinary man would give to his own business, and if he fails to do so he must make good any loss resulting from his negligence.-The fact that the receiver is the sheriff of the district does not absolve him from this obligation though partners sented to his appointment knowing that he would not be able to manage the person.-The Justice and Maclennan J. dissented, taking a different view of the evidence.
PLIssoN v. .......................
REFEREE - Assessment of damages dence. ...............
.........
REGISTRY LAWS-Constitutional lawtory-2 & V. 11(Imp.)-R.S.C.
to land - "Torrens System"- Transfer registered owner-Fraud- Irregular registration-Indorsements upon certificate of title-Construction
Caveat-57 & 58 V. 28, s. 126(D.)s.
(D.)-Pleading
-Objections taken on appeal-Yukon
Territorial Court Rules-Yukon Ordinances, 1902,
17-Rules
- Estoppel.1
The provisions of the Imperial Act, & Vict.
ch. in respect to the registration notices of litispendenee and for the protection of bond flde purchasers pendente lite are of a purely local character and do not extend their application to the
Yukon Territory by the introduction
REGISTRY LAWS-Continued. on the fifteenth of July, under flie tories Act," R.S.C. ch. 50.-Under the provisions of "The Land Titles Act, section a bond flde purchaser from the registered owner land subject to the operation of that statute is not bound or affected by notice of litispendence which has been improperly filed and noted upon the folio of the register containing the certificate of title as an incumbrance or charge upon the land.
The exception as to fraud referred to in the 126th section of the Act means actual fraudulent transactions in which the purchaser has participated and does not include constructive or equitable frauds. Assets Company v..Mere Roihi, Times L.R.
311), referred to and approved. SYNDICAT
..... . ................
2-Chattel
Registrationpurchaser - Removal For registration deeds the
North-West
Territories is divided into districts, and it is provided Ordinance that registration of a chattel mortgage, not followed by transfer of possession, shall only have in the district in which it is made. It is also provided that if the mortgaged goods are removed into another district a certified copy of the mortgage shall be filed in the registry thereof within three weeks from the time of removal, otherwise the mortgige shell null and void as against purchasers, etc.
judgment in appeal, that the "subsequent purchaser" in such case must be one who purchased after the expiration of the three weeks from time of removal, and that though no copy of the mortgage is filed as provided it is valid as against a purchase made within such period.
3-Limitation of actions - Unregistered deed-Subsequent registered mortgage-Possession-Right of entry ... See or RENT CHARGE-Appeal---Jurisdictioncontroversyiititle-Future rights-Hypothec for rent charges-R.S.C. s action for the price of real estate RENT CHARGE-Continued.
with warranty, a plea alleging troubles and fear of eviction under a prior hypothec to secure rent charges on the land not raise questions affecting the title nor involving future rights far as to give the Supreme Court of Canada jurisdiction to entertain an appeal.
Bank of Toronto v. Le Curd et les Marguillers la Nativitd, Can. S.C.R.
15); Wineberg v. Hampson, Can.
R. 369); Jermyn v. Tew, Can. S.C.R.
497); Waters v. Manigault, (30 Can.
R. 304); Frdchette v. Simoneau, Can.
S.C.R. ; Toussignant v. The County
Nicolet, Can. S.C.R. ; and The
Canadian Mutual Loan and Investment v. Lee, Can. S.C.R. 224), followed.
L'Association Pharmaceutique de Qudbec v. Livernois, Can. S.C.R. 400), distinguished.
v. Siois......... 221
REPLEVIN.
RES JUDICATA-Sheriff's sale of lands
-Opposition afin charge-Discretionary order-Default in furnishing security judicata-Estoppel record.] In proceedings for the sale of lands under execution, the appellants filed an opposition to secure a charge thereon and, under the provisions of article the of Civil Procedure, a judge the Superior Court ordered that the opposants should, within a time limited, furnish security that the lands, if sold subject to the charge, should realize sufficient to satisfy the claim of the execution creditor.
failure to give security as required the opposition was dismissed, and, on appeal to the Supreme Court of Canada, the judgment dismissing the opposition was affirmed
Subsequently the proceedings in execution were continued and, on the eve of the date advertised for the sale the sheriff, the opposants another opposition to secure the same charge, offered to furnish the necessary security, and obtained an order staying the sale.
The judgment appealed trom maintained a subsequent order made under art. which revoked the order staying the sale and dismissed the opposition.
the judgment dismissing the opposition on default to furnish the required security was chose jugde against the ap- RES JUDICATA-Continued.
pellants and deprived them of any right to give such security or take further proceedings to secure their alleged charge upon the lands under seizure. PAYETTE.............6. Pleadings Pro- Ultra Petita-Surprise-Acts 339 C.C.Q............ 7 of goods - Suspensive condi- Shipping bills transfer-Insolvency-Banking = Bailee and agent - Resiliation of contract - Damages-Practice-Pleading........406 REVERSION-Title to land-Conveyance in fee-Reservation of life estate-Possession-Ejectment ................
RIVERS STREAMS-Construction of statute-Toll-bridge-Franchise-Exclusive limits---Measurement of distance-- Encroachment-57 Geo. III., 20 (L.C.) ............. SALE-Title to goods-Sale or transfer -Retention of ownership-R.S.O. [1897] s. 41.]
K., a manufacturing furrier, agreement with a retail trading company, placed a quantity his goods with the latter which could sell them as they pleased, paying each sale, within 24 hours thereafter, the price mentioned in a list supplied by K. K. had the right to withdraw from the company any or all such goods at any time and all remaining unsold at the end of the season were to be returned.
While still in possession of a quantity of K.'s goods, the company made an assignment for the benefit creditors and they were claimed by the assignee.
Held, affirming the judgment of the Court of Appeal
Ont L.R. SALE-Continued.
164), which maintained the verdict for defendant at the trial
Ont. L.R.
356) that the property in and ownership of the goods never passed out
K. and the transaction was not one within the terms of R.S.O. [1897] ch.
transfer-Insolvency - Banking-Bailee ing-52 ss. 64, 73.] The absence of the indorsement on bills of lading the consignee therein named is notice an outstanding interest in the goods represented by the bills and places persons proposing to make advances upon the security of those bills upon inquiry in respect to the circumstances affecting them.-On failure to take proper measures in order to ascertain these facts and obtain a clear title to the bills and goods, any pledge thereof must assumed to have been made subject to all rights of such consignee.
Chief Justice dissented.-Held, per Taschereau dissenting, that where a sale of goods has been completed by actual tradition and delivery, the mere absence of the consignee's indorsement upon bills representing the goods made in the name of the vendor cannot have the effect of reserving any right of property in the vendor. If the goods have been sold upon terms of credit, the unpaid vendor has no right to revendicate such goods after they have passed into the possession of a third person in the ordinary course of business, and, in the present case, on failure of the conservatory seizure and in the absence of any right of the plaintiff to revendicate the goods, the alternative relief prayed for by his action granted.
.................
3-Contract for sale of goods-Lowest wholesale price-Special discount...
4-Sale of land-Constitutional lau,tory-Title to land-"Torrens System"
SALE-Continued.
registered owner-Fraud -Irregular registration - Indorsements upon certificate of title-Construction statute-Pleading - Objections taken appeal-Yukon Territorial Court Rules 5-Mines and mining - Vendor and purchaser
Sale of mining locations Consideration in lump sum-Separate and fraud-Measures of damages.... SERVITUDE-Title to land-Construetion of deed-Reservations-"Representatives"
par indivis
Windows and openings on line of lane- Arts. 533-538 conveyance lands fronting on public highways with the right of passage merely over a private lane does not create a servitude that can entitle the grantee to make windows and openings in walls which are built upon the line of the lane.-A reservation in a deed of partition to the effect that lanes through subdivided lands should held in common by the proprietors par indivis or their representatives must be construed as reserving the rights in common only to the co-proprietors, their heirs or the persons to whom such rights in the lanes might
Gout.......
...................
SET-OFF-Pleading - Compensation-Arts.
203, 207, C.P.Q.-Practice
Construction of contract-Liquidated damages- Penal clause-Arts. -Estoppel-Waier ...............
SHERIFF-Sheriff's sale of lands-Opposition afin de charge-Discretionary order-Default in furnishing security- Res judicata-Estoppel record-Frivolous and verations proceedings-Quashing appeal - Jurisdiction of Supreme Court of Canada-R.S.C. ss. -Arts. 726 C.P.Q..............613 SHERIFF-Continued.
2-Appointment court official to act as receiver - Management of business- Supervision and control-Laches.... 647
SHIPPING BILLS-Sale of goods-Suspensive condition-Term of credit-Delivery lading-In- Bailer
SIGNIFICATION-Railway aid - Municipal by-law-Condition precedent-Part performance
Annulment of by-law
Right of action-Assignment of obligation--Notice-Art. 0.0.......686
STATUTE-Railway - Branch lines - Canadian Pacific Railway Co.'s charter- (D.), and schedules-Construction of contract-Limitation of time- Interpretation of terms-"Lay out,"
"Construct," "Acquire" - "Territory
Dominion"-Hansard debates-Construction of statute-"The Railway Act,
The charter of the Canadian
Pacific Railway Company (44 Vict. ch.
1 (D.))
and schedules thereto appended, imposes limitations neither as to time construction of branch lines, they may constructed from any point of the main line of the Canadian Pacific Railway between Callender Station and the
Pacific seaboard, subject merely to the existing regulations as to approval
Jlocation, plans, etc., and without the necessity of any further legislation.a reference concerning an appliestion to the Board of Railway Commissioners for Canada for the approval deviations from plans of a proposed branch line, under section of "The
Railway Act, it is competent for cbjections as to the expiration of limitation of time to be taken by the said
Board, of its own motion, or by any interested party.
2ment of distance-Encroachment-58 Geo.
III. 20 (L.C.).]
The Act, Geo. III. authorized the erection of a toll-bridge across the River Etchemin, in the Parish of Ste. Claire, posite the road leading to Ste. Therbse, or as near thereto as may be, in the County of Dorchester," and by section it was provided that no other bridge should erected or any ferry used "for hire across the said River Etchemin, within half a league above the said bridge and below the said bridge." Held, Nesbitt and Idington JJ. dissenting, that the statute should be construed as intending that the privileged limit detined should be measured up-stream and down-stream from the site of the bridge as constructed.-Per Nesbitt and Idington JJ.
any expression in the statute shewing a contrary intention, and, consequently, that the distance should be measurei from a straight line on the horizontal plane; but, per Idington J. in this case, as the location of the bridge was to be road leading Therase," and there was no proof that the new bridge complained of was within half a league of that road, the plaintiff's action should not be maintained. POULIOT............. 3-Constitutional law-Imperial Acts in force in Yukon Territory-2 & V. 11(Imp.)-R.S.C. 50-Title to land- "Torrens System"-Transfer registered owner-Fraud-Litigious rights- Notice of lis pendens-Irregular registration
Indorsement upon certificate Construction of statute-"Land Titles Act, 1894"-Caveat-57 & V. 28, s. 126(D.)-61 V. s. 14(D.) Territorial Court Rules-Yukon sions of the Imperial Act, 2 & Viet. ch. in respect to the registration notices of litispendence and for the protection of bond flde purchasers pendente lite are of a purely local character and do not extend their application to the Yukon Territory by the introduction on the fifteenth of July, under the tories Act," R.S.C. 50.-Vnler the provisions of "The Land Titles Act, 1894," section a bond purchaser from the registered owner of land subject to the operation of that statute is not bound or affected by notice of litispendence which has been improperly filed and noted upon folio of the register containing certificate of title as an incumbrance or charge upon the land. The exception as to fraud referred to in the 126th section of the
Act means actual fraudulent transactions in which the purchaser has parti- 311), referred to and approved.
4-Construction of statute-Appeal- Special leave-Judge in chambers-Appeal to full court-Jurisdiction.] No appeal lies to the Supreme Court of Canada from an order of a judge of that court in chambers granting or refusing leave to appeal from a decision of the
Board of Railway Commissioners under see 44(3)
of the Railway Act, 1903.
Council was refused, 2nd Aug.,
5-Construction of statute per saltum-Winding-up Act-Application under s. 76-Defective proceedings.1
Leave to appeal per saltum, under see.
26 of the Supreme Court Act, cannot be granted in a case under the Dominion
Winding-up Act.-An application under of the Winding-up Act, for leave to appeal from a judgment of the Supreme Court of New Brunswick was refused where the judge had made no formal order on the petition for a winding-up order and the proceedings before the full court were in the nature of a reference rather than of an appeal from his decision.
..
...
................
6-Constitutional lato of statute-B.N.A. Act, s. s.-s. 10
- Legislative jurisdiction - Parliament of Canada-Local works and undertakings
Recital preamble
Enacting clause-General advantage of Canada, etc.-Subject matter of legislation
-Presumption as to legislation of Parliament being intra vires.] In construing an Act of the Parliament of Canada, there is a presumption in law that the jurisdiction has not been exceeded. the subject matter of legislation by the Parliament of Canada, although situate wholly within a province, is obviously beyond the powers of the local legislature, there is no necessity for an enacting clause specially declaring the works to for the general advantage Canada or for the advantage of two more the provinces.-Sem ble. per Sedgewick and
Davies JJ. (Girouard and Idington JJ. contra), a recital in the preamble to a special private Act, enacted by the Parliament of Canada, is not such a declaration as that contemplated by sub-section 10(c)
of section of the British North America Act, in order to bring the subject matter of the legisIntion within the jurisdiction of Parliament.
HEwsoN CO...................596 7-Construction of statute Mining law-Staking claim-Initial post-Occupied ground - Curative provision-R.S. B.C. s. - V. s. (B.C.)] In staking out a claim under the mineral Acts of British Columbia the fact that initial post No. 1 is placed on ground previously granted by the Crown under said Acts does not necessarily invalidate the claim, and subsee. of see. of Vict. ch. amending the "Mineral Act" (R.S.B.C. ch.
may be relied on to cure the defect. Madden v. Connell, Can. R. 109), distinguished.
Judgment anpealed from, Rep. affirmed, Idington J. dissenting.
8-Railway - Farm crossings-Jurisdiction of Board of Railway Commissioners for Canada- Statutory contract- Railway Clauses Act of 1851-Grand Trunk Railway Act, 1852-"Railway Act, 1888"-"Railway Act, 1903"-Ap- Controversy involved
Jurisdiction.]
Orders directing the establishment of farm crossings over railways subject to "The Railway Act, 1903," are exclusively within the jurisdiction of for Canada.-The ri ht claimed by the plaintiff's action, instituted in 1904, to have a farm crossing established and maintained by the railway company, cannot be enforced under the provisions of the Act, Vict. ch. (Can.), incorporating the Grand Trunk Railway of Canada.-Judgment appealed from reversed, Idington J. dissenting in regard to damages and costs.
Emradition-Prohibition
Court Act-Construction statute-Public policy - Criminal proceedings ........................
10-Abuse of statutory power-Operation of machinery-Continuing nuisance
Droits du voisinage
Vibrations, smoke, dust, etc.-Series torts-Statutory franchise - Permanent injury-Abatement of nuisance-Prospective damages-Mode of assessing dam- Limitations of actions-Prescription of actions in tort-Arts,
380, C.......................329
Frauds-Part performance - M. leased land to his two sons, and
W., of which fifty acres was to be the sole tenancy of W.
In an action by M. against for waste by cutting wood on said fifty acres the defence set up was that, parol agreement, in sideration of conveying one. hundred acres the land to W. he was to have a deed of the fifty acres, and having conveyed to W. he had an equitable title to the latter. M. admitted the agreement but denied that the land to be conveyed to was the said fifty acres.
Held, per Nesbitt and Idington JJ. that the conveyance to W. was a part perthe and statute frauds answer this defence.-The majority of the court held that as the possession of the fifty acres was referable to the lease as well as to the parol agreement, part performance was not proved, and affirmed the judgment appealed from in favour of the plaintiff N.S. Rep. 23)
this and other grounds.
STATUTES-2
&
(Imp.) (Notice of lis pendens).............251 2-30
V. (Imp.) (British America Act, 1867)....................206, 2,4. 3-53
& 54 V. 27(Imp.) (Colonial Courts of Admiralty Act, ..... 4-14
& V. (Can.) (Railway Clauses Act, 1851)................. V. (Can.) (Incorporation of Grand Trunk Railway ....... 6----58
Geo.
(North-West Territories Act) ...................
S-R.S.C. (Ferries) ......... s. 76 (Winding-up 10-R.S.C. s. 24(g) (Supreme Court Act).......................247
11-R.S.C. c. s.
Court Act).......................494 12-R.S.C. ss. (Appeals to Supreme Court) ...............
13-R.S.C. c. s. 29 (Supreme Court 14-44
V. 1
(Canadian Pacific STATUTES-Continued.
50 & V. ss. 52
(Appeals from Exchequer Court of Canada).............................
16-50
& V.
(Canadian
Power .......................
18-51
V. s.
19-51
1888")...........................
20-52
V. ss. 64, of Lading).......................406
21-54
& V. s.
(Jurisdiction of the Supreme Court of Canada)
...............................
22-54
& V.
(Appeals from Exchequer Court Canada)
23-55
& V. s. (Amendment to Railway Act, 1888)........180
24-54 d V.
(Ontario
Power Co.).......................596
25-50
(Ontario Power
.............................
& V. c. 28
("Land
Titles Act, 1894") ................
1 V. s. ()
(Amending
"Land Titles Act") ...............
28-62
- V.
(Intercolonial and Grand Trunk
Traffic).........................655
STATUTES-Continued.
29-62
& V. (Ontario Power Co).......................
30-63
& s. (Dominion Elections Act, ........ 31-63
& 64 V.
Controverted Elections Act, 1900) ... 32-63
& 64 V. c. (Ontario Power Co.).......................596 33-2
Edw. VII. c. 8. 2 (D.) peals from Exchequer Court of Canada.) ....... 34-2
Edw. VII. (D.) (Ontario Power Co.)....................... 35-3
Edw. VII. ("Railway Act, 1903")...............42, 36-R.S.O. [1897] s. 41 (Bills of Sale, etc.).......................397
: I
37-R.S.M. c. (Workmen's Compensation for Injuries) ........ 38-R.S.B.C. ("Mineral 39-61
V. 33, s. (B.C.) (Mines and Minerals).....................622 40-Con.
Ord. N.W.T.
Sale Ordinance)..........
41-Yukon Con. Ord. (
(Preferential Assignments)
BRANCH C.P.R.
43 (Bills ...... ........ TELEPHONE LINES-Negligence-Dangerous works-Employer and employee.1
LIFE-Title to land- Conveyance of fee-Reservation of life estate
October, conveyed to his father and two sisters six acres of land for their lives or the life of the survivor. A few days later he conveyed a block of land to in fee "saving and excepting" thereout six acres for the life the grantor's father and sisters or that of the survivor, or until the marriage of the sisters, on the happening of said respective events the six acres to be and remain the property of his heirs and assigns under said deed.
Three months later conveyed the block of land to
R. M. in fee, and when the life estate terminated, in the latter brought ejectment against the heirs of the life tenants who claimed the six acres the ground that the deed to M. contained no grant of the same and also because the life tenant had had adverse possession for more than twenty years.
Held, that as the evidence shewed that the life tenants went into possession under R. M%. the title of the latter could not be disputed and the statute would not begin to run until the life estate terminated.-Held, per Idington J., that
R. under his deed and that to his grantor had the reversion to the fee in the six acres after the life estate terminated.-The of the life estate was given to R. M. with the other title deeds on conveyance of the land to him and on the trial it was received in evidence as an ancient document relating to the title and coming from proper custody.
It was not executed by the lessees and no counterpart was proved to be in existence.
Held, that it was properly admitted in evidence.
...................
TITLE LAND-Conveyance of fee- Ejectment.] In October, D.
veyed to his father and two sisters six acres of land for their lives or the life of the survivor.
A few days later he conveyed a block of land to M. in fee
"saving excepting"
thereout six acres for the life of the grantor's father
TITLE LAND-Continued.
and sisters or that of the survivor, until the marriage of the sisters, on the happening of said respective events, the six acres to and remain the property of his heirs and assigns under said deed.
Three months later M. conveyed the block of land to R. in fee, and when the life estate terminated, in the latter brought ejectment against the heirs of the life tenants who claimed the six acres on the ground that the deed to M. contained no grant of the same and also because the life tenant had had adverse possession for more than twenty years.
Held, that as the evidence shewed that the life tenants went into possession under R. the title of the latter could not be disputed and the statute would not begin to run until the life estate terminated.-Held, per Idington J., that R. M. under his doed and that to his grantor had the reversion to the fee in the six acres after the life estate terminated.-The of the life estate was given to R. M. with the other title deeds on conveyance of the land to him and on the trial it was received in evidence as an ancient document relating to the title and coming from proper custody. It was not executed by the lessees and no counterpart was proved to be in existence. Held, that it was properly admitted Dons v. ..... 2-Constitutional law-Imperial Acts in force in Yukon Territory-2 & (Imp.)-R.S.C. 50-Title to land- "Torrens System"-Transfer registered owner-Fraud-Litigious rights-Notice of lis pendens-Irregular registration- Indorsements upon certificate of title- Construction statute-"Land Titles Act, 1894"-Caveat-57 & V. s. 126(D.)-61 V. s. 14(D.)-Pleading-Objections taken on appeal-Yukon Territorial Court Rules-Yukon Ordinances, 17-Rules 'Waiver-Estoppel.] The provisions the Imperial Act, & Viet. ch. in respect to the registration of notices of litispendence and for the protection of bond fide purchasers pendente lite are of a purely local character and do not extend their application to the Yukon Territory by the introduction on the fifteenth of July, under the tories Act," ch. 50.-Under the TITLE LAND-Continued.
provisions of "The Land Titles Act,
1894," section a bond fide purchaser from the registered owner of land subject to the operation of that statute is not bound or affected by notice of litispendence which has been improperly filed and noted upon the folio of the register containing the certificate of title as an incumbrance or charge upon the land.
The exception as to fraud referred to in the 126th section of the
Act means actual fraudulent transactions in which the purchaser has parti- 311), referred to and npproved.-'n action to set aside a conveyance as made in fraud of creditors, the defendant desiring to meet the action by setting up that there was no debt due, and, consequently, that no such fraud could exist, must allege these objections in his pleadings.
In the present case the defendant, having failed to plead such defence, was allowed to amend terms, the
Chief
Justice dissenting.
.......
................
Limitation of actions-Unregistered
Posession-l-light of retry.]
T.
being about to marry W. T. and wishing to convey to him an interest in her land, executed a deed of the same to a solicitor who then conveyed it to her and W. T. in fee.
The solicitor registered the deed to himself but not the other, forging on the same a certificate of registry, and in mortgaged the land and the mortgage was duly
R. T. and W. T. were in possession of the land all the time from and only discovered the fraud practised against them in 1902.
rn the mortgagee brought action to enforce his mortgage.
Held, affirming the judgment of the Court of Appeal (9
Ont. L.R. Davies and Nesbitt JJ.
dissenting, that the legal title being the solicitor from the time of the execution of the deed to him the Statute of Limitations began to run against him then and the right of action against the parties in possession was barred
TRANOUTH.......455
4-Servitude-Construction of deed- TITLE LAND-Continued.
Owners par indivis-Cotmmon lanes- Right of passage-Private wall-Win- 533-538
A conveyance of lands fronting on public highways with the right of passage merely over a private lane does not create a servitude that can entitle the grantee to make windows and openings in walls which are built upon the line of the Ihne.-A reservation in a deed of partition to the effect that lanes through subdivided lands should be held in common by the proprietors par indivis or their representatives must be construed as reserving the rights in common only to the co-proprietors, their heirs or the persons to whom such rights in the lanes might be conveyed.
Possessory action-Appeal ...... o- Future rights-Hypothee .............................
Sec
TOLLS-Appeal-Jurisdiction - Future rights-Toll-bridge - Exclusive limits- Infringement of privilege controversy.] The plaintiff's action was for for damages for infringement of his toll-bridge privileges, virtue of the Act, 58 III. ch. (L. by the construction of another bridge within the limit reserved, and for the demolition of the bridge, etc. The judgment appealed from dismissed the action.
a motion to quash the appeal, Held, that the matter in controversy affected future rights and, consequently, an appeal would lie to the Supreme Court of Canada.
Galarneau v.Guilbault,
Can. S.C.R. 579) and Chamberland Fortier, Can. S.C.R. 2ment of distance -Encroachment III. 20(L.C.).]
The Act, III. 20 authorized the erection a toll-bridge across the River Etchemin, in the Parish of Ste. Claire, road leading Therese, or as near thereto as may in the County of Dorchester," and section it was provided that no other bridge should be erected or any ferry TOLLS-Continued.
used "for hire across the said River
Etchemin, within half a league above the said bridge and below the said
JJ. (dissenting)
, that the statute should be construed as intending that the privileged limit defined should be measured up-stream and down-stream from the site of the bridge as constructed.-Per
Nesbitt and Idington JJ. that there was not any expression in the statute shewing a contrary intention and, consequently, that the distance should be measured from a straight line on the horizontal plane; but,-per Idington J., in this case, as the location of the bridge was to be "opposite the road leading to Ste. Therose," and there was no proof that the new bridge complained of was within half a league of that road, the plaintiff's action should not maintained.
"TORRENS
TORT-Operation of machinery tinuing nuisance-Negligence-Droits du
Permanent injury
Abatement nuisance-Prospective damages-Mode
379, 380, C.C.....329
2-Negligence-Employee of Crown,- Common employment-Defence by Crown
Compensation Act...,.462 works-Ordinary precautions-Employer and employee-Knowledge of risk-Contributory negligence-Voluntary exposure to danger.] An employee carrying hazardous works is obliged to take all reasonable precautions, commensurate with the danger of the employment, for the protection of employees and, where this duty has been neglected, the employer is responsible in damages for injuries sustained by an employee as the direct result of such omission.
Lepitre v. The Citizens Light and Power Company, Can. S.C.R. 1); referred to
Nesbitt J.-In such a case it is not suf- TRAMWAY-Continued.
ficient defence to shew that the person injured had knowledge the risks of his employment but there must be such knowledge shewn as, under the circumstances, leaves no doubt that the risk was voluntarily incurred and this must be found as a fact.
"Railway Act, ss. Construction, etc., of street railways and tramways-Removal of tracks-Board Railway Commissioners for Canada - Jurisdiction-Condition precedent-Use of highways in cities and towns-Consent municipal authority-Approval of bylaw-Quebec Municipal Code, Arts. 464. .............................
TRESPASS-New evidence-Wilful trespass-Rule in assessing damages
Adding party-Reversal on appeal ......... Construction of
Toll- Exclusive limits- Measurement of distance-Encroachment Geo. III. ......... 3-Operation of trespassers on railway-Herding stock- Evidence-Inferences as to facts .... PURCHASER-Mines and minerals-Sale of mining locations-Consideration in lump sum-Separate valuations
Deceit and Measure of damages.] Upon representations made the vendor the plaintiffs purchased several mining locations, the consideration therefor being stated in a lump sum.
In an action of fraud and deceit brought by the purchaser against the vendor the trial judge, in discussing the total consideration for properties purchased, found that there was evidence to shew the values placed by the parties upon each of two of these properties as to VENDOR PURCHASER-Con.
which false and fraudulent representations had been made, and which had turned out worthless or nearly so. Held, reversing the judgment appealed from, the Chief Justice and Idington J. dissenting, that the finding of the trial judge as to the consideration ought not to be disturbed upon appeal and that the proper measure of damages, in such a case, was the actual loss sustained the purchaser by acting upon the misrepresentations of the vendor in respect of the two mining locations in question irrespectively of the results or values yielded by the other locations purchased at the same time and as to which no false representations had been made.
Peek v. Derry, followed.
.......
.................
Privy Council, 14th Dec.,
VIEW-Title to land-Servitude-Condeed-Reservations-"Representatives"-Owners par indivis-Common lanes-Right of passage
Private lane-Arts. 533-538 0.0............618
VOISINAGE.
"
WAIVER-Constitutional law-Imperial
Acts in force in Yukon Territory-Title to land-"Torrens System"-Transfer registration-Indorsements upon certifi- 117-Estoppel....................
pensation-Arts. 203, clause-Arts.
WALL-Title to land-Servitude-Construction of deed-Plan of subdivision- Right of passage
Win- 533-538 0.0....................... WARRANTY-Appeal - Matter in controversy title-Future rights-Hypothee for rent charges-R.S.C. s action for the price of real estate sold with warranty, a plea alleging troubles and fear of aviction under a prior hypothee to secure rent charges on the land not raise questions affecting the title nor involving future rights so far as to give the Supreme Court of Canada jurisdiction to entertain an appeal. Bank of Toronto v. Le Ourd et les Marguillers de la Nativite,
Can. 9.C.R. 25); Wineberg v. Hampson,(19 Can. R. 369); Jermyn v. Tew, (28 Can. S.C.R. ; Waters v. Manigault, Can. R. 304) ; Frdchette v. Simoneau, Can. S.C.R. 13); Toussignant v. The County Nicolet, Can. S.C.R. ; and The Canadian Mutual Loan and Investment v. Lee,(34 Can. S.C.R. 224), followed. L'Association Pharmaceutique de Quebec v. Livernois, Can. S.C.R. 400), dis- WATERCOURSES - Local works and undertakings-Navigable waters of Canada-Works for general advantage Canada-Legislation--Jurisdiction WINDING-UP ACT-Joint stock company-Contributories--Consideration for shares.]
and others, interested creditors and otherwise in a struggling firm, agreed to purchase the latter's assets and form a company to carry on its business and they severally subscribed for stock in the proposed company to an amount representing the value of the business after receiving nancial aid which they undertook to furnish. A power of attorney was given to one of the parties to purchase said assets, which was done, payment being made by the discount of a note for $2,made H. and indorsed another of the parties. The company having been formed the said assets were WINDING-UP ACT-Continued.
transferred and the said note was retired by a note of the company for indorsed by H., which he afterwards had to pay. H. also, or the company in
Buffalo of which he was manager, advanced money to a considerable amount for the company which eventually went into liquidation.
After the company was formed, in pursuance of the original agreement between the parties, stock was issued to each of them as fully paid up according to the amounts for which they respectively subscribed, and in the winding-up proceedings they were respectively placed on the list contributories for the total amount said stock.
The ruling of the local master in this respect was affirmed a judge of the High Court and by the
Court of Appeal.
judgment of the Court of Appeal, Davies and Nesbitt JJ. dissenting, that as all the proceedings were in good faith and there was no misrepresentation of material facts, and as H. and had paid full value for their shares, the agreement by which they received them as fully paid up was valid and the order making them contributories should be rescinded.-Held, per Davies and Nesbitt JJ. that as they did not pay cash or its equivalent for any portion of the shares as such the order should stand.
.................
2-Appeal per saltum
Act-Application under s. 76-Defective proceedings.1 Leave to appeal per saltum, under sec. of the Supreme Court Act, cannot be granted in a case under the
Dominion Winding-up Act.
An application under of the Winding-up
Act, for leave to appeal from a judgment of the Supreme Court of New
Brunswick was refused where the judge had made no formal order on the petition for a winding-up order and the proceedings before the full court were the nature of a reference rather than an appeal from his decision.
CUSHING SuIpHITE ......
WINDOWS-Title to land-Servitude- Construction of deed-Plan of subdivision-Reservations-"Representatives"- Right of passage
Win- C)......................618
WORDS TERNS-"Acquire"....42 "Construct".................. "Lay-out".................... "Territory of the Dominion" .... 42 COMPENSATION Employees of the Crown-Common employment-Defence Crown ...... TERRITORY law-Imperial Acts in force in Yukon Territory-2 V. (Imp.) -R.S.C. 50-Title to land-"Torrens System" registered owner-Fraud -Irregular registration - Indorsements upon certificate of title-Construction Caveat-57 & V. s. V. s. 14(D.)-Pleading-Objections taken on appeal-Yukon Territorial Court Rules-Yukon Ordinances, 1902, 17-Rules 117-Waiver-Estoppel.]
The provisions of the Imperial Act, & Vict. ch. in respect to the registration of notices of litispendence and for the protection of bond fide purchasers pendente lite are of a purely local character and do not extend their application to the Yukon Territory the introduction of the English law generally as it existed on the fifteenth of July, 1870, under the eleventh section of "North-West Territories Act," R.S.C. 50.-Under the provisions "The Land
Titles Act, section a bond fide purchaser from the registered owner of land subject to the operation of that statute is not bound or affected by notice of litispendence which has been improperly filed and noted upon the folio of the register containing the certificate of title as an incumbrance or charge upon the land. The exception as to fraud referred to in the 126th section of the Act means actual fraudulent transactions in which the purchaser has participated and does not TERRITORY-Continued.
include constructive or equitable frauds.
The Assets Company v. Mere Roihi,
Times L.R. 311), referred to and approved.-In an action to set aside a conveyance as made in fraud of creditors, the defendant desiring to meet the action by setting up that there was no debt due and, consequently, that no
TERRITORY-Continued. such fraud could exist, must allege these objections in his pleadings. In the present case the defendant, having failed to plead such defence, was allowed to amend on terms, the Chief Justice dis- MCGRADE.................251