Majority
- ERN ONTARIO RAILWAY COM- MISSION
THOMAS WALLACE APPEAL from the decision of the Court of Appeal for Ontario (1), reversing the judgment of Falconbridge C.J., at the trial and granting a new trial. The action was for the price of ties supplied by the plaintiff under a contract providing for payment on the certificate of the chief engineer in charge of construction of defendants' railway.
The engineer refused to certify for the ties not paid for on the ground that new commissioners appointed had objected to the quality and ordered another inspection. At the trial plaintiff was non-suited, the judge holding that there was no coercion of the engineer, and the want of the certificate was a bar to the action. A new trial was ordered by the Court of Appeal on the ground that there was some evidence of coercion for the jury. The defendants appealed.
After hearing Tilley for the appellants, and without calling on Hellmuth K.C. and Geary for the respondents, the Chief Justice pronounced judgment for the court as follows:
THE CHIEF (Oral).-Without expressing any opinion on the merits, and especially without adopting the reasons of the Court of Appeal, we are of opinion that this appeal from a judgment granting a new trial should be dismissed, and said judgment confirmed, with costs.
Solicitors for the appellants: Thomson, Tilley & Johnston.
Solicitors for the respondent: Macdonell, Meffaster,
Geary & Barton.
ACCOUNT-Breach of trust-Accounts
-Evidence-Nova Scotia "Trustee Act,"
S. Order XXXII., r. 3-Judicial discretion-Statute of Limitations.]
his last will bequeathed shares of his estate to his daughters A. and and appointed executrix and trustee.
was weak-minded and infirm and her share was directed to be invested for her benefit and the revenue paid to her halfyearly.
A. proved the will, assumed the management of both shares and also the support and care of at their common domicile, and applied their joint
No detailed acounts were kept sufficient to comply with the terms of the trust or to shew the amounts necessarily expended for the support, care and attendance of but A. kept books which shewed the general household expenses and consisted, principally, of admissions against her own interests. After the decease of and the plaintiffs obtained reference to a master to ascertain the amount the residue of the estate coming to (who survived and the receipts and expenditures A. on account of 0. On receiving the report the judge referred it back to varied, with further instructions and a direction that the books kept should admitted as primd facie evidence at the matters therein contained.
(See N.B. Rep. pp.
452-464.)
This order was affirmed the Supreme Court Nova Scotia in banco. Held, affirming the judgment appealed from N.B. Rep. 451) that the allowances for such expenditures need not restricted to amounts actually shewn to have been so expended; that, under the Nova Scotia statute, Edw.
VII. and Order XXXII., rule a judge may exercise judicial discretion towards relieving a trustee from liability for technical breaches of trust and, for that purpose, may direct the admission of any evidence which he may deem proper the taking of accounts.
MuRnAY.................163
2-"Account stated" - Admission
Promise pay
ACCOUNT-Continued.
agreement-Parol evidence.] On the dissolution of a partnership, the parties signed a statement shewing a certain amount as due to the plaintiff for his share and declaring that "for the sake of peace and quiet and to avoid friction and bother" the plaintiff waived examination the firm's books and agreed that the amount so stated should be deemed to the amount payable the defendants to the plaintiff.
a promise to pay the amount of the balance so stated to due should be implied from the admission of liability.-In an action for the amount of the balance the defendants alleged that the plaintiff had verbally agreed that he would not sue upon the account as stated, and that the document should be treated as merely shewing what would be payable to him upon the collection of outstanding debts owing to the firm.-Held, that as the effect of the alleged collateral agreements was to vary and annul the terms of the written instrument they could not proved by parol testimony. & .....
........................
surety
Right counts-Equitable recourse.]
K. owed the corporation $33,527.94 on two judgments recovered on notes for given him to R., and a subsequent loan to him and R. for $20,000. M., at the request of and for the accommodation of R., had indorsed the notes for and deposited certain shares and debentures as collateral security on his indorsement. K. and R. deposited further collateral securities on negotiating the second loan, but K. remained in ignorance of M.'s indorsements and collateral deposit until long after the release hereinafter mentioned.
These judgments remained unsatisfied for over six years but, in the meantime, the corporation had sold all the shares deposited as ACCOUNT-Continned.
lateral security, and placed the money received for them to the credit of a suspense account, without making any distinction between funds realize i
M.'s shares and the proceeds of the other securities and without making any appropriation of any of the funds towards either of the debts. 28th February,
1900, after negotiations with K. to promise the claims against him, the agent of the corporation wrote him a letter offering to compromise the whole indebtedness for provided pay- Inent was made some time in March
April following.
This offer was not itcted upon until November, when the corporation carried out the and received the having a few days previously appropriated the funds in the suspense account, applying the proceeds of M.'s shares to the credit the notes he had indorsed. The negotia,tions and the final settlement with K.
were not made known to M., and K. was not informed of his continuing liability towards M. as a surety. Held, per Sedge- 'wick, Girouard, Davies and Idington JJ.
(reversing the judgment appealed from
B.C. Rep. 402) ) that the secret dealings the corporation with K. and with respect to the debts and securities were, constructively, a fraud against both K. and M.; that the release of the principal debtor discharged M. as surety.
and thilt he was entitled to recover the surplus of what the corporation received applicable to the notes indorsed him as money had and received by the corporation to and for his use.-Held,
Maclennan J. that, on proper application of all the money received, the corporation
-had got more than sufficient to satisfy the amount for which M. was surety and that the surplus received in excess what was due upon the notes was, equity, received for the use of and could be recovered him on equitable principles or as money had and received in an action at law.
4-Construction of deed-Ambiguityconsideration-Right of action- .....
5-Tenant by sufferance-Use and occupation of lands-Art. 1608
ACCOUNT-Continued.
- Practice. .-. .6. . ................
ACTION-Suretyship-Collateral deposit -Equitable recourse.] K. owed the corporation $33,527.94 on two judgments recovered on notes for $10,000 given him to R., and a subsequent loan to him and R. for $20,000.
at the request of and for the accommodation R., had indorsed the notes for and deposited certain shares and debentures as collateral security on his indorsement. K. and R. deposited further collateral securities on negotiating the second loan, but K. remained in ignorance of M.'s indorsements and collateral deposit until long after the release hereinafter mentioned.
These judgments remained unsatisfied for over six years, but, in the meantime, the corporation had sold all the shares deposited as lateral security, and placed the money received for them to the credit a suspense account, without making any distinction between funds realized from M.'s shares and the proceeds of the other securities and without making any appropriation of the funds towards either the debts. 28th February, after negotiations with K. to compromise the claims against him, the agent of the corporation wrote him a letter offering to ccmpromise the whole indebtedness provided payment was made some time in March or April following. This offer was not acted upon until November, when the corporation carried out the offer and received the having a few days previously appropriated the funds in the suspense account, applying the proceeds of shares to the credit of the notes he had indorsed.
The negotiations and the final settlement with K. were not made known to and K. was not informed of his continuing liability towards as a surety. Held, per Sedeewick, Girouard, Davies and Idington JJ. (reversing the judgment appealed from B.C. Rep. 402) ) that the secret dealings by the corporation with K. and with respect to ACTION-Continued.
the debts and securities were, constructively, a fraud against both K. and that the release the principal debtor discharged as surety, and that he was entitled to recover the surplus what the corporation received applicable to the notes indorsed him as money had and received the corporation to and for his use.-Held, Maclennan J.
that, on proper application of all the money received, the corporation had got more than sufficient satisfy the amount for which was surety and that the surplus received in excess what was due upon the notes was, equity, received for the use of M. and could recovered him on equitable principles or as money had and received ia an at
MINE
Promissory note-Deposit receipt-- Notice-Demand for payment-Action.]
In an action on an instrument in the following form: "$1,200.
Edmundston,
July 12th,
Received from the Reverend N. P. Babineau the sum twelve hundred dollars, for which I am responsible, with interest at the rate seven per cent, per annum, upon production of this receipt and after three months' notice. Fred LaForest." The court below held Rep. that the plaintiff could recover as for a promissory note and that a demand for immediate payment made more than three months before the action was a sufficient notice.
Without calling upon counsel for the respondent, the Supreme Court of Canada dismissed the appeal.
3-Cause of action-Limitation of ac- Lex loci contractds-Absence of debtor.]
Under the provisions of the Yukon Ordinance, of the right to recover simple contract debts in the Territorial Court of Yukon Territory is absolutely barred after the expiration of six years from the date when the cause action arose notwithstanding that the debtor has not been for that period resident within the jurisdiction of the court.
Judgment appealed from reversed, Girouard and Davies JJ. dissenting.
ACTION-Continued.
.............
..... 4-Tenant sufferance-Use and occupation of lands-Art. ..value not lie in case where the occupation sufferance begun continued under a promise sale;
in such a case the appropriate remedy would be an action vendito or for rcddition de compte.
BLnnt 5--Rivers and streams-Floating salelogs-Use of booms-Vis major-Salvage-Quantum meruit Riparian rights.] P. placed booms across a floatable river to hold logs at a place where he had the river.
had further upstream storing An unusual freshet broke T.'s boom and brought a quantity of his wood down with the current into P.'s boom, where it was caught and held for some time, until removed T., without causing any damage or expense to P. an action P. to recover salvage or the value of the use of his boom for the time during which T.'s wood had remained therein.
Held, reversing the judgment appealed from (Q.R. K.B. 513), that as P. had no right of property in the waters of the river where be had placed his boom those waters were publici juris, notwithstanding the construction of the boom; that T.'s wood came there lawfully; and that, as the service rendered in stopping the wood was involuntary and accidental, P. could recover nothing therefor. Per Fitzpatrick C.J.-There no difference between the laws of the Province of Quebec and those England in respect to the rights riparian owners to the waters of floatable streams flowing past their lands.
Miner v. Gilmour Moo. P.C.
.................
6-Title to land-Ownership-Artifi- Possessory action
Bornage tice.] The possessory action lies only favour of persons in exclusive possession & titre de propritaire.-In the present ACTION-Continued.
case, the bank of a canal had fallen in at a place adjoining lands belonging to and the projection thus formed had been, for some years, occupied by him.
made an entry for the purpose removing this obstruction, and re-building a retaining wall to support the bank.
In a possessory action D.: Held, that, as the original boundary had become obliterated, the decision of the quescion of possession should be postponed until the limits of the canal bank had been re-established.
Parent v. The Quebec
North Shore Turnpike Road Trustees
Can. S.C.R. 556) followed.
Pleading ordered- court - Married woman - Legal community-Right of action-Reprise d'instance-Arts. 78,
C.P.Q.-R.S.C. es. 63,
...... 624
8-Contract - Supply of material - Payment-Certificate of engineer-Condition precedent-Improper interference
-Fraud-Hindering performance of condition-Monthly estimate-Final decision.
9-Contract-Breach of conditions - Liquidated damages-Penalty - Cumulative remedy. . . ..................
Construction of deed-Ambiguity consideration-Right of action ......
ADMINISTRATION.
LAW-Maritime law-Collision-Crossing ships-Admiralty rules, rule
The SS. "Parisian,"
making for Halifax Harbour, came along
ADMIRALTY LAW-Continued. the western shore, sailing almost due north to a pilot station, on reaching which she slowed down, finally stopping her engines.
The "Albano," a German steamship for the same port, approached some miles to the eastward, sailing first, error, to the north-east, and then changing her course to the south-west, apparently making for the eastern passage to the harbour.
She again altered her course, however, and came almost due west towards the pilot station. When about a quarter of a mile from the "Parisian" she slowed down, and on coming within eight or nine ship's lengths gave three blasts of her whistle, indicating that she would go full speed astern. The "Parisian" then, seeing that a collision was inevitable, went full speed ahead for about feet when she was struck on the starboard quarter and had to make for the dock to avoid sinking outside.
The "Parisian's" engines were stopped about six minutes before the collision, and a boat from the pilot cutter was rowing up to her when she was struck.
At the time of the collision, about p.m., the wind was light, weather fine and clear, there was no running and no perceptible tide. Held, affirming the judgment of the local judge that the captain of the "Albano" had no right to regard the "Parisian" as a crossing ship within the meaning rule of the Admiralty Rules, and that the "Parisian" having properly stopped to take a pilot on board, and being practically in the act of doing so at the time the "Albano" was bound to avoid her and was alone to blame the collision.
SS. V. 2-Appeal to Privy Council-Colonial Courts of Admiralty Act, (Imp.)- Right of appeal de plano-Bail for costs Upon the application the appellants (30th March, 1906), an order to fix bail on a proposed appeal, direct to His Majesty in Council, under the rules established by the Colonial
Courts
Admiralty Act, (Imp.), the Supreme Court of Canada, sitting in banco, after hearing counsel for and against the application, made an order, pro forma (without expressing any opinion as to the right of appealing de plano), that the appellants should ADMIRALTY LAW-Continued.
give bail to answer the costs the proposed appeal in the sum of sterling, to the satisfaction the Registrar of the Supreme Court of Canada, on or before the 4th of April, 1906. THE and Ontario Nar. Co. Can. S.C.R.
592), a similar order was made a judge in chambers and the Judicial
Committee heard the appeal without requiring the appellants to obtain leave give other security Can. Gaz. 279).
APPEAL-Jurisdiction - Discretionary order-Stay of foreclosure proceedings- Final judgment-Controversy involved- "Winding-up Act"-R.S.C. c. s.
-R.S.C.
c. s.
Leave to appeal to the Supreme Court Canada under the seventy-sixth section the "Winding-up Act" can granted only where the judgment from which the appeal is sought is a final judgment and the amount involved exceeds two thousand dollars.
A judgment setting aside an order, made under the "Winding-up Act,"
for the postponement of foreclosure proceedings and directing that such proceedings should be continued is not a final judgment within the meaning of the
Supreme Court Act, and does not involve any controversy as to a pecuniary amount.
Appeal to Privy Council--Colonial
Courts of Admiralty Act, 1890 (Imp.)- Right of appeal de plano-Bail for costs
Upon the application the appellants (30th March, 1906), for an order to fix bail on a proposed appeal direct to His Majesty in Council, under the rules established by the Colonial
Courts of Admiralty
(Imp.), the Supreme Court of Canada, sitting in banco, after bearing counsel for and against the application, made an order, pro form& (without expressing any opinion as to the right of appealing de plano), that the appellants should give bail to answer the costs of the proposed appeal in the sum of £300, sterling, to the satisfaction of the Registrar of the Supreme Court of Canada, on or before the 4th of April, Tax
LAw
APPEAL-Continued.
3----Jurisdiction-Annulment of proodsverbal-Injunction-Matter in controversary-Art. 560 C.C.-Servitude.l-In a proceeding to set aside resolutions a municipal corporation giving effect to a procds-verbal, the court followed Toussignant v. County of Nicolet (32 Can. S.C.R. 353) and quashed the appeal with costs. Art. 560 referred to. Board of Railway Commissioners- Jurisdiction-Appeal to Supreme Court.] The Board Railway Commissioners granted an application of the James Bay Railway for leave to carry their line under the track of the T. . Ry. but, at the request of the masonary work of such under crossing should be sufficient to allow of the construction of an additional track on the tended to lay an additional track in the near future or at any time. The James Bay by leave of a judge, appealed to the Supreme Court of Canada from the part of the order imposing such terms contending that the same was beyond the jurisdiction of the Board. Held, that the Board had jurisdiction to impose said terms.-Held, per Sedgewick, Davies and Maclennan
JJ., that the question before the court was rather one of law than of jurisdiction and should have come up on appeal by leave of the Board or been carried before the Gover- Ry. CO........ 5--Jurisdiction-Winding-up order- Leave to appeal-Amount involved- R.S.C. s. In a case under the Winding-up Act (R.S.C. an appeal may be taken to the Supreme Court of Canada by leave of a judge thereof if the amount involved exceeds $2,000. Held, that a judgment refusing to set aside a winding-up order does not involve any amount and leave to appeal therefrom cannot be granted.
SuLrnrE-FIRRE v. CusINa .... 427 6-Jurisdiction
Successions curity by benefoiary-Controversy involved
Future rights order.] An application for the approval APPEAL-Continued.
of security on an appeal to the Supreme
Court of Canada from an order directing that a beneficiary should furnish the security required by article 663 of the
Civil Lower Canada was refused on the ground that it was interlocutory and could not affect the rights of the parties
7-New trial-Judgment in court low on motion-Equal division-Jurisdiction-Charge to jury-Misdirection- Bias.] An appeal will lie to the Supreme Court of Canada from a judgment upon a motion for a new trial which failed on account of an equal division of the court below
Rep. which, after the formal recital, stated that "the court having taken time to consider, and being equally divided, the said rule drops and the verdict entered for the plaintiff stands."
8---Jurisdiction - Declinatory excep- Interlocutory judgment of judgment -on exception-Practice.]
The action was dismissed in the Superior Court upon declinatory exception.
The Court of King's Bench reversed this decision and remitted the cause trial on the merits. On motion to quash a further appeal to the Supreme Court
Canada:
Held, that such motion should granted on the ground that the objection as to the jurisdiction the Superior Court might be raised a subsequent appeal from a judgment on the merits.
Per Girouard J.-The judgment of the Court of King's Bench was not a final judgment and, consequently, no appeal could lie to the Supreme Court of Canada.
Co...........535
9---Jurisdiction
New trial
Discretion-Ontario appeals-60 & V.
34-R..O. s. 27.]
Per Fitzpatrick C.J. and Duff J.-Section 27
R.S.C. prohibits an appeal from a judgment of the Court of Appeal
Ontario granting, in the exercise of judicial discretion a new trial in the action.
Per Davies J.-Under the rule in Town of Aurora v. Village of Markham
Can. S.C.R. no appeal lies from a
APPEAL-Continued.
judgment of the Court of Appeal for Ontario on motion for a new trial unless it comes within the cases mentioned in & Vict. or special leave to appeal has been obtained.
Appeal from judgment the Court of Appeal (11 10-Title to land-Ambiguous descripgrantee
"Greek
Catholic Church" -Evidence- ......... 11--Judicial sale of railways-Interested bidder-Disqualification as pur- C.C.-Construction of statute-Reorder-4 & Edw. VII. 158(D.)- ARBITRATION-Empropriation of land Authority for submission-Trespass-2 Edw. VII. By statute in Nova Scotia land is taken for railway purposes the compensation therefor, and for earth, gravel, etc., removed shall fixed arbitrators, one chosen each party and the third, if required, those two. A railway company intending to expropriate, their engineer wrote to who had acted for the company in other cases, instructing him to ascertain the owners had arranged their title that the arbitration could proceed and, if to ask them to nominate their man who, with could appoint a third if they, could not agree.
The engineer added, "I will send an agreement arbitration which each one can subscribe to or, if they have one already drafted, you can forward it here for approval." No such agreement was sent or forwarded to, the engineer, but the three arbitrators were appointed and made an award on which the owners of the land brought an action.
Held, reversing the judgment appealed from (38 N.S. Rep. 80), that as the company had not taken the preliminary steps required the statute which, therefore, did not govern the arbitration proceedings, the award was void for want of a proper ARBITRATION-Continued.
submission.
v. McIsAAc .............
Torts
Diversion of natural flow-Injurious affection-Damages-Execution of statutory powers
TAXES-Construotion of statute-"Marsh Act," R.S.N.S.
ss. 66-Jurisdiction marsh commissioners - Assessment
Certiorari
Limitation granting writ-Practice-Expiration time-Delays occasioned judge-Legal maxim-Order nunc,pro tunc.]
a statute authorizing commissioners to assess lands provided that no writ certiorari review assessment should granted after the expiration of six months from the initiation of the commissioners' proceedings: Held, Girouard, J., dissenting, that an order the issue of a writ of certiorari made after the expiration of the prescribed time was void notwithstanding that was applied for and judgment on the application reserved before the time had expired.-Held, per Taschereau, C.J.- That where jurisdiction has been taken away statute, the maxim actus curial neminem gravabit cannot applied.
scribed, so as to validate an order either by antedating or entering it nunc pro tunc; that, in the present case, the order peachment of the proceedings of the inferior tribunal was sought upon the ground of want of jurisdiction in the commissioners but the appellants were not entitled to it on the merits,
J.
ought to be treated as having been made application was reserved by the judge.
Upon the merits, the appeal should have been allowed as the commissioners had no jurisdiction in the absence of proper notices as required the twenty-second section of the "Marsh Act,"
R.S.N.S.
c. 66. Per Davies J.-The statute
ASSESSMENT TAXES-Continued. allows any person aggrieved the proceedings the commissioners to remove the same into the Supreme Court certiorari; the claim for the writ on the ground of jurisdiction was either abandoned or unfounded; and the statutory writ could not issue after the six months had expired.
2-County school fund-Contributions incorporated towns-Construction statute-3 Edw. VII. s. 7.] Supreme Court of Nova Scotia held N.S. Rep. 1) that the town of Dartmouth was liable to contribute proportiorfately towards the School Fund of the County Halifax for the year Without calling upon counsel for the respondent, the Supreme Court of Canada dismissed the appeal with costs.
BIAS-New trial-Judgment in court below on motion-Equal division-Appeal-Jurisdiction-Charge to jury- Misdirection .. . .. . ..............
BIDDER-Judicial sale of railways- Interested bidder - Disqualification as purchaser-Counsel and solicitors-Art. 1484 C.C.-Construction of statute-Reorder-4 & Edw.
BILLS NOTES-Promissory note- Deposit receipt
Notice
Demand payment-Action.] In an action on an instrument in the following form:- Edmundston, July 12th, Received from the Reverend N. P. Babineau the sum of twelve hundred dollars, for which I am responsible, with interest at the rate of seven per cent. per annum, upon production of this receipt and after three months' notice. Fred. LaForest."
The court below held N.B. Rep. that the plaintiff could recover as for a promissory note and that a demand for immediate payment more than three months before the action was a sufficient notice. Without calling upon counsel for the respondent, BILLS NOTES-Continued.
the Supreme Court of Canada dismissed the appeal.
2-Suretyship - Construction of subway-Apportionment of cost-Person interested or affected-Street railwoqy- Agreement with municipality.]
power of the Board of Railway Commissioners, under section of the "Railway Act, to order a highway to carried over or under a railway is not restricted to the case of opening up a new highway, but may be exercised respect to one already in existence.-The application for such order may be made the municipality as well as by the railway company.
see 4.
2--Jurisdiction - Appeal to Supreme
Court.]
The Board of Railway Commissioners granted an application of the
James Bay Railway for leave to carry their line under the track of the
T. Ry. but, at the request of the masonry work of such under crossing should sufficient to allow of the struction of an additional track the tended to lay an additional track in the near future or at any time.
James Bay leave of a judge, appealed to the Supreme Court of Canada from the part of the order imposing such terms, contending that the same was beyond the jurisdiction of the Board.
Held, that the Board had jurisdiction to impose said terms. Held, per Sedgewick,
Davies and Maclennan JJ., that the question before the court was rather of law than of jurisdiction and should have come up on appeal by leave of the
Board or been carried before the Gover- RAILWAY COMMRS.-Con. nor General in Council.
3---Jurisdiction - Traffic accommodation-Restoring connections-3 Edw. VII. ss. 214, 253.]
On an application to the Board of Railway Commisfor such purposes: Held, that, under the circumstances, the Board had jurisdiction to make an order directing the railway company to restore the spurtrack facilities formerly enjoyed by the applicants for the carriage, despatch and receipt of freight In carloads over, to and from the line railway. 4-Protection of crossings-Party interested-"Railway Act," 1888, 188-"Railway Act, ss. Legislative powers. . . . ........... BORNAGE-Title to land-Ownership- Artificial watercourse - Canal banks Possessory action - ......... BROKER-Purchase on margin - Nonpayment-Sale without notice-Liability customer-Damages. IOLDING 2-Principal and agent land-Authority to make contract-Specifio performance .....
........... CANADIAN WATERS - -Pishing by foreign vessels-Legislative tional law
Constitutional struction of statute-B.N.A. Act, a. 12-R.S.C. as. 4- Sea coast fisheries.................385 CANAL-Title banks-Artificial watercourse-Trespass
Bornage
Practice.] The ownership of a canal serving as a tail-race for a water-mill naturally the the the right thereof for the purpose of maintaining the tail-race in efficient condition.
ARCAND................
Improvements on canal-Temporary stoppage power-Compensation-Total stoppage- Measure of damages-Loss of profits.259
CASES-Abrath v. The North Eastern
Rway. Co. 440), referred to.
. .........
.........
2-Ames v. Sutherland Ont. L.R.
631; Ont. L.R. atfirmed.....
3-Association St. Jean Baptiste v.
Brault Can. S.C.R.
.............
...... 613
4-Aurora, Town of, v. Village
Markham Can. S.C.R. 457) applied
Davies J.......................672
5-Babineau v. LaForest
Rep. affirmed................
6-Beach v. The King Ex. C.R.
287) affirmed ....
................
7-Beauharnois Election Case Can.
S.C.R. followed...............601
8-Bell v. Corporation of Quebec (5
Cas. followed.............577
See 2.
9-Bell v. Winnipeg Electric Street
Railway Co. Man. R. 338) affirmed.
. . . . ..........................
10-Birks v. Kirkpatrick (Q.R. K.B. 287), leave to appeal refused..512 11---Cairns v. Murray N.S. Rep. 12-Canada Carriage Co. v. Lea (11 Ont. L.R. appeal quashed.....672 13-Chamberlain Metal Weather Strip Co. v. Peace Ex. C.R. 399) affirmed. 0............. 14-Continental Trust Co. v. Mineral Products Co. N.B. Rep. 140; N.B. Eq. 28) affirmed...................517 15-Copeand-Chatterson Co. v. Hatton Ex. C.R. 224) affirmed..........651 16---Craigellachie Glenlivet Distillery Co. v. Bigelow N.S. Rep. 482) af- 17-Gibb v. McMahon Ont. L.R. 522) affirmed.
...
...... Gilmour v. Simon Man. Rep. 205) affirmed. ...................
See 3.
Great Western By. Co. v. Braid P.C.
followed..63 20-Halifax, County of, v. Town Dartmouth Rep. 1) affirmed.514 21-Hutchings v. National Life Assce. Co. N.S. Rep. affirmed.....124 22-The
King v. The Ship "North" B.C. Rep. 473) affirmed........385 See 2 23-Lasell v. Hannah B.C. Rep.
24-Lefaivre v. Attorney-General
Quebec (Q.R. K.B. reversed and trial court judgment (Q.R.
restored..
....................
25-London and Lancashire Life Assce.
v. Fleming ([1897]
499) referred to........................124
26-Manufacturers Accident Ins. Co.
v. Pudsey Can. S.C.R. 374) distinguished..... .
...................
27-Metallic Roofing Co. v. City
Toronto Ont. W.R. 646; Ont. W.R.
varied.... ..................
28-Milne v. Yorkshire Guarantee and
Securities Co.
B.C. Rep. 402) reversed . . . . ......................
29-Miner v. Gilmour Mo. P.C.
referred to...................657
30-Minister of Railways and Canals v. Quebec Southern Rway. Co. Ex.
affirmed.................303
31-Montreal Street Rway.
Co. v.
Deslongchamps (Q.R. K.B. 355) affirmed.... ......................
32-Mclsaac v. Beaton N.S. Rep.
affirmed......................14
33-Mclsaac v. County of Inverness
N.S. Rep. affirmed...........75
34- McIsanc v. Inverness Rway. and
Coal Co. (38 N.S. Rep. reversed..134
35-O'Connor v. Halifax Tramway Co. N.S. Rep. 212) affirmed........523 36- Parent v. Quebec North Shore Turnpike Road Trustees Can. S.C.R. 556) followed. . .................
37-Price v. Tanquay (Q.R. K.B. 513) reversed .
... ................
38-Provincial Fisheries Case Can. S.C.R. 444; [1898] 700) discussed. . . .....................
39-The
Queen v. Robertson Can. S.C.R. referred to.............577 40-Saunby v. Water Commissioners of London ([1906]
............ 41-St.
George Pulp and Paper Co. v. Rose N.B. Rep. ........... 42-St.
James Election Case Can. S.C.R. followed..........601 43-St.
Onge v. Shawinigan Carbide (Q.R. K.B. affirmed ...... 44-Steadman v. Robertson (18N.B. Rep. 580)
45-Tattersall v. People's Life Ins. Co. Ont. L.R. 611; Ont. L.R. 326) ....................
46-Thorne v. Bustin N.B. Rep. reversed ....................
47-Toronto, City of v. Toronto Rway. Ont. L.R. varied ...... 430 48- Toussignant v. County of Nicolet
Can. S.C.R. followed ...... 321
49- Union Assurance The
Railway, Light and Power Company
(Q.R. 289) affirmed........676
See NEGLIGENCE
50-Wallace
Temiskaming
Northern Ontario Rway. Co. Ont.
L.R.
affirmed, without adopting reasons of court appealed from.....696
CERTIORARI-Construction of statute
-"Marsh Act," R.S.A.S.
66-Jurisdiction of marsh commissioners-Assessment of lands-Limitation for granting writ-Practice-Expiration of time-Delays occasioned by judge-Legal maxim-Order nunc pro tunc.1 statute authorizing commissioners to assess lands provided that no writ certiorari to review the assessment should be granted after the expiration six months from the initiation the commissioners' proceedings:
Held, Girouard J. (dissenting)
, that order for the issue of a writ certiorari made after the expiration of the prescribed time was void, notwithstanding that it was applied for and judgment the application reserved before the time had expired. Held, per Taschereau, C.J.
where jurisdiction has been taken away statute, the maxim actus curia' neminen gravabit cannot applied, scribed, so ns to validate an order either antedating or entering it nuna pro tuna; that, in the present case, the order peachment the proceedings of the inferior tribunal was sought upon the ground of uwnt of jurisdiction in the commissioners, the appellants were not entitled to it the merits,
Girouard J.
ought to treated as having been made application was reserved the judge.
Upon the merits, the appeal should allowed as the commissioners had jurisdiction in the absence of proper notices as requirecThy the twenty-second
CERTIORARI-Continued.
section of the "Marsh Act," R.S.N.S. Per Davies J.-The statute allows any person aggrieved the proceedings of the commissioners to remove the same into the Supreme Court by certiorari; the claim for the writ on the ground jurisdiction was either abandoned or unfounded; and the statutory writ could not issue after the six months Title land
Ambiguous description of grantee-"Greek Catholic ..... CIVIL CODE-Art. 1484 (Interested purchasers). . . ............
(Servitudes) Art. (Successions) ........ 4-Arts.
400,
414,
(Property. Ownership, Servitude) ....
........ 5-Art.
(Use and occupa- CIVIL PROCEDURE-Arts. 78, (Actions, Exceptions). ... Pleadina mednent ordered court-Married wroman-Legal communit-Right of acflin-Reprise d'instance-Arts. (.P.Q.-R.S.C.
LAW-Act of directors-Unauthorized expenditure-Liabilityt of innocent directors.1 The of limited company, without authority from the LAW-Continued.
shareholders, passed a resolution providing that, in consideration of a firm which two directors were members carrying on business of a similar character continuing the same until the company could take it over, the company indemnified it from all loss occasioned thereby.
K. and F., two members of the firm, refused their assent to the terms of this resolution and declared their intention, of which the majority the directors were made aware, to retire from the firm.
F. subsequently wrote to the president and another director reiterating her intention to retire and declared that she would not responsible for any further liability.
The company afterwards took over the business of the firm, paying therefor $30,000 and receiving assets worth $12,000, and having eventually gone into liquidation the liquidator brought an action to recover from the members of the firm the difference.
The Court of Appeal held that K. and
F. were not liable though their partners were.
Held, that K. and F., having rethe benefit of the money paid the company, were also liable to repay the loss.
2-Incorporation-Secret arrangement
-Illegal consideration for shares-Fraud
-Breach of trust.]
With a view to concealing the financial difficulties a mining company and securing control its property, the manager entered into a secret arrangement with the respondent whereby the latter was to acquire the liabilities, obtain thereon, bring the property to sale under execution and purchase it for a new company to organized in which the respondent was to have a large interest. The manager, who was a creditor of the pany, was to have his debt secured and to receive an allotment of shares the new company proportionate to those held him in the old company and he agreed that he would not reveal this understanding to the other shareholders.
Held, affirming the judgment appealed from B.C. Rep. 466) Sedgewick J.
dissenting, that the agreement could not enforced as the consideration was illegal and a breach of trust which the other shareholders were frauded.
CONSTITUTIONAL LAW-Parliament- Power to legislate-Railways-Railway Act, 1888, as. 188-Protection crossings
Party interested committee-Board of Railway Commissioners--"Railway Act, 1903."]
over a highway of a railway subject to its jurisdiction to protected gates or otherwise, are intra vires of the Parliament of Canada.
Idington J. (dissenting)
.
(Sections and of the 190a,"
powers on the Board of Railway Commissioners.)
These sections also authorize the committee to apportion the of providing and maintaining such protection between the railway company and "any person interested."
Held, Idington J. (dissenting)
, that the municipality in which the highway crossed the railway is situate is a "person interested" under said sections.
Co....232 2-Canadian waters-Three-mile-zone -Fishing foreign vessels-Legislative tional law-Constitutional law-B.N.A. s.
12-Sea-coast fisheries-R.S.O.
Under the provisions the British North America Act, s.-s. the Parliament of Canada has exclusive jurisdiction to legislate with respect to fisheries within the three-mile-zone the sea-coasts of Canada.
A foreign vessel found violating the fishery laws Canada within three marine miles the sea-coasts of the Dominion may immediately pursued beyond the three-milezone and lawfully seized on the high seas. Girouard J. dissenting. The judgment appealed from B.C. Rep. 473) was affirmed. v. KING...........................385 CONTRACT--Sale of goods-Contract by correspondence-Statute of Frauds-Delivery-Principal and agent-Statutory prohibition-Illicit sale of intoxicating liquors-Knowledge of seller-Validity of contract.]
B., a trader, in Truro, ordered goods from a company Glasgow, Scotland, through its agents, Halifax, N.S., whose authority was limited to receiving and transmitting such [S.C.R. YOL. XXXVII. orders to Glasgow for acceptance.
B.'s order was sent to and accepted the company and the goods delivered to a carrier in Glasgow to forwarded to in Nova Scotia.
Held, affirming the
Idington J. (dissenting)
, that the contract was made and completed
Glasgow-Where a contract was made and completed in Glasgow, Scotland, the sale of liquor parties there to a trader in a county in Nova Scotia where liquor was forbidden law to on pain of fine or imprisonment and the vendors had no actual knowledge that the purchaser intended to re-sell the liquors illegally, the contract was not void and the vendors could recover the price the goods.
Co...............................55
Muanicipal corporation aid-Construction of agreement-Empropriation-Description of lands-Reference to plans-R.S.N.S. 99-3
Edw. V11. c.
A municipality passed a resolution by which it agreed to pay for lands required the right way, station grounds, sidings and other purposes of a railway as shewn upon a plan filed under the provisions the general railway Act.
At the time of the resolution there were four such plans filed, each shewing a portion of the land proposed to be taken for these purposes and including, in the aggregate, a greater area than could be expropriated for right of way and station grounds under the provisions of the Acts applicable to the undertaking of the railway company.
The Legislature passed an Act confirming such resolution.
an action the owner the land taken, on an award fixing the value that excess what could expropriated, the corporation pleaded no liability account such excess and also, that there was no specific plan on file describing the land. Held, affirming the judgment appealed from N.S. Rep.
that the first defence failed because the Act confirming the resolution and, as to the second, that the four plans should read together and considered to the plan referred to in such resolution.
IsAAc....
.......................
Trust-Co-trustees--Joint action- Delegation of trust.] A trustee in Toronto wrote to a co-trustee in St. Mary's stating that an offer had been made to purchase a portion the trust estate for $12,000 and giving reasons why it should be accepted.
The co-trustee replied concurring in said reasons and consenting to the proposed sale. Toronto trustee afterwards had negotiations with the solicitors of and at their suggestion offered to sell the same property to for $13,000, but without further notice to his co-trustee. The offer was accepted the solictors, whereupon the party who had offered raised his offer to $14,000 and the trustee notified the solicitors of that the sale to him was cancelled.
In a suit for specific performance: Held, affirming the judgment of the Court of Appeal Ont. L.R. 522) that the letter written the co-trustee in St. Mary's contained a consent to the particular sale mentioned therein only and could not construed as a general consent to a sale to any person even for a higher price. Even if it could there were circumstances which occurred between the time it was written and the signing of the contract with which should have been communicated to the co-trustee before he could bound said contract.
GIna ....... 4--Principal and agent-Sale of land performance.] The defendant gave a real estate agent the exclusive right within stipulated time, to sell, commission, a lot of land for $4,270 (the price being calculated at the rate of $40 per acre on its supposed area), an instalment to paid in cash and the balance, secured by mortgage, payable four annual instalments.
The agent tered into a contract for sale of the to the plaintiff at per acre, being deposited on account of the price, the balance of the cash to be paid acceptance title," the remainder the purchase money payable in four consecutive yearly instalments and with the privilege of "paying the mortgage at any time."
This contract was in the form of a receipt for the deposit and signed the broker as agent the defendant. Held, affirming the judgment appealed from Man. Rep.
that the agent had not the clear and press authority necessary to confer the power entering into a contract sale binding upon his principal.-Held, further, that the term allowing the privilege of paying off the mortgage at any time was not authorized and could not enforced against the defendant.
rous SIMON.................422
5-Breach of conditions - Liquidated damages---Penalty-Cumulative remedy- Operation of tramway-Construction and location of lines-Use of highways-Car service-Time-tables-Municipal control
Territory annexed after contract
Abandonment of monopoly-55 V.
Except where otherwise specially provided in the agreement between the Toronto Railway Company and the
City of Toronto set forth in the schedules to chapter of the statutes of Ontario,
V., in the right of the city to determine, decide upon and direct the establishment new lines of tracks and tramway service, in the manner therein prescribed, applies only within the territorial limits of the city as constituted at the date of the contract.
appealed from Ont. L.R.
reversed,
J.
dissenting.-The city, and not the company, is the proper authority to determine, decide upon and direct the establishment of new lines, and the service, time-tables and routes there- Judgment appealed from affirmed,
Sedgewick J. (dissenting)
.-As between the contracting parties, the company, and not the city, is the proper authority to determine, decide upon and direct the time at which the use open cars shall discontinued in the autumn and resumed in the spring, and when the cars should provided with heating apparatus and heated.
from reversed, Girouard J. (dissenting)
.- Upon the failure the company to ply with requisitions extensions as provided in the agreement, it has no right action against the city grants of the privilege to others; the right making such grants accrues, ipso facto, to the city, but is not the only remedy which the city is entitled to invoke.
affirmed, Sedgewick J. (dissenting)
.-Cars starting out before midnight as day cars
CONTRACT-Continned.
may required the city to complete their routes, although it may necessary for them to run after midnight transfer their passengers to a car which would carry them to their destinations without payment of extra fares, but at midnight character would be changed to night cars and all passengers entering them after that hour could be obliged to pay night fares.
Sedgewick J. (dissenting)
.
or Tono o. . .....
............. 6-Street railway-Carriage of passengers-Contract-Continuous passage.] The plaintiff wished to proceed to a certain -part of Halifax and, when a car came along labelled as going in the required direction, boarded a trailer attached to it which, however, was not labelled.
There was an unusual amount of travel on the street cars that day and when the cat containing plaintiff had proceeded a certain distance it was stopped and the passengers informed that it would not go farther in that direc- The plaintiff insisted on his right to carried to his destination in that car, refused a transfer and hired a cab. In an action for damages the courts low held N.S. Rep. 212) that there was no obligation on the company's part to carry plaintiff to his destination that particular car, that it was his duty to inquire the conductor and ascertain where such car was going and he could not recover. This judgment was affirmed, Idington
J. dissenting.
Co.............523 Construction of deed-Ambigity- Discharge of debtor-Illegal consideration-Right of action.] Where the language of an instrument is ambiguous obscure, the intention of the parties should be ascertained consideration of the circumstances attending the ecution of the agreement.-A deed of settlement between and a bank declared that he owed the bank $4,731.61 for interest on an advance in respect to a lottery scheme and further sum $18,762.02 for advances an account for the purchase of stock, two notes being given for these amounts, respectively, and the shares of stock being pledged as security for the large note only. Subsequently, the directors the bank passed a resolution authorizing the discharge B., on payment of $15,000 one V., "jusqu'a concurrence de la dite somme de and the transfer the shares to V. This resolution was fola deed of compromise, V. paying the and obtaining a transfer of the shares, and it was thereby declared that, the transaction, B. was discharged in far as concerned the
"vis-d-vis la banque des avances qu'elle lui a faites du chef susdit mentionntes en un acte de r glement," etc., the resolution being annexed and the deed settlement referred to for imputation the payment, and V. was to become creditor of under conditions mentioned,
"jusqu'd concurrence de $15,000," the securities being allowed to remain in possession of the bank.
to whom the notes held by the bank on account of the larger note; and further, affirming the judgment appealed an illegal nature.
L'Association St.
Jean Baptiste Brault Can. S.C.R.
598) followed.
8-Patent of invention-Infringement of patent-Sale for a reasonable price- Use of patented device-"Patent Act,"
R.S.0 s. 37-Evidence.]
patentee of a device for binding loose sheets sold the defendant H. binders subject to the condition that they should be used only in connection with sheets supplied or under the authority the patentee.
H. used the binders with sheets obtained from the other defendants, contrary to the condition. In an action for infringement of the patent:
Held, that the condition in the contract with H. imposing the restriction upon the manner in which he should use the binders was not a contravention of the provisions of section of the "Patent
Act," R.S.C. c. in respect to supplying the patented invention at a reasonable price to persons desiring to use it, and that the use so made of the binders
H. was in breach of the condition the contract licensing him to make use of the patented device and an infringement the patent. Judgment appealed Sale of pulp wood-Measurement -Scaling timber. 10-Construction of building-Work and materials-Faulty work-Estras- Dismissal.
11-Supply of material - Payment- Certificate of engineer-Condition precedent
Improper interference
Hindering performance of condition - Monthly estimate-Final decision.. Incorporation of company-Secret agreement consideration for Shares-Fraud-Breach of trust.....324 13---Jurisdiction of Boara of Railway Commissioners-Construction of subioay of cost-Person interested or affected-Street railway-Agrmemeat with municipality............354 Cause of action-Limitation actions-Foreign judgment-Yukon Ordinance, of 1890-Statute of James -Statute of Anne-Lex fori-Lex loci contractus-Absence of debtor ...... 546 Judicial sales bidders-Disqualification as purchaser- Art. C.C.-Public policy.] Solicitors and counsel retained in proceedings for the sale of property are not within the classes of persons disqualified purchasers article 1484 of the Civil Code of Lower Canada.
Judgment appealed from Ex. C.R. affirmed. CROWN-Lease
Improvements canal
Temporary stoppage of power-Compensation-Total stoppage-Measure of damages-Loss profits ......
....................
CROWN LANDS--Title to land -Ambiguous description of grantee-"Greek
Catholic Church"-Evidence-Construction of deed-Reversal of concurrent findings. . . . . ....................
2-Equitable mortgage
Lease
Sheriff's sale-Purchase by judgment
3-Rivers and streams-Navigable and gation-Letters patent of grant-Evidence-Collateral circumstances leading to grant-Limitation of terms of grant- Title to land-Riparian rights-Fisheries-Arts. 400, 414, 503 C.......577
DAMAGES-Lease-Canal-TWater-power
-Improvements on canal-Temporary stoppage of power-Compensation-Total stoppage-Measure of damages-Loss profits.] A mill was operated waterpower taken from the surplus water the Galops Canal under a lease from the Crown.
The lease provided that case of a temporary stoppage in the supcaused repairs or alterations the canal system the lessee would not entitled to compensation unless the same continued for six months, and then only to an abatement of rent.
Idington J. dubitante, that a stoppage the supply for two whole seasons necessarily and bond fide caused alterations in the system was a temporary stoppage this provision.
lease also provided that, in case the surplus water should at any time required for the use of the canal any public purpose whatever, the Crown could, on giving notice to the lessee, canthe lease in which case the lessee should entitled to paid the value of all the buildings and fixtures thereon
DAMAGES-Continued.
belonging to him with ten per cent. added thereto. The Crown unwatered the canal in order to execute works for its enlargement and improvement, contemplating at the time only a temporary stoppage of the supply of water to the lessee, but later changes were made the proposed work which caused a total stoppage and the lessee, petition right, claimed damages.-Held, Girouard J. dissenting, that as the Crown had not given notice of its intention to the lease the lessee was not entitled to the damages provided for in case of cancellation.-Held, also, that the lessee was not entitled to damages for loss of profits during the time his mill was idle owing to the water being out of the of the
Exchequer Court Ex. C.R..
affirmed, Girouard
Idington
JJ. (dissenting)
. KING...............259 -Watercourses - Expropriation-Trespass-Torts-Diversion of natural flow-Injurious aff tion-Damages.] A riparian proprietor whose property has been injuriously affected the unlawful diversion the natural a watercourse may recover damages therefor and may also obtain relief injunction restraining the continuation of the tortious acts DEBTOR CREDITOR-Construction of deed-Ambiguity-Discharge of debtor-Contract - Illegal consideration Right of action.] Where the language of an instrument is ambiguous or scure, the intention the parties should ascertained consideration the circumstances attending the execution of the agreement.-A deed of settlement between B. and a bank declared that owed the bank $4,731.61 for interest an advance in respect to a lottery scheme and a further sum of $18,762.02 for advances on an account for the purchase of stock, two notes being given these amounts, respectively, and the shares of stock being pledged as security for the large note only. quently, the directors of the bank passed a resolution authorizing the discharge B., on payment of $15,000 by one V., DEBTOR CREDITOR-Continued.
"jusqu'd concurrence de la dite somme de and the transfer of the shares to V.
This resolution was followed a deed of compromise, V. paying the and obtaining a transfer of the shares, and it was thereby declare4 that, the transaction, was discharged in so far as concerned the
"vis-d-vis la banque des avances qu'elle lui a faites du chef susdit mentionntes en un acte de rtglement," etc., the resolution being annexed and the deed of settlement referred to for imputation the payment, and V. was to become creditor conditions mentioned, jusqu'd concurrence securities being allowed to remain possession of the bank. In an action to whom the notes held the bank on account of the larger note;
further, affirming the judgment appealed an illegal nature.
L'Association Sr.
Jean Baptiste v. Brault Can. S.C.R.
2-Suretyship - ..........
3-Equitable mortgage
Purchase judgment dues paid as rent-.S.N.B. (1903),
4-Cause of action-Limitation actions-Contract-Foreign judgmentof James-Statute of Anne-Le fori- Lex loci contractus-Absence of debtor.
.....................
48%
Highway
Conveyance -Acceptance publio-User.] An action was brought the City of Toronto against the T. Ry. to determine whether or not a street crossed by the railway was a public highway prior to when the company obtained its right of way.
It appeared on the hearing that, in 1850, the Trustees of the General Hospital conveyed land adjoining the street describing it in the deed as the western boundary of allowance road, and in another conveyance, made in they mention in the description a street running south along said lot. Subsequent conveyances of the same land prior to also recognized the allowance for a road. Held, Idington J. dissenting, that the said conveyances were acts of dedication of the street as a public highway-The first deed executed the Hospital Trustees, and a plan produced at the hearing, shewed that the street extended across the railway track and down to the River Don, 'out at the time the portion between the track and the river was a marsh. dence was given of use the public the street down to the edge the marsh. -Held, Idington J. dissenting, that the use of such portion was applicable to the whole dedicated road down to the river, and the evidence of user was sufficient to shew an acceptance by the DEED-Title to land-Ambiguous scription of grantee-"Greek Catholic Where Crown lands were granted trust for the purposes of the congregation of the Greek Catholic Church at Limestone Lake," N.W.T., and it appeared that this description was ambiguous and might mean either the Greek Orthodox Church or the Greek Church in communion with the Church of Rome, it was held that the construction of the grant should be determined by the facts and circumstances antecedent to and attending the issue of the grant and that, in view of the evidence adduced, the words did not mean a church united with the Roman Catholic Church and subject to the jurisdiction of the Pope. Judgment appealed from reversed, the Chief Justice and Girouard J. dissenting DEED-Continued.
on the ground that the concurrent findings of the courts below upon matters of - fact ought not to be disturbed.
ance public-User.] An action was brought the City of Toronto against the T. Ry. to determine whether or not a street crossed by the railway was a public highway prior to when the company obtained its right
It appeared on the hearing that, in the Trustees the General Hospital conveyed land adjoining the street describing it in the deed as the western boundary allowance for road, and in another conveyance, made in 1853, they mention in the description a street running south along said lot.
quent conveyances of the same land prior to also recognized the allowance for a road.-Held, Idington J. dissenting, that the said conveyances were acts dedication of the street as a public highway.-The first deed executed the
Hospital Trustees, and a plan produced at the hearing, shewed that the street extended across the railway track and down to the River Don, but at the time the portion between the track and the river was a marsh. Evidence was given of use by the public of the street down to the edge of the marsh.-Held, Idington J. dissenting, that the use such portion was applicable to the whole dedicated road down to the river, and the evidence of user was sufficient to shew an acceptance the public of the highway.
EWAY.
3-Constrction of deed-Ambiguityconsideration-Right of action.] Where the language of an instrument is ambignous or obscure, the intention of the parties should be ascertained by consideration of the circumstances attendina the execution of the agreement.-A deed settlement between B. and a bqnk declared that owed the bank $4.731.61 for interest an advance in respect to lottery scheme and a further sum for advances on an account for the purchase of stock, two notes being given for these amounts, respectively, and the shares of stock being pledged as security for the large note only.
Sub- DEED-Continued.
sequently, the directors of the bank passed a resolution authorizing the discharge of B., on payment of $15,000 one V., "jusqu'd concurrence de la dite somme de and the transfer the shares to V. This resolution was followed a deed of compromise, V. paying the $15,000 and obtaining a transfer of the shares, and it was thereby clared that, by the transaction, B. was discharged in so far as concerned the "vis-e-vis la banque des avances qu'elle lui a faites du chef susdit mentionndes en un acte de reglement," etc., the resolution being annexed and the deed settlement referred to for imputation the payment, and V. was to become creditor of B. under conditions mentioned, "jusqu'd concurrence de the securities being allowed to remain possession the bank.
to whom the notes held the bank on account of the larger note; and further, affirming the judgment appealed an illegal nature.
L'Association St. Jean Baptiste v. Brault Can. S.C.R. DELIVERY-Sale of goods-Contract correspondence - Statute of Frauds - Principal and agent-Statutory prohibition-Illicit sale of intoxicating liquors -Knowledge of seller-Validity of con- .............. DILATORY EXCEPTION.
sioners-Assessment of lands-Certiorari
-Limitation for granting writ-Practice
-Expiration of time limit-Delays occasioned by judge-Legal maxim-Order nunc pro tune.....................79
EDUCATION-Assessment and taxes- County School Fund-Contributions by incorporated towns statute-3 Edw. VII. s.
...................
ELECTION LAW-Controverted election
Petition
Preliminary objections
Status of petitioner-Evidence-Premature service-Return of member.]
the hearing of preliminary objections to an election petition the status of the pe-.
titioner may established by oral evidence not objected to the respondent.
-A petition alleging "an undue election" or "undue return" of a candidate at an election for the House of Commons cannot presented and served before the candidate has been declared elected the returning
Idington JJ. dissented.
2-Controverted election corruption-Charge in petition-Judge's report
Adjudication
Amendment
Evidence.] a charge personal corruption the respondent if the adjudication by the trial judges does not contain a formal finding of such corruption this court may insert it if the recitals and reasons given the judges warrant it.-Respondent, the night before the election, took a sum of over $4,000 and divided it into several parcels sums ranging from $250 to
He then, after midnight, visited all his committee rooms and gave to the chairman of each committee, personally and secretly, of such parcels.
His financial agent had no knowledge of this distribution and no evidence was produced of the application the money to legitimate objects. Held, that the inference was irresistible, that the money was intended for corruption of the electors and respondent was properly held guilty
ELECTION LAW-Continued. personal corruption.-Alegations in the petition that respondent had himself given and procured, undertaken to give and procure money and value to electors and others named, his agents, to induce them to favour his election and vote him, for the purpose of having such moneys and value employed in corrupt practice were sufficient to cover tne offence of which the respondent was guilty. 3-Controverted election - Commencement of trial-Extension of time.]. An order fixing the time for the trial an election petition at a date beyond the time prescribed under the Act operates as an enlargement of the time. St. James Election Case Can. S.C.R. Beauharnois Election Case 4-Controvered election-Trial of petition
Corrupt acts former election-Agency-System of corruption.] A petition against the return of a member for the House of Commons at a general election in contained allegations of corrupt acts respondent at the election in which were struck out on preliminary objections. trial of the petition evidence of payments respondents accounts in tion with the former election was offered to prove agency and a system and was admitted on the first ground. A question as to the amount one account so paid was objected to and rejected. Held, that such rejection was proper; that the question was not admissible to prove agency for agency was admitted or proved otherwise; nor as proof of a system which could not be established evidence an isolated corrupt act.-Held, also, that where evidence is tendered on ground other grounds cannot set up ELECTRICITY-Negligence - Electrical installations-Cause of fire-Defective transformer - Improper installations Evidence-Onus of proof...........676 ELECTRICITY-Continued.
2-Negligence-Electrical installations
-Necessary protection of employees- Onus of proof-Voluntary exposure to danger.
EMINENT DOMAIN.
EMPLOYERS LIABILITY-Negligence- Electrical installations-Necessary protection of employees-Onus of proof- Voluntary exposure to danger.
ESTOPPEL-Life insurance-Payment premium-Thirty days' grace-Death insured after premium due.
EVIDENCE-Execution of will-Promo-.
ter-Evidence-Testamentary capacity.]
residuary legatee under, a will executed two days before the testator's death and attacked his widow and a. residuary legatee under a former will, the devise to the latter of whom was revoked, failed to furnish evidence to corroborate his own testimony that the will was read over to the testator who seemed to understand what was doing, and there was a doubt under all the evidence his testamentary capacity, the will was set aside.-Girouard J. dissenting, held that the evidence was sufficient to establish the will as expressing the wishes the testator.-Per Davies J.
The will should stand except the portion disposing of the residue of the estate, the devise of which, in the former will should admitted to probate with it.
.....................
2-Account stated - Admission
Promise pay agreement-Parol evidence.] On the dissolution of a partnership, the parties signed a statement shewing a certain amount as due to the plaintiff for his share and declaring that "for the sake of peace and quiet and to avoid friction and bother" the plaintiff waived examination of the firm's books and agreed that the amount so stated should be deemed to the amount payable the defendants to the plaintiff. Held, that a promise to pay the amount of the balance stated from the admission of liability. In an action for the amount of the balance, the defendants alleged that the plaintiff had verbally agreed that be would not sue upon the account as stated, and that the document should treated as merely shewing what would payable to him upon the collection of outstanding debts owing to the firm.-Held, that as the effect of the alleged collateral agreements was to vary and annul the terms of the written instrument they could not be proved parol testimony. v. & 3-TVill-Promoter-Subsequent conduct of testator-Residuary devise- Trust.]
In proceedings for probate the executors a will which was opposed on the ground that it was prepared one of the executors who was also a beneficiary there was evidence, though contradictory, that before the will was executed it was read over to the testator who seemed to understand its provisions.
Held, Idington J. (dissenting)
, that such evidence and the facts that the testator lived for several years after it was executed and on several occasions during that time spoke of having made his will and never revoked nor altered it, satisfied the onus, if it existed, on the executor to satisfy the court that the testator knew and approved of its provisions.-Held, also, that where the testator's estate was worth some $50,000 and he had no children it was doubtful if a bequest to the propounder, his brother, of was such a substantial benefit that it would give rise to the onus contended for by those opposing the Controverted election- Petition- Preliminary objections-Status of petitioner
Premature
Return member.]
On the hearing of preliminary objections to an election petition the status the petitioner lished oral evidence not objected to ........................
Controverted election corruption-Inferences.] Respondent, the night before the election, took a sum over $4,000 and divided it into several parcels sums ranging from $250 to
He then, after midnight, visited all his committee rooms and gave to the chairman of each committee, personally and secretly, one of such parcels.
His financial agent had no knowledge this distribution and no evidence was produced of the application of the money to legitimate objects: Held, that the inference was irresistible, that the money was intended for corruption of the electors and respondent was properly held guilty corruption.
Rivers and streams-Navigable and gation-Crown lands-Letters patent grant-Collateral circumstances leading to grant-Limitation of terms of grant- Title to land-Riparian rights-Fisheries-Arts. 400, 414, 503 0.0.]
A river navigable when, with the assistance of.
the tide, it can be navigated in a practicable and profitable manner, notwithstanding that, at low tide, it may be impossible for vessels to enter the river on account of the shallowness of the water at its mouth.
Bell v. The Corporation of Quebec App. Cas. 84), followed.-Evidence of the circumstances and correspondence leading to grants the Crown of lands on the banks of a navigable river cannot be admitted the purpose of shewing an intention to enlarge the terms of letters patent grant of the lands, subsequently issued, so as to include the bed of the river and the right of fishing therein.
The judgment appealed from (Q.R. K.B.
was reversed and the judgment of the
Superior Court (Q.R. 25 was restored.
Steadman v. Robertson (18
N.B. Rep. 580) and The Queen v. Robertson Can. S.C.R. 52) referred to; In re Provincial Fisheries Can. S.C.R.
444; 700) discussed.
7-Controverted election-Trial of petition-Corrupt acts at former election
-Agency-System of corruption.]
A petition against the return of a member for the House of Commons at a general election in 1904 contained allegations corrupt acts respondent at the eleetion in 1900 which were struck out preliminary objections.
the trial the petition evidence of payments respondents of accounts in connection with the former election was offered to prove agency and a system and was admitted on the first ground.
A question as to the amount one account so paid was objected to and rejected.
such rejection was proper; that the question was not admissible to prove agency for agency was admitted proved otherwise;
nor as proof of a system which could not established evidence of an isolated corrupt act. also, that where evidence is tendered on one ground other grounds cannot set up in a Court of Appeal. tive construction of road-bed-Dangerous way-Vis major-Onus of proof- Latent defect.]
The road-bed of appellants' railway was constructed, in at a place where it followed a curve round the side.of a hill, a cutting being maje into the slope and an embankment formed to carry the rails, the grade being one and one half per cent. or 78.2 feet to the mile. The whole the embankment was built on the natural surface, which consisted, as afterwards discovered, of a lair of sandy loam of three or four feet in depth resting upon clay subsoil.
No borings or other examinations were made in order to ascertain the nature of the subsoil and the roadbed remained for a number of years without shewing any subsidence except such as was considered to be due to natural causes and required only occasional repairs; the necessity for such repairs had become more frequent, however, for a couple of months immediately prior to the accident which occasioned the injury complained of. Water, coming either from the berm-ditch, or from a natural spring formed beneath the sandy loam, had gradually run down the slope, lubricated the surface of the clay and, finally, caused the entire embankment and sandy lair to slide away about the time a train was approaching, the evening of 20th September, 1904.
The train was derailed and wrecked and the engine-driver was killed.
In an action his widow for the recovery damages: Held, that in constructing the road-bed, without sufficient examination, upon treacherous soil and failing to maintain it in a safe and proper condition, the railway company was, primd facie, guilty of negligence which cast upon them the onus of shewing that the accident was due to some undiscoverable cause; that this onus was not discharged the evidence adduced from which inferences merely could drawn and which failed to negative the possibility of the accident having been occasioned other causes which might have been foreseen and guarded against, and that, consequently, the company was liable in damages.
affirmed, following The Great Western
Railway Co. of Canada v. Braid (1 Moo.
9-Negligence-Electrical installations
-Cause of fire-Defective transformer- Improper installations-Onus of proof.]
In an action to recover the amount a policy of fire insurance paid the plaintiffs upon the destruction of.the premises insured fire caused, as alleged, through the defective condition of a transformer of the defendant company, whereby a dangerous current electricity was allowed to enter the insured building, the evidence failed to shew conclusively that the transformer was out of order previous to the occurrence of the fire, and at the same time it appeared that the wiring of the building may have been defective.
Held, affirming the judgment appealed from, that the onus of proof upon the plaintiffs had not satisfied and that they could not recover. Abrath v. The North
Eastern Railway Co.
10-Negligence - Findings of jury
Operation railway
Railway Act,"
11-Negligence - Electrical installations-Necessary protection of emploee& -Onus of proof-Voluntary exposure to danger. V. 12-Breach of trust-Accounts-Nova Scotia "Trusts Act"-2 Edw.
EXCEPTION-Appeal - Declinatory exception judgment-Review of judgment on exception-Practice..... ..............
See 8.
EXECUTORS-Probate of will-Promoter-Evidence-Subsequent conduct testator-Residuary devise-Trust... 404 EXPROPRIATION-Municipal corpora- Railway aid agreement-Description of lands-Reference to plans-R.S.N.S. 1900, 99-3 Edw. VII. (N.S.).] A municipality passed a resolution by which it agreed to pay for lands required for the right of way, station grounds, sidings and other purposes of a railway as shewn upon a plan under the provisions of the general railway Act. At the time of the resolution there were four such plans filed, each shewing a portion the land proposed to be taken for these purposes and including, in the aggregate, a greater area than could be expropriated for right of way and station grounds under the provisions the Acts applicable to the undertaking of the railway The Legislature passed an Act confirming such resolution. To an action the owner of the land taken, on an award fixing the value of that in excess of what could be so expropriated, the corporation pleaded no liability on account of such excess and also, that there. was no specific plan on file describing the land. Held, affirming the judgment appealed from (38 N.S. Rep. that the first of the Act confirming the resolution the that the EXPROPRIATION-Continued.
should be read together and considered to the plan referred to in such resolu- V. 11C- 2-Expropriation of land-Arbitration for submission-Trespass- 2 Edw. 104 (N.S.).]
By statute in Nova Scotia if land is taken for railway purposes the compensation therefor, and for earth, gravel, etc., removed shall be fixed arbitrators, one chosen each party and the third, if required, those two.
A railway company intending to expropriate, their engineer wrote to who had acted for the company in other cases, instructing him to ascertain whether the owners had arranged their title so that the arbitration could proceed and, if to ask them to nominate their man who, with M., could appoint a third if they could not agree.
The engineer added, "I will send an agreement of arbitration which each one can subscribe to or, if they have one already drafted, you can forward it here for approval."
No such agreement was sent or forwarded to, the engineer, but the three arbitrators were appointed and made an award on which the owners of the land brought an action.
reversing the judgment appealed from
N.S. Rep. that as the company had not taken the preliminary steps required the statute which, therefore, did not govern the arbitration proceedings, the award was void for .want of a proper submission.-The compsny entered upon land and cut down trees and removed gravel therefrom without giving the owners the notice required statute of their intention to take their property.
The owners, their action above mentioned, claimed damages for trespass as well as the amount of the award.-Held, that as the act of the pany was not authorized statute the owners could sue for trespass and as, at the trial, the action on this claim was dismissed on the ground that such action was prohibited there should be a new
V. MCISAAC...................134
3-Watercourses - Trespass-Torts-Diversion of natural flow
Injurious affection
Damages
Execution of statutory powers-Arbitra- EXPROPRIATION-Continued. tion-Injunction-Mandamus-Construotion of statute-59 V. 44 (N.S.).] A riparian proprietor property has been injuriously affected the unlawful diversion of the natural of a watercourse may recover damages therefor and may also obtain relief injunction restraining the continuation the tordous ac.s so committed.-The powers conferred upon the town council of the Town of North Sydney, N.S., by the Nova Scotia statute, V. c. 44, for the purpose of obtaining a water supply give them no rights in respect to the diversion of watercourses except subject to the provisions of the fourth section of the Act, and after arbitration proceedings taken to settle compensation for injurious affection to property resulting from the construction or operation the waterworks.
Saunby v. The Water Commissioners of London ([1906] v. OF FISHERIES-Canadian waters Threemile-zone-Fishing foreign vessels- Legislative jurisdiction-Seizure on high seas-Pursuit beyond territorial limit- International law-Constitutional Act, s. s.-s. 12-Seacoast fisheries-R.S.C. 94, ss. 4.] Under the provisions of the "British North America Act, the Parliament of Canada has exclusive jurisdiction to legislate with respect to fisheries within the three-milezone the sea-coasts Canada.-A foreign vessel found violating the fishery laws of Canada within three marine miles the sea-coasts the Dominion may be immediately pursued beyond the three-mile-zone and lawfully seized on the high seas. Girouard J. dissenting. The judgment appealed from B.C. Rep. 473)
was affirmed.
v. KING.............385 2-Rivers and streams-Navigable and gation-Crown lands-Letters patent grant
Collateral circumstances leading to grant-Limitation terms of grant-Title to land-Riparian rights-Arts. 400, 414, 503 C.C.....577 FORECLOSURE-Appeal - -Discretionary order-Stay of proceedings-Final. judgment-Controversy involved-R.S.C. 76-R.S.C.
s. 28.........................173
*
FOREIGN VESSELS-Canadian waters
-Three-mile-zone-Fishing by foreign vessels-Legislative jurisdiction-Seizure on high seas-Pursuit beyond territorial limit-International law-Constitutional law-Construction of statute-B.N.A.
FRAUD-Incorporatfon of
Secret agreement - Illegal consideration for shares-Breach of trust ........ 324
Liw
2-Suretyship -Collateral deposit - 3-Contract - Supply of material
Payment-Certificate of engineer-Condition precedent-Improper interference- Fraud-Hindering performance of condition-Monthly estimate-Final decision.
FUTURE RIGHTS.
public
User.]
An brought the City of Toronto against the T. Ry. to determine whether or not a street crossed by the railway was a public highway prior to when the company obtained its right way. It appeared on the hearing that, in the Trustees of the General
Hospital conveyed land adjoining the street describing it in the deed as the western boundary of allowance for road, and in another conveyance, made in they mention in the description a street running south along said lot.
quent conveyances of the said land prior to also recognized the allowance a road.
Held, Idington J. (dissenting)
,
HIGHWAYS-Continued.
that the said conveyances were acts of dedication of the street as a public higha.-The first deed ex'ecuted the 'Hospital Trustees, and a plan produced at the hearing, shewed that the street extended across the railway track and down to the River Don, but at the time the portion between the track and the river was a marsh. Evidence was given of use by the public of the street down to the edge of the marsh.-Held, Idington J. dissenting, that the use of such portion was applicable to the whole dedicated road down to the river, and the evidence of user was sufficient to shew an acceptance the public of the high- ....................
2-Appeal-Jurisdiction - Annulment of procs-verbal-Injunction----Matter in controversy-Art. 560 C.C.-Servitude. .......... 3-"Railway Act, ss. 47, Board of Railway Commissioners-Jurisdiction-Construction of subway-Apwith municipality. . . . ...........
4-Operation of tramway-Construction and location of lines-Use of highways-Car service-Time-tables - Municipal control - Territory annexed after contract-Abandonment of monopoly- 55 c. 99 (Ont.).................430 Pleading-Amendment ordered court -Married woman-Legal community- Right of action
Reprise d'instance Arts. C.P.Q.-R.S.C. INJUNCTION-Appeal - Annulment of procts-verbal-Matter in controversy-Art. 560 C.C.-Servitude. .......... Expropriation-Trespass-Torts-Diversion of natural flow-Injurious affection INJUNCTION-Continued.
Damages
Execution statutory powers statute-59 V. 44 (N.S.).........464
.See 1.
INSURANCE, FIRE-Negligence-Electrical installations-Cause of fire-Defective transformer-Improper installations-Evidence---Onus of proof .....
INSURANCE, LIFE-Condition of policy
-Premium note-Payment of premium.]
When the renewal premium on a policy of life assurance became due the assured gave the local agent of the insurance company a note for the amount of the premium, with interest added, which the agent discounted, placing the proceeds to his own credit in his bank account. The renewal receipt was not countersigned nor delivered to the assured and the agent did not remit the amount of the premium to the company.
When the note fell due it was not paid in full and a renewal note was given for the balance which remained unpaid at the time the death of the assured. The conditions of the policy declared that if any note given for a premium was not paid when due the policy should cease to in force. Held, affirming the judgment appealed from N.S. Rep. Davies and Maclennan JJ. dissenting, that the transactions that took place between the assured and the agent did not constitute a payment of the premium and that the policy had lapsed on default to meet the note when it became due. The Manufacturers Accident Ins. Co. v. Pudsey
Can.
S.C.R. 374)
distinguished;
London and Lancashire Life Assurance
Co. v. Fleming ([1897]
re- ...............
2-Payment of premium-Thirty days' grace-Death of insured after premium due-Estoppel.
INTERNATIONAL
LAW foreign vessels-Legislative jurisdiction
-Seizure on high seas-Pursuit beyond territorial limit-Constitutional law- Construction of statute-B.N.A. Act,
INTERNATIONAL LAW-Continued. s.-s. 12-R.S.C. 94, 4-Sea-coast fisheries.........385 INTERPRETATION.
JUDGE-Breach of trust-Accounts- Evidence-Nova Scotia "Trusts Act"- Order XXXII., r. 3-Judicial discretion-Statute of Limitations. . . 2-Judicial sale of railways-Interested bidder- Disqualification as pur- C.C.-Construction of statute-Reorder-4 & Edw.
3-New trial-Judgment in court be- -Jurisdiction-Charge jury-Mis- 4-Cause of action-Limitation of acof James-Statute of Anne-Le, fori- Lea looi contractus-Absence of debtor. ....... See or -Discretionary order-Stay of foreclosure proceedings-Final judgment-Controversy involved-R.S.C. C. s. s. 28.]
Leave to appeal to the Supreme Court of Canada under the seventy-sixth section of the "Winding-up Act" can be granted only where the judgment from which the appeal is sought is a final judgment and the amount involved exceeds two thousand dollars.
A judgment setting aside an order, made under the "Winding-up Act," for the postponement of foreclosure proceedings and directing that such proceedings should continued is not a final judgment within the meaning of the Supreme Court Act, and does not JUDGMENT-Continued.
involve any controversy as to a pecuniary amount.
CUSHING
....................
Appeal-Jurisdiction-Declinatory exception-Interlocutory judgment-Review of judgment on exception-Practice.]
The action was dismissed in the
Superior Court upon declinatory excep- The Court King's Bench reversed this decision and remitted the cause for trial on the merits.
On motion to quash a further appeal to the
Supreme Court Canada: Held, that such motion should granted on the ground that the objection as to the jurisdiction of the Superior Court might raised on a subsequent appeal from a judgment on the merits. Per Girouard
J.-The judgment of the Court of King's
Bench was not a final judgment and, consequently, no appeal could lie to the
Supreme Court Canada.
WILLsoN
New trial-Judgment in court be- Charge jury
4-Foreign judgment - Action on
Statute of Limitations.............
Board of Railway
Commissioners
Construction of subson interested or affected - Street
Agreement with municipality.]
The power of the Board
Railway Commissioners, under section of the Railway Act, to order a highway to be carried over or under a railway is not restricted to the case opening up a new highway, but may be exercised in respect to one already existence.-The application such order may made the municipality as well as the railway company.
. .......
.............
2-Board of Railway Commissioners
Appeal to Supreme Court.]
JURISDICTION-Continued.
Board
Commissioners granted an application the James- Bay Railway for leave to carry line the track of the T. Ry. but, at the request of the masonry work of such under crossing should sufficient to allow the construction an additional track on the tended to lay an additional track in the near future or at any time. The James. Bay leave a judge, appealed to the Supreme Court of Canada from the part of the order imposing such terms contending that the same was beyond the jurisdiction of the Board. Held, that the Board had jurisdiction to impose said terms.-Held, per Sedgewick, Davies and Maclennan JJ., that the question before the court was rather one of law than of jurisdiction and should have come up on appeal leave of the Board or been carried before the Governor General in Council. RY. TRUNK RY. .2.......... 3-Canadian waters - -Fishing foreign vessels-Legislativetional law-Constitutional law-B.N.A. Act, s. sub-s. 12-Sea-coast fisheries-R.S..
the provisions of the "British North America Act, sub-s. the Parliament of Canada has exclusive jurisdiction to legislate with respect to fisheries within the three-mile-zone the sea-coasts
Canada.-A foreign vessel found violating the fishery laws Canada within three marine miles the sea-coasts of the Dominion may immediately pursued beyond the threemile-zone and lawfully seized on the high seas. Girouard J. dissenting. The B.C. Rep. 473) was affirmed.
KING.....................385 4-Board of Railway Commissioners- Traffic accommodation Restoring connections-3 Edw. VII. s. 214,
On an application to the Board of Railway Commis- JURISDICTION-Con tinned.
for such purposes: Held, that, under the circumstances, the Board had jurisdiction to make an order directing the railway company to restore the spur-track facilities formerly enjoyed by the applicants for the carriage. despatch and receipt of freight in carloads over, to and the railway.
5-Construction of statute
Act," R.S.N.S. ss.
tation for granting writ-Practice-Expiration of time limit-Delays occasioned judge-Legal maxim-Order nune pro tunc. .... ...................
JURY-Negligence-Findings jury- New trial -Evidence-Practice-Operation of railway-"The Railway Act,"
V. 29...........................1
2-Negligence-Trial-Finding of jury
-Exercise of statutory privilege...... 94
3-New trial-Judgment in court
-Jurisdiction-Charge to jury-Mis- .............
LANDLORD TENANT-Tenant by sufferance-Use and occupation of lands
-Art. C.C.-Promise of sale-Vendor and purchaser-Reddition de compte
-Actio ex vendito-Practice.] The action for the value of the use and occupation of lands does not lie in a case where the occupation by sufferance was begun and continued under a promise of sale;
in such a case the appropriate remedy would be by an action ex vendito or reddition t .....
....................
provements on canal-Temporary stop- Compensation Total stoppage-Measure of damages-Loss of profits.] A mill was operated waterpower taken from the surplus water of the Galops Canal under a lease from the Crown.
The lease provided that in case of a temporary stoppage in the supply caused repairs or alterations in the canal system the lessee would not be entitled to compensation unless the same continued for six months, and then only to an abatement of rent. Held, Idington J. dubitante, that a stoppage of the supply for two whole seasons necessarily and bond fide caused by alterations in the system was a temporary stoppage under this provision.-The lease also provided that, in case the of surplus water should at any time be required for the use the canal or any public purpose whatever, the Crown could, giving notice to the lessee, cancel the lease in which case the lessee should be entitled to paid the value of all the buildings and fixtures thereon belonging to him with ten per cent. added thereto. The Crown unwatered the canal in order to execute works for its enlargement and improvement, contemplating at the time only a temporary stoppage of the supply of water to the lessee, but later changes were made in the proposed work which caused a total stoppage and the lessee, petition of right, claimed damages.-Held, Girouard J. dissenting, that as the Crown had not given notice of its intention to cancel the lease the lessee was not entitled to the damages provided for in case of cancellation. -Held, also, that the lessee was not entitled to damages for loss of profits during the time his mill was idle owing to the water being out of the canal. Judgment of the Exchequer Court Ex. C.R. affirmed, Girouard and Idington JJ. minerals -Lease
Sheriff's sale-Purchase by
Tenant sufferance-Use and cupation of lands-Art. 1608 0.0.- [S.C.R. VoL. XXXVIL LEASE-Continued.
MAXIM-"Actus curia nemi- Yravabit."..
LEGISLATION - Canadian waters - Three-mile-zone-Fishing foreign vessels-Legislative jurisdiction-Seizure high seas-Pursuit beyond territorial limit-International law-Constitutional law-Sea-coast fisheries-Construction statute-B.N.A. Act, s. s.-s.
12-R.S.C. 94, ss. 2, 4.........385
LIEN-Equitable mortgage-Mines and
Purchase judgment
LIMITATION ACTIONS-Cause action-Contract-Foreign judgment - Lex loci contractus-Absence of debtor.]
Under the provisions of the Yukon Ordinance, of 1890, the right to recover simple contract debts in the Territorial Court of Yukon Territory is absolutely barred after the expiration six years from the date when the cause of action arose notwithstanding that the debtor had not been for that period resident within the jurisdiction the court.
appealed from reversed, Girouard and Davies JJ., dissenting.
Co.............546
LIQUOR LAWS-Sale of goods-Contract by correspondence - Statute
Frauds-Delivery-Principal and agent
-Statutory prohibition-Illicit sale intoxicating liquors-Knowledge of seller-Validity of contract ............
LOTTERY-Advances for-Interest-Illegal consideration ................
MANDAMUS-Watercourses - Riparian rights
Torts-Diversion of natural flow-Injurious affection-Damages-Emeoution statutory powers struction of statute-59 V. 44 ........ MARRIED WOMAN-Practice - Plead- Amendment ordered court - Legal community - Right of action - Reprise d'instance-Arts. 174, C.P.Q.-R.S.C. ss. MARITIME LAW.
MINES mortgage
Lease of mining lands Sheriff's sale-Purchase dues paid as rent-C.S.N.B. c. s. The judgment appealed from N.B. Rep. 140; N.B. Eq.
mining leases of lands in the Province of New Brunswick and of the minerals therein, issued the Crown to the appellant subsequent to a mortgage executed it in the State of New York in favour of the respondent, a company incorporated under the laws of that state, which do not reserve the minerals to the state, were subject to the mortgage; that a judgment creditor of the mortgagor (who purchased the leases at a sheriff's sale in execution of his registered under the "General Mining not void as against a judgment creditor who had actual notice of the mortgage and whose judgment was not registered under that section at the time of the commencement of the suit, and that the judgment creditor was not entitled to a prior lien for rent paid to the Crown on the licenses declared to held trust for the mortgagee.
An appeal to the Supreme Court of Canada was dismissed,
Maclennan
J.
Mines and minerals-Lease of mining lands-Sheriff's sale-Purchase judgment creditor of mortgagee - Registry laws-Priority-Actual notice-Lien lor
Crown dues paid as rent-C.S.N.B.
30, s.
The courts oelow
Rep. 140; N.B. Eq. held that mining leases of lands in the Province
New Brunswick and of the minerals therein, issued the Crown to the appellant subsequent to a mortgage executed it in the State of New York favour the respondent, a company incorporated under the laws of that state, which do not reserve the minerals to the state, were subject to the mortgage;
that a judgment creditor the mortgagor (who purchased the leases at a sheriff's sale in execution of his registered under the "General Mining not void as against a judgment creditor who had actual notice the mortgage and whose judgment was not registered under that section at the time the commencement of the suit, and that the judgment creditor was not entitled to a prior lien for rent paid to the
Crown on the licenses declared to held in trust for the mortgagee.
An appeal to the Supreme Court of Canada was dismissed, Mclennan J. dissenting.
2-Appeal-Jurisdiction - Discretionary order-Stay of proceedings-Final judgment-Controversy involved-R.S.C.
MUNICIPAL CORPORATION-Appeal- Jurisdiction-Annulment of procis-verbal-Injunction-Matter in controversy
560 C.C.-Servitude.]
In proceeding to set aside resolutions a municipal corporation giving effect to a prods-verbal, the court followed Toussignant County of Nicolet Can.
S.C.R. and quashed the appeal with costs.
Article 560 referred to.
2--Jurisdiction of Board of Railway
Commissioners-Construction of subway
MUNICIPAL CORPORATION-Con. of cost-Person interested or affected-Street railway-Agreement with municipality.] An application for a subway crossing of a highway, under section the "Railway Act, may be made on behalf of a municipality interested or affected. Board, on application the City Ottawa, ordered a subway to made under the track of the Canada Atlantic it crosses Bank Street, the cost to apportioned among the city, the Ry. and the Ottawa Electric Ry. By an agreement between the Electric Company and the city the company was given the right to run its cars along Bank Street and over the railway crossing, paying therefor a specific sum per mile.
The company appealed from that portion of the order making them contribute to the cost the subway, contending that the city was obliged to furnish them with a street over which to run their cars and they could not subjected to greater burdens than those imposed the agree- Held, that the or the said work within the meaning section of the said Railway and could properly be ordered to contribute to the cost thereof.-Held, further, that there was nothing in the agreement between said company and the city to prevent the Board making said order or to alter the liability of the company CO..................354 aid- Construction agreement-Expropriation - Description of lands-Reference to plans-R.S.N.H. 99-3 Edw.
Contract-Breach of conditionstire remedy-Operation of tramwayof highirays-Car service-Time-tables- Mlunicipal control annexed MUNICIPAL CORPORATION-Con.
after contract - Abandonment of opoly-55 V. c. (Ont.)..........430
Assessment and taxes - County
School Fund-Contributions incorporated towns-Construction of statute
Edw. VIL s. 7 (N.S.) ......
NAVIGABLE WATERS.
NAVIGATION-Maritime law-Collision
-Crossing ships-Admiralty rules, rule
The SS. "Parisian," making for Halifax Harbour, came along the western shore, sailing almost due north to a pilot station, on reaching which she slowed down, finally stopping her engines. The "Albano," a German steamship for the same port, approached some miles to the eastward, sailing first, error, to the north-east, and then changing her course to the south-west, apparently making for the eastern passage to the harbour. She again altered her course, however, and came almost due west towards the pilot station.
When about a quarter a mile from the
"Parisian" she slowed down, and on coming within eight or nine ship's lengths gave three blasts of her whistle, indicating that she would go full speed astern.
The "Parisian" then, seeing that a lision was inevitable, went full speed ahead for about 200 feet when she was struck on the starboard quarter and had to make for the dock to avoid sinking outside.
The "Pariaian's" engines were stopped about six minutes before the lision, and a boat from the pilot cutter was rowing up to her when she was struck.
At the time of the collision, about p.m., the wind was light, weather fine and clear, there was no sea running and no perceptible tide.-Held, affirming the judgment of the local judge that the captain of the "Albano" had no right to regard the "Parisian" as a crossing ship within the meaning of rule the Admiralty Rules, 1897; and that the
"Parisian" having properly stopped to take a pilot on board, and being practically in the act of doing so at the time, the "Albano" was bound to avoid her
NAVIGATION-Continued.
and was alone to blame for the collision. NEGLIGENCE-Operation of railway- Finding of jury-Evidence.] A. brought an action, as administratrix of the estate of her husband, against the C.P.R. claiming compensation for his death negligence and alleging in her declaration that the negligence consisted in running a train at a greater speed than six miles an hour through a thickly populated district and in failing to give the statutory warning on approaching the crossing where the accident happened. At the trial questions were submitted to the jury who found that the train was running at a speed of miles an hour, that such speed was dangerous for the locality, and that the death of deceased was caused neglect or omission the company in failing to reduce speed as provided "The verdict was entered for the plaintiff and on motion to the court, en banc, to have it set aside and judgment entered for defendants a new trial was ordered on the ground that questions as to the bell having been rung and the whistle sounded should have been submitted to the jury.
The plaintiff appealed to "the Supreme Court of Canada to have the verdict at the trial restored and the defendants, by crossappeal, asked for judgment.
Held, Idington J. (dissenting)
, that by the above findings the jury must be held to have considered the other grounds negligence charged, as to which they were properly directed the judge, and to have exonerated the defendants from liability thereon, and the new trial was improperly granted on the ground mentioned.-Held, also, that though there was no express finding that the place at which the accident happened was a thickly peopled portion of the district it was necessarily imported in the findings given above, that this fact had to proved by the plaintiff and there was no evidence to support it; and that, as the evidence shewed it was not a thickly peopled portion, the plaintiff could not recover and the defendants should have judgment on their cross-appeal. PAcIFIc Co...1 NEGLIGENCE-Continued.
2-Trial-Finding of jury
Exercise of statutory privilege.]
Where the trial of an action based on negligence questions are submitted to the jury they should asked specifically to find what was the negligence the defendant which caused the injury and general findings of negligence will not support a verdict unless the same is shewn to be the direct ciuse of the injury.-Where a street car company has by its charter privileges in regard to the removal snow from its tracks and the city engineer is given power to determine the condition in which the highway shall left after snow storm a duty is cast upon the company to exercise its privilege in the first instance in a reasonable and proper way and without negligence.
. ...........................
3-Operation of tramway
Precautions for safety of passengers-Crossing cars-Sounding gong-Slackening speed at dangerous places-Neglect of rules- Passenger alighting from front of car- Contributory negligence.]
A passenger on a crowded tram-car, being near the front the car, on reaching his destination, made his way past several persons standing in the aisle and front vestibule and alighted from the front steps on the side next the parallel track upon which another car was coming at considerable speed -in the opposite direction and was injured.
The space between the crossing cars was about 44 inches and there was no rule of the company to prevent passengers alighting from the front steps.
The passenger was not aware the car approaching from the opposite direction when he alighted and the motorman of the car which struck him had neglected to observe a rule of the company requiring that speed should be slackened and the gong rung continuously while cars were passing each other on the double tracks.
The courts low held Man. Rep. 338) that the company was liable in damages on account of the motorman's negligence;
that the plaintiff had not been guilty contributory negligence, under the circumstances; and that the company was obliged to take proper precautions the safety of passengers, even after they had alighted upon the street beside the
NEGLIGENCE-Continued.
tracks.
Without calling upon counsel for the respondent, the Supreme Court Canada dismissed the appeal with costs. 4-Railays
- Defective construction of road-bed-Dangerous way-Tis major -Evidence-Onus of proof-Latent defect.]
The road-bed of appellants' railway was constructed, in at a place where it followed a curve round the side of hill, a cutting being made into the slope and an embankment formed to carry the rails, the grade being one and one-half per cent., or feet to the mile. The whole of the embankment was built on the natural surface, which consisted, as afterwards discovered, of a lair of sandy loam of three or four in depth resting upon clay subsoil. borings or other examinations were made in order to ascertain the nature the subsoil and the road-bed remained a number of years without shewing any subsidence except such as was considered to due to natural causes and required only occasional repairs; the necessity for such repairs had become more frequent, however, for a couple of months immediately prior to the accident which occasioned the injury complained of. Water, coming either from the bermditch, or from a natural spring formed beneath the sandy loam, had gradually run down the slope, lubricated the surface the clay and, finally, caused the entire embankment and sandy lair to slide away about the time a train was approaching, on the evening 20th September,
The train was derailed and wrecked and the engine-driver was killed.
In an action by his widow the recovery of damages: Held, that constructing the road-bed, without cient examination, upon treacherous and failing to maintain it in a safe and proper condition, the railway company was, primd facie, guilty of negligence which cast upon them the onus of shewing that the accident was due to some undiscoverable cause;
that this onus was not discharged the evidence adduced which inferences merely could be drawn and which failed to negative the possibility of the accident having been occasioned by other causes which might have been foreseen and NEGLIGENCE-Continued.
guarded against, and that, consequently, the company was liable in damages.
Judgment appealed from affirmed, following The Great Western Railway of Canada v. Braid (1 Moo. P.C. (N.S.)
5-Electrical installations - Cause fire transformer
Improper installations-Evidence-Onus of proof.]
In an action to recover the amount of policy fire insurance paid by the plaintiffs upon the destruction of the premises insured caused, as alleged, through the defective condition of a transformer of the defendant company, whereby a dangerous current of electricity was allowed to enter the insured building, the evidence failed to shew conclusively that the transformer was out order previous to the occurrence of the fire, and at the same time it appeared that the wiring of the building may have been defective.. Held, affirming the judgment appealed from, that the onus of proof upon the plaintiffs had not been satisfied and that they could not recover.
Abrath v. The North Eastern
Railway Co. 440) referred to.
.
. ....................
G- Operation tramway-Carriage passengers-Crossing cars-Undue speed
Sounding
Findings jury.
7- Electrical installations-Necessary protection of employees-Onus of proof
-Voluntary exposure to danger.
S-Maritime law-Collision-Crossing ships-Admiralty Rules, r. 19..284
NEW TRIAL-Findings of jury-Alternative relief-Cross-appeal.] Where a fendant obtained an order for a new trial in the court below and the plaintiff appealed to the Supreme Court of Canada, on a cross-appeal the defendant the order for a new trial was set aside and
NEW TRIAL-Continued.
the action was dismissed. Cf. Mutual Reserve Fund Life Association v. Dillon Can. S.C.R. 141). 2-Charge to the jury-Misdirection- Bias.]
Where the charge of the trial judge to the jury shewed passion and bias and was improper, a new trial was ordered.
Rep. reversed, Davies J. dis- 3-Appeal-Jurisdiction-New trial- Discretion-Ontario appeals-60 & 34-R.S.C. 27.]
Per Fitzpatrick C.J. and Duff J.-Section R.S.C. prohibits an appeal from a judgment of the Court of Appeal for Ontario, granting, in the exercise ,udicial discretion, new trial in the Per Davies J.-Under the rule in Town of Aurora v. Village of Markham Can. S.C.R. no appeal lies from a judgment of the Court of Appeal for Ontario on motion for a new trial unless it comes within the cases mentioned in & c. or special leave to appeal has been obtained. Apfrom judgment the Court of Appeal Ont. L.R. quashed. Negligence-Trial-Fin ding of jury -Exercise of statutory privilege... .. NOTICE-Promissory note-Deposit receipt
Demand for payment In an action on an instrument in the following form: "$1,200.
Edmundston, July 12th,
Received from the Reverend N. P. Babineau the sum of twelve hundred dollars, for which I ant responsible, with interest at the rate of seven per cent. per annum, upon production of this receipt and after three months' notice.
Fred. LaForest." court below held N.B. Rep. that the plaintiff could recover as a promissory note and that a demand for immediate payment made more than three months before the action was a sufficient notice.
Without calling upon NOTICE-Continued.
counsel for the respondent, the Supreme
Court of Canada dismissed the appeal.
2-Broker - Purchase on margin - Non-payment-Sale -without notice-Liability customer-Damages.
Co.....694
Improvements
Temporary stoppage of power-Compensation-Total stoppage-Measure of damages-Loss pro/its ....
....................
4-Equitable mortgage - Lease of mining lands
Sheriff's sale-Purchase judgment
NULLITY-Construction of deed-Ambiguity-Discharge of debtor-Contract
-Illegal consideration-Right of action.
.....................
PARLIAMENTARY
PARTNERSHIP-Formation of limited conpany-Act of directors-Unauthoriced expenditure-Liability of innocent directors. . . . .....................
2-Account stated-Admission of liability
Promise pay agreement-Parol evidence. ........
PATENT
INVENTION patent
Infringement
Prior foreign patent.] In an action for infringement of a Canadian patent of invention improvements in weather strips and guides for windows, it appeared that the defendants had manufactured weather strips in Canada more similar to those described in an American patent of a prior date than to any of the forms shewn and described in the Canadian
PATENT INVENTION-Continued. patent.
The court below in dismissing the action Ex. C.R. 399) held that, if the plaintiffs' patent was good, it was good only for the forms of weather strips particularly specified therein of which the evidence failed to shew any infringement.
This decision was affirmed the Supreme Court of Canada. Infringement of patent-Sale for a reasonable price-Use of patented device-Contract-"Patent Act," R.S.C. s. 37-Evidence.] The patentee a devise for binding loose sheets sold the defendant H. binders subject to the condition that they should used only in connection with sheets supplied under the authority of the patentee. H. used the binders with sheets obtained from the other defendants, contrary to the condition. In an action for infringement of the patent: Held, that the condition in the contract with H. imposing the restriction upon the manner in which should use the binders was not a contravention of the provisions section the "Patent Act," R.S.C. respect to supplying the patented invention at a reasonable price to persons desiring to use it, and that the use made of the binders H. was in breach of the condition the contract licensing him to make use of the patented device and an infringement of the patent. Judgment appealed from Ex. C.R. 224) ...
.................
PAYMENT-Life insurance - Condition of policy-Premium note-Payment premium.] When the renewal premium on a policy of life assurance became due the assured gave the local agent of the insurance company a note for the amount of the premium, with interest added, which the agent discounted, placing the proceeds to his own credit in his bank account.
The renewal receipt was not countersigned nor delivered to the assured and the agent did not remit the amount of the premium to the company. When the note fell due, it was not paid in full and a renewal note was given for the balance which remained unpaid at the time of the death of the assured. The conditions of the policy declared PAYMENT-Continued.
that if any note given for a premium was not paid when due the policy should cease to be in force. Held, affirming the
Davies and Maclennan JJ. (dissenting)
, that the transactions that took place between the assured and the agent did not constitute a payment of the premium and that the policy had lapsed on fault to meet the note when it became due.
The Manufacturers Accident Insurance Co. v. Pudsey Can. S.C.R.
374) distinguished; London and Lancashire Life Assurance v. Fleming
([1897] referred to.
Contract-Supply of material - Certificate of engineer-Condition precedent
Improper interference
Hindering performance of condition- Monthly estimate - Final decision.
V. WALLACE...............696
3-uretyship
- Ear-marked fund - Appropriation proceeds-Set-off - Release of principal debtor-Constructive fraud
Discharge surety
Right action counts-Equitable recourse. . . . .. .
PENALTY-Contract-Breach of conditions-Liquidated damages - Penalty - Cumulative remedy-Operation of tramway-Construction and location of lines
-Use of highways-Car service-Timetables-Municipal control-Territory annexed after contract-Abandonment monopoly-55 V. (Ont.) ...... 430
PLANS-Municipal corporation- Railway aid-Construction of agreement- Description of lands
Reference to plans-R.S.N.S. 1900,
Edw. VII. (N..).........75
PLEADING-Controverted election-Personal corruption-Charge in petition- Judge's report-Adjudication - Amendment.]
a charge of personal corruption the respondent if the adjudication the trial judges does not claim a formal finding of such cor- PLEADING-Continued.
ruption this court may insert it if the recitals and reasons given the judges warrant it.-Allegations in the petition that respondent had himself given and procured, undertook to give and procure money and value to electors and others named, his agents, to induce them to favour his election and vote for him for the purpose ot having such moneys and value employed in corrupt practices were sufficient to cover the offence which the respondent was found guilty. ANN's CASE.......... Practice-Amendment ordered by court-Married woman-Legal community-Right of action-Reprise d'instance -Arts.
C.P.Q.-R.S.C. DUGUAY....................624 POSSESSION-Statute of limitations- Possession of land-Constructive possession-Colourable title-Effect of sheriff's ............ See 2. Title to land-Ownership-Artifiaction-Bornage-Practice. PRACTICE-Negligence
Findings of jury - Exercise of statutory privilege.]
Where on the trial an action based on negligence questions are submitted to the jury they should be asked specifically to find what was the negligence of the defendant which caused the injury and general findings of negligence will not support a verdict unless the same is shewn to the direct cause of the injury.
Co..................94 2-Appeal to Privy Council-Colonial Courts of Admiralty Act, (Imp.)- Right of appeal de plano - Bail for costs.] Upon the application the appellants
(30th March, 1906), for an order to fix bail on a proposed appeal direct to His Majesty in Council, under the rules established the Colonial Courts of Admiralty Act, 1890, (Imp.), the Supreme Court of Canada, sitting in PRACTICE-Continued.
banco, after hearing counsel for and against the application, made an order pro formd (without expressing any opinion as to the right of appealing de plano), that the appellants should give bail to answer the costs the proposed appeal in the sum of £300 sterling, to the satisfaction of the Registrar of the
Supreme Court Canada, on or before the April, and Ontario Nav. Can. S.C.R.
a similar order was made a judge in chambers and the appeal was heard the Judicial Committee without an order for leave., 48 Can. Gaz.
3-Controverted election - Petition
Preliminary objections-Status of petitioner-Evidence-Premature service
Return of member.]
petition alleging "an undue election" or "undue return" a candidate at an election the House Commons cannot presented and served before the candidate has been declared elected the return- Girouard and Idington JJ.
dissenting. YUKox .495
Controverted election corruption-Charge in petition-Judge's report
Adjudication
Amendment
On a charge personal corruption the respondent if the adjudication the trial judges does not contain a formal finding such corruption this court may insert it if the recitals and reasons given by the judges warrant it.-Allegations in the petition that respondent had himself given and procured, undertaken to give and procure money and value to electors and others named, his agents, to induce them to favour his election and vote for him, for the purpose of having such moneys value employed in corrupt practices were sufficient to cover the offence which the respondent was found guilty.
5-Controverted election-Commencement of trial-Extension of time.]
order fixing the time for the trial an election petition at a date beyond the time prescribed under the Act operates as an enlargement the time.
St.
PRACTICE-Continued.
James Election Case Can. S.C.R. ; Beauharnois Election Case Can. S.C.R.
6-Controverted election-Trial of petition
Corrupt acts former election- System corruption.]
petition against the return of a member for the House Commons at a general election in contained allegations of corrupt acts respondent at the election in 1900 which were struck out on preliminary objec- On the trial the petition dence of payments respondents accounts in connection with the former election was offered to prove agency and a system and was admitted on the first ground. A question as to the amount one account so paid was objected to and rejected.
Held, that such rejection was proper; that the question was not admissible to prove agency for agency was admitted or proved otherwise: nor as proof of a system which could not be established by evidence of an isolated corrupt act.-Held, also, that where evidence is tendered on one ground other grounds cannot be set up in a Couit ..................... 7--Pleading-Amendment ordered the court-Married women-Legal community-Right of action-Reprise d'instance-Arts.
S-Negltgence-Findings jury-Evi- 9---Construction of statute-"Marsh Act." R.S.N.S. 1900, a. ss. 22, tation for granting writ-Expiration time limit-Delays occasioned by judge -Legal maxim-Order nuno pro tune. ........... 10-Breach of trust-Acconuts-Eridence
Nova Scotia "Trusts Act" -2 PRACTICE-Continued.
N.S. Order XXXII., r. 3-Judicial discretion-Statute of Limitations.......163
See TRuSTs 2.
11-ludicial of railways-Interbidder pur- C.C. - Discretionary order-Review appellate court-4 & Edw. VII.
12-New trial-Judgment in court
Charge jury
Mis- "
Declinatory exception-Interlocutory judgment
-Review of judgment on exception.535
14-Tenant sufferance-Use and cupation of lands-Art. 1608
0.0.- ......................
Title to land-Ownership-Artificial watercourse-Canal banks-Trespass-Possessory action-Bornage...668
16-Appeals from Ontario - Jurisdiction-New trial-Discretionary order- R.S.C. s.
60 & V.
(D.)............................672
PRINCIPAL AGENT-Sale of land to make contract-Specifio performance.] The defendant gave a real estate agent the exclusive right, within a stipulated time, to sell, on commission, a lot of land for $4,270 (the price being calculated at the rate of $40 per acre on its supposed area), an instalment to be paid in cash and the balance, secured by mortgage, payable four annual instalments. The agent tered into a contract for sale of the lot to the plaintiff at per acre, being deposited on account of the price,
PRINCIPAL AGENT-Continued. the balance of the cash to be paid acceptance of title," the remainder the purchase money payable in four consecutive yearly instalments and with the privilege of "paying the mortgage at any time."
This contract was in the form of a receipt for the deposit and signed by the broker as agent for the defendant.-Held, affirming the judgment from Man. 205) that the agent had not the clear and express authority the of entering into a contract for sale binding upon his principal.-Held. further, that the term allowing the privilege paying off the mortgage at any time was not authorized and could not forced against the defendant.
Gimuoun 2-Sale of goods-Contract by cor- Statute Frauds livery agent-Statutory prohibition- Illicit sale of intoxicating liquors - Knowledge of seller-Validity of con- .
........
.............. 3-Election petition-Trial - Corruption at former election-Evidence to prove agency. . . .
PRINCIPAL SURETY-Suretyship deposit-Ear-marked fund -Appropriation of proceeds-Set-off- Release of principal debtor-Constructive fraud-Discharge of surety-Right counts
Equitable recourse.]
K. owed the corporation two judgmenL. recovered on notes for given him to R., and a subsequent loan to him and R. $20,000.
M., at the request of and the accommodation of R., had indorsed the notes for $10,000 and deposited certain shares and debentures as collateral security on his indorsement. K. and R. deposited further collateral securities negotiating the second loan. but K. remained in ignorance of M.'s indorsements and collateral deposit until long after the release hereinafter mentioned. These judgments remained unsatisfied for over six years, but, in the meantime, the corporation had sold all the shareq posited as collateral security, and placed PRINCIPAL SURETY-Continued. I PRIVY COUNCIL-Continued. the money received for them to the credit of a suspense account, without making any distinction between funds realized from M.'s shares and the proceeds of the other securities and without making any appropriation of any of the funds towards either of the debts. 28th
February, after negotiations with
K. to compromise the claims against him, the agent of the corporation wrote him a letter offering to compromise the whole indebtedness
$15,000, provided payment was made some time
March or April following.
was not acted upon until November, when the corporation carried out the offer and received the $15,000, having few days previously appropriated the funds in the suspense account, applying the proceeds of M.'s shares to the credit of the notes he had indorsed.
The negotiations and the final settlement with K. were not made known to and K. was not informed of his continuing liability towards as a surety.
Held, per Sedgewick, Girouard, Davies and Idington JJ (reversing the judgment appealed from B.C. Rep. 402) )
that the secret dealings the corporation with K. and with respect to the debts and securities were, constructively, a fraud against both K. and M.; that the release of the principal debtor discharged as surety, and that he was entitled to recover the surplus what the corporation received applicable to the notes indorsed him as money had and received the corporation to and for his use.-Held, Maclennan J. that, on proper application all the money received, the corporation had got more than sufficient to satisfy the amount which was surety and that the surplus received in excess of what was due upon the notes was, in equity, received for the use and could be recovered him on equitable principles or as money had and received in an action
PRIVY
Appeal to Privy
Council-"Colonial Courts of Admiratty
Act," (Imp.)-Right of appeal de plano-Bail for costs-Practice.] Upon the application of the appellants (30th
March, 1906), for an order to bail
Majesty in
Council, under the rules established the "Colonial Courts Admiralty Act," (Imp.), the Supreme Court of Canada, sitting in banco, after hearing counsel for and against the application, made an order, pro form& (without expressing any opinion as to the right of appealing de plano), that the appellants should give bail to answer the costs of the proposed appeal in the sum of f300 sterling, to the satisfaction of the Registrar of the Supreme Court of Canada, on or before the 4th of April, and Ontario Nay. Can. S.C.R. 592), similar order was made in chamhers and the appeal was argued before the Judicial Committee without leave granted, Can. Gaz. 279.)
Jurisdiction-Annulment of prods-verbal-In- Junction-Matter in controversy-Art. 560 C.C.-Servitude............... POLICY-Judicial sale of rail- Interested bidder-- Disqualification as purchaser-Counsel and solicitors statute-Review appellate court-Discretionary order-4 & VII. Water-power-Improvements on canal- Temporary stoppage of power-Compensation
Total stoppage
Measure damages-Loss of profits.] A mill was operated water-power taken from the surplus water of the Galops Canal under a lease from the Crown. The lease providel that in case of a temporary stoppage in the supply caused repairs or alterations in the canal system the lessee would not entitled to compensation unless the same continued for six months, and then only to an abatement of rent. Held, Idington J. dubitante, that stoppage of the supply for two whole seasons necessarily and bon4 fide caused alterations in the system was a temporary stoppage under this provision.-The lease also provided that, PUBLIC WORKS-Continued.
in case the of surplus water should at any time required for the use the canal or any public purpose whatever, the Crown could, on giving notice to the lessee, cancel the lease in which case the lessee should entitled to be paid the value of all the buildings and fixtures thereon belonging to him with ten per cent. added thereto.
The Crown unwatered the canal in order to execute works for its enlargement and improvement, contemplating at the time only a temporary stoppage of the supply water to the lessee, but later changes were made in the proposed work which caused a total stoppage and the lessee, petition of right, claimed damages.
Girouard J. (dissenting)
, that as the Crown had not given notice of its intention to cancel the lease the lessee was not entitled to the damages provided for in case of cancellation.-Held, also, that the lessee was not entitled to damages for loss of profits during the time his mill was idle owing to the water being out the canal.
the Exchequer Court Ex. C.R.
affirmed, Girouard and Idington JJ. dis- .....
RAILWAYS-Negligence - Finding jury-Evidence.] A. brought an action, as administratrix the estate her husband, against the C.P.R. claiming compensation for his death negligence and alleging in her declaration that the negligence consisted in running a train at a greater speed than six miles an hour through a thickly populated district and in failing to give the statutory warning on approaching the crossing where the accident happened.
At the trial questions were submitted to the jury who found that the train was running at a speed of miles an hour, that such speed was dangerous for the locality and that the death of deceased was caused neglect or omission of the company in failing to reduce speed as provided by "The Railway Act."
verdict was entered for the plaintiff and on motion to the court, en banc, to have it set aside and judgment tered for defendants a new trial was ordered the ground that questions as to the bell having been rung and the whistle sounded should have been submitted to the jury.
The plaintiff appealed to the Supreme Court of Canada to have the verdict at the trial restored the defendants, cross-appeal, asked for judgment.
Held, Idington J. (dissenting)
, that the above findings the jury must held to have considered the other grounds of negligence charged, as to which they were properly directed the judge, and to have exonerated the defendants from liability thereon, and the new trial was improperly granted on the ground mentioned.-Held. also, that though there was no express finding that the place at which the accident happened was a thickly peopled portion the district it was necessarily imported in the findings given above; that this fact had to proved the plaintiff and there was no evidence to support it; and that, as the evidence shewed it was not a thickly peopled portion, the plaintiff could not recover and the fendants should have judgment on their cross-appeal.
Co.....................1 Constitutional law - Parliament- Power to legislate ss. 188-Protection of crossings-Party interested-Railway committee-Board of Railway Commissioners over a highway of a railway subject to its jurisdiction to protected by gates or otherwise, are intra vires of the Parliament of Canada.
Idington J. dissented.-(Sections and of "The powers on the Board of Railway missioners.)
These sections also authorize the committee to apportion the of providing and maintaining such protection between the railway company and "any person interested." Idington J. dissenting, that the municipality in which the highway crossed the railway is situate is a "person interested" under said sections.
RY. Co...232 Judicial sale of railways---Interested bidder-Disqualification as purchaser- Counsel and solicitors-Art. 1484 C.C.- Discretionary order-Reviezo appellate court-4 & 5
Edw. II.
Solicitors and counsel retained in proceedings for the sale property are not within the classes of persons disqualified as purchasers article of the
Civil Code of Lower Canada.-The Act.
&.5 Edw. VII. directed the sale of certain railways separately or together as in the opinion of the Exchequer Court might be for the best interests of creditors, in such mode as that court might provide, and that such sale should have the same effect as sheriff's sale of immovables under the laws of the
Province Quebec.
The judge of the
Exchequer Court directed the sale to tender for the railways en bloc or the purchase of each or any two of the lines of which they were constituted.
Held, that the judge had properly exercised the discretion vested in him the statute in accepting a tender for the whole system, in preference to two separate tenders for the several lines of railway at a slightly increised amount, and that his decision should not be disturbed on appeal.
from Ex. C.R. 13)) affirmed.
BEIQUE;
v. BI:IQuE........
Board of Railway Commissioners- Jurisdiction-Construction of subway- Apportionment of cost-Person interested or affected-Street railway-Agreement with municipality.] The power the Board of Railway Commissioners, under section the "Railway Act, to order a highway to carried over or under a railway is not restricted to the case of opening up new highway, but may be exercised in respect to one alreidy in existence.-The application for such order may made the municipality as well as the railway eompany.-The Board. on application the City of Ottawa, ordered a subway to made under the track the Canada Atlantic Railway where it crosses Bank Street, the cost to be apportioned among the city, the
Ry. and the Ottawa Electric Ry.
By an agreement between the Electric
Company and the city the company was given the right to run its cars along
Bank Street and over the railway crossing, paying therefor a specific sum per mile.
The company appealed from that portion of the order, making them contribute to the cost of the subway, contending that the city was obliged to furnish them with a street over which to run their cars and they could not be subjectel to greater burdens than those imposed the agreement.
the Electric was a company "interested or affected" in or the said work within the meaning section of the said Railway Act, and could properly ordered to contribute to the thereof.-Held, further, that there was nothing in the agreement between said company and the city to prevent the Board making said order or to alter the liability of the company to contribute. RY. CO. Board of Railway Commissioners- Jurisdiction-Appeal to Supreme Court.] The Board of Railway Commissioners grantel an application of the James Bay Railway for leave to carry their line under the track the T. but, at the request of the latter, imposed the condition that the masonry work such under crossing should sufficient to allow the construction an additional track on the line the T. Ry.
No evidence was given that the latter company intended to lay an additional track in the hear future or at any time. The James Bay leave of a judge, appealed to the Supreme Court Canada from the part the order imposing such terms contending that the same was beyond the jurisdiction the Board. Held, that the Board had jurisdiction to impose said terms.-Held, per
Sedgewick, Davies and Maclennan JJ., that the question before court was rather one of law than of jurisdiction and should have come up on appeal leave the Board or been carried before the Governor General in Council.
RY. Co. Beard of Railway Commissioners- Traffic accommodation Restoring connections-3 Edw. VII. 58, ss. 214, an application to the Board Railway Commisfor such purposes: Held, that, under the circumstances, the, Board had jurisdiction to make an order directing the railway company to restore the spurtrack facilities formerly enjoyed by the applicants for the carriage, despatch and receipt freight in carloads over, to and from the line railway.
RY. .541
7-Negligence-Defective construction of road-bed-Dangerous way-Vis major
-Evidence-Onus of proof-Latent defect.]
The road-bed of appellants' railway was constructed, in at a place where it followed a curve round the side a hill, a cutting being made into the slope and an embankment formed to carry the rails, the grade being one and one-half per cent. or 78.2 feet to the, mile.
The whole of the embankment was built on the natural surface, which consisted, as afterwards discovered, of a lair of sandy loam of three or four feet in depth resting upon clay subsoil.
No borings or other examinations were made in order to ascertain the nature the subsoil and the road-bed remained for a number of years without shewing any subsidence except such as was considered to due to natural causes and required only occasional repairs; the necessity for such repairs had become more frequent, however, for a couple of months immediately prior to the accident which occasioned the injury complained
Water, coming either from the bermditch, or from a natural spring formed beneath the sandy loam, had gradually run down the slope, lubricated the surface of the clay and, finally, caused the entire embankment and sandy lair to slide away about the time a train was approaching, on the evening of 20th
September, The train was derailed killed.-In an action by his widow the recovery of damages: Held, that constructing the road-bed, without sufficient examination upon treacherous soil and failing to maintain it in a safe and proper condition, the railway company was, prim& facie, guilty of negligence which cast upon them the onus shewing that the accident was due to some undiscoverable cause; that this onus was not discharged the evidence adduced from which inferences merely could be drawn and which failed to negative the possibility of the accident having been occasioned by other causes which might have been foreseen and guarded against, and that, consequently, the company was liable in damages. Judgment appealed from affirmed, following The Great Western Railway of Canada v. Braid P.C. . .
....................
8-Municipal corporation aid-Construction of agreement-Empropriation-Description of lands-Reference to plans-R.S.N.S. 99-3 Edw. VII. (N.S.).............75 9-Expropriation of land-Arbitration for submission-Trespass- Edw. (N.S.) ......... 10-Highway ance public-User............... RAILWAY COMMISSIONERS.
COMITTEE
PRIVY
REGISTRY LAWS-Equitable mortgage -Mines and minerals
Lease of min- Sheriff's
Purchase judgment creditor of nortgagee -Priority -Actual notice-Lien for Crown dues paid as rent C.S.N.B. s. The courts below N.B. Rep. 140; N.B. Eq. 28) held that mining leases of lands in the Province of New Brunswick and of the minerals therein, issued the Crown to the appellant subsequent to a mortgage executed it in the State of New York REGISTRY LAWS-Continued.
in favour of the respoiident, a company incorporated under the laws that state, which do not reserve the minerals to the state, were subject to the mortgage;
that a judgment creditor of the mortgagor (who purchased the leases at a sheriff's sale in execution his registered under the "General Mining
(1903), was not void as against a judgment creditor who had actual notice of the mortgage and whose judgment was not registered under that section at the time of the comme-,cement the suit, and that the judgment creditor was not entitled to a prior lien for rent paid to the Crown the license deeared to held in trust for the mortgagee.
An appeal to the
Supreme Court of Canada was dismissed,
Maclennan
J.
. ......
.......
..............
posit-Ear-mariced fund-Appropriation of proceeds-Set-off-Release of principal debtor
Constructive fraud
Discharge of surety-Right of action-Common counts-Equitable recourse.....331
RIPARIAN
RIGHTS - Rivers stream s-Floating sawlogs-Use of booms
Vis major-Action-Salvage- Quantum meruit.] P. placed booms across a floatable river to hold logs at a place
, had erected a sawmill on land owned by him on the banks of the river.
T. had a boom further upstream storing pulpwood.
An unusual freshet broke T.'s boom and brought a quantity of his wood down with the current into
P.'s boom, where it was caught and for some time, until removed by T., without causing any damage or expense to P.
In an action P. to recover salvage the value of the use of his boom the time during which T.'s remained therein: Held, reversing the judgment appealed from (Q.R. K.B.
513), that as P. had no right of property in the waters of the river where he had placed his boom those waters were public! juris, notwithstanding the
RIPARIAN RIGHTS-Continued. construction the boom; that T.'s came there lawfully; and that, as the service rendered in stopping the was involuntary and accidental, J. could recover nothing therefor.
Per Fitzpatrick C.J.-There is no difference between the laws of the Province of Quebec and those of England in respect to the rights of riparian owners to the waters floatable streams flowing past lands. Miner v. Gilmour Moo. Torts -Diversion of natural flow-Injurious affection-Damages-Execution of statutory powers
Injuncstatute-59 44 (N.S.).........464 3-Rivers and streams-Navigable and gation-Croton lands-Letters patent grant
Collateral circumstances leading to grant-Limitation terms of grant-Title to land-Fisheries -Arts.
400, 414, 503 C.C...........577 4-Title
Artificial watercourse-Canal banls-Trespass -Possessory action-Bornage-Practice. ........... RIVERS STREAMS-Watercourses -Riparian rights-Expropriation-Trespass-Torts-Diversion of natural -Injurious affection-Damages-Execution of statutory powers-Arbitration- Injunction-Mandamus-Construction statute-59 V. 44 (N.8 riparian proprietor whose property has injuriously affected the unlawful diversion of the natural of a watercourse may recover damages therefor and may also obtain relief by injunction restraining the continuation of the tortious acts so committed.-The powers conferred upon the town council of the Town of North Sydney, N.S., the Nova Scotia statute, V. 44, for the purpose of obtaining a water supply give them no rights in respect to the diversion of watercourses except subject to the provisions of the fourth section RIVERS STREAMS-Continued.
the Act, and after arbitration proceedings taken to settle compensation injurious affection to property resulting from the construction or operation the waterworks.
Saunby v. The
Water Commissioners of London ([1906]
2-A'avigable and floatable waters- Obstructions to navigation-Crown lands
-Letters patent of grant-Evidence- Collateral circumstances leading to grant
-Limitation of terms of grant-Title to land-Riparian rights-Fisheries-Arts.
414, 0.0.]
A river is navigable when, with the assistance of the tide, can navigated in a practica~ole and profitable manner, notwithstanding that, at low tides, it may impossible vessels to enter the river on account the shallowness of the water at its mouth. Bell v. The Corporation of Que- Cas. 84), followed.
dence the circumstances and correspondence leading to grants the Crown lands on the banks of a navigable river cannot admitted for the purpose shewing an intention to enlarge the terms letters patent of grant of the lands, subsequently issued, so as to include the bed of the river and the right fishing therein.
The judgment pealed 'from
(Q.R. K.B.
reversed and the judgment the Superior Court (Q.R. 104)' was restored. Steadman v. Robertson N.B.
Rep. and The Queen v. Robertson
Can. S.C.R.
referred to; In re
Provincial Fisheries
Can.
444; discussed.
v. ADAMS..............577
3-Floating sawlogs-Use of booms- Vis major-Action-Salvd ge-Quantum meruit-Riparian rights.]
P.
placed booms across floatable river to hold logs at a place where he had erected a sawmill on land owned him on the bank of the river.
T. had a boom further upstream for storing pulpwood.
unusual freshet broke T.'s boom and brought quantity of his wood down with the current into P.'s boom, where it was caught and held for some tim' until removed without causing any
RIVERS STREAMS-Continued. damage or expense to P.
P. to recover salvage or the value the use of his boom for the time during which T.'s wood had remained there- Held, reversing the judgment appealed from (Q.R. K.B. 513), that as P. had no right property in the waters the river waters publici juris, notwithstanding the construction the boom; that T.-s wood came there lawfully; and that, as the service rendered in stopping the wood was involuntary and accidental, P. could recover nothing therefor.-Per Fitzpatrick C.J.-There Province of Quebec and those of Engthe rights riparian owners to the waters of floatable streams flowing past their lands. Miner v. Gilmour
P.C.
4-Title to land-Ownership-Artifiaction-Bornage-Practice. ........... SALE-Sale of goods-Contract cor- Statute Frauds livery-Principal and agent-Statutory prohibition-illicit sale of intoxicating liquors-Knowvledge of seller-Validity of contract.]
B., a trader, in Truro, ordered goods from a company Glasgow, Scotland, through its agents, in Halifax, whose authority was transmitting such orders to Glasgow for acceptance. B.'s order was sent to and and accepted the company and the goods delivered to a carrier in Glasgow to forwarded to in Nova Scotia.
Held, affirming the judimnent appe led from Rep. Idington J. dissenting, that the contract was made and completed Glasgow.-Where a contract was made and completed in Glasgow,
Scotland. for. the sale of liquor parties there to a trader a county in Nova Scotia where liquor was forbidden law to sold on pain fine or imprisonment and the vendors had no actual knowledge that the purchaser intended to re-sell the liquors illegally, the contract was not void and the vendors could recover SALE-Continued.
the price of the goods.
2-Judicial sale of railways-Interested bidder-Disqualification as pur- 1484 C.C.-Construction of statute-Discretionary order-Revicto bil appellate court-4 & Edw. VII.
Solicitors and counsel retained in proceedings for the sale property are not within the classes persons disqualified as purchasers article of the Civil Lower
Canada.-The Act, & Edw. VII. c.
directed the sale of certain rail- Nays separately or together as in the opinion the Exchequer Coirt might for the best interests creditors, in such mode as that court might provide, and that such sale should have the same effect as a sheriff's sale immovables under the laws the Province
Quebec.
The judge of the Exchequer
Court directed the sale to by tender for the railways en bloc or for the purchase each or any two the lines which they were constituted.
the judge had properly exercised the discretion vested in him the statute accepting a tender for the whole system, in preference to two separate tenders the railway at slightly increased amount, and that his decision should not disturbed
Judgment appealed from Ex. C.R.
v. BilQUE;
3-Principal and agent-Sale of land performance.]
The defendant gave a real estate agent the exclusive right, within a stipulated time, to sell, commission, a lot land for $4,270 (the price being calculated at the rate per acre its supposed area), an instalment of to be paid in cash and the balance, secured mortgage, payable in four annual instalments.
The agent entered into a contract for sale of the lot to the plaintiff at per acre. $50 being deposited on account of the price, the balance of the cash to remainder of the purchase money pay- SALE- Continued.
able in four consecutive yearly instalments and with the privilege of "paying the mortgage at any time." contract was in the form a receipt for the deposit and signed the broker as agent for the defendant. Held, affirming the judgment appealed from Man. Rep. 203) that the agent had not sary to confer the power of entering into a contract for sale binding upon his prinpal.-Held, further, that the term allowing the privilege of paying the mortgage at any time was not authorized and could not be enforced against the SIMON.....422 Purchase margin Non-Payment-Sale without notice-Liability of customer-Damages. ,-Agreement for sale of lands Transactions with co-trustees-Necessity of joint action-Delegation of trust- Specific performance of contract... 6-Equitable mortgage - ,minerals -Lease
Sheriff's sale-Purchase judgment creditor of mortgagee-Registry lasdues paid as rent-C.S.N.B.
(1903), 7-Tenant sufferance-Use and occupation of lands-Art. 1608 Promise of sale-Vendor and purchaser- SAW-LOGS-Rivers streams Floating sawologs-Use of booms-Vis major-Action-Quantum meruit-Salvage-Riparian rights...............657 SCHOOTS
Assessment and taxes County School Fund-Contributions by incorporated towns statute-3 Edw. VII. c. 1. Supreme Court Nova, Scotia held SCHOOLS-Continued.
tionately towards the School Fund of the
County of Halifax for the year
Without calling upon counsel for the respondent, the Supreme Court of Canada dismissed the appeal with costs.
HALIFAX.............514
FISHERIES foreign vessels - Legislative jurisdiction
-Seizure on high seas-Pursuit beyond territorial limit - International law
Constitutional law statute-B.N.A. Act, s. s.-s.
12-R.S.C. 94, ss. 4......... 385
Annulment
Injunction-Matter in controversy-Art
C.C.-Highway. . . . .............
SHERIFF-Equi i table mortgage-Mines and minerals-Lease of mining lands- Sheriff's sale-Purchase
Priority-Actual notice-Lien for Croton dues paid as rent-C.S.Y.B. s.
courts Rep.
140; N.B. Eq. held that mining leases lands in the Province New
Brunswick and of the minerals therein, issued the Crown to the appellant subsequent to a mortgage executed in the State New York in favour the respondent, a company incorporated under the laws that state, which do not reserve the minerals to the state, were subject to the mortgage; that a judgment creditor the mortgagor (who purchased the leases at a sheriff's sale in execution his own judgment and afterwards obtained new leases in his name' from the Crown), took the new leases subject to the mortgage; that the mortgage, though not registered under the "General Mining Act,"
was void actual notice the mortgage and whose judgment was not registered under that
SHERIFF-Continued.
section at the time of the commencement the suit, and that the judgment creditor was not entitled to a prior lien rent paid to the Crown on the licenses declared to held in trust for the mortgagee. An appeal to the Supreme Court Canada was dismissed, Maclennan J. Co............517 2-Execution-Sale of land-Statute of Limitations-Possession of land-Constructive possession-Colourable title- Effect of sheriff's sale..............157 SHIPS SHIPPING-Maritime law- Collision
Crossing ships
Admiralty Rules, rule 19...............284 2-Canadian waters foreign vessels-Legislative jurisdiction-Seizure on high seas- Pursuit beyond territorial limit-International law-Constitutional law-Neacoast fisheries - -B.N.A.
s. s.-s. R.S.C. 94, ss. 4.............385 Sea SHORE RAILWAY.
SOLICITOR-Judicial sales-Interested bidders-Disqualification as purchaser- Art. 1484 C.C.-Public policy.] Solicitors and counsel retained in proceedings the sale property are not within the classes of persons disqualified as purchasers article the Civil of Lower Canada.
from Ex. C.R. affirmed. v. BtIQUE SPECIFIC PERFORMANCE - Principal and agent-Sale of land-Authority to make contract.] The defendant gave a real estate agent the exclusive right, within a stipulated time, to sell, on mission, a lot of land for $4,270 (the price being calculated at the rate $40 per acre on its supposed area), an instalment of to paid in cash SPECIFIC PERFORMANCE-Con.
and the balance. secured mortgages payable in four annual instalments. The agent entered into a contract for sale the lot to the plaintiff at $40 per acre.
being deposited on account the price, the balance the cash to paid
"on acceptance of title," the remainder the purchase money payable in four consecutive yearly instalments and with the privilege "paying the mortgage at any time."
This contract the form of a receipt for the deposit and signed the broker as agent the defendant.-Icld, affirming the judgment appealed from Man. Rep.
that the agent had not the clear and express authority necessary to confer the power entering into a contract sale binding upon his principal.-Held, further, that the term allowing the privilege paying the mortgage at any time was not authorized and could not enforced against the defendant.
mouR
2-Agreement for sale of lands - Transactions with co-trustees-Necessity of joint action-Delegation of trust- Specific performance of contract.....362
See TRusTs
- "Marsh Act," R.S.N.S. c. ss.
66-Jurisdiction of marsh comiissioners
-Assessment of lands-Certiorari-Limitation for granting icrit-Practice-Expiration of time-Delays occasioned by judge-Legal maxim- Order pro tunc.]
Where a statute authorizing commissioners to assess lands provided that no writ certiorari to review the assessment should granted after the expiration six months from the initiation of the commissioners' proceedings:
Held, Girou'rd J. (dissenting)
, that order for the isue writ of certiorari made after the expiration of the prescribed time was void notwithstanding that it was applied for and judgment the application reserved before the time had expired.-Ield, per Tasehereau C.J.
where jurisdiction has been taken away statute, the maxim actus curim neminen gravabit cannot be applied, scribed, as to validate an order either antedating or entering it nune pro tunc; that, in the present case, the order peachment of the proceedings of the inferior tribunal was sought upon the ground want jurisdiction in the commissioners, but the appellants were not entitled to it on the merits. Girouard J.
ought to treated as having been made application was reserved the judge. Lpon the merits, the appeal should allowed as the commissioners had no jurisdiction in the absence proper notices as required the twenty-second section of the "Marsh Act," R.S.N.S. Per Davies J.-The statute allows any person aggrieved the proceedings of the commissioners to remove the same into the Supreme Court certiorari; the claim for the writ the ground of jurisdiction was either abandoned ar unfounded; and the statutory writ could not issue after the six months had expired.
E Breach of trust-Accounts-Evidence-Nova Scotia "Trustee Act," 2 Edw. II. 13-Liability of trustee- N.S. Order XXXIl., r. 3-Judicial discretion-Statute of Limitations.] his last will bequeathed shares of his estate to his daughters and and appointed executrix and trustee. was weak-minded and infirm and share was directed to invested her benefit and the revenue paid to half-yearly. proved the will, assumed the management of both shares and also the support and care at their common domicile, and applied their joint No detailed accounts were kept sufficient to comply with the terms of the trust nor to shew the amounts necessarily expended for the support, care and attendance of but kept books which shewed the general household expenses and consisted, principally, of admissions against her own interests.
After the decease of both and the plaintiffs obtained a reference to master to ascertain the amount of the residue the estate coming to (who survived and the receipts and expenditures on account receiving the report the judge referred it back to varied, with further instructions and direction that the books kept A.
should be admitted as primd facie evidence the matters therein contained.
N.S. Rep. pp 452-464.)
order was affirmed by the Supreme Court
Nova Scotia in banco. Held, affirming the judgment appealed from
Rep. that the allowances for such expenditures need not restricted to amounts actually shewn to have been expended; that, under the Nova Scotia statute, Edw. VII. c. and Order
XXXII., rule a judge may exercise judicial discretion towards relieving a technical breaches of trust and, for that purpose may direct the admission any evidence which he may deem proper for the taking of accounts. 163
3-Constitutional law-Parliament- Power to legislate-Railways-"Railway
Act," ss. 188-Protection crossings
Party interested committee-"Railway Act, 1903"-Board of Railway Commissioners.]
over a highway a railway subject to its jurisdiction to protected gates or otherwise, are intra vires of the Parliament of Canada. Idington J. dissent- (Sections and of "The powers on the Board of Railway Commissioners.)-These sections also authorthe committee to apportion the providing and maintaining such prdtection between the railway company and "any person
Idington J. (dissenting)
. that the municipality in which the highway crossed the railway is situate is a "person inter- .....................
4-Construction of statute-Canadian foreign vessels-Legislative jurisdiction
-Service on high seas-Pursuit beyond territorial limit - International law
Constitutional law-B.N.A. Act, s.
Under the provisions of the "British North America s.-s. the Parlia' inent of Canada has exclusive jurisdiction to legislate with respect to fisheries within the three-mile-zone the sea-coasts of Canada.-A foreign vessel found violating the fishery laws of Canada within three marine miles the sea-coasts of the Dominion may be immediately pursued beyond the threemile-zone and lawfully seized on the high seas. Girouard J. dissenting. The judgment appealed from B.C. Rep. was affirmed.
...................
Contract-Breach of conditionstive remedy-Operation of tramwayof highways-Car service-Time-tables- Municipal control - Territory annexed after contract-Abandonment of monopoly-55
Except where otherwise specially provided in the agreement between the Toronto Railway Company and the City of Toronto set forth in the schedules to chapter the statutes of Ontario, in the right of the city to determine, cide upon and direct the establishment new lines tracks and tramway service, in the manner therein prescribed, applies only within the territorial limits the city as constituted at the date the contract. Judgment appealed from Ont. L.R. 657) reversed, Girouard J. dissenting.-The city, and not the pany, is the proper authority to determine, decide upon and direct the establishment of new lines, and the service, time-tables and routes thereon. Judgment appealed from affirmed, Sedgewick J. dissenting.-As between the contracting parties, the company, and not the city, is the proper authority to determine, decide upon and direct the time at which the use of open cars shall discontinued in the autumn and resumed in the spring, and when the cars should provided with heating apparatus and heated.
Judgment appealed from reversed, Girouard J. dissenting.-Upon the failure the company to comply with requisitions for extensions as provided in the agreement, it. has no right action against the city for grants of the privilege to others; the right of making such grants accrues, ipso facto, to the city, but is not the only remedy which the city is entitled to invoke.
Judgment appealed from affirmed, Sedgewick, J. dissenting.-Cars starting out before midnight as day cars may required by the city to complete their routes, although it may necessary for them to run after midnight or transfer their passengers to a car which would carry them to their destinations without payment of extra fares, but at midnight their character would be changed to night cars and all passengers entering them after that hour could be obliged to pay night fares.
Sedgewick J. dissent- 6-Execution of statutory powers-Arbitration the town council the Town North
Sydney,
Nova
Scotia
.statute, 59 V. for the purpose obtaining a water supply give them no rights in respect to the diversion watercourses except subject to the provisions of the fourth section of the Act, and after arbitration proceedings taken to settle compensation for injurious affection to property resulting from the construction or operation of the waterworks.
Saunby v. The Water Commissioners of London ([1906] fol- 7-Cause of action-Limitation of acben loci contractis-Absence of debtor.]
the the dinance, of the right to recover simple contract debts in the Territorial Court of Yukon Territory is absolutely barred after the expiration six years from the date when the cause of action arose notwithstanding that the debtor has not been for that period resident within the jurisdiction of the court.
Judgment appealed from reversed, Girouard and Davies JJ., dissenting.
....................
8-Construction of statute-R.S.C.
s. 27-Appeal-Jurisdiction- New trial-Discretion-Ontario Appeals-60 & V. 34.]
Per Fitzpatrick C.J. and Duff J.-Section of R.S.C. prohibits an appeal from a judgment the Court of Appeal for Ontario granting, in the exercise of judicial discretion, a new trial in the action.
Per Davies J.- Under the rule in Town of Aurora v. Village of Markham Can. S.C.R. no appeal lies from a judgment of the Court of Appeal for Ontario motion for a new trial unless it comes within V. or special leave to appeal has been obtained.
Appeal from judgment of the Court of Appeal Ont. L.R. 9-Construction of statute Negligence
Findings jury
Operation railway Railway Act,"
Railway aid struction of agreement-Expropriation -Description of lands -Reference plans-R.S.N.S.,
99-3 Edw. VII. (N.S.) ..................
11-Negligence-Exercise of statutory privilege-Evidence. . . . . ..... ..... 12-Expropriation of land-Arbitration-Authority for submission-Trespass-2 Edw. VII. 13----Judicial sale of railways-Interested bidder - Disqualification as purchaser-Counsel and solicitors-Art. 0.0.-Construction of statute Discretionary order-Review by appellate court 1 & Edw. VII. (D.)-Public policy...........................303
14-"Railiray Art, ss. 47. 186-- Board of Railway Commissioners--Jurisdiction-Construction of subway-Apwith municipality.................354 15-Assessment and taxes
County
School Fund--Contributions by incorporated towns-Construction of statute-3
Edw. VII. (N.S.).........514
16-Equitable mortgage minerals-Lease of mining lands-Sheriff's sale-Purchase judgment creditor of mortgagee-Registry laws-Priority-Actual notice-Lien for Crown dues paid as rent-C.S.N.B. (1903),
139............................517
STATUTES-21 Jac. I.
(Imp.)
(Limitation of actions) ...........
2-4
& Anne (Imp.) (Limitation of actions) ..................
3-30 s. sub-s. (Imp.)
4-53
& 54 V. (Imp.) (Colonial
Courts Admiralty Act, s. ("Patent Act")
.....................
6-R.S.C. 94, ss. 4 (Canadian Fisheries) ...
..............
R.S.C. s. (Supreme and
Exchequer Courts Act) ............
8-R.S.C. (Winding-up Act).
. . . . ........................
R.S.C. s. (Appeals from orders for new trial) ...............
10-R.S.C.
s. 28 (Supreme
Court Act)
......................
STATUTES-Continued.
11-R.S.C. ss. 64.......624 12-51
V. 29, s. 256 (Railway Act, 1888). . . 1 13-51
V. ss. (Railway Act, 1888)..............232 14-60
& V.
(Ontario appeals). . . . . ...................
15-3
Edw. VII.
Act, 1903).......................232 16-3
Edw.
Edw. VII. ss. 214, 253 (Railway Act, ........... 18-4
& Edw. VII. (South Shore Railway and Quebec Southern Railway) ....
........... [Ont.] (Toronto 59 V. c. 44 [N.S.] (North Sydney Water Supply)...................464 21-R.S.N.S. 1900, ss. 22, (Marsh Act). . . . .................
R.S.N.S. 1900, 99 (Railways). .
.........
.5
Edw. VII. (N.S.) (Trustees). . . .. ......................
Edw. VII. (Rail- STATUTES-Continued.
25-3
Edw. VII. 7
(School taes). . . . ..............
26-3 Edw. VII.
(Rail- 27--R.S.Y.B. (Scaling of timber)
28-.S.N.B.
s.
(Registration of mining leases) .....
29-Yukon Ord. of 1890, c.3 1 (Limitation of actions) ................
ANNE-Cause of action- Limitation of actions-Contract-Foreign judgment-Yukon Ordinance, of 1890-Statute of James-4 & Anne,
16-Len fori-Lex loci contractus- Absence of debtor.................546
FRAUDS-Sale of goods- Contract by correspondence-Delivery- Principal and agent-Statutory prohibition-Illicit sale of intoxicating liquors
-Knowledge of seller-Validity of con- JAMES-Cause of action- Limitation of actions-Contract-Foreign judgment-Yukon Ordinance, of 1890-21 Jac.
Anne-Lex fori-Lex loci contractus- Absence of debtor................546
LIMITATIONS - Posses- &ion of land-Constructive possession- Colourable title-Effect of sheriff's sale.
.................
2- Breach of trust-Accounts-Evidence-Nova Scotia "Trusts Act"-2
N.S. Order XXXII., r. 3--Judicial discretion..
......................
-Security by beneficiary-Controversy involved-Future rights order.] An application for the approval of security on an appeal to the Supreme Court of Canada from an order directing that a beneficiary should furnish the security required by article of the Civil Code of Lower Canada was refused on the ground that it was interlocutory and could not affect the rights of the parties
BIRKs.....
......................
TENDER-Judicial sale of railways- Interested bidder - Disqualification as purchaser-Counsel and solicitors-Art. 1484 C.C.-Construction of statute-Discretionary order-Review appellate court-4 & Edw. VII. .................
THREE-MILE-ZONE-Canadian -Fishing by foreign vessels-Legislative tional
Constitutional Seacoast fisheries-Construction of statute -B.N.A.
Act, s. s.-s. R.S.C. 94, s. 4..............385 TIME-Construction of statute-"Marsh Act," R.S.N.S. 1900, s. ss. 22, 66tation for granting writ-Practice-Empiration of time limit-Delays occasioned judge-Legal maxim-Order nuno pro tunc. . . . . ........................
2-Election petition-Time for trial- Enlargement. ......
...... TITLE LAND-Will-Trust-Conditional devise.]
The property was devised by will as follows: "I give and bequeath to my beloved wife, Margaret Mclsaqc, all and singular the property of which I am at present possessed, whether real or personal or wherever situate, to be by her disposed of amongst my beloved children as she may judge TITLE LAND-Continued.
most beneficial for herself and them, and also order that all my just and lawful debts paid out the same.
I do hereby appoint my brother, Donald
Mclsaac, and my brother-in-law, Donald
Mclsaac, tailor, my executors to carry out this my last will and testament."
Held, affirming the judgment appealed from N.S. Rep. 60), that the widow took the real estate in fee with power to dispose of it and the personalty whenever she deemed it was for the benefit of herself and her children, to
McIsAAc v. ...............
2-Statute of Limitations-Possession of land-Constructive possession-Colourable title.] Mcl. his will devised sixty acres of land to his son charged with the maintenance of his widow and daughter.
Shortly afterwards the son with the widow and other heirs conveyea away four of the sixty acres and nearly thirty years later they were deeded to
Under a judgment against the executors of Mel. the -sixty acres were sold the sheriff and fifty including the said four were conveyed the purchaser to Mel.'s son.
The sheriff's sale was illegal under the Nova Scotia law.
The son lived on the fifty acres for a time and then went to the United States, leaving his mother and sister in occupation until he returned twenty years later. During this time he occasionally cut hay on the four acres, which was only partly enclosed, and let his cattle pasture on it.
In an action for a declaration title to the four acres: Held, that the occupation the son under colour of title the fifty acres was not constructive possession of the four which he had conveyed away and his alleged acts of ownership over which were merely intermittent acts of trespass.
......
3-Ambiguous description of grantee- "Greek Catholic Church" - Construction of deed-Reversal of concurrent findings.]
Where Crown lands were granted "in trust for the purposes of the congregation of the Greek Catholie Church at Limestone Lake," N.W.T., and it appeared that this description was ambiguous and might mean either the Greek
Orthodox
Church or the
Greek Church in communion with the
Church of Rome, it was held that the
TITLE LAND-Continued. construction of the grant should be termined by the facts and circumstances antecedent to and attending the issue the grant and that, in view of the evidence adduced, the words did not mean a church united with the Roman Catholic Church and subject to the jurisdiction of the Pope.
reversed, the Chief Justice and Girouard J. dissenting, on the ground that the concurrent findings of the courts below upon matters of fact ought not to disturbed.
(Leave to appeal to Privy Council granted 30th June,
4- Tenant sufferance-Use and occupation of lands-Art C.C.-Promise of sale-Vendor and purchaser- Practice.] The action for the value the use and occupation lands does not lie in a case where the occupation by sufferance was begun and continued under a promise of sale; in such a case the appropriate remedy would be action ex vendito or for reddition de compte.
B'RU]B........ 627 5-Ownership-Artificial watercourse banks action-Bornage-Practice.] The possessory action lies only in favour. persons in exclusive possession titre de propridtaire.-The ownership of a canal serving as a tail-race for a water-mill naturally involves the ownership of the banks of the canal and the right to make use thereof for the purpose of maintaining the tail-race in efficient condition.-In the present case, the iank the canal had fallen in at a place adjoining lands belonging to and the projection thus formed had been, some years, occupied him.
made an entry for the purpose of removing this obstruction, and re-building a retaining wall to support the bank. In a possessory action D.: Held, that the original boundary had become obliterated the decision of the question possession should postponed until the limits of the canal bank had been reestablished. Parent v. The Quebec North Shore Turnpike Road Trustees Can. TITLE LAND-Continued.
Purchase by judgment
7- Rivers and streams-Navigable and floatable waters-Obstructions to navigation
Crown
Letters patent grant circumstances leading to grant-Limitation of terms of grant-Riparian rights
-Fisheries-Arts. 400, 414, 503
.............
TORT-Watercourses-Riparian rights- Expropriation-Trespass
Diversion natural flow-Injurious affection-Damages-Execution of statutory powersof statute-59 V. c.
....................
Sec 1.
Finding of jury-Exercise of statutory privilege.]
Where a street car company has its charter privileges in regard to the removal of snow from its tracks and the city engineer is given power to determine the condition which the highway shall be left after a snow storm, a duty is cast upon the company to exercise its privilege in the first instance in a reasonable and prowithout negligence.
. . ...........................
2-Contract-Breach of conditionstive remedy-Operation of tramwayof highways-Car service-Time-tables- Municipal control - Territory annexed after contract-Abandonment of monopoly-55 V.
Except where otherwise specially provided in the agreement between the Toronto Railway Company and the City of Toronto set forth in the schedules to chapter the statutes Ontario, V., in the right of the city to determine, decide upon and direct the establishment new lines of tracks and tramway ser- TRAMWAY-Continued.
vice, in the manner therein prescribed, applies only within the territorial limits of the city as constituted at the date the contract. Judgment appealed from Ont. L.R. reversed, Girouard J. dissenting.-The city, and not the company, is the proper authority to termine, decide upon and direct the establishment of new lines, and the service, time-tables and routes thereon. Judgment appealed from affirmed, Sedgewick J. dissenting.-As between the contracting parties, the company, and the city, is the proper authority to determine, decide upon and direct the time at which the use of open cars shall discontinued in the autumn and resumed in the spring, and when the cars should provided with heating apparatus and heated.
Judgment appealed from reversed, Girouard J. dissenting.-Upon the failure of the company to comply with requisitions for extensions as provided in the agreement, it has no right of action against the city for grants the privilege to others; the right of making such grants accrues, ipso facto, to the city, but is not the only remedy which the city is entitled to invoke. Judgment appealed from affirmed, Sedgevick J. dissenting.-Cars starting out before midnight as day-cars may required the city to complete their routes, although it may necessary them to run after midnight or transfer their passengers to car which would carry them to their destinations without payment of extra fares, but at midnight their character would changed to night cars and all passengers entering tiem nfter that hour could obliged to ply night fares.
Sedgewick J. dissent- .....
,-TYegligence-Operation of tramway -Precautions for safety of passengers- Crosing cars-Sounding gong-Slackening speed at dangerous places-Neglect of rules-Passenger alighting from front of car-Contributory negligence.] A pam;enger on a crowded tram-car, being npar the front of the car, -on reaching his destination, made his way past several persons standing in the aisle and front vestibule and alighted from the front steps on the side next the parallel track upon which another car was TRAMWAY-Continued.
ing at considerable speed in the opposite direction and was injured.
space between the crossing cars was about inches and there was no rule prevent passengers alighting from the front steps. The passenger was not aware of the car approaching from the opposite direction when he alighted and the motorman the car which struck him had neglected to observe a rule of the company requiring that speed should slackened and the gong rung continuously while cars were passing each other on the double tracks.
The courts below held Man.
Rep. 338), that the company was liable in damages on account of the motorman's negligence; that the plaintiff had not guilty contributory negligence, under the circumstances; and that the company was obliged to take proper precautions for the safety of passengers, after they had alighted upon the street beside the tracks. Without calling upon counsel for the respondent, the Supreme Court of Canada dismissed the appeal with costs.
Operation of street railway-Carriage of passengers-Contract-Continuous passage.]
The plaintiff wished to proceed to a certain part of Halifax and, when a car came along labelled as going in the required direction, boarded a trailer attached to it which, however, was not so labelled. There was an unusual amount of travel on the street cars that day and when the car containing plaintiff had proceeded a certain distance was stopped and the passengers formed that it would not go farther in that direction.
The plaintiff insisted his right to be carried to his destination in that car, refused a transfer and hired a cab.
In an action for damages the courts below held N.S. Rep. 212)
that there was no obligation on the pany's part to carry plaintiff to his destination on that particular car, that it was his duty to inquire of the conductor and ascertain where iuch car was going and he could not recover.
judgment was affirmed on appeal, Idington J. dissenting.
Co..................523
Negligence-Operation of tramway
-Carriage of passengers-Crossing cars
TRAMWAY-Continued.
-Undue speed-Sounding gong-Findings of jury. RAIv. ........ 685 6-"Railway Act, ss. 186- Board of Railway Commissioners--Jurisdiction-Construction of subway-Apwith municipality..................354 TRESPASS-Expropriation of land-Arbitration proceedings-Unlawful entry.] The company, after a void award was made under arbitration, entered upon land and cut down trees and removed gravel therefrom without giving the owners the notice required by statute of their intention to take their property. owners, their action above mentioned, claimed damages for trespass as well as the amount of the award., Held, that as the action the company was not authorized statute the owners could sue for trespass and as at the trial action on this claim was dismissed the ground that such action was prohibited there should be a new trial. IN- . . . . .....................
Expropriation-Torts-Diversion of natural flow
Injurious affection Damages-Execution of statutory powers- (N
. . . . . ...................
3-Title
Artificial watercourse-Canal banks-Possessory action-Bornage-Practice .... Will
Conditional devise.] The property was devised by will as follows: "I give and bequeath to my beloved wife, Margaret McIsaac, all and singular, the property of which I am at present possessed, whether real or personal or wherever situated, to be her disposed of amongst my beloved children as she may judge most beneficial herself and them, and also order that all TRUSTS-Continued.
my just and lawful debts be paid out the same. And I do hereby appoint my brother,
Donald
Mclsaac, my brother-in-law, Donald McIsaac, tailor, my executors to carry out this my last will and testament."
Held, affirming the judgment appealed from
Rep. 60), that the widow took the real estate in fee with power to dispose it and the personalty whenever she deemed it was for the benefit of herself and her children, to do so.
McIsAAo
BEATON.........................143 trust
Accounts dence-Nova Scotia "Trustee Act,"
N.S. Order XXXII., r. 3-Judicial discretion-Statute of Limitations.]
his last will N. bequeathed shares of his estate to his daughters A. and and appointed A. executrix and trustee.
was weak-minded and infirm and her share was directed to be invested her benefit and the revenue paid to her half-yearly. A. proved the will, assumed the management of both shares and also the support and care at their common domicile, and applied their joint
No d'tailed accounts were kept sufficient to comply with the terms of the trust nor to shew the amounts necessarily expended for the support, care and attendance of but A. kept book's which shewed the general household penses and consisted, principally, of admissions against her own interests. After the decease of both A. and the plaintiffs obtained a reference to a master to ascertain the amount of the residue the estate coming to (who survived A.)
and the receipts and expenditures on account of
On receiving the report the judge referred it back to be varied, with further instructions and a direction that the books kept should admitted as primd facie evidence of the matters therein contained.
(See N.S. Rep., pp. 452-464.)
order was affirmed the Supreme Court of Nova Scotia in banco. Held, affirming the judgment appealed from N.S.
Rep. that the allowances for such expenditures need not be restricted to amounts actually shewn to have been expended; that, under the Nova Scotia statute, Edw. VII. and Order
TRUSTS-Continued.
XXXII., rule a judge may exercise judicial discretion towards relieving a technical breaches of trust and for that purpose, may direct the admission of any evidence which he may deem proper for the takof accounts.
3-Company law-Illegal consideration for shares
Breach of truat.] With a view to concealing the financial difficulties of a mining company and securing control of its property, the manager entered into a secret arrangement with the respondent whereby the latter was to acquire the liabilities, obtain judgment thereon, bring the property to sale under execution and purchase it a new company to be organized in which the respondent was to have a large interest. The manager, who was a creditor of the company, was to have his debt secured and to receive an allotment shares in the new company proportionate to those held him in the old company and he agreed that he would not reveal this understanding to the other shareholders.
Held, affirming the judgment appealed from B.C. Rep. 466) Sedgewick J. dissenting, that the agreement could not enforced as the consideration was illegal and a breach trust which the other shareholders were defrauded. 4-Co-trustees--Joint action-Delegation of trust.]
trustee in Toronto wrote to a co-trustee in St. Mary's stateing that an offer had been made to purchase a portion the trust estate $12,000 and giving reasons why it should be accepted. The co-trustee replied concurring in said reasons and consenting to the proposed sale. The Toronto trustee afterwards had negotiations with the solicitors of and at their suggestion offered to sell the same property to for $13,000 but without further notice to his co-trustee.
The offer was accepted the solicitors whereupon the party who had offered $12,000 raised his offer to $14,000 and the trustee notified the solicitors of that the sale to him was cancelled.
In a suit by for specific performance: Held, affirming the judgment of the Court of Appeal (9 Ont. L.R. 522) that the letter written by the co-trustee in St. Mary's con- TRUSTS-Continued.
tained a consent to the particular sale mentioned therein only and could not be construed as a general consent to a sale to any person even for a higher price.
Even if it could there were circumstances which occurred between the time it was written and the signing of the contract with which should have been communicated to the co-trustee before he could bound by said contract.
McMAHnoN.................362
Probate of will-Promoter-Evidence-Subsequent conduct of testator- Residuary devise ...
.............
Title to land-Ambiguous description of grantee - "Greek
Catholic
....................
USER-Highway- Dedication - Acceptance public...................210
VENDOR PURCHASER - Judicial sale of railways-Interested bidder-Disqualification as purchaser-Counsel and solicitors-Art. C.C.-Construction of statute-Discretionary order-Review appellate court-4 & Edw. VII.
(D.)-Public policy ... ........ 303
2-Principal and agent-Sale of land performance. . . . ................
3-Tenant sufferance-Use and cupation of lands-Art. C.C.-Promise of sale
Reddition de compte
Actio ex vendito-Practice........ 627
VERDICT-Negligence-Finding of jury brought an action, as administratrix of the estate of her husband, against the C.P.R. claiming compensation for his death by negligence and alleging in her declaration that the negligence consisted in running a train
VERDICT-Continued.
at a greater speed than six miles an hour through a thickly populated district and in failing to give the statutory warning on approaching the crossing where the accident happened. At the trial questions were submitted to the jury who found that the train was running at a speed of miles an hour, that such speed was dangerous for the locality and that the death of deceased was caused neglect or omission o the company in failing to reduce speed as provided "The Railway Act." A verdict was entered for the plaintiff and on motion to the court, en banc, to have it set aside and judgment entered defendants a new trial was ordered the ground that questions as to the bell having been rung the whistle sounded should have been submitted to the jury.
The plaintiff appealed to the Supreme Court of Canada to have the verdict at the trial restored and the defendants, cross-appeal, asked for judgment. Held, Idington J. dissenting, that the above findings the jury must be held to have considered the other grounds to they were properly directed by the judge, and to have exonerated the defendants from liability thereon, and the new trial was improperly granted on the ground mentioned.-Held, also, that though there was no express finding that the place at which the accident happened was a thickly peopled portion of the district it was necessarily imported in the findings given above; that this fact had to be proved by the plaintiff and there was no evidence to support it; and that, as the evidence shewed it was not a thickly peopled portion, the plaintiff could not recover and the defendants should have judgment on their cross- ............. 2-Negligence-Trial-Finding of jury -Exercise of statutory privilege.. . .. 94 VIS MAJOR-Construction of railway- Defects in road-bed - Dangerous way Latent defect . . . . . ..............
VIS MAJOR-Continued.
Rivers and streams-Floating logs-Use of boom s-Action-Quantum meruit-Salvage-Riparian rights...
Water-power-Improvements on canal- Temporary stoppage of water-Compensation
Total stoppage
Measure damages-Loss of profits...........
WATERWORKS-Watercourses-Riparian rights
Torts-Diversion of natural flow-Injurious affection-Damages - Execution statutory powers-Arbitration-Injunction-Mandamus statute-59 V. 44 (N.S.).........464
WILL-Execution of will-Promoter- Testamentary capacity.]
Where the promoter of, and a residuary legatee under, a will executed two days before the testator's death and attacked his widow and a residuary legatee under a former will, the devise to the latter of whom was revoked, failed to furnish evidence to corroborate his testimony that the will was read over to the testator who seemed to understand what he was doing, and there was a doubt under all the evidence of his testamentary capacity, the will was set aside.
Girouard J. (dissenting)
, held that the evidence was sufficient to establish the will as expressing the wishes of the testator. Per Davies J.-The will should stand except the portion disposing of the residue the estate, the devise of which, in the former will, should admitted to probate with it.
2-Trust
- Conditional devise.]
property was devised will as follows:
"I give and bequeath to my beloved wife, Margaret McIsaac, all and singular the property of which I am at present possessed, whether real or personal or wherever situated, to by her disposed of amongst my beloved children as she may judge most beneficial for herself and them, and also order that all my just and lawful debts be paid out
WILL-Continued.
of the same.
And I hereby appoint my brother, Donald Mclsaac, and my brother-in-law, Donald Mclsaae, tailor, my executors to carry out this my last will and testament." Held, affirming the 60). that the widow took the real estate in fee with power to dispose of it and the personalty whenever she deemed it was for the benefit of herself and her children, to do
3-Probate of will-Promoter-Evidence-Subsequent conduct of testator- Residuary devise-Trust.] In proceedings for probate by the executors of a will which was opposed on the ground that it was prepared one the executors who was also a beneficiary there was evidence, though contradictory, that before the will was executed it was read over to the testator who seemed to understand its provisions.
Held, Idington J. (dissenting)
, that such evidence and the facts that the testator lived for several years after it was executed and several occasions during that time spoke of having made his will and never revoked nor altered it, satisfied the onus, if it existed, on the executor to satisfy the court that the testator knew and approved its provisions.-Held, also, that where the testator's estate was worth some
$50,000 and he had children it was doubtful if a bequest to the propounder, his brother, of was such a substantial benefit that it would give rise to the onus contended for by those opposing the will. CONNELL..................404 "WINDING-UP
ACT"-Appeal-Jurisdiction-Discretionary order-Stay foreclosure proceedings-Final judgment -Controversy involved-R.S.C. s. 76-R.S.C. s.
Leave to appeal to the Supreme Court of Canada under the seventy-sixth section of the "Winding-up Act" can be granted only where the judgment from which the appeal is sought is a final judgment and the amount involved exceeds two thousand dollars.
A judgment setting aside an order. made under the "Winding-up Act," for the postponement foreclosure proceedings and directing that such proceedings should be con- "WINDING-UP ACT"-Continted.
tinued- is not a final judgment within the meaning the Supreme Court Act,
Appeal--Jurisdiction-Windingup order-Leave to appeal-Amount i.
volved-R.S.C. s.. 70.]
In a cas2 under the "Winding-up Act," R.S.C. c.
an appeal may be talen to the
Supreme Court Canada by leave of a judge thereof if the amount involved exceeds
Held, that a judgment amount
"WINDING-UP ACT"-Continued. to appeal therefrom cannot granted. TERMS-"Greek Catholic 2--"Person interested............. "Interested or affected .... . 4--"Interested person............