Majority
37(c).
The "Medical Profession Act," Edw. VII. (Alta.) is intra vires of the legislative jurisdiction of the Legislature of Alberta and a member of the College of Physicians and Surgeons the North-West Territories may be validly convicted thereunder for the offence of practising medicine, surgery, etc., for gain and reward, in the Province of Alberta, without complying with its requirements as to registration and license, notwithstanding that the College of Physicians and Surgeons of the North-West Territories had not been previously dissolved and abolished order of the Governor in Council, in conformity with the provisions of see.
of "The Alberta Act."
Dobie v. The Temporalities Board App. Cas. distinguished. APPEAL from the judgment of the Supreme Court of the North-West Territories, in bane, Harvey and Stuart JJ. dissenting, on a case stated, whereby the conviction of the respondent by the police magistrate of the City of Calgary, Alta., for an offence under the "Medical Profession Act," 6 Edw. VII. ch. 28, of the statutes of Alberta (1906), was quashed and the said *PRESENT:-Fitzpatrick C.J. and Girouard, Idington Maclennan and Duff JJ.
Act declared ultra vires of the Legislative Assembly of the Province of Alberta.
umar The case stated by the police magistrate for the uwm. opinion of the Supreme Court of the North-West Territories, was as follows:- "This is a case stated for the opinion of this court pursuant to section 900 of the Criminal Code, 1892, and the amendments thereto, on the application in writing to me by said appellant (respondent in the Supreme Court of Canada).
"The appellant (Lincoln) was, on the 20th day of December, A.D. 1906, tried before me, Crispin E. Smith, police magistrate in and for the City of Calgary, in the Province of Alberta, upon an information laid before me by James D. Lafferty, the said respondent (now appellant), for that he, the said appellant, William A. Lincoln, on the thirteenth day of December, A.D. 1906, did in the City of Calgary, in the Province of Alberta, unlawfully practice medicine for gain, he the said Wiliam A. Lincoln not being then a registered person pursuant to "The Medical Profession Act," chapter 28 of the statutes of the Province of Alberta (1906), contrary to the provisions of said "Upon the hearing of said charge the following facts were established and proven before me.
That on the third day of October, A.D. 1906, pursuant to and in accordance with the provisions of said "The Medical Profession Act," a council of the College of Physicians and Surgeons of the Province of Alberta referred to in said Act was duly elected and on the 18th day of October, 1906, a registrar was duly appointed and a book on and since said date has been kept known as the "Alberta Medical Register," as provided by said Act.
"2. That the name of said William A. Lincoln was not entered and did not appear in the said "Alberta Medical Register," and that the said William A. Lincoln was an unregistered person within the meaning of said "The Medical Profession Act."
"3. That the said William A. Lincoln did on the said thirteenth day of December, 1906, practice medicine for gain in said City of Calgary.
"4. That the name of the said William A. Lincoln was on the 18th day of May, A.D. 1906, duly entered and thereafter remained in the book or register provided by "The Medical Profession Ordinance," chapter 53 of the Consolidated Ordinances of the Territories, 1898, and the amendments thereto.
"5. That there was at and prior to the date of said offence, and thereafter at the date of said information, a duly elected council of "The College of Physicians and Surgeons of the North-West Territories," and a duly appointed registrar, also the book or register, all as provided by said ordinance.
"6. That "The College of Physicians and Surgeons of the North-West Territories," the association incorporated by said ordinance had not been dissolved or abolished by any order of the governor in council. "Upon the said facts proven before me on the 20th day of December, 1906, I did on said last mentioned date find the said William A. Lincoln guilty of the offence, in said information charged, and did thereupon convict him of said offence, and did order and adjudicate him to pay forthwith the sum or penalty of one dollar and two dollars costs, subject to the opinion of said court.
"1. The appellant (Lincoln) submits that the said "The Medical Profession Act" of the Province of Alberta is ultra vires of the legislature of said province, and that the same is not and never has been in force in said province.
"2. That in any case sections 66 to 69 both inclusive of said Act, are ultra vires of said provincial legislature.
"3. That all persons registered under the provisions of the said "The Medical Profession Ordinance," including those so registered since the 9th day of May, 1906, are entitled to practice medicine for gain within said Province of Alberta without being registered under the provisions of the said "The Medical Profession Act."
"4. That for registration purposes said "Medical Profession Act" has no force or effect and does not in that respect come into operation until the said corporation, "The College of Physicians and Surgeons of the North-West Territories," has been abolished and dissolved by order of the Governor in Council. "The questions submitted for the opinion of the court are:
"(a) Is the said "The Medical Profession Act," intra vires of the Legislature of the Province of Alberta?
"(b) Is the said Act in force since the 9th day of May, A.D. 1906?
"(c) Are sections 66 to 73 inclusive, intra vires of said legislature?
"(d) Are said sections in force in said province since May 9th, 1906?
Do the provisions in said "Medical Profession Act," respecting registration come into force before the said corporation, "The College of Physicians and Surgeons of the North-West Territories," has been abolished and dissolved by order of the Governor in Council?
"(f) Are persons registered since May 9th, 1906, under the provisions of the said "The Medical Profession Ordinance," entitled to practice medicine for gain within the Province of Alberta without having been registered under the said "The Medical Profession Act" of said province?
"(g) Since the 9th day of May, 1906, and until dissolved and abolished by order of the Governor in Council, does the said association incorporated as "The College of Physicians and Surgeons of the North- West Territories," continue for any purpose or with any powers within the Province of Alberta other than to arrange for and effect the payment of its debts and liabilities and the division and disposition and transfer of its property?
"(h) Does registration since May 9th, 1906, in accordance with the provisions of "The Medical Profession Ordinance of the North-West Territories," entitle the persons so registered to all the rights and privileges provided by said ordinance?
"The said conviction is to be affirmed or quashed in accordance with the opinion of the court on said "Given under my hand this 20th day of December, A.D. 1906, at the City of Calgary, in said Province of Alberta.
E. Police Magistrate." Special leave for the appeal was granted, on motion by Chrysler K.C. (Haydon, contra), by the full court, under the provisions of the "Supreme Court o Act," R.S.C. (1906), ch. 139, sec. 37(c), on the 19th of February, 1907.
The circumstances of the case and questions at issue on the appeal are stated in the judgments now reported.
Woods, Deputy Attorney-General of Alberta, and Young for the appellant.
J. A. Allen, for the respondent.
THE CHIEF JUSTICE.-The appeal is allowed with costs.
I agree in the opinion of Mr. Justice Maclennan.
J.-I agree in the opinion of my brother Maclennan.
J.-This is an appeal from the judgment of the Supreme Court of the North-West Territories upon a case stated by the police magistrate of the City of Calgary arising out of the prosecution and conviction of the respondent under the provisions of the Medical Professions Act, ch. 28, of the statutes of Alberta.
The sole questions raised are whether or not the prohibition in the said statute against practising medicine without being registered in accordance with the terms of that statute, and the imposition of a penalty for breach of such prohibition are intra vires the powers of the Legislature of Alberta.
The Provinces of Alberta and Saskatchewan were carved out of the North-West Territories by Acts passed by the Dominion Parliament.
J.
Prior to the passing of said Acts, the "Medical Professions Ordinance," ch. 52 of the Consolidated Ordinances of the North-West Territories, prohibited any one from practising medicine within the North- West Territories unless registered in accordance with the provisions of that Ordinance.
A prior Ordinance created a corporation known as the "College of Physicians and Surgeons of the North- West Territories," and this "Medical Professions Ordinance," ch. 52, I have referred to, continued the said corporation, and declared that all persons, registered members of such college under the provisions of the ordinance, should be a body corporate under the name of the "College of Physicians and Surgeons of the North-West Territories," and should have perpetual succession, etc., as therein provided.
To this college was confided the keeping of the register of medical practitioners, and many powers were given it in the way of examining candidates for admission, and admitting when passed to registration, and in other ways regulating the conduct of members of the medical profession.
When the provinces in question were being created it was found necessary to anticipate the dissolution of that corporation and similar corporations. Their existence as corporations would have continued as a matter of course.
It seemed an obviously probable thing that a provincial body of the same character, and possibly endowed with the same powers, might in the course of time advantageously be created by each of the new legislatures for each province.
It was quite obvious also that, if that should take place, it was desirable the functions of the corporation, with territorial jurisdiction, so to speak, should cease. It no doubt was apprehended that in such event dissolution of the old territorial corporations could not be brought about by either province, and possibly could not be provided for by legislation of the Dominion
Parliament. It seems likely that to provide for this difficulty was all that was within the intention of
Parliament in enacting sub-sec. 3 I am about to refer
It certainly would fall within the usual powers given to provinces of the Dominion; to regulate the practice of medicine; to regulate the practice of law, or other like professions; to fix the standards of qualification entitling such persons to practice; to prohibit others respectively not so qualified from practising;
and if need be, to carry into effect such powers, to create colleges or such other corporations as the
Legislature might deem proper.
These ample powers were certainly given and exist under sub-sec. sec. 16 of the Alberta Act, unless the contention set up by respondents and upheld by the Supreme Court of the North-West Territories be correct.
That contention is this, that sub-sec. 3 of said Act restricts this power of sub-sec.
Subsec. 3 reads as follows:is to be noted that the corporation alone and what is enacted relative to its creation, continuation and dissolution is all this refers to. It does not refer to the numerous other legislative enactments found in chapter 52 above cited.
It is urged that the words "shall continue" in this sub-section cannot be given effect to unless the powers given by the consolidated Ordinance, chapter 52, are to be held as continued in full force and effect at least until the Governor in Council shall have dissolved the corporation created as above and continued thereunder.
It seems to me that we must, in this as in many other cases, test this pretention by finding whether it lies or not within the general purview of the Alberta Act to reserve to this college, instead of the Legislature, this regulating power.
Why should there be such an anomaly as withholding from these provinces the right to legislate upon such a wide field for legislative action as implied in this contention?
It does not appear that there existed any reason for the making of this distinction.
It certainly could not be contended that the Dominion Parliament had intended to reserve to itself, if it could, the right to alter the Medical Professions Act. Where is the legislative power supposed to rest if not in the newly created Legislature?
If it is replied that Parliament only intended the continuation as a temporary expedient, then what body would we expect to have power to determine the period of its existence?
The Governor in Council is given the power to dissolve the corporations in question, but the executive is not given the power to amend the provision of the Act in any respect.
This sub-sec. 3, when we look at it in the light of these considerations, obviously was designed to pro- Idingn vide for the dissolution of these corporations, and the transfer of their property to some similar body. It describes the class and, of abundant caution, needlessly but I think harmlessly, uses the words "shall continue" from which so very much is sought to be drawn by way of implication.
It was urged by respondent's counsel we should not find by implication the power to legislate that is claimed to have been given the Legislature.
It is not by implication at all that the power is given the Legislature. Section 16, sub-sec. 1 gives it clearly and explicitly in the power to alter existing laws save those thereby excluded unless restricted by sub-sec. 3.
And all that was urged against giving an interpretation that rests upon mere implication is applicable to the interpretation by respondent's counsel of this sub-sec. 3. Not a word or line of it expressly provides such a restriction as has been suggested.
It is mere implication that the alleged restriction rests upon.
It is implication too of a far fetched kind. There is not the slightest reason why the continuation for a temporary purpose, of a corporate existence, that is intended to subserve a public and not a private interest, should imply that the duties intrusted to it as such are to extend and continue beyond the necessities of such temporary purpose.
And moreover less so when, as I conceive, the temporary purpose was simply to await the action of the newly created legislatures or legislature.
was but a vessel to carry to some other place or sphere of action the seeds of a possibly regenerated V. . activity that was designed and nothing more.
It had fulfilled its functions and was only to be prepared for death in a decent and respectable manner.
The appeal should be allowed with costs here and in the court below if insisted upon.
J.-Appeal from the judgment of the Supreme Court of the North-West Territories, setting aside a conviction of the respondent for practising medicine for gain within the Province of Alberta, without registration under the Medical Profession Act of Alberta, ch. 28 of the statutes of 1906. - Before the Alberta Act, statute of Canada, 4 & 5 Edw. VII. (1905), ch. 3, establishing a new province out of what before was the North-West Territories, there existed a corporation called "The College of Physicians and Surgeons of the North-West Territories," the members of which, and those admitted from time to time by the council of the said corporation, had the exclusive right to practice medicine, surgery, etc., for gain and reward within the limits of the territories. That corporation was incorporated by the legislature of the territories, and had been in existence for many years. The ordinance made practice contrary to its provisions illegal and punishable by fine not exceeding $100.
On the 20th day of July, 1905, the "Alberta Act" (Canada) was passed and, by section 3, declared that the British North America Act, 1867, should apply to the new province in the same way and to the same extent as to the provinces theretofore comprised in the Dominion, as if Alberta had been one of them, except so far as varied "by this Act," and except such provisions as are in terms made, or by reasonable intendment may be held to be, specially applicable to or only to affect one or more, and not the whole of the said provinces.
By section 16 (1) provision is made for a continuance within the new province of all laws, orders and regulations in force at the passing of the Act, until repealed, abolished or altered by the proper authority, that is, either by Parliament or by the newly created legislature.
The Alberta statute makes provision for the medical professions in the new province very similar to those of the "Territories Act," but confined to the province.
It enacts and directs that all qualified members of the territories' college are qualified for membership in the new one, and that any who might be in arrears for annual fees would, on paying their fees to the old college, be qualified for membership in the new.
It provides for the admission and registration of persons who were not members of the old college, on compliance with certain rules and regulations, and forbids practice for reward within Alberta without registration, under a penalty.
Section 16 (3) is what is relied on to support the It is said that the Act expressly provides that the associations mentioned are to continue, and that the meaning of that must be that until the Governor in Council dissolves the old college, the Legislature can make no provision for medical education or practice within the province.
I cannot assent to that view. It was to continue until it was dissolved by the Governor in Council, which might be at any time. It was not continued for active operation, but only for winding up, paying its debts and liabilities, if any, and the division and disposition of its property.
It is obvious that, unless provision was made for something to take the place of such societies, a most inconvenient state of things would result whenever the Governor in Council exercised the power vested in him. The Governor in Council could make no such provision. It is not pretended that Parliament could do so, and unless the province could do so no other power could but the Imperial Parliament.
There is nothing in the Act limiting in any way the jurisdiction over property and civil rights in the province, and the incorporation of companies with provincial objects conferred by the 93rd section of the British North America Act, 1867.
The Act does not assume to amend or alter or deal in any way with the Territorial Act, or with the corporation thereby incorporated.
It deals solely with individuals. It says, no person shall practice for reward within the province without certain prescribed qualifications, and if he do he shall be liable to a penalty. The Act of Parliament says it shall continue, and so it does. As a corporation it has not been interfered with nor affected in the slightest degree.
Great reliance was placed in the court below Dobie v. The Temporalities Board (1), but that was a very different case from the present. The "Temporalities Act" was one which had been passed by the Province of Canada and which after the British North
America Act, 1867, could not have been validly enacted by either Ontario or Quebec. Parliament could have passed it, because it concerned persons and trusts and property in both provinces. And the Quebec Act assumed to amend it in express terms.
In the present case, however, the Act, which has been held invalid, does not interfere in the slightest degree with the "Territorial Act," or with the property or rights of the college incorporated thereby. It simply says no one shall practise medicine for reward in Alberta after the passing of this Act without a particular qualification.
I agree with the conclusion and reasons of Stuart J. in the court below, and am of opinion that the appeal should be allowed and the conviction confirmed.
DUFF J.-I concur for the reasons stated by His
Lordship Mr. Justice Idington.
Appeal allowed with costs.
Solicitor for the appellant: James Muir.
Solicitor for the respondent: J. A. Allan.
ACCOUNT-Practice-Statute of Limitations-Agents or partners-Reference.1
By agreement between them the Hamilton Brass was appointed agent of the Barr Cash for sale and lease of its carriers in Canada at a price named for manufacture; net profits to equally divided and quarterly returns to furnished, either party having liberty to annul the contract for non-fulfilment of conditions.
The agreement was in force for three years when the
Barr sued for an account, alleging failure to make proper returns and payments. Held, reversing the judgment the Court of Appeal, Girouard and Davies JJ. dissenting, that the accounts
,should taken for the six years preceding the action only.-On a reference to the Master the taking of the accounts was brought down to time at which defendants claimed that the contract was terminated notice.
The Court of Appeal ordered that they should be taken down to the date of the Master's report.
-Held, that this was a matter of practice and procedure as to which the Supreme Court would not entertain an
2-Breach of contract-Breach of trust
-Assessment of damages-Sale of mining rights-Promotion of
Laches-Hstoppel . . ..............
3-Officer of the Crown-Forged cheques-Payment bank-Representation by drawee-Implied guarantee-Estoppel
-Acknowledgment of bank statements- . ...................
Placer mining-Disputed title- ACCOUNT-Continued.
Blending materials-Assessment of damages-Mitigating circumstances-Compensation for necessary expenses-Estoppel-Standing-by-Acquiescence Construction of will V. -Construct of statute -Restraint of alienation-Interest nubstitutes-Devise of property held corpus of estate es nature-Res judicata-Arts. 948 .
. ......... ACTION-Negligence-Navigation of inland waters ships and vessels-"Public work"-The Exchequer Court Act," s. 16-Construction of statute-Right of action.1 His Majesty's steam-tug "Champlain," while navigating the River St. Lawrence, at some dstance from a place where dredging was being carried on by the Government of Canada, and engaged in towing an empty mud-scow, owned the Government, from the dumping ground bick to the place where the dredging was beina done, came in collision with the suppliant's steam barge, which was navigating the river, and the barge sustained injures.
indgment the Exchequer Court Canada, that there could be no recovery against the Crown for damages suffered in consequence of negligence of its cers or servants. as the inju-y had not been sust-ined a public work within the meaning of the sixteenth section the "Exchequer Court Act."
Chambers Whiteha-en Harbour Commissioners 132): Hall Snowden, Hubbard d
Loirth Ibbotson ACTION-Continued.
Farnell v. Bowman Cas.
and The Attorney-General of the Straits
Settlements v. Weymss
-Emprqpriation-Railway.]
The casual use of land for pasturing cattle in common with other persons does not constitute evidence of possession sufficient to maintain an action for trespass.
Judgment appealed from (1 East. L.R.
524) reversed.
Action for negligence-Practice- Assessment of damages-Funeral expenses.] In an action by the father a person whose death was occasioned the negl'gence of the defendants, it was held that the plaintiff could not recover funeral and other expenses incurred, as damages in the action.
4--Breach of trust by Crown-Purtute-Estoppel against Crown-Adding parties-Practice . . . . . ...........
.62
5-Breach of contract-Breach
-Tndemnity
.........
G-Yegligence-Trespass-lorse racing-Intruder upon racetrack-Carelessness . . . . . . ...................
Vacating judgment-Appeal-Jurisdiction-Matter in controversy-Tierce
ACTION-Continued.
opposition-Arts. 0. P. Q.- 8-Crown-Banks and banking - Forged cheque-Payment tion by drawee-Implied guarantee- Asknowledgment of bank statem ents-Liability of indorsers- Afistake-Money had and received. .258 9-Admiralty law-Foreign bottomsof Canadian courts . . . ........... 10-Public work - Contract-Change in plans and specifloations-Waiver s. 33-Extra works-Engineer's certiftcates-Instructions in writing-Schedule rate-Damages-Right of action-Quantum meruit. . . . .....
........ Subaqueous mining grants-Dredgitig lease-Breach of contract-Subsequent issue of placer minlicenses-Damages-Pleading and practice-Statement of claim-Cause 12-Vendor and purchaser-Sale land-Formation of contract-Condi- Statute of Frauds-Principal and agent -Secret commission-Avoidances of tract-Fraud-Specific performance. LAW-Shipping - Collision-Violation of rules not affecting accident-Steering wrong course.] Sunreme Court will not set aside the find'ng of a nautical assessor on questions of navigation adopted by the local judge unless the appellant can point out ADMIRALTY LAW-Continued.
his mistake and shew conclusively that the iudament is entirely erroneous.
Picton Can. S.C.R.
-A steamer coming up Halifax harbour ran into a schooner striking her stern on the port side.
No sound signals were given.
The green light of the schooner was seen on the steamer's port bow and the latter starboarded her helm to pass astern and then ported. She then was so close that the engines were stopped but too late to prevent the collision. Held, that the steamer alone was to blame for the collision.-Held, also, that though under the rules the schooner should have kept her course and also was to blame for not having a proper lookout neither fault contributed to the collision.
v. . .176
Foreign bottoms - Collision in foreign waters-Jurisdiction of Canadian courts.]
A vessel passing through ivaters dividing Canada from the United States under a treaty allowing free passage to ships of both nations is not, even when on the Canadian side, within Canadian control so as to be subject to arrest on a warrant from the Admiralty Court.-A warrant to arrest a foregn ship cannot be issued until she is within the jurisdiction of the court.-Quare. Have the Canadian Courts of Admiralty the same jurisdiction as those in England to try an action in rem by one foreign ship against another for damages caused a collision in foreign waters?
the Exchequer Court, Toronto Admiralty
District Ex. C.R. 1) reversed, Idington J. dissenting.
. . . ........................
Maritime law-Collision - Negligence-Tug and tow tow.]
A tug with the ship "Wandrian"
in tow left a wharf at Parsboro', N.S., to proceed down the river and get to sea.
The schooner "Helen M." was at anchor in the channel and the tug directed its course so as to pass her on the port side when another vessel was seen coming out from a slip on that side.
The tug then, when near the "Helen chanaed her course, without giving any signal and tried to cross her bow to pass down on the starboard side and in do- ADMIRALTY LAW-Continued.
ing so the "Wandrian" struck her, inflicting serious injury.
In an action against the "Wandfian" the owners of the "Helen the captain the former insisted that the schooner was in the middle of the channel, which was about 400 feet wide, but the local judge found as a fact that she was on the eastern side.
ment of the local judge Ex. C.R. that the navigation of the tug was faulty and shewed negligence, that if the "Helen was on the eastern side of the channel as found by the judge there was plenty of room to pass on her nort side, and if, as contended, she was in the middle of the channel she could easily have been passed to starboard; and that the attempt to over and pass to starboard when she was so near the "Helen as to render a collision almost inevitable was negligence on the tug's part; and that the "Helen M." exercised proper viligance and was not nealigent in failing to slacken her anchor chain as the "Wandrian" too close and bad not signalled.-Held, also, that the tow was liable for such nezlimence in the navigation of the tug. 4-Yegligence-Navigation of inland waters-Collision and vessels-"Public worky"-The statute-Right of action........126 AGENCY-Account-Statute of Limitations-Agents or partners-Reference- Jurisdiction-Intervention - Matter in controversy-Judicial proceedin"-R.R.C. s. 29-Equal division of opinion-Dismissal without costs.] An intervention under the provisions of the Code of Civil Procedure of the Province of Quebec is a "judicial proceeding" within the meaning of tion 29 the "Supreme and Exchequer Courts Act." and final judpment thereon is appealable to the Sunreme Court APPEAL-Continued.
of Canada where the matter in controversy upon the intervention amounts to the sum or value of $2,000 without reference to the amount demanded by the action in which such intervention has filed.
Walcott v. Robinson (11
Jur. ; Miller v. Ddchdne
Q.L.R. ; Turcotte Dansereau
Can. S.C.R. 578); and King Dupuis
(28 Can. S.C.R.
Atlantic and North-West Railway Co.
Turcotte (Q.R. 305); Allan V.
Pratt Cas. 780), and Kinghorn
Larue Can. S.C.R.
distinguished.
Girouard J. dissented.
On an equal division of opinion among the judges, who heard the case on the merits of the appeal, the appeal stood dismissed without costs.
CoTt v.
. . . . .............
Discretion of Governor in Council-Stated case
-Railway subsidies-Construction statute-3 Edw. VII. 57-Conditions of contract-Estimating cost of constructing line of railway-Rolling stock and equipment.] Where the jurisdiction of the Sunreme Court of Canada to tertain an appeal was in doubt, but was considered that the appeal should dismissed on the merits, the court heard and decided the appeal accordingly.
Bain Anderson &
3-Criminal law-Crown case reserved
Order after expiration of time for service of notice-Jurisdiction.] The power
Code"
to a judge of the Supreme Court of Canada to extend the time for service on the
Attorney-General of notice of an appeal in a reserved Crown case may be exercised after the expiration of the time limited the for the service such notice.
Banner Johnston (L.R.
H.L. and Vaughan Richardson
Can. S.C.R.
. . . ...........
APPEAL-Continued.
Order extending time-Jurisdiction s. 42-Practice.] The court refused to entertain a motion to quash the appeal on the ground that had not-been taken within the sixty days limited the statute and that an order a judge of the court appealed from alter the expiration of that time was ultra vires and could not permitted under section of the "Supreme and Exchequer Courts Act," R.S.C. 5-Vacating judgment - -Matter in controversy-Tierce opposition-Arts. 1185-1188 C.P.Q.-R.S.C. A creditor an insolvent with a claim for a tierce opposition to vacate a judgment declaring the respondent to the owner of the business a restaurant and the liquor license accessory thereto, alleged to be worth over $5.000.
The opposition was dismissed on the ground that, under the had no locus standi to contest the judgment.
motion to quash an appeal to the Supreme Court of Canada: that as there was no pecuniary amount in controversy an appeal would not lie. Cotd v. The James Richardson Can.
6-Appeal-Action for declaration and injunction-GO & V. s. 1 (d.) Discrimination.] The Act & V. 34(D.)
relating to appeals from the Cou't Appeal for Ontario does not authorize an appeal in an action claiming only a declaration that a municipal by-law is illegal and an injunction to restrain its enforcement.
by-law providing for special water rate from certain industries does not bring in question "the taking of an annual or other rent, customary or other duty or fee" ..
.................
APPEAL-Continued.
Practice-Crown case reserved- Reserved questions-Dissent from affirmance of conviction--Jurisdiction.]
Two questions were reserved by the trial judge for the opinion of the Court of Appeal but he refused to reserve a third question, as to the correctness his charge on the ground that no objection to the charge had been taken at the trial. The Court of Appeal took all three questions into consideration and dismissed the apneal, there being no dissent from the affirmance of the conviction on the first and third questions, but one of the judges being of opinion that the appeal should be allowed and a new trial ordered upon the second question reserved.
On an appeal to the
Supreme
Court of Canada, the majority of the court, being of opinion that the appeal should be dismissed, clined to express any opinion as to whethn" or not an appeal would lie unon questions as to which there had been no dissent in the court appealed from, but it was held per Girouard
J.-That the Supreme Court of Canada was precluded from expressing an opinion points of law as to which there had no dissent in the court appealed from.
McIntosh The Queen (23 Can. S.C.R.
Viau The Queen
Can. S.C.R. 90).
The Union Colliery
Company The Queen Can. S.C.R.
and Rice The King Can.
C.R. referred to.
. . . . ....................
8-Findings of fact-Practice.] The judgment appealed from was reversed, the ground of captation and undue influence, but the Supreme Court
Canada refused to interfere with the concurrent findings of both courts low against the contention as to the testator's unsoundness of mind.
DuSSAULT
9-Amount in controversy-Creditor's action-Transfer of cheque-Preference.]
action was brought by creditors, tors of an insolvent to set aside the
APPEAL-Continued.
transfer of a cheque for made the insolvent to & Son as being a preference and therefore void. At the trial the action was dismissed and this judgment was affirmed the Divisional and the Court of Appeal
Ont. L.R. 232). appeal to the Supreme Court Held, dissenting. that the only matter in controversy was the property in the sum represented the cheque and such sum being more than the appeal would lie. & V. & SoN. 490 Railway Act-Expropriation - Appeal from award-Choice of forum- Curia designata.] By section of 3 Edw. VII. amending the Railway Act, (R.S.C.
if an award arbitrators on expropriation of land by a railway company exany dissatisfied party may appeal therefrom to a Superior Court which in Ontario means the High Court or the Court of Appeal ("Interpretation Act, R.S. [1906] 1, s.-s. 26). Held, that if an appeal from an award is taken to the Hih Court there can be no further anneal to the Supreme Court of Canada which cannot even give spe- 11-Criminal laow-Stated case-Dissent in
Court of Appeal-Practice- Special leave for appeal-R.S.C. 37(c).]
the 'udgment of the Supreme Court North-West
Territories, in bane, whereby the conviction of the respondent was quashed, two of the iudges dis- I sent'ng, special leave for the appeal was granted on motion before the full court, under the provisions R.S.C. 39(c) on the 19th of February.
......
. . . . ................
620, 625 12-Account-Statute of Limitations -Aents or partners
ARBITRATION AWARD-Appeal
-Railway Act-Expropriation -Appeal from award forum-Curia designata ..........
TAXATION-Municipal corporation - Exemption from taxes-Resolution of council-Discrimination-Establishment of industry-36 V.
s. (N.B.).]
By s. 1 of 36 V.
the New Brunswick Legislature authorized the town council of Woodstock from time to time to "give encouragement to manufacturing enterprises within the said town exempting the property thereof from taxation for a period of not more than ten years a resolution declaring such exemp- In the council passed the following resolution:
"That any company establishing a woollen mill in the
Town of Woodstock be exempted from taxation for a period of ten years."
Held, per Davies, Idington and Maclennan JJ. that this resolution provided for discrimination in favour of companies and against individuals who might establish a woollen mill or mills in the town and was therefore void.
City
Hamilton v. Hamilton Distillery Co.
Can. S.C.R. 239) followed.-Held, per Davies J.-The resolution exempting any company and not any property a company was too indefinite and uncertain to be the basis for a claim exemption.-In a woollen mill was established in Woodstock by the Woodstock Woollen Mills and operated for some years without taxation.
the mill was sold under execution and two months later the Carleton Woollen (appellants) were incorporated and acquired the said mill from the purchaser at the sheriff's sale and have operated it since.-Held, that the appellants could not so acquiring the mill which had been exempted be said to have "established a woollen mill"
without shewing that when it was acquired it had ceased to exist as such which they had not done.
appealed from N.B. Rep. 545), affirming that of Barker J. at the heqring (3
Eq.
Co. v. Toww
Appeal-Action for declaration and injunction-60 t. V. s. 1
TAXATION-Con. Discrimination . . . . . ............ Security for advances-Assignment goods-Claim on proceeds of sale-53 V. 74(D.)
...... 2-Insolvencq -Fraudulent preference -Security to creditor-Knowledge of insolvency-R.S.O.
s. ...................
AWARD-Appeal-Railway Act-Expropriation-Appeal from award-Jurisdiction-Choice of forum-Curia designata. ...... BANKRUPTCY.
BANKING-Security for advance-Assignment of goods-Claim on proceeds of sale-53 V. c. (D.).]
A bank to which goods have been transferred as security for advances under section of the "Bank Act, can follow the proceeds of sale of said goods in the hands of a creditor of the assignor to whom the latter has paid them when the purchaser knew, must be presumed to have known, that the same belonged to the bank. UNIoN Crown-Banks and banking tion drawee-Imp lied guarantee - Action-Money had and received.]
A clerk in a department the Government of Canada whose duty was to examine and check its account with the Bank of Montreal, forged departmental cheques and deposited them to his credit in other banks. The forgeries were not discovered until some months after these cheques had paid the drawee to the several other BANKING-Con.
banks, on presentation, and charged against the Receiver-General on the account of the department with the bank.
None the cheques were marked with the drawee's acceptance before payment,
In the meantime, the accountant of the department, being deceived false returns of checking the clerk, acknowledged the correctness of the statements of the account as furnished the bank where it was kept. In an act on by the
Crown to recover the amount so paid upon the forged cheques and charged against the Receiver-General:
Held, affirming the judgment appealed
Ont. L.R. 595), that the bank was liable unless the Crown was estopped from setting up the forgery.
Per Davies, Idington and Duff JJ., that estoppel could not invoked against the Crown.
Per Girouard and Maclennan JJ., that, apart from the question the Crown being subject to estoppel, under the circumstances of this case a private person would not have been estopped had his name been forged as drawer of the cheques. Per Davies and Idington JJ.- The acknowledgment the accountant of the department of the correctness the statements furnished the bank, being made under a mistake as to the facts, the accounts could re-opened to have the mistake rectified.-The defendant bank made claims against the other banks, as third parties, as indorsers as having received money paid by mistake, for the reimbursement of the several amounts paid to them, respectively.
these third party issues, it was held per Girouard tnd Maclennan
JJ.-The drawee, having paid the cheques on which the name of its customer was forged, could not recover the amounts thereof from holders in due course.
Price v. Neal Burr.
Per Davies and Idington JJ.
the third party banks relied upon the representation that the cheques were I genuine, which was to implied from their payment on presentation, and subrequently paid out of the funds to their depositor or on his order, the drawee was estopped and could not recover the amounts so paid from them either as indorsers or as for money paid to them tinder mistake. In the result, the judgment appealed from Ont. L.R. 595)
was affirmed. v. THE
. .........................
BETTING-Criminal law - Disorderly for betting-Betting booth-Race-course of incorporated association-rim. Code, ss. 204-Crim. Code, as. 235-Construction of statute-Interpretation of terms..............382 See LAw
BILLS NOTES-Crown-Banks and banking-Forged cheques-Payment - Representation drawee - Implied guarantee ment of bank statements-Liability indorsers-Mistake-Action-Money had and received.......................258 - Construction of deed - Description of land - License to cut timber- Ambiguitas latens-Evidence- Boundary of timber area............ to land - Plan of survey - BROKER-Stock - Purchase on margin -Pledge of stock broker-Possession for delivery to purchaser.] instructed & brokers, to purchase for him on margin shares of a certain stock, paying them $3,000, leaving a balance of according to the market price at the time.
A. & instructed brokers in Philadelphia to purchase for them 600 shares the stock, paying nearly half the price, and pledged the whole 600 for the balance.
The Philadelphia brokers pledged these shares with other securities to a bank as security indebtedness and later drew on & for the balance due thereon, attaching the scrip to the draft which was returned unpaid and of the shares were then sold and the remaining returned to &
In an action the latter to recover from the balance due the advance to purchase the shares with interest and commission:
the judgment of the Court of Appeal (12 Ont. L.R. affirming Ont. L.R. Fitzpatrick C.J. dissenting, that the broker had no right to hypothecate the shares with others for greater sum than BROKER-Continued.
was due from unless they had an agreement with the pledgee whereby they could released on payment said sum; that there never was a time when they could appropriate of the shares pledged for delivery to on paying what the latter owed; and that, therefore, they were not entitled to recover.-The bought note of the transaction contained this memo: "When carrying stock for clients we reserve the right of pledging the same or raising money upon them in any way convenient to us."
per Davies and Idington JJ., that this did not justify the brokers pledging the shares for a sum greater than that due from the customer.
Duff J.-That the shares were purchased before this note was delivered, and could not alter the character of the authority conferred on the brokers; and that no custom was proved which would modify the common law right and duties of the brokers and their customer in the
Co.....................601
Mortgage advanced to construct buildings-Lien for materials supplied-Payment to contractor-Transactions in fraud of mortrights
Redemption
......
.. .. . . . .......... .. .....
BY-LAW-Municipal corporation-Water rates-Discrimination.] A by-law providing for special water rate from certain industries does not bring in question "the taking an annual or other rent, customary or other duty or fee" under
1(d.) the Act (R.S.
48(d.)).-By
V. c. (Can.)
the city council Hamilton was "empowered from time to time to establish by-law a tariff of rents or rates for water supplied or ready to be supplied in the said city from the said water works."
L.R.
which sustained the verdict at the trial Ont. L.R. 280) that the rate for water supplied to any class consumers must an equal rate to all members of such class and a by-law providing for a rate on certain manufacturers higher than that to be paid
BY-LAW-Continued.
others was illegal.
Attorney- General City of Toronto Can. S.C.R. 514) TEMPERANCE ACT-Canada Temperance Act-Conviction-"Criminal case"-R.S.C. s. 32-Habeas corthan Conviction for $200.] A commitment conviction for an against Part II. the "Canada Temperance Act" is a commitment in a criminal case under of R.S.C. c.
(R.S. which gives a judge of the Supreme Court Canada power to issue a writ of habeas corpus. By Edw. VII. (R.S.
a first offence against Part II. of the "Canada Temperance Act" a fine may imposed "not less than $50" and for a "not than that first the justice cannot impose a fine of more than Maclennan J. dissenting.
application a judge for a writ of habeas corpus may refer the same to the court which has jurisdiction to hear and dispose it. Idington
RICHARD....................394 CANALS-Navigation-Trent canal crossing-Stoing bridge
Cost of construc- Maintenance-Order in council.] The Ry. applied for liberty to build a bridge over the Otanabee, a navigable river, undertaking to construct a draw in it should the Government it necessary.
An order in council was providing that "the construct either the cost to borne themselves or else a new swing bridge over the contemplated canal
(Trent Valley Canal) which case the expense incurred over and above the cost the swing itself and the shall borne the Government."
new swing bridge was constructed over the canal agreement with the company. Held, that and the necessary pier" included, under the circumstances and in the connection CANALS-Continued.
in which they were used, the operation and maintenance also of the swing the
CAPTATION-Revocation of will-Testamentary capacity - Findings of fact
Improper suggestion -Undue influence-Bounty taken prompter- Onus of proof....................460
- Adams v. Alcroft N.B.
Rep. 332) reversed................. 365
2-Allan v. Pratt App. Cas. 780)
3-A.
E. Ames & Co. v. Conmee (12
Ont. L.R. reversed............601
4-Atlantic 4 North-West Ry.
Turcotte (Q.R. distinguished
...
.....................
Attorney-General v. City of Toronto Can. S.C.R. followed.239
6-Attorney-General of the Straits
Settlements v. Wemyss referred to...................126
7-Aveson v. Kinnaird East
. .....................
8-Bain v. Anderson Can. S.C.R.
to compared...............
9-Banner v. Johnston (L.R. H.L.
10-Bartlett v. Nova Scotia Steel
East
Trustees the Harbour Whitehaven J.P. 392; 2 Hudson on Bldg. Contracts 12-Calori v. Andrews B.C. Rep. Canadian Pacific Ry. Co. v. The King (Re Pheasant Hills Branch) (10 Ex. C.R. affirmed.............137 14-Carleton Woollen Co. v. Town Woodstock N.B. Rep. 545; N.B. Eq. affirmed.................411 15-Carrisbrooke v. London & Provincial Marine & General Ins. ([1901J K.B. followed ....... 16-Chambers v. Whitehaven Harbour Commissioners ([1899]
ferred to. . . ......................
17-lair v. Temiscouata Ry. Co. (1 East L.R. 524) reversed............230 18-Copeland-Chatterson Co. v. Paquette Ex. C.R. affirmed.. 19-Cod
The James Richardson Co. Can. S.C.R. distinguished.. 20- Cumberland Ry. & Coal Co. v. Saint John Pilot Commissioners N. Rep. affirmed.............. 21-DeHertel v. Goddard L.J.P.C. 22-Dobie v. The Temporalities Board (7 Cas. distinguished ..... 23-Farnell v. Bowman App. Cas.
referred to...................126
24-Gloster v. Toronto Electric Light
Ont. L.R. 413) reversed......27
25-Hall v. Snowden, Hubbard &
([1899] referred to....126
26-Hamilton, City of v. Hamilton
Street Ry.
Ont. L.R. 575)
affirmed.........................106
27-Hamilton Brewing Association v.
City of Hamilton Ont. L.R.
.. .....................
28-Hamilton Distillery v. City of Hamilton Ont. L.R. 280; Ont.
L.R. affirmed.................239
29-Hatfeild v. The "Wandrian" (11
Ex. C.R. 1) affirmed...............431
30-King v. Dupuis (28 Can. S.C.R.
. ...........
31-Kinghorn v. Larue Can.
R. distinguished............... 41
32-King, The, et al. v. Bank of Montreal Ont. L.R. affirmed .... 258
33-King, The v. Dodge Ex. C.R.
208) reversed...
..................
34-Lowth v. Ibbotson ([1899)
referred to..................126
35-Michael v. Hart & Co. 1
K.B. followed...... ..........
36-Miller v. D&chne Q.L.R. . ......................
37-Misener v. Wabash Railway Co. Ont. L.R. affirmed..........94 38-Montreal St. Ry. Co. v. City Montreal ([1906] followed.106 39-Mcintosh v. The Queen (23 Can. S.C.R. followed...............284 40- McLean v. The King Ex. C.R. 390) reversed....................542 41-aas v. Manning N.S. Rep. ..................
42-Nant-Y-Glo and Blaina Ironworks Co. v. Grave followed. .. 43-Nova Scotia Steel Co. v. Bartlett Can. S.C.R. referred to... .326 44-"Picton," The Can. S.C.R. 648) . .....................
45-Pigott
& Inglis v. The King (10 Ex. C.R. affirmed.............. 501 46-Privost v. Privost (Q.R. K.B. compare. ......................
47-Prvost v. Privost (Q.R. 48-Price v. Neal Burr. followed. . .. ........................
49-Reg.
v. Beddingfield Cox
....................
See LAw
50-Rex v. Foster & P. follow ... .........................
51-Rex v. Saunders et al. Ont.
L.R. affirmed . . ..............
52-Rice v. The King Can. S.C.R.
480) referred to...................284
53-Robertson v. McGillivray Ont.
L.R. 232). Right to appeal affirmed.490
54-St.
Clair Navigation Co. The
"D. Whitney" Ex. C.R. 1) reversed.... ........
.
.....
55-Turcotte v. Dansereau (26 Can.
S.C.R. 578) followed................41
56- Union Colliery Co. v. The Queen
Can. S.C.R. referred to.....284
57-Vaughan v. Richardson Can.
S.C.R. followed ..............
58-Viau v. The Queen (29 Can.
R. 90) referred to.................284
59-Wallcott v. Robinson
Jur. followed..................41
CHEQUE-Crown-Banks and bankingtion drawee
Implied guarantee- See BANKING
CIVIL CODE-Art. 868, (Legacies- Accretion; Art. (Substitution). 2-Arts.
1018-1019 (Interpretation contracts) ........................
See 4.
PROCEDURE-Arts. 1185-1188 (Tierce oppositions) ...... 236 COMMISSION-Vendor and purchaser- Sale of land-Formation of contracttitle term-Statute of Frauds - Principal and agent
Avoidance perform- Breach of trust-Purchase of debentures out of Common School Fund-Knowledge of misrepresentation of moneys - Payment of interest-Statutory prohibi- Evasion statute against Crown-Action-Adding parties ...............
LAW-Breach of contract- Breach of trust-Assessment of damages -Sale of mining areas
Promotion company-Failure to deliver securities- Principal and agent-Account-Evidence -Salvage-Indemnity for necessary expenses-Laches - Estoppel.] The plainbe sold together with other areas to a company to incorporated for the purpose of operating the consolidated mining properties, the defendants agreeing properties upon the flotation of the scheme then being promoted by him and other associates. In order to hold some bonus in stock and bonds which the defendant gave him out of those he received for conveyance of the properties to the LAW-Continued.
After deducting a ratable contribution towards this bonus, the defendant delivered to the plaintiffs the remainder of their proportion of stock and bonds, but did not then inform them that such deductions had been made, and they, consequently, made no demand upon him for the balance the shares and bonds until some time afterwards when they brought the action to recover the securities or their value.
Held, affirming the judgment appealed from (1 East
L.R. that whether the defendant was to be regarded as trustee or as the agent of the plaintiffs, he was not titled, without their consent, to make the deductions, either way of salvage to idemnify himself for expenses necessarily incurred in the preservation the properties; and that under the circumstances, their failure to demand delivery of the remainder of the securities before action did not deprive the plaintiffs their right to recover.
If the defendant is to considered a trustee wrongfully withholding securities he bound to deliver, he is liable for damages calculated unon the assumption that they would have disnosed of at the best price obtainable.
If. however, is to regarded a contractor has failed to deliver the securities according to the terms his agreement, he is liable for damages based on the selling price of the securities at the time when his obliqation to deliver them arose.
Nant-Y-Glo and laina Ironworks
Grave 738); The Steamship
Carrisbrooke v. The London and Provincial Marine and General Ins. Co.
(
K.B. and Michael v. Hart
V. FULTZ..................198
COMPENSATON-Expropriation of land
Potential value-Evidence..... .............
LAW - Constitutional law-British North America Act,
1867-Provincial legislative jurisdiction
-Alberta Act, & Edio. VII. - Con. Ord. N.W.T.
52-6 Edw.
VII. (Alta.) -Medical profession- Practising woithout license lato-Practice-Special leave to appeal- R.S.C. (1906),
CONSTITUTIONAL LAW-Continued. "Medical Profession Act," Edw. VII. c. (Alta.) is intra vires of the legislative jurisdiction of the Legislature Alberta and a member of the College Physicians and Surgeons of the North- West Territories may validly convicted thereunder for the offence of practising medicine, surgery, etc., for gain and reward, in the Province of Alberta, complying with its requirements as to registration and license, notwithstanding that the College of Physicians and Surgeons the North-West Territories had not been previously dissolved and abolished order of the Governor in Council, in conformity with the provisions of 16(3) of "The Alberta Dobie v. The Temporalities Board App. Cas. distinguished. Appeal-Jurisdiction - Discretion of Governor in Council-Stated case- Railway subsidies statute-3 Edio. VII. a. 57-Conditions of contract-Estimating cost of construction of line of railrway-Rolling stock and equipment...................137 CONTRACT-Breach of contract-Breach of mining areas-Promotion of company -Failure to deliver securities-Principal and agent
Salvage - Indemnity for necessary expenses-Laches-Estoppel.] The plainsold together with other areas to a company to be incorporated for the purpose of operatinz the consolidated mining nroperties, the defendants agreeing properties upon the flotation scheme then being promoted him and other associates.
In order to hold some bonus in stock and bonds which the fendant gave him out of those he received for conveyance of the properties to the company. After deducting a ratable contribution towards this bonus, the defendant delivered to the plaintiffs the remainder of their proportion of stock and bonds, but did not then inform them that such deductions had been made, and they, consequently, made no demand upon him for the balance of the shares and bonds until some time afterwards when they brought the action to recover the securties or their value.
Held, affirmink the judgment appealed from, that whether the defendant was to be regarded as a trustee or as the agent the plaintiffs, he was not entitled, without their consent, to make the deductions, either way of salvage or to idemnify himself for expenses necessarily incurred in the preservation of the properties; and that.
under the circumstances, their failure to demand delivery the remainder the securities before action did not prive the plaintiffs their right to recover.
If the defendant is to sidered a trustee wrongfully withholding securities which he was bound to deliver, he is liable for damiges calculated upon the assumption that they would have been disposed of at the best price obtainable.
If, however, is to be regarded as a contractor who has failed to deliver the securities according to the terms his agreement, he is liable for damages based on the selling price of the securities at the time when his oblination to deliver them arose.
Nant-Y-Glo and
Blaine Ironworks Co. v. Grave
738) ; The Steamship Carrisbrooke Co.
v. The London and Provincial Marine and Ins. ((1901)
and Michael v. Hart & (
. ...
....................
2-Account-Statute of Limitations- Agent partners agreement between them the Hamilton
Brass was appointed agent the Barr Cash for sale and lease its carriers in Canada at price named for manufacture;
net profits equally divided and quarterly returns to be furnished, either party havinz liberty to annul the contract for non-fulfillment of conditions.
The agreement was force for three years when the Barr Cash sued for an account, alleging failure to make proper returns and payments.
Held. reversing the judgment of the
Court Appeal, Girouard and Davies
JJ. (dissenting)
. that the accounts should taken for the six years preceding the action only.
3-Contract hiring-Manager or pert - Dismissal.]
The manager a veneer company having heard plaintiff as a man who could usefully be employed in the business wrote him l6tter in which he stated that "what we want is a man who is a good veneer maker and who knows how to make all kinds built up woods that are salable, such as panels want to charge of the mill, that is, the manufacturing." In reply plaintiff said: "Would say I understand fully the making the articles you speak of as well as numerous others with proper machines and proper men to run them."
And in a subsequent letter he said: "I feel from all the experience I have had I have mastered the entire principle of it (the veneer business), knowing machines required for various work. what veneer has got to be when completed." Having been hired the manager he was discharged six weeks later and brought an action for wrongful dismissal. Held, reversing the judgment of the Supreme Court of New Brunswick N.B. Rep. that he was not hired as a business manager but as an expert in the veneer business and as the evidence established that was not competent he was properly discharaed and could not recover. 4-Vendor and rendee-Sale of securi- C.C.-Railways-Debtor expenses incurred in settlement.] plaintiffs sold the defendants stock and bonds the P. & I. Ry. with an agreement in writing which contained a clause stipulating as condition that the vendees might declare the option naying a further sum of $30.000. in addition to the price of sale, in e-isideration which the vendors agreed to pay all the debts of the P. & I. Ry. except certain specially mentioned claims, some which were in respect settlement the right of way.
The final clause of the agreement was as follows:-"After two years from the date hereof the Montreal
Street Railway Company will assume the obligation of settling any right of way claims which the vendors may not previously have been called upon to settle and will contribute $5,000 towards the settlement any such claims which the vendors may be called upon to settle within the said two years.
Any part the said sum not expended in said two years or required the purchasers so to shall be paid over to the vendors at the end of the said period, it being understood that the purchasers will not stir up or suggest claims being made."
vendees exercised the option and paid the $30,000 to the vendors who reserved their right to any portion of the $5,000 to contributed towards settlement the right way claims which might not expended during the two years.
unsettled claim for right of way, in dispute at the time of the agreement, was subsequently settled vendors within the two years.
The question arose as to whether or not this claim.
then known to exist, and legal expenses connected therewith was a debt which the vendor were obliged to discharge consideration of the extra $30,000 paid to them, and whether or not the
$5,000 was to contributed only in respect of right of way claims arising after the date of the agreement.
Held, affirming the judgment appealed from, that the agreement must be construed as being controlled by the provisions of the last clause thereof; that said last clause was inconsistent previous clauses of the agreement and that the vendees were bound to contribute to the payment such claims and legal ex.
penses in respect of the right of way to the extent of the $5,000 mentioned in the last clause.
5-Public works - Change in plans and specifications---Waiver by s. 33-Emtra works-Engineer's certificate-Instructions in writing-Schedule of prices - Compensation at increased rates
Right action- Quantum meruit.] The suppliants, appellants, were contractors with the Crown for the widening and deepening of a canal and, by their petition of right, contended that there were such changes from the plans and specifications and the planner in which the works were obliged to executed as made the provisions of their contract inapplicable and that they were, consequently, entitled to recover upon a quantum meruit. order to afford relief, an order in council was passed waiving certain conditions, provisoes and stipulations contained the contract.
By the judgment appealed from, the judge of the Exchequer Court held Ex. 248) that there had no such changes as would entitle the contractors to recover on the quantum meruit, as in the case of Bush v. The Trustees of the Town and Harbour of Whitehaven J.P. 392; Hudson on Building Contracts ed.) that the words "shall decide in accordance with the stipulations in such contract" in the thirty-third section of "The Exchequer Court Act" might treated as directory only and effect given to the waiver in respect to the absence of written directions or certificates engineer in regard to works done, but that the remaining clauses of the section were imperative and there could be no valid waiver whereby a larger sum than the amount stipulated in the contract could be recovered, on prices for the classes of work, so as to give the contractors a legal claim for higher rates of compensation without a new agreement under proper authority aiid for good consideration.
On appeal to the Supreme Court of Canada: Held, per Girouard, Davies and Maclennan JJ., that the decision of the judge of the Exchequer correct. Idington and Duff JJ.-That the word "stinulations" in the first part of the section referred to, should construed as having relation entirely to the second part of the section and as applying to the rates compensation on either construction, the result would be the same in so far as the circumstances the case were concerned; that it did not warrant an implication that the executive could without proper authority, exceed its powers in relation to a fully executed contract or confer the power to dispense with the requirements of the statute, and that, consequently, there could not be a recovery upon quantum
6-Vendor and purchaser - Avoidance of contract performance.]
While A was absent abroad, B assumed, without authority, to sell certain of his lands to and received, from a posit on account of the price.
On receipt of a cablegram from notifying him what had been done, but without disclosing the name of the proposed purchaser,
A replied, letter, stating that he was willing to sell at the price named, that he would not complete the deal until returned home, that the sale would be subject to an existing lease of the premises and that he would not furnish evidence of title other than the deeds that were in his possession, and requesting to communicate these terms to the proposed purchaser.
On learning the conditions, in a letter his solicitors, accepted the terms and offered to pay the balance of the price as soon the title was evidenced to their satisance: Held, that the correspondence which had taken place constituted a contract sufficient to satisfy the requirements the Statute of Frauds, that the words,
"so soon as title is evidenced to our satisfaction." in the solicitors' letter accepting the conditions did not import the proposal of a new term and that A was bound to specific performance.- Held, also, that an arrangement, unknown to A and made prior to the receipt of his letter, whereby B was to have a commission on the transaction could not have the effect avoidihg the contract, as B was not, at that time. the agent of A for the sale the property.
B.C. Rep. 236) affirmed.
....................
7-Municipal corpora tion-Agreem with electric street railway company- Percentage of receipts - Traffic beyond 8-Rail way subsidies-Construction statute-3 Edw. VII. c. 57-Conditions of contract costs of constructing line of railway-Rolling stock and equipment...................137 9-Yavigation-Trent canal crossing -- Swing bridge-Cost of construction- 10-Subaqueous mining-Crown grants Subsequent issue of placer mining licenses Pleading and practice Statement of claim-Demurrer-Cause . .......................
11-Mortgage - Money advanced to construct buildings-Lien for materials supplied-Payment to contractor-Transactions in fraud of mortgagee's rights- CONVERSION-Title to land-Plan survey-Evidence-Onus of proof-Findings of jury-Error-New trial.....336 mining - Disputed title- Sinister intention-Blending materials Accounts-Assessment of damages-Mitigating circumstances-Compensation for necessary expenses-Estoppel-Standingby-Acquiescence ... .............
ANERALs Canada Temperance Act "Criminal case"-R.S.C. s. 32-Habeas corpus- Penalty-"Not less than $50"-Conviction for - Imposition of fine for first offence-Powers of Supreme Court judge-Reference of application to full ........................
COSTS-Practice-Revising minutes judgment-Mistake-Costs of abandoned defences-Reference to trial judge.] The plaintiffs' actioi was maintained with costs in the courts below, but appeal was dismissed with costs the Supreme
Court of Canada Can. S.C.R. 456), no reference being made to certain costs incurred the plaintiffs in respect several defences which the defendant had abandoned in the trial court. motion to vary the minutes, the matter was re- Jerred to the judge of the trial court to dispose the question of the costs
....................
2-Mortgage-Money advanced to conplied-Payment to contractor-Transactions in fraud of mortgagor's rights- Redemption.] building and loan pany advanced money to an illiterate woman for the purpose aiding in the a house to erected upon lands mortgaged to it to secure the loan.
The mortgage contained no provision for advances to contractors, etc., as the work progressed, beyond the following: "And it is hereby agreed between the parties hereto, that the mortgagees, their successors and assigns, may pay any taxes, rates, levies, assessments, charges, moneys for insurance, liens, costs of suit, or matters relating to liens or incumbrances on the said lands, and solicitors' charges in connection with this mortgage, and valuator's fees, together with all costs and charges which may incurred taking proceedings any nature in case of default the mortgagor, her heirs, executors, administrators or assigns, and shall be payable with interest, at the rate aforesaid. until paid and, in default, the power of sale hereby given shall forthwith exerciseable.
And it is further agreed that monthly instalments in arrears shall bear interest at the rate aforesaid until paid."
In a suit for redemption:
first, that the clause in the mortgage not justify the mortgagees in making advances to contractors and persons supplying material, without the express order of the mortgagor.
Secondly. that the mortgagees ought not to have recognized an order in favour of the contractor for the total amount of the loan when they knew that the contractor had
COSTS-Continued.
not completed his contract and was, therefore, not entitled to the money when the order contained no name of a witness, and shewed that the mortgagor was unable to sign her name.
The payment having been made the loan pany to a lumber company supplying material to the contractors for the building, without the express authority of the mortgagor, and the lumber company having taken an assignment of the Inortgage, and attempted to enforce it against the mortgagor the transaction was declared fraudulent as against the mortgagor, and the payment to the lumber company disallowed.-Held, also, that the only costs the assignees of the mortgage were entitled to add to the mortgage debt were the costs an ordinary redemption suit consented to a mortgagee.
Judgment appealed from varied, and appeal dismissed with costs. 3-Appeal-Equal division of opinion -Dismissal without costs.]
Upon an equal division opinion among the judges, the appeal stood dismissed without costs.
. . ..........
............. Admiralty toms-Collision in foreign waters-Jurisdiction of Canadian courts.......... 2-Appeal-Railway Act-Expropriation-Appeal from award-Jurisdiction -Choice of forum-Curia designata.511 CRIMINAL LAW-Crown case reserved of appeal
"Criminal Code" s. 1024- Jurisdiction.] The power Code" (R.S.C. to a judge of the Supreme Court of Canada to extend the time for service on the Attorney- General of notice of an appeal in a reserved Crown case may exercised after the expiration of the time limited the code for the service of such notice. Banner v. Johnston (L.R. H.L. CRIMINAL LAW-Continued.
and Vaughan Richardson
KG....
.......................
2-Practice-Crown case reserved - Reserred questions-Dissent from affirmance of conviction-Appeal-Jurisdiction
-Criminal Code, ss.
750-R.S.C. (1906), 146, ss.
gestw.] Evidence statements made a person, since deceased, immediately after an assault upon him, under apprehension of further danger and requesting assistance and protection, is admissible as part of the res gests, even though the person accused of the offence was absent at the time when such statements were
Reg. v. Beddingfield
341); Rex Foster & P. and
Aveson Kinnaird East followed.-Statements not coincident, point time, with the occurrence of the assault, but uttered in the presence and hearing of the accused and under such circumstances that he might reasonably have been expected to make some explanatory reply to remarks in reference to them, are admissible as evidence.- On the trial of an indictment for murder the evidence was that the deceased had been killed by a gun-shot wound inflicted through the discharge of a gun in the hands of the accused and the defence was that the gun had been discharged accidentally.
Held, that, in view the character of the defence and the evidence in support it, there could no objection to a charge the trial judge to the jury, that the offence could not be reduced them from murder to manslauglter but that their verdict should be either for acquittal or one of guilty murder.-Two questions were reserved by the trial judge for the opinion the
Court Appeal but refused to reserve a third question, as to the correctness of his charge on the ground that objection to the charge had been taken at the trial.
The Court of Appeal took all three questions into consideration and dismissed the appeal, there being dissent from the affirmance of the viction on the first and third questions, but one of the judges being of opinion that the appeal should allowed and a new trial ordered upon the second question reserved.
On an appeal to the Su- CRIMINAL LAW-Continued.
preme Court of Canada, the majority the court, being of opinion that the appeal should be dismissed, declined to express any opinion as to whether or an appeal would lie upon questions as to which there had been no dissent in the court appealed from, but it was held, per Girouard J.-That the Supreme Court Canada was precluded from expressing an opinion on points of law as to which there had been no dissent in the court appealed from.
McIntosh The Queen
perambulating booth used on the race-course an incorporated racing association for the purpose of making bets is an or "place" used for betting between persons resorting thereto as defined in of the Criminal Code, (Crim. Code, 227).
Sub-section 204 of the former (now which exempts from the provisions the main section (dealing with the recording or registering of bets, etc.), bets made on the race-course an incorporated association does not apply to the offence of keeping a common bettinghouse.
Girouard and Davies J. (dissenting)
. Judgment the Court of Appeal affirmed, Girouard and Davies JJ. dissenting.
TIE KING........................382 Stated case-Dissent in Court Appeal-Practice-Special leave for appeal-R.S.C.
In an appeal from the judgment of the Territories, in banc, whereby the conviction of the respondent was quashed, two the judges dissenting, special leave the appeal was granted on motion before the full court, under the provisions 39(c) on the 19th of February,
CRIMINAL LAW-Continued.
5-Canada Temperance Act-Conviction-"Criminal Case"-R.S.C. (196)
32-Habeas corpus-Penalty- "Not less than $50"- Conviction for
$200-Imposition of fine for first offence
-Powers of Supreme Court judge-Reference of application to full court. .394
CROWN-Breach of trust-Purchase debentures out of Common School Fund
- Knowledge of misapplication moneys-Payment of interest-Statutory prohibition-Evasion of statute- Estoppel against the Crown-Action- Adding parties-Practice.] In an action the Crown against the Quebec
North Shore Turnpike Road Trustees to recover interest upon debentures purchased from them by .the Government the late Province of Canada (with trust funds held them belonging to the
Common School Fund), the defendants pleaded that the Crown was estopped from recovery inasmuch as, at the time of their purchase, the advisers of the
Crown were aware that these debentures were being issued in breach of a trust and with the intention of misapplying the proceeds towards payment interest upon other debentures due them in violation of a statutory prohibition.
appealed from Ex. C.R. 390) that, as there was statutory authority the issue of the debentures in question, knowledge of any such bre-ich of trust or misapplication by the advisers of the
Crown could not set up as a defence to the action.
cheques-Payment - Representation drawee-Implied guarantee-Estoppel- Acknowledgment of bank statements- Liability of indorsers-Mistake-Action
-Money had and received.] clerk a department of the Government of Canada. whose duty was to examine and check its amount with the Bank
Montreal, forged departmental cheques and deposited them to his credit other banks.
The forgeries were not discovered until some months these cheques had been paid by the
CROWN-Continued.
drawee to the several other banks, presentation, and charged against the Receiver-General on the account of the department with the bank.
None the cheques were marked with the drawee's meantime, the accountant of the department, being deceived false returns checking the clerk, acknowledged the correctness the statements the account as furnished the bank where it was kept. In an action the Crown to recover the amount so paid upon the forged cheques and charged against the Receiver-General:
judgment appealed from Ont. L.R. that the bank was liable unless the Crown was estopped from setting up the forgery.
Per Davies, Idington and Duff JJ.. that estoppel could not be invoked maainst the Crown.
estoppel, under the circumstances of this case a private person would not have estopped had his name been forged as drawer of the cbeques.
Per Davies by the accountant the department the correctness the statements furnished by the bank, being made under a mitake as to the facts, the accounts could be re-opened to have the mistake . . . ...
.................
3- Negligence-Na'vigation of inland and vessls-"Puiblic iwork"-The Echequer Court Act, s. 16-Construction statute-Right of action .......... 4-Subaqueous mining-Crown grants Subsequent issue placer mining licen es-Damages-Pleading and practice -Rtatament of claim-Demurrer-Cause of action........................542
CROWN RESERVEDla0-Practice
Reserved questions Dissent from affirmance of conviction- Jurisdiction- Criminal RESERVED-Con.
146, as. 1024-Admission of evidence-Res geste....
See LAw 2.
GRANT-Subaqueous mining- Crown grants-Dredging lease-Breach of contract-Subsequent issue of placer mining licenses-Damages-Pleading and practice-Statement of claim-Demurrer
-Cause statement of claim which alleges that the Crown, after mining and while that lease was in force, in derogation of the rights of the lessee to peaceable enjoyment thereof, interfered with the rights vested in him closes a sufficient cause action in supcovery of damages claimed in consement appealed from Ex. C.R. 390)
senting.-Davies
J.
dissented gation in the petition either of interference with the submerged beds or bars of the stream, which alone were included in the dredging lease, or of such active interference the Crown as would justify an action.
Epropriation of land - Potential value.]
purchased at different times and in sixteen different parcels acres of land, paying for the whole nearly or about per acre.
Crown on expropriating the land offered him per acre, which he refused, claiming $22,000, which on a reference to ascertain the value was increased to
$45,000.
The referee allowed $38,000, which the Exchequer Court reduced to the sum first claimed.
the judgment of the Exchequer Court
Ex. C.R. 208), Gironard J. dissenting, that there was no user of the land nor any special circumstances to make it worth more than the market value, which was established by the price which it was sold shortly before expropriation.-D. claimed the larger price as potential value the land for orchard
DAMAGES-Continued.
purposes to which he had intended to devote it.-Held, that as he had not proved the land to fit for such purpose and the evidence tended to disprove it he could not receive compensation on that g:ound.
2-Action for negligence-Practice- Assessment of damages
Funeral penses.]
In an action the father person whose death was occasioned the negligence of the defendants, it was held that the- plaintiff could not recover funeral and other expenses incurred, as damages in the action.
-Placer
Acquiescense.] After a favourable judgment the Gold Commissioner in respect to the boundary between contiguous placer mining locations and while an appeal therefrom was pending, the defendants, with the knowledge of the plaintiffs, entered upon the location and removed a quantity of auriferous material from the disputed and undisputed portions thereof, intermixed the products without keeping any account of the quantities taken from these portions respectively and appropriated the gold recovered from the whole mass.
In an action for damages, taken subsequently, the plaintiffs recovered for the total value of the gold estimated to have been taken from the disputed portion of the claim, without deduction of the necessary expensgs workings and winning the gold. affirming the judgment appealed from, Davies J. dissenting, that a correct appreciation of the evidence disclosed a sinister intention on the part of the fendants, that they had deliberately blended the materials taken from both parts of the location, converted the whole mass to their own use and thereby stroyed the means of ascertaining the respective quantities so taken and the DAMAGES-Continued.
proportionate expense of recovering the precious metal therefrom, and that, sequently, they were liable in damages for the total value of much of the intermixed products as were not strictly proved to have come from the undisputed portion the location.
Qucre.
Does the Eng~sh rule governing the assessment of damages in respect of trespasses in coal mines supply a method of assessment applicable in its entirety to placer mining locations?
Negligence-Navigation of inland and vessels-"Public work"-The Exof statute-Right of action. ......
Breach of contract-Breach trust-Assessment of dainages-Sale
- Indemnity for necessary expenses - ..........
6-Negligence-Trespass - Horse racing-Intruder upon race track-Carelessness. . . . ..........
..............
7- Public work-Contract-Change in plans and specifications-Waiver order in council-Powers of executiveimperatire clauses-Words and phrases s. 33-Extra works-Engineer's certificate-Instructions in writing-Schedule rates--Damages-Right of action-Quantum mervit. . . ..................
8-Subaqueous mining-Crown grants censes-Pleading and practice-Statement claim-Demurrer-Cause of ac- ... .......................
DEBENTUREStrust-Purchase of debentures out Common School Fund-Knowledge misappropriation of moneys-Payment of interest-Statutory prohibition-Evasion of statute-Estoppel against Crown -Action-Adding parties-Practice. .6 DEBTOR CREDITOR-Banks and bankinq-Security for advance-Assignment of goods-Claim on proceeds of sale V. s. 74(D.)]
bank to which goods have been transferred as security for advances under section 74 of the "Bank Act,"
can follow the proceeds of sale of said goods in the h-inds of a creditor of the assignor to whom the latter has paid them when the purchaser knew, or must presumed to have known, that the same the b-ink.
2-Vendor and vende-c-Sale of securities-Interpretation of contract-Arts. 0.C.-Railways-Debtor and expenses incurred in settlement.] nlaintiffs sold the defendants stock and bonds of the P. & I. Ry. with an agreement in writing which contained a clause stipulating as condition that the vendees might declare the option paying further sum of $30,000, in addition to the price of sale, in consideration of which the vendors agreed to pay all the debts of the P. & I. Ry. cept certain specially mentioned claims, some of which were in respect of settlement for the right of way.
The final cl-use of the agreement was as follows: two years from the date hereof the Montreal Street Railway Company will assume the obligation of settling any right of way claims which the vendors may not previously have been called upon to settle and will contribute towards the settlement of any such claims which the vendors may called uoon to settle within the said two years. Any nart of the said sum not pended in said two years or required the purchasers so to shall paid to the vendors at the end of the said period, it being understood that the purchasers will not stir up or suggest 6.54
CREDITOR-Con.
claims being made."
The vendees exercised the option and paid the $30,000 to the vendors who reserved their right to any portion of the $5,000 to contributed towards settlement of the right of way claims which might not be pended during the two years. An unsettled claim for right way, in dispute at the time the agreement, was, subsequently, settled the vendors within the two years.
The question arose as to whether or not this claim, then known to exist, and legal expenses connected therewith was a debt which the vendors were obliged to discharge in cons'deration the extra $30,000 paid to them, and whether or not the $5,000 was to be contributed only in respect of right way claims arising after the date tie agre-ment.
ment appealed from, that the agreement must construed as being controlled by the provisions of the last clause thereof; that said last clause was not inconsistent with the previous clauses the agreement and that the vendees were bound to contribute to the payment such claims and legal expenses in respect of the right of way to the extent of the mentioned in the last clause.
ATONTREAL. STREET
....
3-Insolvency-Fraudulent preference
-Security to creditor-Knowledge of insolvency-R.S.O. s. ss.
had assisted with loans and also guaranteed his credit at the
Dominion Bank to the extent
His own cheque at the bank having been of of 81,900 was settled the latter promised to arrange it within month which he did transferring to goods pledged to the Imperial Bank paying what was due to both banks.
Shortly after sold out his stock in trade and absconded owing large sums to foreign creditors and being insolvent.
trial of a creditor's action to set aside the transfer to as a fraudulent preference th manager the Dominion testified th-it G.'s cheque was not refused from any doubt of S.'s solvency but because had heard that was dealing with another bank and wished to close the account.
Held, Idington and
Duff JJ. (dissenting)
, that under the
CREDITOR-Con. dence produced had no reason to suppose, when the goods were transferred, that was insolvent and had satisthe onus placed upon him by the provincial statute of shewing that he had not intended to hinder, delay or defraud the creditors of
.......... Electric lighting-Wires on public highway- Proximity to bridge-Injury tochild. DEED-Construction of deed-Description of lands-License to cut timber- Ambiguitas latens - Evidence-Boundary.] A license to cut timber on a lot of land dese the portion affected as bounded on the south by a river. river almost crossed the lot at a point near its northern boundary and, at another point, about nineteen arpents further south, it again crossed the lot, completely.
In an action to eject the licensee from the portion of the lot between the fi"st and second bends of the river and to recover damages: that, under the circumstances, there was no ambiguity in the designation the quantity the land affected the license and, in any event, the language of the instrument must literally strued in favour of the grantee and the party bound thereby could not permitted to shew different intention evidence of su-'rounding circumstances. Dominion mining regulations-Hydroulic mininr-Place mining-Lease- TVat-r-qrant-Conditions of gront7-User of flowing icaters-Diversion of watercourse-Dams and flumes-Construction of deed-Riparian rights-Priority right-Injunction. . . . . ........... 3-1ortag-Money advanced to conplied-Payment to contractor-Transactions in fraud of mortgagee's rights- Broker
Stock chase on margin-Pledge of stock broker-Possession for delivery to purchaser . . ......................
DEMURRER - Subaqueous mining - Crown grants-Dredging lease-Breach of contract-Subsequent issue of placer mining licenses-Damages---Pleading and practice-Statement of claim-Demurrer
-Cause
A statement claim which alleges that the Crown, after mining and while that lease was in force, in derogation of the rights of the lessee to peaceable enjoyment thereof, interfered with the rights vested in him closes a sufficient cause of action in supcovery of damages claimed in consement appealed from Ex. C.R. 390)
senting.
Davies
J.
dissented gation in the petition either of interference with the submerged beds or bars the stream, which alone were included in the dredging lease, or of such active interference the Crown as would justifv an action.
DEVOLUTION-Constrnction of will- V. -Construction of statute-Restraint of alienation-Interest substitutes-Devise of property held corpus of estate es nature-Accretion- Res judicata-Arts. 948
Subaqueous mining
Crown grants-Dredging lease-Breach of contract-Sibsequent issue of placer mining licenses-Damages-Pleading and practice-Statement of claim-Cause
DURESS-Revocation will-Testamentary capacity-Findings of fact- Practice-Improper suggestion - Undue influence-Captation-Bounty taken promoter-Fraudulent representations- Evidence-Onus of proof. ........ EMINENT tract of hiring-Manager or expert- Dismissal.] The manager of a veneer company having heard of plaintiff as a man who could usefully employed the-business wrote him a letter in which stated that "what we want is a man who is a good veneer maker and who knows how to make all kinds of built up woods that are salable, such as panels. want to take full charge of the mill, that is, the manufacturing."
reply plaintiff said: "Would say I understand fully the making of the articles you speak of as well as numerous others with proper machines and proper men to run them." And in a subsequent letter he said: "1 from all the experience I have had I have mastered the entire principle it (the veneer business), knowing machines required for various work, what veneer has got to when completed." Having been hired by the manager he was discharged six weeks later and brought an action for wrongful dismissal. Held, reversing the judgment the Supreme Court of New Brunswick N.B. Rep. that he was not hired as a business manager but as an expert in the veneer business and as the evidence established that he was not competent he was properly discharged and could not recover.
Electric light company-Wires on public highway -Proximity to bridge-Injury to child -Dedication.]
Several years ago the built a bridge over a ravine for access to and from the City of Toronto and about the Toronto Electric Light placed wires across the ravine about ten feet from the bridge.
In 1904 the ELECTRICITY-Continued.
bridge reconstructed wider, being brought to within from 14 to 20 inches the wires, which had come worn and ceased to insulated.
a boy under nine years of age, while playing on the bridge, put his arm through the railing and his hand touching the wire he was badly injured. Held, reversing the judgment the Court
Ont. L.R. 413), that the plans and deeds in evidence shewed a dedication as a public highway of the bridge and land on each side of it and such highway included the land over which the wires passed.-Held, also, that the wires in the condition in which they were at the time of the accident were dangerous to those using the highway and the company were liable for the injury to
. . . . .............
ERROR.
ESTOPPEL-Crown-Breach, of trust- Purchase of debentures out of Common
School Fund-Knowledge of misapplication of moneys-Payment of interesttute-Estoppel against the Crown-Action-Adding parties-Practice.] In an action by the Crown against the Quebec
North Shore Turnpike Road Trustees to recover interest upon debentures purchased from them the Government the late*Province of Canada (with trust funds held them belonging to the
Common School Fund), the defendants pleaded that the Crown was estopped from recovery inasmuch as, at the time of their purchase, the advisers of the
Crown were aware that these debentures were being issued in breach of a trust and with the intention of misapplying the proceeds towards payment of interest upon other debentures due by them in violation of a statutory prohibition.
Held, affirming the judgment appealed from Ex. C.R. 390) that, as there was statutory authority for the issue of the debentures in question, knowledge of any such breach of trust or misapplication by the advisers of the Crown could not set up as defence to the action.
v. . . . .. . .. .
ESTOPPEL-Continued.
Representation drawee-Implied guarantee Action-Money had and received.] A clerk in a department of the Government of Canada, whose duty was to examine and check its account with the Bank of Montreal, forged departmental cheques and deposited them to his credit in other banks.
The forgeries were not discovered until some months after these cheques had been paid the drawee to the several other banks, on presentation, and charged against the Receiver-General on the account of the department with the bank.
None cheques were marked drawee's acceptance before payment. the meantime, the accountant of the department, being deceived by false returns of checking by the account by the clerk, acknowledged correctness statements of the account as furnished the bank where it was kept. In an action by the Crown to recover the amount so paid upon the forged cheques and charged against the Receiver-General:
Held, affirming the judgment appealed from
Ont. L.R. that the bank was liable unless the Crown was estopped from setting up the forgery. Per Davies, Idington and Duff JJ., invoked against the Crown.
estoppel, under the tircunAtances this case private person would not have b-en estopped had his name been forged drawer of the cheques.
Per Davies the accountant of the department the correctness of the statements furnished the bank, being made under a mistake as to the facts, the accounts could re-opened to have the mistake rectified-The claims against the other banks, as third parties, as indorsers or as having received money paid mistake, for the reimbursement of the several amounts so paid to them, respectively.
On these third party issues, it was held, per Girouard and Maclennan JJ.-The drawee, having paid the cheques which the name of its customer was forged, could not ESTOPPEL-Continued.
recover the amounts thereof from holders in due course.
Price v. Neal (4
Burr.
Per Davies and
Idington JJ.-As the third party banks relied upon the representation that the cheques were genuine, which was to implied from their payment on presentation, and subsequently paid out the funds to their depositor or on his order, the drawe3 was estopped and could not recover the amounts so paid from them either as indorsers or as for money paid to them under mistake.
In the result, the judgment anpealed from
Ont.
TiE . . . . . ........
3-Breach of contract - -Failure to deliver securities-Principal and agent-Account-Evidence-Salvape-Indemnity for necessary expenses
. . . . . ..
4-Infringement of patent-Purchase of patented device . . . . . ..........
5-Placer
Standing-by-Acquiescence. . . . . ..
EVIDENCE-Construction
Derc-iption of lands-License to cut timber - Ambiguitas latrns-Evidence - Boundary.1 license to cut timber a lot of land described the portion affected as bounded on the south a rive-.
The river almost crossed the lot at a point near its northern boundary and, at another point, about nineteen arpents further south, it again crossed the lot, completely.
In an action to eject the licensee from the portion the lot between the first and second bends of the river and to recover damages:
Held, that, under the circum- EVIDENCE-Continued.
stances there was no ambiguity in the designation the quantity of the land affected the license and, in any event, the language of the instrument must literally construed in favour grantee and the party bound thereby could not permitted to shew a different intention evidence surrounding circumstances.
2-Practic
-Examination of witnesses -Expert testimony-2 Edw. VII. s.
Edw.
. . . .. . 3-A dmiralty law-Collision- Violation of rules not affecting accident- Steering wrong course.] A steamer ing up Halifax harbour ran into a schooner striking her stern on the port sid-. No sound signals were given. The green light of the schooner was seen the steamer's port bow and the latter starboarded her helm to pass astern and then ported.
She then was close that the engines were stopped but too late steamer alone was to blamq for the lision.-Held, also, that though under the rules the schooner should have kept her course and also was to blame not having a proper lookout neither fault contributed to the collision. care reserved-Reserved questions-Dissent from affirmance of conviction-Appeal-Jurisdiction-Criminal Code, ss. 744. 750-R.S.C. 146, ss. 1024-Admission of evidence-Res gesta.] dence of statements made by a person, since deceased. immediately after an assault upon him under apprehension further danger and requesting assistance and protection, is admissible as part the res though the person accused of the was absent at the EVIDENCE-Continued.
time when such statements were madc.
Reg.
v. Beddingfleld
Cox
Rex Foster & P. and Aveson V. Kinnaird East. followed.- Statemnts not coincident, in point time, with the occurrence of the assault, but uttered in the presence and hearing of the accused and under such circumstances that he might reasonably have been expected to make some explanatory reply to remarks in reference to them, are admissible as evidence.-On the trial of an indictment for murder the evidence was that the deceased had been killed a gun-shot wound inflicted through the discharge of a gun in the hands of the accused and the fence was that the gun had been discharged accidentally.
view the character the defence and the evidence in suppo-t of it, there could no objection to charge by the trial judge to the jury that the offence could not reduced them from murder to manslaughter but that their verdict should either for acquittal guilty murder.
5-Title jury-Error-eto trial.1 Where it peared that in directing the jury, at the trial, the judge attached undue importance to the effect a plan of survey referred to in a junior grant against a much older plan upon which the original grants of the lands in dispute depended and that the findings were not based upon evidence sufficient in law to shift the onus proof from the plaintiff and were. l4kewise, insufficient the taking accounts in respect to trespass and conversion of minerals plained of:
Held, affirming the order for pew trial mado by the judgment appealed from East. L.R. .that the abence of evidence error therein, the older grants and plan must govern rights parties.
6-Rcvcction of vill- Testamentary capacity-Findings of fact-Practice- Tmprover suggestion-Undue influence- EVIDENCE-Continued.
Onus of proof.]
While the testator was suffering from a wasting disease which he di-d shortly afterwards, the defendant, his brother, took advantage of his weakness of mind and secretly obtained the execut'on a will, in which he was made the princinal beneficiary, by fraudulently sugg-sting and causing the testator to believe that his malady was caused and aggravated the carelessness and want of skill of his wife in the preparation of his food.
The testator and his wife had lived together harmony for a number of years and, shortly after the'r marriage, had made wills which each of them, respectively, had constituted the other universal residuary legat-e the testator's former will, made, was revoked the will propounded by the defendant. Held, that, as the promoter of the will, which he took a bounty, had failed to discharge the onus of proof cast upon him to shew that the testato- had acted freely and without undue influence set aside.
7--ury trial--Judge's charge-Practical withdraiwal of case-Evidence - 8-A npeal-Order extending time - Jurisdiction-R.S.C. s. Trespass
....... POWERS-Appeal-Jurisdiction - Discretion of Governor in Council-Stated cas"-Railway subsidies -onnstruction of statute-3 Edw. VII. c. 57-Conditions of contract-Estimatinq cost of construction of line of railway-Rolling stock and equipment. land-Payment - Market value -Potential value-Evidence.]
purchased EXPROPRIATION-Continued.
at different times and in sixteen different parcels acres of land, paying the whole nearly $7,000, or about $11 per acre.
The Crown on expropriating the land offered him $20 per acre, which he refused, claiming $22,000, which a reference to ascertain the value was increased to $45,000.
The referee allowed
Exchequer
Court reduced to the sum first claimed.
Held, reversing the judgment of the Exchequer Court Ex. C.R. 208), Girouard J. dissenting, that there was no user of the land nor any special circumstances to make it worth more than the market value, which was established the price for which it was sold shortly expropriation.-D. claimed the larger price as potential value of the land for orchard purposes to which he had intended to devote it.-Held, that as he had not proved the land to fit for such purpose and the evidence tended to disprove it he could not receive comnensation on that ground.
Edw. VII. c.'9, 1, only five expert witnesses can called either side on the trial of a case without leave. Quare.
If more are so called without obiection the opposite party is the testimony the extra valid?
2-Railway Act-Appeal from award of forum-Curia designata.1
By of Edw.
1903, c. if an award arbitrators on expropriation of land a railway company exceeds
$600 any dissatisfied party may appeal therefrom to a Superior Court which in Ontario means the High Court or the Court
Appeal (Interpretation Act R.S. t1906]
1. c. s.-s. 26).
Held, that if an apneal from an award is taken to the High
Court there can be no further anneal to the Supreme Court of Canada which can- 3-Appeal-Order extending time - Jurisdiction-R.R.C.
42-Practice
Trespass
.........
. . . . .
..............
FINDINGS FACT-Negligence-Railway crossing-Findings of jury-"Look and listen" . ....................
FORGERY-Crown-Banks and banking -Forged cheque-Payment-Representadrawee-Implied guaranteeof bank Mistake-Action-Money had and received. .........................
FRAUD-Revocation of will-Testamentary capacity-Findings of fact-Practice -Improper suggestion-Undue influence -Onus of proof.]
While the testator was suffering from a wasting disease which he died shortly afterwards, the defendant, his brother, took advantage of his weakness of mind and secretly obtained the execution of a will, in which he was made the principal beneficiary, fraudulently suggesting and causing the testator to believe that his malady was caused and aggravated the carelessness and want of skill of his wife in the preparation of his food. The testator and his wife had lived together in harmony for a number of years and, shortly after their marriage, had made wills by which each of them, respectively, had constituted the other universal residuary legatee the testator's former will, made. was revoked the will propounded by the defendant. Held, that, as the promoter of the will, by which he took a bounty. had failed to discharge the onus of proof cast upon him to shew that the testator had acted freely and without undue influence in Forged cheque-Payment tion drawee-Implied guarantee - .........
. . . . . ...............
FRAUD-Continued.
3-Placer
- Conversion - Blending materials -Accounts-Assessment of damages-Mitigating circumstances-Compensation for necessary expenses-Estoppel quiescence..... ..................
4-Mortgage-Money advanced to construct buildings-Lien for materials supplied - Payment to contractor - Transactions in fraud of mortgagee's rights-Redemption-Costs. .......
Vendor and purchaser-Sale
Secret commission-Avoidance of contract-Specific performance. . . . ...
FRAUDULENT PREFERENCES solvency - Security to creditor-Knowledge of insolvency - R.S.O.
r1897]
had assisted with loans and also guarante-d his credit at the Dominion to the extent of
$3.000.
His own cheque at the bank having been of of was settled the latter promised to arrange it within a month which he did by transferring to goods pledged to the Imperial Bank paying what was due to both banks. Shortly after sold out his stock in trade and absconded owing large sums to foreign creditors and being insolvent.
the trial of a creditor's action to aside the transfer to as a fraudulent preference the manager of the Dominion
Bank testified that G.'s cheque was not refused from any doubt of S.'s solvency but because he had heard that was dealing with another bank and hp wished to close the account.
Held, Idington and Duff JJ. (dissenting)
, that under the evidence produced had no reason to suppose, when the goods were transferred, that was insolvent and he had satisfied the onus placed upon him
FRAUDULENT PREFERENCES-Con. the provincial statute of shewing that had not intended to hinder, delay defraud the creditors of
SPADA......
..................
GAMBLING-Criminal law-Disorderly house-Common betting house-Place for betting-Betting booth-Race-course incorporated association - Crim. Code, ss. 204-Crim. Code, as. 235-Construction of statute-Interpretation of terms. . . .
......... GOVERNOR IN - Jurisdiction-Discretion of Governor in Council-Stated case-Railway subsidies -Construction of statute-3 Edw. VII. 57-Conditions of contract-Estimating costs of constructing line of railway -Rolling stock and equipment. ..... 2-Public work-Contract-Change in plans and specifications-Waiver order in council-Powers of executives. 33-Extra works-Engineer's certificate-Instructions in aoriting-Schedule rate-Damages-Right of action-Quantum meruit. . ..................
Banks and banking-Forged cheques-Payment - Representation by drawee - Implied guarantee ment of bank statements-Liability indorsers-Mistake-Action-Money had and received. . . ....
............. HABEAS CORPUS-Canada Temperance R.S.C. c. s. 32-Habeas corpus- Penalty-"Not less than $50"-Conviction for commitment on conviction for an offence against Part II. of the Canada Temperance Act is a commitment in a criminal case under q. of R.S.C. (R.S. 1906, which gives a judge of the Supreme Court of Canada power to issue CORPUS-Continued.
a writ habeas corpus. application to a judge for a writ of habeas corpus he may refer the same to the court which has jurisdiction to hear and dispose it. Idington and Maclennan JJ. dissent- .............
s:e
HIGHWAY-Negligence-Electric lighting-Wires on public highway-Proximity to bridge-Injury to child-Dedica- Railway crossing - Findings of jury-"Look and listen."
3-Municipal corporation-Agreement with elcctric street railtway company- Percentage of receipts-Traffic beyond
HORSE
Se.
HYPOTHECATION-Broker - Stcck - Purchase on margin-Pledge of stock broker-Possession for delivery to purchaser. . . . ..................
INJUNCTION-Dominion mining regulations-Hydraulic enining-Place mining
-Lease-Water-grant grant-User of flowing scaters-Diversion of ioatercourse-Dams and flumes
-Construction of deed-Riparian rights
-Priority of right . ... .............
Appeal-Action for declaration and injunction-60 - V. 34, 1
Discrimination............
INSOLVENCY-Fraudulent Scurity creditor-Knowledge of insolvency-R.S.O. [1897] s. ss. had assisted with loans and also guaranteed his credit at the Dominion Bank to the extent of His own cheque at the bank having of of was settled the latter prom sed to arrange it within a month which he did transferring to goods pledged to the Imperial Bank paying what was due to both banks. Shortly after sold out his stock in trade and absconded owing large sums to foreign creditors being insolvent. trial of a creditor's action to set aside the transfer to as a fraudulent preference the manager the Dominion Bank testified that G.'s cheque was not refused from any doubt S.'s solvency but because had heard that was dealing with another bank and he wished to close the account.
Held, Idington and Duff JJ. (dissenting)
, that under the evidence produced had no reason to suppose, when the goods were transferred, that was insolvent and he had satisfied the onus placed upon him the provincial statute shewing that had not intended to hinder, delay defraud the creditors of
. .......................
INTERPRETATION.
INTERVENTION- Jurisdic- Intervention
Matter troversy - Judicial proceeding-R.S.C. s.
An intervention filed under the provisions of the Code of Civil Procedure of the Province Quebec a "judicial proceeding" within the meaning of section of the Supreme and Exchequer Courts Act, and a final judgment thereon is appealable to the Supreme Court of Canada where the matter in controversy upon the intervent'on amounts to the sum or value of without reference to the amount manded the action in which such intervention has been filed.
-Walcott Robinson L.C. Jur. ; Miller Dichene (8 ; Turcotte v. Dansereau S.C.R. 578); and King Dupuis Can. S.C.R. followed. INTERVENTION-Continued.
The Atlantic and North-West Railway
Co. Tucotte
(Q.R.
Allan Pratt App. Cas. 780), and
Kinghorn Larue (22 Can. S.C.R.
Girouard
J. dissented.
JUDGE-Charge to jury-Criminal law
Crown case reserved-Reserved questions-Dissent from affirmance of conviction-Appeal-Jurisdiction
-Criminal Code, ss.
750-R.S.C.
qestw. . . ...............
.......
to land-Plan of survey-Evidence-Onus of proof-Findings of jury
-En or-New trial . . ............
JUDGMENT-Practice - Revising mintes of judgment-Mistake-Costs abandoned defences-Refei ence to trial judge. . . . . .........
............
2-Vacating judgment-Appeal -Jurisdiction - Matter in controversy - Tierce opposition-Arts. 1185-1188 C.P.
Q.-R.S.C.
JURY-Title to land-Plan of surveyjury-Error-New trial.] Where it appeared that in directing the jury, at the trial, the judge attached undue importance to the effect of a plan of survey referred to in a junior grant as against a much older plan upon whch the original grants of the lands in dispute depended and that the findings were not based upon evidence sufficient in law to shift the onus of proof from the plaintiff and were, likewise, insufficient for the taking of accounts in respect to trespass and version of minerals complained of: Held, affirming the order for a new trial made the judgment appeal from (1 East.
L.R. 293), that in the absence of evidence of error therein, the older grants and plan must govern the rights of the parties.
. . .....................
JURY-Continued.
Neglig, nce-Railway crossing - Findings of jury-"Look and listen." 3-Jury trial-Judge's charge-Practical withdrawal of case-Evidence - Practice-Charge to jury case reserved - Reserved
Dissent from a/firmance of
Juiisdiction - -Admission of evidence-Res gestce. - Admiralty law - Foreign bottoms-Collision in foreign caters
Jurisdiction of
Canadian courts.]
vessel passing through waters dividing Canada from the United States under a treaty allowing free passage to ships of both nations is not, even when on the Canadian side, within Canadian control so as to subject to arrest on warrant from the Admiralty Court.-A warrant to arrest a foreign ship cannot issued until she is within the jurisdiction of the Quere.
Canadian Courts of Admiralty the same jurisdiction as those in England to try an action in rem one fore'gn ship against another for damages caused a collision in foreign waters?
the Exchequer Court, Toronto Admiralty District
Ex. C.R. 1) reversed. Idington J. dissenting.
SHIP *"D. YITITNEY" ... 2-Constitutional law-British North America Act. 1867-Provincial legislative jurisdiction-"Alberta Act," & 5 TI'I. 3(D.)-Con. Ord. N.W.T. c. 52-6 Edw.
28 (Alta.) -Medical profession-Practising without license-Criminal lair-Practice - Special leave to appeal-R.S.C. LACHES-Breach contract-Breach of mining rights-Promotion of company
-Failure to deliver securities-Principal and agent-Account-Evidence - Salvage-Indemnity for necessary penses-Laches-Estoppel. .......
LEASE-Dominion mining regulations- Place mining
Conditions of grant
User of flowing waters-Diversion watercourse-Dams and flumes struction of deed-Riparian rights
2-Subaqueous mining-Crown grants censes-Damages-Pleading and practice-Statement of claim-Cause of ac- LEGISLATION- Constitutional law - British North America Act, 1867-Provincial legislative jurisdiction
Act, & Edw. VIr. 3(D.)-Con. Ord.
N.W.T.
52-6 Edw. VII.
(Alta.) -Medical profession-Practising without license-Criminal law-Practice
-Special leave to appeal-R.S.C.
..........
LIEN-Mortgage-Money advanced to construct buildings-Lien for materials supplied-Payment to contractor-Transactions in fraud of mortgagee's rights
.....
LIMITATIONS ACTIONS.
LIQUOR LAWS - Canada Temperance
A. ct-Conviction-"Criminal case" -R.
c. s. 32-Habeas corpus
LAWS-Continued.
-Penalty-"Not less than $50"-Conviction for $200-Imposition of fine for first offence-Powers of Supreme Court judge-Reference of application to full LIS PENDENS-Placer mining - Disputed title-Trespass pending litigation -Colour of right-Invasion of claim- Adverse acts-Sinister intention version-Blending materials - -Assessment of damages - Mitigating circumstances-Compensation for necessary expenses-Estoppel-Standing-by- Acquiescence . .
.. . ..............
MARITIME LAW.
Mortgage - Money advanced to construct buildings-Lien for materials supplied-Payment to contractor-Transactions in fraud of mortgagee's rights-Redemption--Costs. PROFESSION-Constitutional law-British North America Act, Provincial legislative jurisdiction - Alberta Act, 4 & Edw. VII. 3(D.)- Con. Ord. N.W.T. 52-6 Edw. VII. 28 (Alta.)-Practising without license-Criminal law-Practice-Special leave to appeal-R.S.C. MINES MINERALS - Dominion regulations-Hydraulic mining- Placer mining-Lease-Water-grant Conditions of grant-User of flowing Diversion of watercourse - Dams and flumes-Construction of deed -Riparian rights-Priority of right- Injunction.] An hydraulic mining lease, granted in 1900, under the Dominion Mining Regulations, for a location extending along both banks of Hunker Crepk, in the Yukon Territory, included a point at which, in the plaintiff acquired the right to divert a portion MINES MINERALS-Con.
the waters of the creek, subject to then existing rights, for working his placer mining claims adjacent thereto.
that, under a proper construction of the tenth clause of the hydraulic mining regulations, waters flowing through past the location were subject to be dealt with under the regulations of August, 1898; that the hydraulic grant conferred no prior privileges or paramount riparian rights upon the lessee, and that the grant to the plaintiff was of a substantial user of the waters which was not subject to the common law rights of riparian owners and entitled him, all reasonable means necessary for the purpose of working his placer claims, to divert the portion the flowing waters acquired by him without interference on the part of the lessee of the hydraulic privileges. Krow- Blending materials sessment of damages - Mitigating circumstances - Compensation for necessary expenses-Estoppel-Standing-by- Acquiescence.] After a favourable judgment the Gold Commissioner in respect to the boundary between contiguous placer min'ng locations and while an appal therefrom was pending. the defendants, with the knowledge of the plaintiffs, entered upon the location and removed a quantity of auriferous material from the disputed and undisputed portions thereof, intermix-d the products without keeping any account of the quantities itaken from these portions respectively and appropriated the gold recovered from the whole mass.
In an action for damages, taken subsequently, the plaintiffs recovered for the total value of the gold estimated to have been taken from the disnuted portion of the claim, without deduction of the necessary expenses of workings and winning the gold. Held. affirming the judgment appealed from, Davies J. dissenting. that a correct appreciation of the evidence d'selosed sinister intention on the part of the def'ndants, that they had deliverately blended the materials taken from
MINES MINERALS-Con. both parts of the location, converted the whole mass to their own use and thereby destroyed the means of ascertaining the respective quantities so taken and the proportionate expense of recovering the precious metal therefrom, and that, consequently, they were liable in damages for the total value of so much of the intermixed products as were not strictly proved to have come from the undisputed portion the location. Qucre. Does thd English rule governing the asessment of damages in respect of trespasses in coal mines supply a method assessment applicable in its entirety to placer mining locations?
LAnn v. KIN- 3-Subaqueous mining-Crown grants Subsequent issue of placdr mining licenses-Damages-Pleading and practice -Statement of claim-Demurrer-Cause of action.] statement of claim which alleges that the Crown, after granting lease of areas for subaqueous mining and wh'e that lease was in force, in derogation of the rights of the lessee to peaceable enjoyment thereof, interfered with the rights vested in him by transferring the leased area to placer miners who were put in possession of them the Crown to his detriment, discloses a sufficient cause of action in support a petition of right for the recovery damages claimed in consequence of such subsequent grants.
Judgment appealed from Ex. reversed, Davies and Tdington dissentng. Davies J. dissented the ground that there was no sufficient allegation in the netition either of interference with the submerged beds or bars of the stream, which alone were included in the dredging lease, of such active interference by the Crown as would justify an action.
TiE .
.. ....................
4-Title
Eridence-Onus of proof-Findings jury-Error-Yew trial . . . ...... .336 MISTAKE-Crown-Banks and banking Representation drawee-Implied guarantee MISTAKE-Continued.
A clerk in a department of the Government of Canada, whose duty was to examine and check its account with the
Bank of Montreal, forged departmental cheques and deposited them to his credit in other banks.
The forgeries were not discovered until some months after these cheques had been paid the drawee to the several other banks, on presentation, and charged against the Receiver-General on the account of the department with the bank.
None of the cheques were marked with the drawee's acceptance before payment.
In the meantime, the accountant of the department, being deceived false returns of checking the clerk, acknowledged the correctness of the statements of the account as furnished the bank where it was kept.
In an action the Crown to recover the amount so paid upon the forged cheques and charged against the Receiver-General: Held, affirming the judgment appealed from Ont. L.R. 595)
that the bank was liable unless the
Crown was estopped from setting up the forgery. Per Davies, Idington and Duff
JJ., that estoppel could not be invoked against the Crown.
estoppel, under the circumstances of this case a private person would not have been estopped had his name been forged as drawer of the cheques.-Held, per Davies by the accountant of the department the correctness of the statements furnished the bank, being made under a mistake as to the facts, the account could re-opened to have the mistake rectified-The claims against the other banks, as third parties, as indorsers or as having received money paid mistake, for the reimbursement of the several amounts paid to them, respectively.
On these third party issues, it was held, per G'rouard and Maclennan JJ.-The drawee, having paid the cheques on which the name of its customer was forged, could not recover the amounts thereof from holders in due course.
Price v. Neal (4
Burr.
Per Davies and
Idington JJ.-As the third party banks relied upon the representation that the
MISTAKE-Continued.
cheques were genuine, which was to be implied from the'r payment on presentation, and subsequently paid out of the funds to their depositor or on his order, the drawee was estopped and could not recover the amounts paid from them either as indorsers or as for money paid to them under mistake.
In the result, the judgment appealed from
Ont. L.R. 595) was affirmed.
2-Practice - Revising minutes judgment-Costs of abandoned defences -Reference to trial judge. . . . .. .. MISTRIAL-Jury trial-Judge's charge -Practical withdrawal of case dence-New trial . . . . ............ MORTGAGE-Money advanced to conplied-Payment to contractor-Transaotions in fraud of mortgagor's rights- A building loan company advanced money to an illiterate woman for the purpose of aiding in the construction of a house to be erected upon lands mortgaged to it to secure the loan. The mortgage contained no provision for advanpes to contractors, etc., as the work progressed, beyond the following:
"And it is hereby agreed between the parties hereto, that the mortgagees, their successors and assigns, may pay any taxes, rates, levies, assessments, charges, moneys for insurance, liens, costs of suit, or matters relating to liens or incumbrances on the said lands, and solicitors' charges in connection with this mortgage, and valuator's fees, together with all costs and charges which may incurred by taking proceedings of any nature in case of fault by the mortgagor, her heirs, executors, administrators or assigns, and shall payable with interest, at the rate aforesaid, until paid and, in default, the power of sale hereby given shall be forthwith exercisable.
And it is further agreed that monthly instalments in arrear shall bear interest at the rate aforesaid until paid."
In a suit for redemption: Held, first, that the clause [S.C.R. YOL. XXXVIII. MORTGAGE-Continued.
in the mortgage did not justify the mortgagees in making advances to contractors and persons supplying material, without the express order of the mortgagor.
Secondly, that the mortgagees ought not to have recognized an order in favour of the contractor for the total amount of the loan when they knew that the contractor had not completed his contract and was, therefore, not entitled to the money when the order contained no name of a witness, and shewed that the mortgagor was unable to sign her name.-The payment having been made by the loan company to a lumber company supplying material to the contractors for the building without the express authority of the mortgagor, and the lumber company having taken an assignment of the mortgage, and attempted to enforce it against the mortgagor the transaction was declared fraudulent as against the mortgagor, and the payment to the lumber company disallowed.-Held, also, that the only costs the assignees of the mortgage were entitled to add to the mortgage debt were the costs an ordinary redemption suit consented to by a mortgagee.
Judgment appealed from varied, and appeal dismissed with costs.
.........
MUNICIPAL CORPORATION - Agreenent Electric Street Ry. Co.-Use of streets-PParmnent for-Percentage receipts-Traffic beyond city-Validity agreement.] By agreement between the
City of Hamilton and the Hamilton
Street Ry. the latter was authorized to construct its railway on certain named streets and agreed to pay to the city, inter alia, certain percentages their gross receipts.
Held. following
Montreal Rtreet Ry. Co. v. Cit, of Montreal ([19061 that such payment applies in respect to all traffic the city including that originating terminating in the adjoining Townshin of Barton.-Held, also. that as when the railway was extended into Barton the company agreed with that township to carry passengers from there into the city at city rates. the percentage was payable on the whole of such traffic and not on the portion within the city only.- Held, further, that the power of the company to construct its railway was not derived wholly from its charter, but
45%
MUNICIPAL CORPORATION-Con. was subject to the permission of the city corporation; the city had, therefore, a right to stipulate for payment of such percentages and the agreement therefor was intra vircs.
The judgment of the Court of Appeal Ont. L.R. 575), affirming that of Meredith J. at the trial Ont. L.R. was affirmed. 2-Appeal - Action for declaration and injunction-60 & V. 34, 1 (d.) -Municipal corporation - Water rates-Discrimination.] The Act 60 & Viet. 34 (D.) relating to appeals from the Court of Appeal for Ontario does not authorize an appeal in an action claiming only a declaration that a municipal by-law is illegal and an injunction to restrain its enforcement.-A by-law providing for special water rate from certain industries does not bring in question "the takip- of an annual or other rent, customary or other duty or fee" under section l(d.)
of the Act (R.S. (d.) .- By V. 56,, 3 (Can.) the City council of Hamilton was "empowered from time to time to establish by-law a tariff of rents or rates for water supplied or ready to be supplied in the said city from the said water works."
L.R. which sustained the verdict at the trial Ont. L.R. 280) that the rate for water supplied to any class consumers must be an equal rate to all members of such class and a by-law providing for a rate on certain manufacturers higher than that to be paid others was illegal.
Attorney-General v. City Toronto Can. S.C.R. 514) followed. Dis- 3-Exemption from taxes-Resolution of council-Discrimination - Establishment of industry-36 V. s. (N. B.).1
By 1 of V. the New Brunswick Legislature authorized the town council of Woodstock from time to turing enterprises within the said town exempting the property thereof from taxation for a period of not more than ten years a resolution declaring such MUNICIPAL CORPORATION-Con.
exemption."
In the council passed the following resolution:
"That any company establishing a woollen mill the Town of Woodstock be exempted from taxation for a period of ten years."
Held, per Davies, Idington and Maclennan JJ. that this resolution provided for discrimination in favour of companies and against individuals who might establish a woollen mill or mills in the town and was therefore void.
City
Hamilton Hamilton Distillery
Can. S.C.R. 239)
per Davies J.-The resolution exempting any company and not any property uncertain to the basis for a claim exemption.-In a woollen mill was established in Woodstock the Woodstock Woollen Mills and operated for some years without taxation.
the mill was sold under execution and two months later the Carleton Woollen (appellants) were incorporated and acquired the said mill from the purchaser at the sheriff's sale and have operated it since.-Held, that the appellants could not by so acquiring the mill which had been exempted be said to have "established a woollen mill."
without shewing that when it was acquired it had ceased to exist as such which they had not done.
Judgment appealed from Rep. affirming that Barker J. at the hearing
Co. TowN
Shipping-Collision - Violation of rules not affecting accident
-Steering wrong course.] The Supreme
Court will not set aside the finding a nautical assessor on questions of navigation adopted the local judge unless the anpellant can point out his mistake and shew conclusively that the is entirely erroneous.
Picton Can. S.C.R.
steamer coming up Halifax harbour ran into a schooner striking her stern on the port side. No sound signals were given.
The green light of the schooner was seen the steamer's port bow and the latter stirboarded her helm to pass astern and then ported.
She then was so close that the engines were stopped
NAVIGATION-Continued.
but late to prevent the collision. Held, that the steamer alone was to blame for the collision.-Held, also, that though under the rules the schooner should have kept her course and also was to blame for not having a proper lookout neither fault contributed to the Ru- 2-Negligence - Navigation of inland Government ships and vessels-"Public work"-The Exstatute-Right of action. ....... 3-Pilotage-Port of St. John, N.B.- Ships propelled wholly or in part by stram
Coal barnes 4-Navigation--Trent canal crossing- Swing bridge-Cost of construction- Maintenance-Order 5-Admiralty law-Foreign bottoms in foreign waters-Jurisdiction of Canadian courts. . . . . ..... Electric light company -TVires on public highway-Proximity to bridge-Injury to child-Dedication.] Several years ago the owners of land in the Township of York built a bridge over a ravine for access to and from the City Toronto and about 1894 the Toronto Electric Light placed wires across the ravine about ten feet from the bridgi.
In 1904 the bridge was reconstructed and made wider, being brought to within from to 20 inches of the wires, which had become worn and ceased to be insulated.
a boy under nine years ag-, while playing the bridge, put his arm through the railing and his hand touching the wire was badly injured. Held, reversing the judg- L.R. 413). that the plans and deeds evidence shewed a dedication as a public highway of the bridge and land on each side it and such highway included the 668S
NEGLIGENCE-Continued.
land over which the wires passed.- Held, also, that the wires in the condition in which they were at the time of the accident were dangerous to those using the highway and the company were liable for the injury to
Railway company - Findings jury-"Look and listen."] attempted to drive over a railway track which crossed the highway at an acute angle where his back was almost turned to a train coming from one direction.
approaching the track he looked both ways, but did not look again just before crossing when could have seen an engine approaching which struck his team and he was killed. In an action by his widow and children the jury found that the statutory warnings had not given and a verdict was given for the plaintiffs and affirmed by the Court of the Court of Appeal Ont. L.R.
71). Fitzpatrick C.J. hesitante, that the findings of the jury were not such as could not have been reached by reasonable men and the verdict was justified.
Navigation of inland waters-Collision - Government ships and vessels
-"Public work"-The Exchequer Court
Act, s. 16-Construction of statute - Right of action.] His Majesty's steamtug "Champlain." while navigating the
River St. Lawrence, at some distance from a place where dredging was being carried on by the Government of Canada, and engaged in towing an empty mud-scow, owned the Government, from the dumping ground back to the place where the dredging was being done, came in collision with the suppliant's steam barge, which was also navigating the river, and the barge sustained injuries.
the Exchequer Court of Canada, that there could no recovery apainst the
Crown for damages suffered in consequence of negligence of its officers servants. as the injury had not been sustained on a public work within the meaning of the qixteenth section of the
Chambers V.
Whitehaven
Harbour
Commissioners
([1899]
132); Hall V. Snotwden,
NEGLIGENCE-Continued.
Hubbard & Co. ([1899]
Lowth v. Ibbotson ( [1899] 1 Farnell Bowman Ann. Cas. 643), and The Attorney-General of the Straits Settlements v. Weymss
192), egligence-Trespass - Horse rao- Intruder upon race track-Carelessness.] After the first heat of a trotting match in which N. had been a petitor was seated in his sleigh and walking his horse upon his proper side of one of the tracks, laid out the ploughing away of the snow the ice of a public harbour, while waitine to called for the next heat. who had not been a competitor in that race, came alone the same track, from an opposite direction to that in which N. was going, driving his vehicle at excessive speed and, in attempting to pass in a narrow space between the ridge formed by the snow and N.'s sleigh, collided with it, causing injuries to N. and damaging his sleigh and harness.
judgment appealed from N.S. Rep. that even if was lawfully upon the track in question he was responsible for damages as the accident was solely attributable to his improvident carelessness and want of judgment.
Street railway-Excessive speed- Gong not sounded-Contributory negligence-Dam ages.]
A passenger on a street car in Toronto going west alighted on the side farthest from the other track and passed in front of the car to cross to the opposite side the street. space between the two tracks was very narrow and seeing a car coming from the west as she was about to step the track, she recoiled, and at the same time the car she had left started and she was crushed between the two, receiving injuries from which she died. In an action by her father and mother for damages the jury found that the company was negligent in running the east bound car at excessive speed and starting the west bound car and not sounding the gong in proper time. They found also that deceased was negligent, but that the company could, neverthe- NEGLIGENCE-Continued.
less, have avoided the accident the exercise of reasonable care.
the case having been submitted to the jury with a charge not objected to the defendants and the evidence justifying the findings the verdict for the plaintiffs should not disturbed.-The plaintiffs should not have had the funeral and other expenses incurred by the father of deceased allowed as damages in the action.
6-Maritime law-Collision-Tug and tow-Negligence of tow.]
A tug with the ship "Wandrian" in tow left a wharf at Parsboro', to proceed down the river and get to sea.
The schooner
"Helen was at anchor in the channel and the tug directed its course as to pass her on the port side when another vessel was seen coming out from a slip on that side.
The tug then, when near the "Helen M." changed her course, without giving any signal and tried to cross her bow to pass down on the starboard sido and in doing so the "Wandrian" struck her, inflicting serious injury.
In an action against the "Wandrian" the owners of the "Helen the captain of the former insisted that the schooner was in the middle of the channel, which was about 400 feet wide, but the local judge found as a fact that she was on the eastern side.
Held, affirming the judgment of the local judge
Ex. C.R. 1) that the navigation the tug was faulty and shewed negligence; that if the "Helen M." was the eastern side of the channel as found the judge there was plenty of room to pass on her port side, and if, as contended, she was in the middle of the channel she could easily have been to starboard;
attempting to cross over pass to starboard when she was so near the "Helen as to render a collision almost inevitable was negligence on the the tug's part; and that the "Helen M."
exercised nroper viligance and was not negligent in failing to slacken her anchor chain as the "Wandrian" was too close and had not signalled.-Held, also, that the tow was Fable for such negligence in the navigation of the tug.
Jury trial - Judge's charge-Practical withdrawal of case- Evidence-New trial.] On trial of an action against a surety, the defence was that he had been discharged the plaintiff's dealings with his principal. The trial judga directed the jury that the facts proved in no way operated to discharge him; and that while, if they could find any evidence to satisfy them that he was relieved from liability, they could find for defendant he knew of no such evidence and it was not to be found in the case. Held, that the disputed facts were practically withdrawn from the jury, and as there was evidence proper to submitted and on which they might reasonably find for defendant there should a new trial.
. ......................
2--Title to land-Plan of surveyjury-Error-New trial.] Where it appeared that in directing the jury, at the trial, the judge attached undue importance to the effect of a plan of survey referred to in a junior grant as against a much older plan upon which the original grants of the lands in dispute pended and that the findings were not based upon evidence sufficient in law to shift the onus of proof from the plaintiff and were, likewise, insufficient the taking of accounts in respect to trespass and conversion of minerals complained of.
Held, affirming the order for a new trial made by the judgment appealed from (1 East. L.R. 293), that in the absence of ev'dence of error therein, the older grants and plan must govthe rights the parties.
3-Negligence-Street railway cessive speed-Gong not sounded tributory
NOTICE-Crown case reserved-Extension of time for notice of arneal-"Criminal Code" s. 1024-Order after expiration of time for service of notice-Jurisdiction. . . .......................
OPPOSITION-Vacating judgment-Appeal
Matter troversy-Tierce opposition-Arts.
C.P.Q.-R.S.C.
A creditor of an insolvent with a claim filed a tierce opposition to vacate a judgment declaring the respondent to the owner of the business of a restaurant and the liquor license accessory thereto, alleged to worth over $5,000.
The opposition was dismissed on the ground that, under the circumstances of the case, the company had no locus standi to contest the judgment. On motion to quash an appeal to the Supreme
Held, that as there was no pecuniary amount in controversy an appeal would not lie.
Cotd V. The
James Richardson Can. S.C.R.
. ..
............
OWNERSHIP-Construction of will - Partition between institutes - Validating legislation-60 V. -Construct of statute-Restraint of alienation - Interest of substitutes-Devise of property held of corpus of estate es nature-Accretion
-Res judicata-Arts. 868,
See WII. 1.
PARTITION- Construction of will - Usufruct
Partition between institutes-Validating legislation-60 V. statute-Restraint of alienation-Interest of substitutes-Devise of property held institute under partition-Devolution of corpus of estate en nature- Accretion-Res iudicata-Arts.
The effect of the statute, 60 V.
(Que.). respecting the will of the late
Amable Prvost, read in conjunction with the nrovisions of the will and codicils therein referred to, is to declare the deed of partition between the beneficiarthereunder final and definitive and not merely provisional; the judgment the Court of Queen's Bench, on the appeal side taken under that statute, has no other effet.-Neitber the statute nor view that the said will and codicils con- PARTITION-Continued.
stitute more than one substitution; there was but one substitution created thereunder in favour of all the joint legatees and consequently accretion takes place among them within the meaning of article 868 of the Civil Code, in the event of any legacy lapsing, under the terms of the will, upon the death of an institute without issue prior to the opening the substitution.
In such case, the share of the institute dying without issue devolves to the other joint legatees, as well in usufruct as in absolute ownership, and, consequently, none of the institutes or substitutes have the right disposing of any portion of the testator's estate, by will or otherwise, prior to the date of the opening of the substitution. Judgment annealed from 257) reversed.
DeHertel V. Goddard distinguished. 2-Construction of will-TUsufruct - Partition between insti- Validating legislation-60 V. 95(Q.) -Construction of statute straint of alienation-Interest of substitutes-Devise of property held by subcorpus of rstate es nature-Accretion- Res judicata-Arts. 948 PARTNERSHIP-Account - Linitations-Apents or partners ference - Practice................216 See AccouNT 1.
PATENT 0F INVENTION - Infringement
Want novelty
New and beneficial results-Subject matter of invention-Purchase of patented device- Estoppel.1 The plaintiffs were patentees of a device intended to cheapen and simplify former methods of keeping and rendering statements of merchants and others, as was claimed, by providing for making entries and invoices one and the same act on manifolding sheets so folded as to cunv the entire platen of standard typewriters and, at the same time, without waste, to provide a binding margin for the leaf with the book-keeping entry to utilize it as a page in a permanently PATENT INVENTION-Con.
bound book.
The sheets manufactured and sold the plaintiffs accomplished these ends through being folded form two three leaves as required; with two-leaf sheets the upper leaf forming an original or invoice and the lower leaf the duplicate and book-keeping entry;
three-leaf sheets, the third leaf serving either as a duplicate or to used as an original duplicated on the reverse side of the centre leaf.
In each case the leaves are connected together as to form one integral sheet with vertical and transverse score lines enabling the invoices, etc., to easily detached, leaving permanently retained page folded margin with perforations to binders.
The specifications of the patented device succinctly described and illustrated various forms of folding the sheet to secure these advantages.
action for infringement by the defendants using, manufacturing and selling sheets similar to the above described vice was dsmissed in the Exchequer
Court. appeal to the Supreme Court of Canada:
ment appealed from Ex. C.R. 410)
that there was neither subject matter nor novelty in the above device claimed as an invention and, consequently, that it was not patentable.
2-Account - Statute of Limitations
-Agents or partners-Reference-Prac- PAYMENT-Mortgage-Money advanced to construct buildings-Lien for materials supplied-Payment to contractor- Transactions in fraud of mortgagor's rights-Redemption
Costs.1 building and loan company advanced money to an illiterate woman for the purpose aiding in the construction of a house to erected upon lands mortgaged to it to secure the loan.
The mortgage contained no provision for advances to contractors. etc., as the work progressed, beyond the following:
"And it is hereagreed between the parties hereto, that the mortgagees, their successors and assigns, may pay any taxes, rates, levies, assessments, chargps, moneys for insurance, liens, costs of suit, or matters re- PAYMENT-Continued.
lating to liens or incumbrances on the said lands, and solicitors' charges in con* nection with this mortgage, and valuator's fees, together with all costs and charges which may be incurred taking proceedings of any nature in case of default the mortgagor, her heirs, executors, administrators or assigns, and shall payable with interest, at the rate aforesaid, until paid and, in default, the power of sale hereby given shall be forthwith exercisable.
And it is further agreed that monthly instalments in ar-, rear shall bear interest at the rate aforesaid until paid."
a suit redemption:
Held, first, that the clause in the mortgage did not justify the mortgagees in making advances to contractors and nersons supplying material, without the express order of the mortgagor.
Secondly, that the mortgagees ought not to have recognized an order in favour the contractor for the total amount of the loan when they knew that the contractor had not complied his contract and was, therefore, not entitled the money when the order contained no name of a witness, and shewed that the mortgagor was unable to sign her name.-The payment havir- been made the loan company to a lumber pany supplying material to the contractors for the building, without the express authority of the mortgagor, and the lumber company having taken an assignment of the mortgage, and attemuted to enforce it against the mortgagor declared fraudulent as against the mortgagor, and payment to the lumber company disallowed.-Held. also, that the only costs the assignees of the mortgaze were entitled to add to the mortgage debt were the costs of an ordinary redemption suit consented to by a mortgagee.
annealed from varied, and appeal dis- PENAT'VCanada Temperance Act "Criminal case"-R.S.C. (i86) s.
2-Habeas corpus - Penalty
"Not than $50"-Conviction for i200-Im-position of fine for first offencr-Pooers of Supreme Court judge -Reference of application to full court. .. ....... "
"PHEASANT HILLS
RY--Appeal - Discretion of Governor in Council - Stated case-Railway subsidies struction of statute-3 Edw. VII. c.
Conditions of contract-Estimating costs of constructing line of railway-olling stock and equipment. . . ..........
PILOTAGE-Compulsory pilotage-Port of St. John, Y.B. - Ships propelled wholly or in part steam-Coal barges towed-R.S.C. ss. 59.]
Coal barges towed steamers or tugs tween the ports Parsboro', N.S. and
St. John, are exempt from compulsory pilotage at the latter port, though under favourable conditions they could navigated as sailing
Judgment appealed from N.B. Rep.
406), affirmed.
Co.........................169
PLANS-Public highway-Dedication.27
SPECIFICATIONS-Public work-Contract-Change in plans and specifications-Waiver order in council-Powers of executive-Construction of statute-Directory and imperative clauses - Words and phrases-"Stipulations"-Exchequer Court Act, s. 33- Extra works-Engineer's certificate - Instructions in writing - Schedule prices-Compensation at increased rate
-Damages-Right of action-Quantum
.
.....................
PLEADING.
Broker-Stock - Purchase on margin-Pledge of stock broker- Possession for delivery to purchaser.] instructed & brokers, to purchase for him on margin 300 shares a certain stock, paying them leaving a balance of according to the market price at the time. & instructed brokers in Philadelphia to purchase for them shares of the stock paying nearly half the price, pledged the whole
600 for the balance.
Philadelphia brokers pledged these shares with other securities to a bank as security for indebtedness and later drew on & for the balance due thereon, attaching the scrip to the draft which was returned unpaid and of the 600 shares were then sold and the remaining returned to &
In an action the latter to recover from the balance due on the advance to purchase the shares with interest and commission:
the judgment of the Court of Appeal Ont. L.R. affirming Ont. L.R. Fitzpatrick C.J. dissenting, that the brokers had no right to hypothecate the shares with others for a greater sum than was due from unless they had an agreement with the pledgee whereby they could released on payment said sum; that there never was a time when they could appropriate 300 of the shares pledged for delivery to on paying what the latter owed;
and that, therefore, they were not entitled to recover.-The bought note of the transaction contained this memo: "When carrying stock for clients reserve the right of nledging the same or raising money upon them in any way convenient to us."
Held, per Davies. and Idington JJ. that this did not justify the brokers in pledging the shares for sum greater than that due from the customer. Duff J.-That the shares were purchased before this note was delivered, and could not alt-r the character of the authority conferred on the brokers; and that custom was proved which would modify the common law right and duties of the brokers and their customer POqQESSION-Trespas.s
The casual use of land for pasturing cat- POSSESSION-Continued.
tle in common with other persons does not constitute evidence of possession sufficient to maintain an action for trespass. Judgment annealed from East.
L.R. 524) reversed.
PRACTICE PLEADING -Revising minutes of judgment-Mistake-Costs abandoned defences-Reference to trial judge.]
The plaintiffs' action was maintained with costs in the courts below, but on appeal, it. was dismissed with costs the Supreme Court Canada made certain costs incurred the plaintiffs in respect of several defences which the defendant had abandoned the trial court. On motion to vary the minutes, the matter was referred to the judge of the trial court to dispose the question of the costs on the abandoned defences.
Co..............103
Appeal-Jurisdiction-D iscretionof
Governor in Council-Stated case-Railway subsidies-Construction of statute- Edw. VII. 57-Conditions of contract-Estimating cost of constructing line of railway-Rolling stock and equipthe jurisdiction the entertain an appeal was in doubt, but it was considered that the appeal should be dismissed on the merits, the court heard and decided the appeal accordingly.
Bain v. Anderson & (28 Can. S.C.R.
.....
3--Jury trial-Judge's charge-Practical withdrawal of case
New trial.] On trial an action against a surety, the defence was that he had been discharged by the plaintiff's dealings with his principal.
The trial judge directed the jury that the facts proved in no way operated to discharge him; and that while, if they could find any evidence to satisfy them that was relieved from liability they could find for defendant, he knew of no such evidence and it was not to be found in the Held, that the practically withdrawn from the jury, and as there was evidence proper to be submitted and on which they might reasonably find for defendant there should trial.
4-Shipping - Collision-Violation rules not affecting accident - Steering wrong course.] The Supreme Court will not set aside the finding of a nautical assessor on. questions navigation adopted by the local judge unless the appellant can point out his mistake and shew conclusively that the judgment is entirely erroneous.
The Picton (4 Can. S.C.R. 648) followed. RUDOLPH........................176 5-Criminal law-Crown case reserved -Appeal-Extension of time for notice The power given by section of the "Criminal ch. to a judge of the Supreme Court of Canada the time the Attorney General of notice of an appeal after the expiration of the time limited the code for the service of such notice. Banner v. Johnston (L.R. ILL. and Vaughan v. Richardson Can. S.C.R. 703)
6-Account-Statute of Limitations- Agents or partners-Reference.] a reference to the Master the taking of the accounts was brought down to a time at which defendants claimed that the contract was terminated by notice. Court of Appeal ordered that they should taken down to the date of the Master's report.
Held. that this matter practice and procedure as to which the not entertain 7-Appeal - Order extending time- Jurisdiction-R.S.C.
s.
The court refused to entertain a motion to quash the appeal the ground that it had not been taken within the sixty days limited the statute and that an order a judge of the court appealed from after the expiration that time was ultra vires and could not be permitted under section the
"Supreme Court and Exchequer Courts
Act," R.S.C.
CLAIR.......................230
8-Criminal law-Crown case reserved
Dissent from affirmance of conviction-Appea l-urisdiction-Criminal Code, ss.
744, 750-R.S.C. (1906), s.
1024.]
On the trial of indictment for murder deceased had been killed by a gun-shot wound inflicted through discharg3 a gun in the hands of the accused and the defence was that the gun had been discharged accidentally.
view the character the defence and the evidence in support it, there could be no objection to a charge the trial judge to the jury that the offence could not reduced by them from murder to manslaughter but that their verdict should be either for acquittal or one guilty of murder.-Two questions were reserved by the trial judge for the opinion of the Court of Appeal but refused to reserve a third question, to the correctness of his charge on the ground that no objection to the charge had been taken at the trial. The Court of Appeal took all three questions into consideration and dismissed the appeal, there being no dissent from the affirmance of the conviction on the first and third questions, but one of the judges being of opinion that the appeal should be allowed and a new trial ordered upon the second question reserved. On an appeal to the Supreme Court of Canada, the majority of the court, being of opinion that the appeal should dismissed, declined to express any opinion as to whether or not an appeal would lie upon questions as to which there had been dissent in the court appealed from, but it was held, per Girouard J.-That the Supreme Court of Canada was precluded from expressing an opinion on points law as to which there had been no dissent in the court appealed from. Intosh v. The Queen Can. S.C.R. Viau v. The Queen Can. S.C.R. 90); The Union Colliery Co. v. The Queen
Can. S. R. and Rice v. The King Can. R. 480)
KING....
........................
9-Habeas corpus - Application for writ-Reference to court.]
On application to a judga for a writ of habeas corpus he may refer the same to the court which has jurisdiction to hear and dispose of it.
Idington and Maclennan JJ. (dissenting)
.
.... 10-Appeal - Findings of fact.] The judgment appealed from was reversed, on the ground of captation and undue influence, but the Supreme Court of Canada refused to interfere with the concurrent findings of both courts below against the contention as to the testator's unsoundness mind.
DUSSATJLT.......................460 11-Appeal-Amount in controversy- Creditor's action-Transfer of cheque- Preference.] An action was brought creditors, behalf of themselves and all other creditors, of an insolvent to aside the transfer of a cheque made by the insolvent to & Sons as being a preference and therefore void.
At the trial the action was dismissed and this judgment was affirmed by the Divisional Court Ont. L.R. and the Court of Appeal Ont. L.R. 232).
On appeal to the Supreme Held, Girouard J. dissenting, that the only matter in troversy was the property in the sum represented the cheque and such sum being more than the appeal would SON....
12-Subaqueous mining-Crown grants
Subsequent issue of placer mining licenses-Damages-Pleading and prac- Statement of claim-Demurrer- Cause of action.] A statement of claim which alleges that the Crown, mining and while that lease was in force, in derogation the rights of the lessee to peaceable enjoyment thereof, interfered with the rights vested in him closes a sufficient cause action in supcovery damages claimed in consement appealed from Ex. C.R.
senting.
Davies J. dissented on the gation in the petition either interference with the submerged beds or bars the stream, which alone were included the dredging lease, or of such active interference the Crown as would justify
13-Criminal law-Stated case-Dissent in court of appeal-Special leave for appeal-R.S.C.
In an appeal from the judgment of the
Supreme
Court of North-West Territories, in banc, whereby the conviction the respondent was quashed, two of the judges dissenting, special leave for the appeal was granted on motion before the full court, under the provisions of R.S.C.
39(c) on the 19th
February,
14-Appeal-Equal division of opinion
-Dismissal without costs.]
Upon an equal division of opinion among the judges, the appeal stood dismissed without
. . .......................
Breach trust chase debentures out of Common
School Fund
Knowledge of misappro- -Statutory prohibition - Evasion statute-Estoppel against Crown-Action -Adding parties..................62 16-Expert testimony - Examination of witnesses-2 Edw. VII. s. 1..149 17-Vacating judgment - Jurisdiction- Matter in controversy - Tierce opposition-Arts. 1185-1188 C.P. Q.-R.S.C.
s. 29......236 18-rown tion drawee
Implied guarantee of bank .......... 19-Negligence - Street railway-Excessive speed-Gong not sounded-Contributory negligence-Damages......327 20-Title
Onus of proof-Findings 21-Appeal-Railway Act-Expropriation-Appeal from award of forum-Curia designata.511 PRESCRIPTION.
PRINCIPAL contract-Breach of trust-Assessment of damages-Sale of mining areas-Promotion of company-Failure to deliver securities-Account - Evidence-Salvage - Indemnity for necessary expenses - Laches-Estoppel.] The plaintiffs transcertain the PRINCIPAL AGENT-Con.
fendant in order that they might together with other areas to a conpany to incorporated for the purpose operating the consolidated mining properties, the defendants agreeing to give them a proportionate share of whatever bonds and certificates of stock he might receive for these consolidated properties upon the flotation of the scheme then being promoted him and other associates.
In order to hold some of the areas it became necessary to borrow money and the lender exacted bonus in stock and bonds which the defendant gave him out of those he received for conveyance the properties to the company.
deducting a ratable contribution towards this bonus, the defendants delivered to the plaintiffs the remainder of their proportion of stock and bonds. but did not then inform them that such deductions had been made, and they, consequently, made no demand upon him for the balance of the shares and bonds until some time afterwards when they brought the action to recover the securities or their value.
appealed from, that whether the defendant was to be regarded as a trustee as the agent of the plaintiffs, he was entitled, without their consent, to make the deductions. either way of salvage or to idemnify himself for expenses necessarily incurred in the preservation of the properties; and that, under the circumstances, their failure to demand delivery of the remainder the securities before action did not deprive the plaintiffs their right to recover. If the defendant is to be considered a trustee wrongfully withholdina securities he was bound to deliver, he is liable for damages calculated upon the assumption that they would have been disposed of at the best price obtainable.
If. however, he to regarded as contractor who has failed to deliver the securities according to the terms of his agreement, liable for damages based on the selling price the securities at the time when his obliention to deliver them arose.
Nlant-Y-Gto and Jilaina Ironicorks Co. v.
Grave 738) ; The Steamship
Carrisbrooke Co. v. The Tondon and Provincial Marine and General Ins. Co.
( and Michael v.
Hart & ro. (
1 K.B. 482) fol- PRINCIPAL AGENT-Con. 2-endor and purchaser - Formation contract Statute of Frauds-Secret commission- Avoidance of con tract-Fraud-Specific performance. . . . ................
3-Broker-Stock-Purchase on margin-Pledge of stock broker-Possession for delivery to purchaser ...... PRINCIPAL SURETY-Jury trial -Judge's charge-Practical withdrawal of case-Evidence-New trial ....... OFFICER-Negligence-Navigation of inland waters--Collision-Government ships and vessels-"Public work" Exchequer Court Act, s. Construction of statute-Right of action. .......... 2-Subaqueous mining-Crown grants Pleading and prac- Statement of claim-Demurrer- Cause of action...................542 WORK"-Negligence-Navigation of inland waters-Collision-Government ships and vessels - "Public work"-The Exchequer Court Act, s. 16 Construction statute
Right His
Majesty's steam-tug "Champlain," while navigating the River St. Lawrence, at some distance from a place where dredging was being carried on by the Government of Canada, and engaged in towing an empty mud-scow, owned by the Government, from the dumping ground back to the place where the dredging was being collision with the suppliant's steam barge, which was also navigating the river, and the barge sustained injuries. Held, affirming the judgment of the Exchequer Court of Canada. that there could be no recovery against the Crown for damages suffered in "PUBLIC WORK"-Continued.
negligence of its or servants, the injury had not been sustained a public work within the meaning the sixteenth section of the "Exchequer Court Act." Chambers v. Whitehaven Harbour Commissioners ([1899]
; Hall v. Snowden, Hubbard
& Co. ([1899]
136); Lowth v.
Ibbotson
1 1003), Farnell v. Bowman App. Cas. 643) and The
Attorney-General of the Straits Settlements v. Weymss Cas. re- .....
2-Contract - Change in plans and specifications-Waiver order in council-Powers of executive-Construction
Directory and imperative clauses-Words and phrases-"Stipulations"-Exchequer Court Act, s.
Extra works-Engineer's certificate-Instructions in woriting-Schedule of prices
- Compensation at increased rates - Right of action-Quantum neruit.]
The suppliants, appellants, were contractors with the Crown widening deepening a canal and, by their petition of right, contended that there were such changes from the plans and specifications and in the manner in wh'ch the works were obliqed to executed as made the provisions of their applicable and that they were, consequently, entitled to recover upon a quantum meruit. In order to afford relief, an order council was passed waiving certain conditions. provisoes and stipulations contained in the contract.
By the judgment appealed from. the judge of the
Exchequer Court held Ex. C.R. 248)
that there had been no such changes as would entitle the contractors to recover on the quantum meruit, as in the case of Bush v. The Trustees of the Town and
Harbour of Whitehaven (52 J.P.
Hudson on Building Contracts
: and that the words "shall decide accordance with the stipulations in such contract" in the thirty-third section
"The Exchequer Court Act" might treated as directory only and effect given to the waiver in respect to the absence of written directions or certificates the engineer in regard to works done, but that the remaining clauses of the section were imperative and there could be no
"PUBLIC WORK"-Continued. valid waiver whereby a larger sum than the amount stipulated in the contract could be recovered, on prices for the classes work, so as to give the contractors a legal claim for higher rates compensation without a new agreement under proper autbority and for good consideration.
appeal to the Supreme Held, per Girouard, Davies and Maclennan JJ., that the cision of the judge of the Exchequer Court was correct.
Per Idington and Duff JJ.-That the word "stipulations" in the first part of the section referred to, should be construed as having relation entirely to the second part of the section and as applying to the rates of compensation fixed the contract; that, either construction, the result would the same in so far as the circumstances the case were concerned; that it did not warrant an implication that proper authority, exceed its powers in relation to a fully executed contract or confer the power to dispense with the requirements of the statute, and that, consequently, there could not a recovery upon quantum & v. 3-Expropriation of land-Pa yment- Potential value 4-Navigation-Trent canal crossingbridge-Cost of construction - Public work - Contract-Change in plans and specifloations
Waiver order in council Powers of executive - Directory and imperative clauses-Words and phrases-"Stipulations"-Exchequer Court Act, s. Extra works - Engineer's certificates- Instructions in writing - Schedule prices-Compensation at increased rate -Damages-Right of action-Quantum .... ROAD TRUST-Crown-Breach of trust
-Purchase of debentures out Common School Fund-Knowledge of misapplication of moneys
Payment of interest - Statutory prohibition-Evasion of statute-Estoppel against the Crown
Adding parties
In an action the Crown against the
Quebec North
Shore Turnpike Road
Trustees to recover interest upon debentures purchased from them the Government of the late Province of Canada
(with trust funds held them belonging to the Common School Fund), the defendants pleaded that the Crown was estopped from recovery inasmuch as, at the time of their purchase, the advisers of the Crown were aware that these debentures were being issued breach a trust and with the intention of misapplying the proceeds towards payment of interest upon other debentures due them in violation of a statutory prohibi- Held, affirming the judgment appealed from Ex. C.R. 390) that, as there was statutory authority for the issue of the debentures in question, knowledge any such breach of trust or misapplication by the advisers of the
Crown could not set up as a defence to the action.
RACE COURSE-Negligence-Trespass- Horse racing-Intruder upon race track
-Carelessness.]
After the first heat a trotting match in which N. had been a competitor he was seated in his sleigh and walking his horse upon his proper side one of the tracks, laid out the ploughing away of the snow on the ice of a public harbour, while waiting to be called for the next heat. M., who had not been a competitor in that race, came along the same track, from an opposite direction to that in which N. was going, driving his vehicle at excessive speed and, in attempting to pass in a narrow space between the ridge formed by the snow and N.'s sleigh, collided with it, causing injuries to N. and damaging his sleigh and harness.
judgment appealed from N.S. Rep.
that even if M. was lawfully upon the track in question he was responsible damages as the accident was solely attri- RACE COURSE-Continued.
butable to his improvident carelessness and want of judgment.
A perambulating booth used the race-course of an incorporated racing association for the purpose of making bets is an or '"place" used for betting between persons resorting thereto as defined in of the Criminal Code, (Crim. Code, 1906, 227).-Subsection of 204 of the former Code (now which exempts from the provisions of the main section (dealing with the recording or registering of bets, etc.), bets made on the race-course of an incorporated association does not apply to the offence of keeping a common betting-house.
Girouard and Davies JJ. (dissenting)
.
Judgment the Court Girouard and
Davies JJ. (dissenting)
. KING............ 382 RAILWAYS-Negligence-Railway cross- Findings jury listen."] M. attempted to drive over a railway track which crossed the highway at an acute angle where his back was almost turned to a train coming from one direction.
On approaching the track he looked both ways, but did not look again just before crossing when he could have seen an engine approaching which struck his team and he was killed. an action his widow and children the jury found that the statutory warnings had not been given and a verdict was given for the plaintiffs and affirmed the Court of Appeal.
Held, affirming the judgment of the Court of Appeal (12 Ont. L.R. 71), Fitzpatrick C.J. hesitante, that the findings of the jury were not such as could not have been reached reasonable men and the verdict was justified.
... .....................
2-Appeal - Jurisdiction-Discretion of Governor in Council-Stated case Railway subsidies-Construction of statute-3 Edw. VII. 57-Conditions RAILWAYS-Continued.
contract-Estimating cost of constructing line of railway-Rolling stock and equipment.] The provisions of the Act, Edw.
VII. c. authorizing the granting subsidies in aid the construction railways are not mandatory, but discretionary in far as the grant of the subsidies by the Governor, in Council concerned.-On a proper construction the said Act it does not appear to have been the intention of Parliament that the costs of rolling stock and equipment should be included in the cost of struction in estimating the amount subsidy payable to the company in aid of the "Pheasant Hills Branch" of their railway under the provisions that Act, notwithstanding that the said Act did not specially exclude the consideration of the cost equipment in the making of such estimate as had been done former subsidy Acts with similar objects, and that the Governor in Council posed the duty efficient maintenance and equipment the branch as a condition of the grant the subsidy.
BRANCH).........137
3-Navigation-Trent canal crossings
-Swing bridge-Cost of construction- Afaintenance - Order in council.]
Ry. applied for liberty to build a bridge the Otanabee, a navigable river. undertaking to construct a draw in it should the Government deem necessary.
An order in council was providing that "the
* * shall construct either a swing in the bridge now in question
*
* the cost to borne themselves or else a new swing bridge over the templated canal (Trent Valley Canal)
which case the expense incurred over and above the cost the swing itself and the necessary pivot. pier therefor shall borne the Government." new swing bridge was constructed over the canal agreement with the company.
that the words "the cost of the swing itself and the necessary pier" included, under the circumstances and in the nection in which they were used. the operation and maintenance also of the
4- Municipal corporation-Agreement with electric street railway company- RAILWAYS-Continued.
Percentage of receipts - Traffic beyond 5-A ppeal
Order extending time - Jurisdiction-R.S.C.
s. -Practice-Tre- pass
Possess on- Evidence-Expropriation-Railways. G-Vendor and vendee-Sale of securi- C.C.-Debtor and creditor- Right of way claims-Legal expenses incurred in settlement................422 7-Appeal - Railway Act-Expropriation-Appeal from award-Jurisdictiot of forum-Curia designata.511 RESERVED
RES GESTAE-Criminal lato-Practice -Crown case reserved-Reserved questions-Dissent from affirmance of conviction -Appeal - Code. ss. 750-R.S. 146, ss. 1024-Admission of evidence ....... RES JUDICATA-Construction of will- Usufruct
- Restraint alienation terest of substitutes - Devise of property held substitute under partition -Devolution of corpus of estate nature-Accretion-Arts. 948, RIPARIAN RIGHTS-Dominion mining regulations inining tions of grant-User of flowing waters- Diversion of watercourse - Dams and flumes-Construction of deed-Priority of right-Injunction................79 Dominion mining regulations-Hydraulic mining- Placer mining
Conditions of grant - User of flowing waters-Diversion of watercourse-Dams and flumes - Construction of deed- Riparian rights-Priority of right-Injunction.] An hydraulic mining lease, granted in under the Dominion
Mining Regulations, for a location tending along both banks of Hunker
Creek, in the Yukon Territory, included a point at which, in 1904, the plaintiff acquired the right to divert a portion the waters of the creek, subject to then existing rights, for working his placer mining claims adjacent thereto.
that, under a proper construction of the tenth clause of the hydraulic mining regulations, waters flowing through past the location were subject to be dealt with under the regulations of August,
1898;
that the hydraulic grant conferred no prior privileges or paramount riparian rights upon the lessee; and that the grant to the plaintiff was of a substantial user of the waters which was not subject to the common law rights riparian owners and entitled him, all reasonable means necessary for the purpose of working his placer claims, to divert the portion of the flowing waters so acquired him without interference on the part of the lessee of the hydraulic
Navigation-Trent canal crossing- Swing-bridge - Cost of construction - 3-Admiralty law-Foreign bottomsof Canadian courts ...............
SALE-Banks and banking-Security for advances - Assignment of goods-Claim on proceeds of sale-53 V. s.
74(D.) ..
-..
.........
-...........
Vendor and vendee-Sale of securi- 1018,
.C.-Railways-Debtor and
SALE-Continued.
expenses incurred in settlement ..... 422 3-Sale of land
Vendor and purchaser-Formation of contract-Condi- Statute of Frauds-Principal and agent -Secret commission-Avoidance of contract-Fraud-Specific performance..588 SALVAGE-Breach of contract-Breach of mining rights - Promotion of company - Failure to deliver securities - Principal and agent-Account-Evidence -Salvage-Indemnity for necessary expenses-Laches-Estoppel .....
.. . See TntusTs
SECURITY-Banks and banking-Security for advances-Assignment of goods- Claims on proceeds of sale-53 V. s. 74(D .) ...
. ....................
SHIPS SHIPPING-Pilotage-Port of St. John, N.B.-Ships propelled wholly or in part steam-Coal barges towed ss. 59.]
Coal barges towed by steamers or tugs between the ports of Parsboro', N.S. and St. John, N.B., are exempt from compulsory pilotage at the latter port, even though under favourable they navigated as sailing ships.
appealed
N.B.
Rep. 406), -......... 2-Collision-Violation of rules not affecting accident - Steering wrong course.] The Supreme Court will not set aside the finding of a nautical assessor on questions of navigation adopted the local judge unless the appellant can point out his mistake and shew clusively that the judgment is entirely erroneous.
The Picton (4 Can. S.C.R. followed.-A steamer coming up Halifax harbour ran into a schooner striking her stern on the port side. No sound signals were given.
The green SHIPS SHIPPING-Con.
light of the schooner was seen on the steamer's port and the latter starboarded her helm to pass astern and then ported.
then was close that the engines were stopped but too late to prevent the collision. Held, that the steamer alone was to blame for the collision.- Held, also, that though under the rules the schooner should have kept her course and also was to blame for not having a proper lookout neither fault contributed
3-Admiralty law-Foreign bottomsof Canadian courts.] foreign vessel passing through waters dividing Canada from the United States under a treaty allowing free passage to ships of both nations is not, even when on the Canadian side, within Canadian control to subject to arrest on a warrant from the Admiralty Court.-A warrant to arrest a foreign ship cannot issued until she within the jurisdiction of the court.-Quecre.
Canadian
Courts of Admiralty the same jurisdiction as those in England to try an action in rem by one foreign ship against another for damages caused by a collision in foreign waters?
Judgment the Exchequer Court, Toronto Admiralty District Ex. 1) reversed, Idington
J. dissenting. SnrP
4-Maritime law-Collision-Tug and tow-Negligence of tow.]
A tug with the ship "Wandrian" in tow left a wharf at Parsboro', to proceed down the river and get to sea.
schcoier
"Helen was at anchor in the channel and the tug directed its course as to pass her on the port side when another vessel was seen coming out from a slip on that side.
The tug then, when near the "Helen If." changed her course, without gving any signal and tried to cross her bow to pass down on the starboard side and in doing so the "Wandrian" struck her, inflicting serious injury. In an action against the "Wandrian" the owners of the "Helen the captain of the former insisted that the schooner was in the middle of the
SHIPS SHIPPING-Con. channel, which was about 400 feet wide, but the local judge found as a fact that she was on the eastern side. Held, affirming the judgment of the local judge Ex. C.R. 1) that the navigation the tug was faulty and shewed negligence; that if the "Helen was the eastern side of the channel as found the judge there was plenty room to pass on her port side, and if, as contended, she was in the middle of the channel she could easily have been starboard;
attempting over and pass to starboard when she was so near the "Helen as to render a collision almost inevitable was negligence on the the tug's part; and that the "Helen M." exercised proper vigilance and was not negligent in failing to slacken her anchor chain as the "Wandrian" was too close and had not signalle.-Held, also, that the tow was liable for such negligence in the navigation of the tug. 5-Negligence - Navigation of inland Government and vessels - "Public work"-The Exof statute-Right of action.........126 SPECIFIC PERFORMANCE-Vendor and purchaser-Sale of land-Formation title-New tern-Statute of Frauds- Principal and agent-Secret commission -Avoidance of contract-Fraud.. . . . SPECIFICATIONS - Public work-Contract-Change in plans and specifications -Waiver order in council-Powers Construction of statute - Directory and imperative clauses - Words and phrases-"Stipulations" - Exchequer Court Act, s. - Extra works - Engineer's certificate-Instructions in writing-Schedule of prices - Compensation at increased rate-Damages-Right of action-Quantum meruit. ........ STATUTE-Construction of will-Usufruct-Substitution- Partition between institutes-Validating legislation 60 V.
( Q.)-Construction of statute-Restraint of alienation-Interest of substi- Devise of property held in- Res judicata-Arts. 948 0.C.]
effect of the statute, V.
respecting the will of the late Amable
Prevost, read in conjunction with the provisions the will and codicils therein referred to, is to declare the deed partition between the beneficiaries thereunder final and definitive and not merely provisional; the judgment of the Court of Queen's Bench, on the appeal side taken under that statute, has no other effect.
Neither the statute nor the judgment referred to sanctions the view that the said will and codicils constitute more than one substitution; there was but one substitution created thereunder in favour of all the joint legatees and consequently accretion takes place among them within the meaning of article 868 of the Civil in the event any legacy lapsing, under the terms of the will, upon the death of an institute without issue prior to the opening of the substitution.
such case, the share of the institute dying without issue devolves to the other joint legatees, as well in usufruct as absolute ownership, and, consequently, none of the institutes or substitutes have the right of disposing of any portion the testator's estate, will or otherwise, prior to the date of the opening of the
(Q.R. reversed.
DeHetel
Goddard L.J.P.C. distinguished.
Construction of Edw. VII.
Railway subsidies- Conditions-Cost of construction-Method of estimating- Rolling stock and equipment.] The provisions the Act, Edw. VII.
authorizing the granting subsidies aid of the construction of railways are not mandatory, but discretionary in far as the grant of the subsidies by the
Governor in Council is concerned.-On a proper construction of the said Act not appear to have been the intention of Parliament that the cost of rolling stock and equipment should included in the cost of construction estimating the amount of subsidy payable to the company in aid of the "Pheasant Hills Branch" of their railway under the provisions of that Act, notwithstanding that the said Act did not specially exclude the consideration the cost of equipment in the making of such estimate as had been done former subsidy Acts with similar objects, and that the Governor in Council imposed the duty of efficient maintenance and equipment the branch as a condition of the grant the subsidy. 3-Criminal law-Crown case reserved (R.S.C. c. to a judge the Supreme Court Canada to tend the time for service on the Attorney General notice of an appeal in a reserved Crown case may be exercised after the expiration of the time limited by the code for the service of such notice. Banner Johnston (L.R. H.L. and Vaughan v. Richardson Can. ..
. ........................
Appeal-Order extending time - Jurisdiction-R.S.C. 42-Prac- The court refused to entertain a motion to quash the appeal on the ground that it had not been taken within the sixty days limited the statute and that an order a judge the court appealed from after the expiration that time was ultra vires and could permitted under section 42 of the "Supreme and Exchequer Courts Acts," 5-Appeal-Action for declaration and injunction-60 d- s. 1(d.)- Municipal corporation
Water rates- Discrimination.] The Act & V. relating to appeals from the Court Appeal for Ontario does not authorize declaration that a municipal by-law is illegal and an injunction to restrain its enforcement.
6-Criminal law-Disorderly house- Common betting house-Place for betting booth-Race-course of incorporated association-Crim. Code, ss. 204-Crim. 1906, ss.
235.]
A perambulating booth used the race-course of an incorporated racing association for the purpose of making bets is an or "place" used betting between persons resorting thereto as defined in of the Criminal Code,
(Crim. 227).-Subsection 204 of the former
(now which exempts from the provisions the main section (dealing with the recording or registering of bets, etc.), bets made the race-course of an incorporated association does not apply to the of keeping a common betting-house.
Girouard and Davies JJ.
dissenting. Judgment of the Court
Girouard
Davies JJ. (dissenting)
.
KING............
7-Construction of statute-4 Edw.
-Conviction-Penalty.] By 4 Edw. VII.
(R.S. for a first against Part II. of the "Canada Temperance Act" a fine may be imposed of "not less than and for a second of "not less than
Held, that for a first offence the justice cannot impose a fine of more than
8-Municipal corporation-Exemption from taxes-Resolution of council-Discrimination-Establishment of industry- Construction of V. s. 1 (N.B.)1
By 1 of V. c. the New Brunswick Legislature authorized the town council of Woodstock from time to time to "give encouragement to manufacturing enterprises within the said town exempting the property thereof from taxation for a period not more than ten years a resolution declaring such exemption."
In the council passed the following resolution: "That any pany establishing a woollen mill in the Town of Woodstock exempted from taxation for a period of ten years." Held, per Davies, Idington and Maclennan JJ., that this resolution provided for discrimination in favour of companies and against individuals who might establish a woollen mill or mills in the town and was therefore void.
City of Hamilton v. Hamilton Distillery Co. Can. S.C.R. Held, per Davies J.- The resolution exempting any company and not any property of a company was too indefinite and uncertain to be the basis for a claim for exemption.-In a woollen mill was established in Woodstock the Woodstock Woollen Mills and operated for some years without taxation.
the mill was sold under execution and two months later the Carleton Woollen (appellants), were incorporated and acquired the said mill from the purchaser at the sheriff's sale and have operated it since.-Held, that the appellants could not acquiring the mill which had been exempted be said to have "established a woollen mill" without shewing that when it was acquired it had ceased to exist as such which they had not done. Judgment appealed from N.B. Rep. 545) affirming that of Barker J. at the hearing N.B.
........ 9--Appeal - Railway Act-Empropriation
Appeal from award forum-Curia designata.]
Edw. VII. 58 amending the "Railway Act," (R.S.C. 209) if an award by arbitrators on expropriation of land by a railway pany exceeds $600 any dissatified party may appeal therefrom to a Superior Court which in Ontario means the High Court or the Court of Appeal (Interpretation Act R.S. [1906] 1, Held, that if an appeal from an award is taken to the High Court there can no further appeal to the Supreme
Court Canada which cannot even give special leave.
..................
10-Constitutional law-British North
America Act, - Provincial legislative jurisdiction-Alberta Act, & Edw.
VII. 3(D.)-Con. Ord. N.W.T.
a. 52-6 Edw. (Alta.)-Medical profession-Practising without license- Criminal law-Practice-Special leave to appeal-R.S.C. s. 37(c).]
The "Medical Profession Act," Edw.
VII. (Alta.) is intra vires of the legislative jurisdiction of the Legislature of Alberta and a member of the College of Physicians and Surgeons of the North- West Territories may be validly victed thereunder for the offence practising medicine, surgery, etc., for gain and reward, in the Province of Alberta, without complying with its requirements as to registration and license, notwithstanding that the College of Physicians and Surgeons of the North-West Territories had not been previously dissolved and abolished order of the Governor in Council, in conformity with the provisions of of "The Alberta Act."
Dobie v. The Temporalities Board (7
App. Cas. distinguished.
11-Crown -Breach of trust - Statutory prohibition
Evasion
Estoppel against Crown - Action-Adding parties-Practice.. ..
12-Negligence-Navigation of inland water&-Collision-Government ships and vessels-"Public work"-The Exchequer
Court Act, 16-Construction of statute
-Right
13-Construction of Edo. VII.
s. I-Expropriation of land-Payment
-Market value-Potential value-Evi- 14-Pilotoge-Port of St. John, -Ships propelled wholly or in part steam barges ss. 59.............169 Public works-Contract-Changes in plans and specifications-Waiver by Exchequer Court Act s. 33-Construction Directory and inoperative clauses-Words and phrases-"Stipulations"-Extra works-Engineer's certificate-Right of action..............501 - Vendor and purchaser-Sale of land-Formation title-New term-Statute of Frauds - Principal and agent-Secret mission Specific performance.]
While was absent abroad,
B assumed, authority, to sell certain of his lands to and received, from a deposit on account the price.
On receipt of a cablegram from notifying him of what had been done, but without disclosing the name of the proposed purchaser, replied, letter, stating that he was willing to sell at the price named, that he would not complete the deal until he returned home, and the sale would be subject to an existing lease the premises and that he would not furnish evidence of title other than the deeds that were in his possession, and requesting to communicate these terms to the proposed purchaser.
On learning the conditions, in a letter his solicitors, accepted the terms and offered to pay the balance the price as soon the title was evidenced to their satis- Held, that the correspondence which had taken place constituted traet sufficient to satisfy the requirements the Statute of Frauds, that the words "so as title is evidenced to our satisfaction."
in the solicitors' letter accepting the conditions, did not import the proposal new term and that A was bound to specific performance.- Held, also, that the arrangement, unknown to and made prior to the re- FRAUDS-Con.
ceipt of his letter, whereby to have a commission on the transaction from* could not have the effect avoiding the contract, as was not, at that time, the agent of for the sale the property.
B.C. Rep. affirmed.
AuREws
CALORI.........................588
LIMITATIONS-Account
Statute Limitations
Agents partners-Reference.] By agreement tween them the Hamilton Brass was appointed agent of the Barr Cash for sale and lease of its carriers
Canada at a price named for manufacture; net profits to be equally divided and quarterly returns to furnished, either party having liberty to annul the contract for non-fulfilment conditions.
The agreement was in force for three years when the Barr sued for an account alleging failure to make proper returns and payments.
Held, reversing the judgment the Court of Appeal,
Girouard and Davies JJ. (dissenting)
, that the accounts should taken for the six years preceding the action only.-On a reference to the Master the taking the accounts was brought down to a time at which defendants claimed that the contract was terminated by notice.
The Court Appeal ordered that they should taken down to the date of the
Master's report.-Held. that this was a matter practice and procedure as to which the Supreme Court would not entertain appeil.
STATUTES-British North America Act,
(Provincial Legislative
.. ..............
(Pilotage) . . .
s.
peals to Supreme Court of Canada) 41
4s. 29 (Supreme Court Act)
................
STATUTES-Continued.
R..C.
s. 42 (Supreme Court Act) ................
6-R.S.C.
s. 42 (Supreme Court Act) ................
1, s. s.-s. (Interpretation Act) . . . ........ s. (Railways) . . . .......................
9-R.S.C. (1906)
s. (Appeals to Supreme Court of Canada) ............... s. 48(d) (Appeals to Supreme Court of Canada) ........ 11-R.S.C.
s. (Supreme Court Act) . . . 12-R.S.C.
146, ss. 13-R.S.C.
1016, (Criminal Code) .. 14-R.S.C.
s. .... ?.S.C. c. s. (Canada Temperance Act). . . ........... 16-50
C V. s. chequer Court Act) ...............
V. 33(D.) acts the Crown) .............
STATUTES-Con tinued.
18-53 s. 74(D.) (Bank Act)
...................
,Se
& ss. 204(D.)
20-53
J ss. 744,
750(D.)
(Criminal Code, .. .284
21-60
&
(Appeals to
Supreme Court Canada from Ontario)
......
. . . . . ..................
22-2
Edw. VII s. 1 pert Tcstimony) . . . . . ..........
23-3
Pdw.
(Railway
Subsidies) . . . ...................
24-3
Edw. VII. s.
(Amendment to Railway Act) ......
25--4 TII. 1 (Fines under Canada Temperance Act) ...
26-4
(Alberta Act) .. .. . ..................
s. ss.
and 3 (Asslynments Insolvents).
.
....................
S-e
V. 95(Q.)
(Privost Estate)
...........
29- Con. Ord. N.W.T.
(Medical profession) . . . .
.. ....
.620
STATUTES-Con tinued.
30- 6 VII. c. 28 (Alta.) (Medical profession) ...................
STOCK-Broker-Purchase on margin- Pledge of stock broker-Possession for delivery to purchaser . ......... SUBSIDIES-Aid to railway-Construction of statute-3 Edw. VII. Mode of estimating cost of construction of line-Rolling stock and equipment.137 SUBSTITUTION-Construction of willtween institutes - Validating legislation V. (Q.)-Construction of statute-Restraint of alienation-Interest of substitutes-Devise of property held -Res judicata-Arts. 868, The effect of the statute, 60 V. late the provisions of the will and codicils therein referred to, is to declare the deed of partition between the beneficiaries thereunder final and definitive and not merely provisional; the judgment the Court of Queen's Bench, on the appeal side taken under that statute, has no other effect.
Neither the statute nor view that the said will and codicils stitute more than one there was but one substitution created thereunder in favour of all the joint legatees consequently accretion takes among them within meaning of article
Civil in the event of any legacy lapsing. under the terms of the will, upon the death of an institute without issue prior to the opening of the substitution.
In such ease, the share of the institute dying without issue devolves to the other point legatees, as well consenuently. none of the institutes subst'tutes have the right of disnosing of any pertion the testator's estate, SUBSTITUTION-Continued.
will or otherwise, rrior to the date of the opening of the substitution. Judgment anpealed from (Q.R. 28
De Hertel Goddard
L.J.P.C. distinguished.
SURVEY-Title to land-Plan of survey proof-Findings of jury-Error-New trial. .
TERMS, INTERPRETATION
TIMBER LICENSE deed-Description of land - License to cut timber-Ambiguitas latens dence-Boundary timber area.
TITLE LAND-Plan of survey-Evidence-Onus of proof-Findings of jury
-Error-New trial.] Where it appeared that in directing the jury, at the trial, the judge attached undue importance to the effect of plan of survey referred to in a iunior grant as against a much older plan upon original grants of the lands in dispute depended and that the findings were not based upon evidence sufficient in law to shift the onus proof from the plaintiff and were, likewise, insufficient for the taking of accounts in respect to trespass and conversion minerals complained of:
Held, affirming the order for a new trial made the judgment appealed from (1
East. L.R. 293), that in the absence of error therein, the older grants and plan must govern the rights parties.
. ......................
Construction of will-Usufruct -- Partition between insti- Validating legislation-60 V.
-Construct of statute-Restraint of alienation-Interest of substitutes- Devise of property held by institute nder partition-Devolution of corpus estate es nature-Accretion-Res judicata-Arts. 0.0. ...........
TITLE LAND-Continued.
Electric lighting - Wires on public highway-Proximity to bridge-Injury to child-Dedication. 4- Construction of deed-Description of land-License to cut timber-Ambiguitas latens-Evidence - Boundary timber area. . . . ..................
5-Dominion mining regulations - Place mining grant-User of flowing waters-Diversion of watercourse-Dams and flumes-- Construction of deed-Riparian rights- 6-Placer right-nvasion of claim-Adverse acts .......... 7-Subaqueous mining-Crown grants censes-Damages-Pleading and practice -Statement of claim-Cause of action. ......... R- Vendor and purchaser-Sale of contract-Fraud-Speciflo performance. TRAMWAYS-Municipal corporation- Agreement with Electric Street Ry. Co. -Use of streets-Payment for-Percentage of receipts-Traffic beyond city - Validity of agreement.] By agreement between the City Hamilton and the Hamilton Street Ry. the latter was atithorized to construct its railway certain named streets and agreed to pay TRAMWAYS-Continued.
to the city, inter alia, certain percentages on their gross receipts.
Held, following Montreal Street Ry. v. City of Montreal ([1906] that such payment applies in respect to all traffic in the city including that originating or terminating in the adjoining Township of Barton.-Held, also, that as, when the railway was extended into
Barton the company agreed with that township to carry passengers from there into the city at city rates, the percentage was payable on the whole of such traffic and not on the portion within the city only.
Held, further, that the power of the company to construct its railway was not derived wholly from its charter, but was subject to the permission of the city corporation; the city had, therefore, a right to stipulate for payment of such percentages and the agreement therefor was inter vires.
The judgment of the Court of Appeal
Ont. L.R. 575), affirming that of
Meredith J. at the trial Ont. L.R.
was affirmed.
2-Negligence-Street railway cessive speed-Gong not sounded-Contributory negligence-Damages.] A passenger on a street car in Toronto going west alighted on the side farthest from the other track and passed in front the car to cross to the opposite side the street.
The space between the two tracks was very narrow and seeing a car coming from the west as she was about to step on the track, she recoiled, and at the same time the car she had left started and she was crushed between the two, receiving injuries from which she died.
In an action by her father and mother for damages the jury found that the company was negligent in running the east bound car at excessive speed and starting the west bound car and not sounding the gong in proper time. They found also that deceased was negligent, but that the company could, nevertheless. have avoided the accident the exercise of reasonable care.
the case having been submitted to the jury with charge not objected to the defendants and the evidence justifying the findings the verdict for the plaintiffs should not disturbed.-The plaintiffs should not have had the funeral
TRAMWAYS-Continued.
and other expenses incurred by the father of deceased allowed as damages in the action.
MuL- TRENT VALLEY CANAL-Navigation- Trent canal crossing-Swing bridge - Cost of construction-Maintenance-Order in council .
... ................
TRESPASS-Possession - Expropriation-Railway.]
The casual use of land for pasturing cattle in mon with other persons does not constitute evidence of possession sufficient to maintain an action for trespass. Judgment appealed from (1 East. L.R. 524) reversed. V. .........
. . . . . ..............
Trespass pending litigation - Colour -Sinister intention-Conversio-Blending materials of damages - -Compensation cence.] After a favourable judgment the Gold Commissioner in respect to the boundary between contiguous placer mining locations and while an appeal therefrom was pending, the defendants, with the knowledge of the plaintiffs, entered unon the location and removed a quantity of auriferous material from the disputed and undisputed portions thereof, intermixed the products without keeping any account of the quantities taken from these portions respectively and appropriated the gold recovered from the whole mass.
In an action for damages, taken subsequently, plaintiffs recovered for the total value of the gold estimated to have been taken from the disputed portion the claim, without deduction of the necessary expenses of workings I and winning the gold.
the judgment appealed from, Davies J. dissenting, that a correct appreciation of the evidence disclosed a sinister intention on the part of the defendants, that they had deliberately blended the materials taken from both parts of the loca- [S.C.R. Von. XXXVIII. TRESPASS-Continued.
tion, converted the whole mass to their own use and thereby destroyed the means of ascertaining the respective quantities so taken and the proportionate expense of recovering the precious metal therefrom, and that, consequently, they were liable in damages for the total value so much of the intermixed products as were not strictly proved to have come from the undisputed portion of the loca- Quxre.
Does the English rule governing the assessment of damages in respect of trespasses in coal mines supply a method assessment applicable in its entirety to placer mining locations?
V. ..........
Negigence
Horse racing truder upon race track - Carelessness.
...................
4-Title land-Plan of survey - Onus of proof-Findings jury-Error-Neto trial .. . ........
TRUSTS-Breach of contract-Breach mining areas-Promotion of companyand agent
Account
Salvage - Indemnity for necessary expenses-Laches - Estoppel.1 The plainsold together with other areas to a company to incorporated for the purpose of operating the consolidated mining properties, the defendants agreeing properties upon the flotation of the scheme then being promoted him and other associates.
In order to hold
TRUSTS-Continued.
.
bonus in stock and bonds which the defendant gave him out of those he received for conveyance of the properties to the company. After deducting a ratable contribution towards this bonus, the defendant delivered to the plaintiffs the remainder of their proportion of stock bonds, but then form them that such deductions had been they, consequently, made no demand upon him for the balance of the shares and bonds until some time afterwards when they brought the action to recover the securities or their value.
ment appealed from, that whether the. regarded as a trustee or as the agent of the plaintiffs, he was not entitled, without their consent, to make the deductions, either way of salvage or to indemnify hmself for expenses necessarily incurred in the pre-ervation of the properties; and that, under the circumstances, their failure to securities before action did not deprive the plaintiffs of their right to recover. If the defendant is to be considered a trustee wrongfully withholdings securities which he was bound to deliver, he is liable dimages calculated upon the assumption that they would have been disposed at the best price obtainable.
If, however, he is to regarded as a contractor who has failed to deliver the securities according to the terms of his agreement, he is. liable for damages based on the selling price of the securities at the time when his oblization to deliver them arose.
Nant-Y-Glo and Blaina Ironworks Co. v. Crave
The Steamship Carrisbrooke Co. v. London and Provincial Marine and General Ins. ( iichael v. Hart & ( Breach trust I tute-Estoppel against Crown-Action- Adding parties-Practice. . . . . . .... See TURN- USE-Dominion mining regulations - Hydraulic mining-Place mining-Lease
-Water-grant-Conditions of grant - User flowing waters-Diversion watercourse-Dams and flumes struction of deed-Riparian rights - USUFRUCT-Construction of will-Substitution-Partition between institutes- Validating legislation-60V. 95(Q.)- Construction of statute - Restraint alienation - Interest of substitutes - Devise of property held institute under partition-Devolution of corpus estate es nature-Accretion-Res judicata-Arts. 948 C.C............1
VERDICT - Negligeroe - Railway company
Findings jury listen."]
attempted to drive over a railway track which crossed the highway at an acute angle where his back was almost turned to. a train coming from one direction.
approaching the track he looked both ways but did look again just ing when seen engine approaching which struck his team and was killed.
In an action hr him widow and children the jury found that the statutory warnings had not been given and a verdict was given for the plaintiffs and affirmed by the
Court Appeal.
Held, affirmine the judgment the Court of Appeal (12
Ont. L.R. 71), Fitzpatrick C.J. hesitante, that the findings of the jury were not such as could not have been reached reasonable men and the verdict was justifled.
2-egligence-Street railicay-Excessie speed-Gong not sounded-Contributory negligence-Damages. .......
PURCHASERof title-Yew term-Statute of Frands-Principal and agent- Secret commission-Principal of contract
-Fraud-Specific performance.] While A
PURCHASER-Con. absent abroad, assumed, without authority, to sell certain his lands and received, from a deposit account the price.
receipt a cablegram from notifying him what had but without disclosing the name the proposed purchaser, replied, letter, stating that was willing to sell at the price named, that would not complete the deal until returned home, that the sale would subject to an existing lease the premises and that would furnish title other than the that were in his possession, and requesting to communicate these terms the proposed purchaser.
learning the conditions, in a letter by his solicitors, accepted the terms and offered to the balance of the price as soon as the title was evidenced to their satis- Held, that the correspondence which had taken place constituted a contract sufficient to satisfy the requirements of the Statute of Frauds, that the words soon as title is evidenced to our satisfaction," in the solicitors' letter accepting the conditions, did not import the pronosal of a new term and that A was bound to specific performance.-Held, also, that an arrangement, unknown to and made prior to the receipt of his letter, whereby was to have commission on the transaction could not have the effect avoiding the contract, as B was not, at that time, the agent of for the sale the iroperty.
Rep. 236) affirmed.
VENDEE-Sale of securities-Interpretation of contract-Arts. and creditor-Right of way claims - Legal expenses incurred in settlement. ........ Rvans WATERWORKS-Municipal corporation -Water rates-Discrimination.] Held, affirming the judgment of the Court which sus- WATERWORKS-Continued.
tained the verdict at the trial Ont.
L.R. 280) that the rate for water supplied to any class of consumers must an equal rate to all members of such class and a by-law providing for a rate on certain manufacturers higher than that to paid others was illegal.
Attorney-General v. City of Toronto
Can. S.C.R. 514)
....
.............
WILL-Construction of will-Usufruct
Partition between institutes-Validating legislation-60 V.
straint of alienation-Interest of substitutes-Devise of property held by
Res judicata-Arts. 948 0.0.)
effect of the statute, V. (Que.), respecting the will of the late Amable
Privost, read in conjunction with the provisions of the will and codicils therein referred to, is to declare the deed partition between the beneficiaries thereunder final and definitive and not merely provisional;
the judgment of the
Court of Queen's Bench, on the apneal side taken under that statute, has no other effect.
Neither the statute nor view that the said will and codicils constitute more than one substitution; there was but one substitution created thereunder in favour of all the joint legatees and consequently accretion takes place among them within the meaning of article of the Civil in the event any legacy lapsing, under the terms the will, upon the death of an institute without issue prior to the opening the substitution. In such case, the share of the institute dying without issue devolves to the other joint legatees, as well in usufruct as in absolute ownershin, and consequently, none of the institutes or substitutes have the right of disposing of any portion of the testator's estate, by will or otherwise, prior to the date of the opening of the substitution. Judgment appealed from (Q.R. 28 257)
DeHertel v. Goddard L.J.
WILL-Continued.
P.C.
PRtvOST . . .....................
2-Revocation of will-Testamentary capacity-Findings of fact-Practice - Improper suggestion - Undue influence -Onus of proof.)
While the testator was suffering from a wastinf' disease which he died shortly afterwards, the fendant, his brother, took advantage his weakness of mind and secretly obtained the execution of a will, in which he was made the principal beneficiary, fraudulently suggesting and causing the testator to believe that his malady was caused and aggravated by the carelessness and want of skill of his wife in the preparation of his food.
The testator and his wife had lived together harmony for a number of years and, shortly after their marriage, had made wills by which each of them, respectively, had constituted the other universal residuary legatee and the testator's former will, so made, was revoked the will propounded the defendant. that, as the promoter of the will, which he took a bounty, had failed to discharge the onus of proof cast upon him to shew that the testator had acted freely and without undue influence in set aside. The iudgment appealed from was reversed, on the ground of captation and undue influence, but the Supreme Court of Canada refused to interfere with the concurrent findings of both courts below against the contention as to the testator's unsoundness of mind. WORDS
PHRASES case" . . . . . .....................
2-"Judicial proceeding" ........ "Look and listen" .. ........... WORDS PHRASES-Continued.
4- "Not less than . .......... 394
Seo
- WORDS PHRASES-Continued. "Public work" . . . ............ "Stipulations" . . . ..........
Statutes and regulations cited
-
- section 900
- ss. 204
- s. 32
- section 204
- s. 204
- ss. 204(D.)
-
- sections 66
- 69
- 73
- Section 16
- section 3
- section 16
- s. 16
- s. 1024
- ss. 235
- ss. 744
- 750
- s. 74(D.)
- section 74
- ss. 1024
- ss. 59
- 235
- ss. 750
- s. 74
- ss. 1013
-
- s. 33
- s. 29
- s. 42
- s. 1
- ss. 227
- section 42
- s. 1(d.)
-
- s. 26
- s. 37(c)
- s. 48(d)