Majority
. APPELLANTS; -- GREEN (DEFENDANTS)
............
*June 12. *Oct. RUSSELL BLACKBURN (PLAINTIFF)
RESPONDENT. APPEAL FROM
THE SUPERIOR
SITTING REVIEW, AT MONTREAL.
ss. 1441; & ,
The expression "proprietor of the soil," in section of the Revised Statutes of Quebec, as amended & Vict. 20, read in connection with see. Rev. Stat. Que., is not intended to designate the holder of a location ticket, and, consequently, persons holding Crown lands, merely as locatees, have no vested preferential rights to grants from the Crown of the mining rights therein, under sees. and of the Revised Statutes of Quebec, as amended the "Act to amend and consolidate the Mining Law," 55 & Viet. 20 (Que.).
APPEAL from the judgment of the Superior Court, sitting in review, at the City of Montreal, which affirmed the judgment of Mr. Justice Rochon, in the Superior Court, District of Ottawa, maintaining the plaintiff's action with costs.
The action was for the revendication of the mining rights in lot No. 18, in the Gore of the Township of Templeton, County of Ottawa, certain minerals extracted therefrom by the defendants, and to recover damages. At the trial, in the Superior Court, District -Gironard,
Davies, Idington, Maclennan and Duff JJ. 44% of Ottawa, the plaintiff's action was maintained and the defendants were ordered to deliver up possession the mines on the said lot of land, a quantity of mica,- which had been seized under attachment issued with the action, or to pay the value thereof to the plaintiff with costs. This decision was affirmed by the judgment appealed from.
The circumstances of the case and issues raised upon this appeal are stated in the judgments now reported.
Arthur McConnell for the appellants.
Aylen K.C. for the respondent.
and JJ. agreed that the appeal should be dismissed with costs for the reasons stated by Duff J.
J.-One of the appellants .received the following license:
Both appellants on the 2nd of January, 1901, obtained the following location ticket:
Crown Lands Agency.
Hull, 2nd January, Received from and John Green the sum of being the first instalment of one-fifth of the purchase money of acres of land contained in wood lot No. in the Gore range of the Town. Idington J. ship Templeton, the remainder payable in four equal annual instalments, with interest from this date.
This sale it not disallowed by the Commissioner of Crown Lands, is made subject to the following conditions, viz.: "The purchaser to take possession of the land within six months from the date hereof, and from that time continue to reside on and occupy the same, either himself or through others, for at least two years, and within four years at farthest from this date, clear, and have under ciop a quantity thereof in proportion of at least ten acres for every one hundred acres, and erect thereon a habitable house of the dimensions of at least sixteen by twenty fe't. No timber to be cut before the issuing of the patent, except under license, or clearing of the land, fuel, buildings and fences; all timber cut contrary to thes2 conditions will dealt with as timber cut without permission on public lands.
No transfer of the purchaser's right will recognized in cases where there is default in complying with any of the conditions sale.
In no case will the patent issue before the expiration of two years occupation of the land, or the fulfilment the whole of the conditions, even though the land paid for in full.
Subject also, to current licenses to timber the land, and the purchaser to pay for any real improvements now existing thereon, belonging to any other party. sale is, moreover, subject to the laws and regulations concerning the public lands, wood and forests, mines and fisheries in this Province.
Agent. CAUTION.-If the Commissioner of Crown Lands is satisfied that any purchaser of public lands, or any assignee claiming under him has been guilty of any fraud or imposition, or has violated neglected to comply with any of the conditions sale or if any sale has been made in error or mistake, may cancel such sale, and resume the land therein mentioned, and dispose of it as if sale thereof has been made.
Extract from 20th Act Vict. On the 23rd May, 1903, a patent was issued to the appellants for the south part of lot No. 18 of the Gore of the Township of Templeton.
In this patent there is a proviso that the grant is subject to the laws and regulations concerning public lands, mines and fisheries in the province.
On the 25th of May, 1905, the appellants received from the Crown Timber Agency at Hull the follow- This sum of $75.00 was duly remitted to the Minister of Lands, Mines and Fisheries, by the agent who in doing so stated that it was a balance due on the south half of lot 18 Gore of Templeton mining lot for John and Alex. Green.
I cannot find in the case any acknowledgment of this letter until the 15th of November, 1905, and then only incidentally in replying to a letter from the agent dated 11th November, 1905, requesting a patent for the mines to be issued to John Green and referring to the lot as being in dispute between Messrs. Russell Blackburn and the said Mr. Green.
In this letter of 15th November, 1905, the Deputy Minister promises that the $75.00 deposited by the Greens in the department will be reimbursed to them and the patent issued to the Messrs. Blackburn Bros. It is alleged in these letters that Messrs. Blackburn had bought and paid for the mining rights in the lot 18 a year before Greens had made any application. The agent at Hull thereupon on the 17th November, 1905, writes John Green that the Messrs. Blackburn Bros. had bought the mining rights on the south half of lot 18 Gore of Templeton on the 16th July, 1904, and sends him a cheque for $75 being the amount given by Green for the same.
It appears in the case, by a letter from the agent Idington J. to the department enclosing a cheque for $375, that the department were requested on the 16th July, 1904, to issue a patent to Blackburn.
It would appear from this letter that the cheque was for the south half of lot 18 Gore of Templeton and other lands in the same township, and as if the discovery had been made by one Edward Patry who had transferred to Russell Blackburn.
It would seem from the evidence that the transaction was not closed in 1904, and it was only closed on the 12th July, 1905. The evidence on this point is interesting:
Q.-You did not buy it from Patry-Patry's permit was for lot 17? A.-17 and
Q.-What part of A.-The north half.
Q.-So it was under Patry's permit that you actually intended to work?
A.-When we first started?
Q.-Yes.
A.-Yes.
Q.-And was it not under that same permit that you were buying Patry's rights for from Mr. Gendron?
A.-No; under Patry's license he had the whole and the north half of Q.-That was only a prospecting license Patry had?
A.-Yes. Q.-Didn't you pay this $375 to secure the mining rights under the license for permission to explore which you had got transfers from Party to you? A.-To secure part of the lots he had under his license.
Q.-That was what the was for? A.-Yes.
Cross-examined by Mr. Aylen:
Q.-I see a receipt here dated July, signed Jules Gote, did you pay that money then? A.-Yes.
Q.-You got that from the secretary the department-that receipt.
A.-Yes.
Q.-Is that his signature?
A.-Yes.
Q.-And what was that for? A.-That was for the payment the balance of lot in the Gore of Templeton.
Q.-And afterwards did you get from the Hon. Mr. Provost, It would seem as if this Blackburn application remained ungranted at the time when the agent in Hull had as above stated transmitted on behalf of the appellants $75.
It would seem moreover, as if neither of applicants had deposited enough of money to cover the price fixed by the department for the mining lands respectively sought after by each of these applicants; rightly or wrongly the appellants entertain a suspicion that they were not fairly dealt with and that in an irregular manner Blackburns were preferred over them. I cannot say for I have no right to pass upon the question at present whether the suspicion be well founded or not. It appears upon this evidence that if the Minister had desired he could notwithstanding anything that appears before us have upon receipt of the $75 pointed out to the Messrs. Green wherein their application failed or fell short by reason of the amount of money forwarded being less than could be received; and they might thereupon have made that good and he might also have discarded the Blackburn application founded upon a prospecting license that did not cover the south half of lot 18. Notwithstanding all that I do not see how Messrs. Green can herein maintain that any prior right in law had been acquired by them by reason of the Minister preferring one irregular application over another. It was entirely within his province in such a case to prefer one of two irregular applications over the The case of the selection of one party over the J. other as referred to above might if brought about by improper means have given rise to a case of a different character when the right of the party suffering could be asserted but only by means of an application or information to set aside the patent.
It is urged, however, that quite independently of the deposit of the appellants had by virtue of the above location ticket or patent a prior right in iw to acquire the mining rights and that such prior right could not be set aside without notice to the appellants.
It is said on the other hand, that in such a case if the Minister chose to disregard that preferential right the only remedy would be against the Crown by way of petition of right or possibly an application in some other way to have the patent issued to Blackburn rescinded as having been issued improvidently.
It is urged that such would be the only remedy. I do not so understand the law.
If by statute there had been clearly created a mining right in the owner of the land it could be only set aside by an express enactment of the legislature, or by following the proceedings expressed in the law whereby forfeiture might be brought about of such preferential right, by notice to him, and the opportunity being given to avail himself of his privilege. No ex parte act of the Minister could invade the right created by statute and vested in another, and hence the appellants would if of the class given such a right have had a good defence.
The appellants set up a claim of this kind as derived from and by virtue of the location ticket quot'ed above. The location ticket does not maintain such a Idington J. pretension nor can I find that the statute by virtue of which the location ticket was issued justifies any such pretension existing in the holder of any location ticket.
Art. 1269 of the Revised Statutes of Quebec, 1888, is as follows:
Upon the conditions and for the price regulated and established the Lieutenant-Governor in Council, the Crown lands agent, if there is no contestation, is bound to grant a location'ticket to any person who asks to purchase a lot of public lands for colonization purposes, if the lot asked for is for sale and not already granted. Such grant is, however, subject to the approval of the Commissioner, and shall not prejudice the right of the latter to sell the lands under the Mining Act as well as firewood lots under existing regulations and sugary lands.
By sec. 14, ch. 22 of 60 Vict. of the Province of Quebec, the above article was amended as follows: Art. of the Revised Statutes is amended replacing of the words, after the words "right of the latter," in the second line of the second part the words: "to sell the land as firewood lots under existing regulations and sugary lands, nor the right of the Commissioner of Colonization and Mines to sell the lots under the law respecting mines."
The article was further amended by ch. 14 of 63 Vict. by replacing the second clause thereof by the following:
Sales made Crown lands agents if not disapproved the Commissioner within four months thereafter take effect from the date when they were made such agents.
Such grant, however, shall not prejudice the right of the Commissioner to sell, under the regulations, the lands as firewood lots and as sugary lands, nor the right of the Commissioner of Colonization and Mines to sell the lots under the laws.respecting mines. This came in force on the 23rd of March, 1900. It is under this last amendment that the location ticket in question issued. I cannot understand how under that or any of the previous statutory provisions above recited, there could ever since 1888 have existed a right in a locatee to the minerals or to any preferential right of purchase thereto.
We were referred to certain interpretation clauses that would go, when read in conjunction with art. 1441 in connection with art. 1440, to support this right, but I cannot find anything that could by any possibility give effect thereto in the manner claimed. The sections referred to evidently were intended to apply to the case of absolute dominion over the land and not to such limited rights as the locatee such as in question could claim.
The only legislation had in the way of further amending art. 1269 was after this location ticket had been issued and in no way adds to the force of the foregoing so far as aiy right the appellants may have had by virtue of their location ticket. Then the question is raised as to how the appellant could have acquired any such rights in minerals as he sets up by virtue of his patent. The patent itself does not confer any such right and the only reference made to the subject at all in the patent is the last paragraph thereof which reads as follows:
We have not been shewn any further enactment or regulation directly or expressly conferring any such right in a patentee. It is difficult to see how one having acquired a patent merely by virtue of complying with all the conditions of such a location ticket as the one here issued pursuant to any enactment such as art. 1269 in the Revised Statutes, 1888, or as it appeared in any of all its modifications down to the time BusCKunuN. when the appellants obtained the location ticket in Idington J. question could claim any preferential mining right such as set up here.
Such rights seem to have been expressly excluded from the operation of any location ticket under art. 1269.
Then the appellants fall back upon arts. 1440 and Art. 1440 of the Revised Statutes of Quebec is as follows:
The mining rights belonging to the Crown which consist of the ownership of the property under the soil, under articles and may acquired from the Commissioner sale or lease license or permit of occupation the proprietor of the soil, who has a preferential right to the purchase of such mining rights. Any miner may acquire mining rights if the proprietor of the soil neglect or refuse to work the said mines, after having put the proprietor in default notice given under articles and paying, upon the award of arbitrators as hereinafter provided, all the damages and losses that he may cause the latter in mining or attempting to mine under such soil.
Arts. 1423 and 1424 referred to in this art. 1440 read as follows:
It shall not be necessary, in any letters-patent for lands granted for agricultural purposes, to mention the reserve mining rights, which reserve is always supposed to exist under the provisions of this section.
As respects the Crown, such mining rights, so tacitly reserved, shall property separate from the soil covering such mines and minerals comprised in such rights, and shall constitute property under the soil which shall also public property, independent from that of the soil which is above it, unless the proprietor of the soil has acquired it from the Crown as a mining location or otherwise, in which case both the soil and the property under the soil form but one and the same privatv property. However, whenever a person who has become owner of the soil and of the property under the soil, under any title, before the 10th of June, sells, hypothecates, leases or affects the mining rights in such property to another person, under article 2099 the Civil Lower Canada, such soil and the property under the soil again become two properties perfectly distinct and independent from each other, for all lawful purposes, as they were when in the possession of the Crown, so that the sale, judicial or otherwise, of one of these properties, does not in any way affect the It is, however, well understood that the rights acquired over such property, during the confusion in the ownership of the soil Idington J. and of the property under the soil, are in no wise affected by the subsequent sale of mining rights and the division the property in the soil and of that under the soil arising therefrom under this gection; except only that the owner of the property under the soil shall sued and made a party to the suit in the same manner as if had purchased a part or portion the soil.
In the Revised Statutes of Quebec, 1888, we find the following:
Any person who previous to the 24th July, 1880, obtained letters patent, for agricultural purposes but with reservation the Government the mining rights, any lot whatever, forming part of the public lands of the province, may, if he or his legal representative discover and wish to work a mine, purchase the mining rights so reserved the Government, paying in cash to the Commissioner, over and above the price already paid for said lot, % sufficient additional amount to make up the sum of two dollars per acre, if for gold or silver, and one dollar per acre, if for copper, iron, lead or other baser metal.
Every proprietor land, sold for agricultural purposes, letters patent, but without any reservation the Government the mining rights, or the legal representative of such proprietor, who discovers upon such land a gold or silver mine, may work the same, without taking out a license for that purpose, paying to the Coinmissioner, over and above the price already paid for such land, a sufficient additional amount to make up the sum two dollars per acre.
It clearly appears from these two lastly mentioned articles that, in 1888, there probably were by virtue of prior law consolidated in these articles outstanding rights of persons who, previous to the 24th July, 1888, had obtained letters patent or, later and until the law was amended, might have obtained patents and yet had preferential rights, even where the reservation had been made by the Government of the mining rights in any lot patented for agricultural purposes.
This option was given to such patentees by the payment of an amount additional to that they had paid to make up the sum of $2 per acre, if for gold or J. silver, or $1 per acre if for copper, iron, lead or other baser metal.
The other class, art. 1426, does not cover the appellants' case.
Then it is set up here by the appellant that by virtue of art. 1441 as it stood at the time of their purchase when read in connection with art. 1440 above set forth that the patentees had acquired a preferential right.
Art. 1441 as it stood at the time in question by virtue of its last of many amendments up to that time being 1 Edw. VII. 13, sec. 2, was as follows : We are asked to read these two articles (1440 and 1441) together and it is ingeniously suggested that the words in art. 1440, "who has a preferential right to the purchase of such mining rights" were intended to confer and did confer down to the date of the appellant's patent a preferential right such as is indicated existed in some proprietors of the soil.
I cannot read these words after considering the legislation I have set forth so fully as conferring any right upon the appellants. The words do not expressly confer any.
They are an express recognition of the fact that some proprietors of the soil had acquired such preferential rights by virtue of some earlier legislation and that those who had acquired such rights by prior legislation had such control over the soil that the right could only be invaded by the express methods pointed out in the art. 1440 and also in later legislation.
Full effect is given to these words relied upon by attributing to them the cases of the operation of statutes conferring upon some of the earlier of the patentees the right to the minerals upon certain conditions. Such persons as then stood such owners and such of them as still own the property granted with that privilege are the persons who are referred to in art. 1441 by the words "who has a preferential right to the purchase of such mining rights."
The appellants had not brought themselves within that class or of any of those classes who enjoyed, as appears above in regard to some of them, the statutory right above referred to.
The appellants do not seem to me ever to have had any preferential right or other right to the minerals by virtue of being locatees or patentees of the land in question.
If the appellant who had obtained a mining license had discovered at the proper time the mine in question and followed it up by the proper steps he might have secured the mine. He did not do so, possibly because erroneously supposing that, when he became with his brother a locatee or patentee of the land, he had no more to do than sit down and enjoy the mine by virtue of the mining license he had got before his patent. I do not find as well founded this suggestion in argument that the two joined together created any right in law to the minerals in question.
The appeal I think must be dismissed with costs.
agreed in the opinion stated by
Idington J.
DUFF J.-This appeal raises the question of the title to the mining rights under the south half of lot 18, Templeton Gore.
The appellants on the 2nd January, 1901, acquired a location ticket in respect of this land and they received a patent of it on the 23rd May, 1903. Under the law as it stood on the first mentioned of these dates, 55 and 56 Vict. sec. 1441, the mining rights in question were the property the Crown but subject to a preferential right vested in "the proprietor of the soil" to acquire them on compliance with certain prescribed statutory conditions. On the 23rd of May, 1905, the appellants made application through the Crown lands agent at Hull for the purchase of these mining rights paying (I will assume) at the same time the price prescribed by the statute. If when this application was made, the preferential right conferred upon "the proprietor of the soil" by the enactment mentioned was vested in the appellants it is clear, in my opinion, that this application and payment (on the assumption mentioned) constituted a valid exercise of their preferential right purchase; and, thereupon, they acquired such an interest in the rights in question as would prevent the Crown from afterwards conveying a title to them except as subject to that interest. On the other hand, if the appellants had then no such preferential right, I am unable to discover anything in the transaction between appellants and the Crown officials which could affect the title of the Crown.
The holder of a location ticket bad by statute conferred upon him a conditional right to acquire a title to the lands in respect of which it was issued, subject to certain reservations.
Among other things there Was reserved to the Crown the power of disposing of the lands "under the mining law." Now it seems to me that, reading the provision in which this reservation is declared (R.S.Q. sec. 1269) along with sec. 1441, we must come to the conclusion that the legislature did not intend by the expression "proprietor of the soil," used in the last mentioned section, to designate the holder of a location ticket. This conclusion is fortified by the consideration that, on the appelllants' construction, the holder of a mere conditional right to acquire a title to the surface had vested in him by virtue of that conditional right alone, a preferential right to acquire an indefeasible title to the minerals. Looking at the statute as a whole, I do not think that is what the legislature intended.
The appellants then, holding the land as locatees only at the time the enactment was passed, had at that moment no vested right in the mining rights in dispute-indeed no vested privilege to acquire those rights-but only a conditional right to acquire a title to the surface which, if the mining rights should not in the meantime be alienated, would confer upon them a preferential right to purchase the minerals; a mere expectation of this sort is not, I think, within the rule which requires statutes to be construed so as not to effect an existing status prejudicially in so far as they are reasonably capable of another construction. The decisions of the Judicial Committee in Reynolds v. The Attorncey-General for Nova Scotia(1), and in Main v. Stark (2), illustrate the rule; and at the same time indicate the limits within which it will be applied. This case falls outside those limits. The minerals in dispute consequently came under the operation of the Act of 1901, and the appellants never had any preferential right in respect of them.
The appeal should, therefore, be dismissed with Appeal dismissed with costs. Solicitor for the appellants: Arthur McConnell. Solicitors for the respondents: Aylen d Duclos. Company-Sale of shares-Misrepresentation satisfaction.] a director in an industrial company transferred shares the capital stock to the president to sold for him.
The president instructed an agent to sell said shares along with some of his own and some belonging to the company.
The agent sold shares of G.'s stock to J. representing, and believing, that it was treasury stock and getting note for the price in favour the company.
The note was indorsed over to Later J. discovered that the stock had bought was not treasury stock and had some correspondence with the secretary the company which complained of having been I ceived the agent. Eventually he gave a four months' note in renewal of that given for the price of the stock but when it fell due refused to pay it, the company having in the meantime become insolvent.
In an action on the renewal note he filed a counterclaim for damages based on the misrepresentation deceit.
Judgment was given against him on the note and for him on the counterclaim.
Held, that was responsible for the fraud practised on the purchaser of his shares the misrepresentations of the agent who sold them.-Held, also, Girouard and Davies JJ. dissenting, that the settlement the claim for the price the shares giving the renewal note and thus obtaining further time for payment was not a release the purchaser's right of action for deceit.
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ACTION-Rivers and streams
Crown domain-Title to land - "Flottage" - Driving loose logs-Public servitude - Riparian ownprship-Action possessoire
400, 2192 C.C.-Art.
In the Province of Quebec, of floating loose logs, (flottables bilches article 400 of the Civil Code.
ers of the adjoining riparian lands are, consequently, the proprietors of the
ACTION-Continued.
banks and beds of such streams and have the right action au possessoire in respect thereof.
Judgment appealed from affirmed, Girouard and Idington JJ. dissenting.
Malicious prosecution-Reasonable for damages-Art. C.C.-Pleading and practice.]
An action for damages for malicious prosecution will not lie where it appears that the circumstances under which the information was laid were such that the party prosecuting entertained a reasonable bond fide belief, based upon full conviction founded upon reasonable grounds, that the accused was guilty of the charged. Abrath v. North Eastern Railway App. Cas. and Cox v. English, Scottish and Australian Bank ( referred to.
appealed from broker - Prospect us-Misrepresentations tors.] F. in June, purchased paidup shares in the capital stock an industrial company on the faith statements in a prospectus prepared a broker employed to sell them.
In January, he attended a meeting shareholders and from something heard there suspected that some of said statements were untrue.
After investigation demanded back his money from the broker and wrote to the president and secretary of the company repudiating his purchase.
At subsequent meetings of shareholders he repeated such repudiation and demand for repayment and in December, brought suit Held, that his delay, from January to December, in bringing I suit was not bar and was entitled ACTION-Continued.
to recover against the company.-Held, also, that he could not recover against the directors who had instructed the broker to sell the shares as they were not responsible for the misrepresentations in the prospectus.
the Supreme Court of New Brunswick
Rep. 364), affirming the decision at the hearing N.B. Eq. 508)
4-Waterworks-Statutory contract - Exclusive franchise-Condition of feasance-Forfeituro of monopoly
-Rescission-Art.
C.C.-40
(Que.).]
the Quebec statute,
Vict. Louis Molleur and others, represented the defendants, were substituted as sole owners of the waterworks of St. John's in the place of "The
St. John's," incorporated under charged with all the obligations and responsibilities said company, and, the said Act, Vict. the new proprietors were granted the exclusive right and privilege placing pipes water conduits under the streets and squares of the Town of St. John's (now the City St. John's, the appellant), under certain other conditions and obligations in the last mentioned statute recited, and the monopoly created was, section liable to forfeited in case neglect of refusal in the discharge the obligations thereby imposed.-Held, that the contract existing between the parties, in virtue of the above recited statutes, was liable to rescission under the provisions article of the Civil of Lower Canada, upon default in the specific performance the defendants obligations thereby imposed, and that, upon proof of default in the specific performance any of the said obligations, the municipal corporation was entitled to maintain an action in its corporate capacity to have the exclusive right and privilege granted the statute declared forfeited, surrendered and annulled.
The judgdeciding that the action would lie for breach of obligations expressly clared to involve forfeiture, was reversed,
Davies
J.
ACTION-Continued.
Damages-Trespass-Cutting tineber-Action married woman...... 6-Admiralty law the Exchequer Court of Canada-Claim under mortgage on ship-Action in rem -Defects in construction-Damages..418 See SIPs Petition of right - Government railway - Operation over other lines - Agreement for running lie work"-Construction of statute c. - Company-Sale of shares Misre- -Accord and satisfaction.......... 437 9-Builders and contractors-Responsibility for faults in construction - Negligence-Latent defect-Installations in constructed building - "Automatic Sprinkler System"-Damages flooding -Injuries sustained subsequent purchaser-Right of action-Assessment damages-Expertise-Arts. ADMIRALTY LAW-Preliminary act- Amendment-Collision-Evidence.] In an action in admiralty claiming damages injury to plaintiffs' ship, the "Neepawah," through collision with the "Westmount" belonging to defendants the preliminary act and statement claim alleged that the port quarter the latter struck the stern the "Neepawah."
The local judge, in his judgment, held that the evidence shewed a collision between the two ships stern to stern and, against jection defendants' counsel, of his motion allowed the statement claim to be amended to conform to such evidence stating that its admission had not been objected to and that defendants were not misled. Held, that such amendment should not have been made; that it set up a new case and one entirely different from that presented the pre- ADMIRALTY LAW-Continued.
liminary act and statement claim and greatly prejudiced the defence; and that the local judge was wrong in stating that the evidence was admitted without objection as it was protested against at the trial.-Held, also, that errors in the preliminary act may corrected the pleadings but, if not, the parties will be held most strongly to what is contained in their act.-Held, per Davies, Maclennan and Duff JJ., that the plaintiffs had not satisfactorily established that the collision, even that charged under the amendment, had actually occurred.-Per
Fitzpatrick
C.J., proved that no collision between the vessels took place.-Idington J. concurred in the judgment allowing the appeal.
2---Jurisdiction of the Exchequer Court of Canada-Claim under mortgage on ship in rem-Pleading-Abatement of contract price-Defects in construetion-Damages.] In an action in rem the builders of a ship to enforce a mortgage thereon, given to them on count of the contract price for its construction, the owners for whom the ship was built, may plead as a defence pro tanto that the ship was not constructed according to specifications and claim abatement the price in consequence such default and that the loss in value of the ship. at the time delivery, attributable to such default, should ducted from the claim under the mort- [Leave to appeal to Privy Council was granted the Supreme Court
Canada; 430.]
AGENT.
APPEAL-Jirisdictioi-tiount in eontrorcrsiy-Retraxit s. 46(c).1
In an action for damages, a few days before trial and after issues were joined and th case set down for hearing. the plaintiff filed retraxit reducing her claim to and gave notice that, at the trial, her claim would limited to that amount.
By the judgment appealed from, the
APPEAL-Continued.
damages awarded to the plaintiff were reduced to on account of contributory negligence found the jury. A motion to quash on the grounds that retraxit reduced amount controversy less than pealable limit and that the case actually tried was for only, and, consequently, that there could no appeal under R.S.C.
sec. 46(c), was allowed and the appeal was quashed with costs.
v. LABROSSE................96 2-,Jurisdiction judgment.] The declaration in an action a municipality claiming forfeiture of a franchise for non-fulfilment of the obligations imposed in respect thereof alleged in five counts as many different grounds for such forfeiture. The defendant demurred generally to the declaration and specifically to each count. The demurrer was sustained as to three counts and dismissed as to the other two.
appeal from the decision of the registrar refusing an order to affirm the jurisdiction of the Supreme Court to entertain an appeal from the judgment maintaining the demurrer:
Held, that each count contained a distinct ground on which forfeiture could granted and a judgment depriving the municipality of its right to rely on any such ground was a final judgment in respect thereof which could appealed to the Supreme . .
...................
3-Alternative relief-Judgment granting one-Final judgment.]
Where the last resort for the province for judgment, or, in the alternative, a new trial cannot appeal to the Supreme Court Canada from the judgment granting the latter relief.
Mutual Ins. v. Dillon Can. S.C.R.
4-Criiinal lair-Reserved case-Application for "during trial"-Crim. Code s. 1014(3).1
By 1014(3) of the Criminal either party may "during the trial" of prisoner indictment apply to have a question which has ar'sen re-ervd for adjudication the Court Appeal. Held. that for the pur- APPEAL-Continued.
poses of such provision the trial ends with the verdict after which no such application can entertained.
........................
Delay in approval of security - Jurisdiction-Extension of time-Stay execution.] Application for approval of the security an appeal to the Supreme
Court Canada was made within the time limited the statute, but the hearing the application was not completed until afterwards, and the judge made an order, after the expiration sixty days from the rendering of the judgment appealed from, approving the security offered the appellants.
Held, Idington J. (dissenting)
, that although the record did not shew that the judge had expressly made an order to that effect he impliedly extended the time accepting the security offered, and that this was a sufficient compliince with the statute.
An objection that the security approved was not such as contemplated by the 75th and 76th sections of the "Supreme Court Act,"
(the amount thereof being insufficient a stay execution), was not entertained for the reason that the amount in troversy was sufficient to bring the case within the competence of the court and it was immaterial whether or not cution could stayed.
The Attorney- General of Quebec v. Scott (34 Can.
S.C.R.
and The Halifax Election
Cases Can. S.C.R. referred to.
Fun- Mandamus-Lumber driving-Order to fix tolls-Past user of stream-Appeal-R.S.O.
s. 13.. .
ASSESSMENT TAXES.-Constitutional law-Municipal taxation-Official of Dominion Government-Taxation income-B.N.A. Act, ss. and
Sub-sec. of B.N.A. Act, giving a provincial legislature clusive powers of legislation in respect to "direct taxation within the province, etc.," is not in conflict with sub-sec.
which provides that Parliament shall have exclusive legislative authority over "the fixing of and providing for the salaries and allowances
ASSESSMENT TAXES-Con. of civil and other of the Government of Canada."
Girouard J. contra. therefore, Girouard J. dissenting, that a civil or other the Government Canada may lawfully taxed in respect to his income as such the municipality in which he resides. JoHN....... age"-Privilege of dernier 6quipeur debts of hirers-Seizure of ship-Arts. 2383, C..-Art. C.P.Q.-onstruction of statute-Ordonnances la arine, ......................
BANKS BANKING-Forged cheque -Negligence-Responsibility of drawee -Payment-Mistake - -Action-Money had and received - Change in position-Laches.] cheque for drawn on the plaintiff, was fraudulently altered changing the date, and the name of the payee, and by raising the amount to
The drawee refused payment for want of identification of the person who presented it. defendant bank, without requiring identification, advanced in cash to the forger on the forged cheque, placed the balance, to his credit in a deposit account, indorsed it and received the full amount of from the drawee. After receipt of this amount, the defendant paid the further sum $800 to the forger out of the amount so placed to the credit of his deposit account. The fraud was discovered a few days later and, on its refusal to refund the money it had thus received, the action brought to recover it back from the fendant as indorser or as having received money paid under mistake fact.
Held, that the drawee the cheque, although obliged to know the signature of its customer, was not under a similar obligation in regard to the writing in the body the cheque; that, as the receiving bank had dealt with the drawee as a principal and not merely as the agent for the collection of the cheque and had obtained payment thereas indorser and holder in due course, it was liable towards the drawee which BANKS BANKING-Continued.
had, through the negligence of the receiving bank, been deceived in respect to the genuineness the body of the cheque, and that the drawee was entitled to recover back the money which it had thus paid under a mistake of fact, notwithstanding that, after such payment, the position the defendant had changed paying over part of the money to the forger.
The Bank of Montreal v. The King Can. S.C.R.
distinguished.
Newall v.
Tomlinson
(L.R. 6 405); Durrant v. The clesiastical Commissioners for England and Wales 234); The Continental Caoutchouc and Gutta Percha v. Kleinwort, Sons & Co. Times L.R.
and Kleinwort, Sons & v. The
Dunlop Rubber Times L.R.
Judgment appealed from (17
Man. R. affirmed, Idington J. dissenting.
2-Purchase for value without 'notice
-Onus of proof-Pleading-Affirmative and rejective evidence-Weight of dence. . .
.
.........
..........
Construction will-De- -Bigamous marriage-Evidence- Bur- BILLS NOTES-Banks and Banking-Forged sponsibility of drawee-Payment - Mistake-Indorsem ent-Implied warranty- Principal and agent-Action-Money had and received - Change in position - Laches.] A cheque for drawn on the plaintiff (respondent), was fraudulently altered changing the date, and the name of the payee, and raising the amount to
The drawee refused payment for want i&ntification of the person who presented it.
The defendant bank, without requiring identification, advanced in cash to the forger on the forged cheque, placed the balance, to his credit in a deposit account, indorsed and received the full amount of from the drawee.
After receipt of this amount, the defendant paid the further sum of to the forger out of the amount so placed to the credit of his
BILLS NOTES-Continued. deposit account.
The fraud was discovered a few days later and, on its refusal to refund the money it had thus received, the action was brought to recover it back from the defendant as indorser or as having received money paid under mistake fact.
Held, that the drawee of the cheque, although obliged to know the signature of its customer, was not under a similar obligation in regard to the writing in the body of the cheque; that, as the receiving bank had dealt with the drawee as a principal and not merely as the agent for the collection of the cheque and had obtained payment thereof as indorser and holder in due course, it was liable towards the drawee which had, through the negligence of the receiving bank, been deceived in respect to the genuineness the body of the cheque, and that the drawee was entitled to recover back the money which it had thus paid under a mistake fact, notwithstanding that, after such payment, the position of the defendant had been changed paying over part of the money to the forger. The Bank of Montreal The King Can. S.C.R. 258) distinguished. Newall v. Tomlinson (L.R. C.P. 405); Durrant The Ecclesiastical Commissioners for England and Wales 234) ; The Continental Caoutchouc and Gutta Percha v. Kleinwort, Sons & Times L.R. 403) and Kleinwort, Sons & v. The Dunlop Rubber Times L.R. 696) followed. ment appealed from
Man. R. affirmed, Idington J. dissenting. IoN Material alterations-Forgery - Partnership-Mandate-Assent of parties -Liability of indorser-Construction statute-"Bills of Exchange Act."] R. induced H. to become a party to and the purpose raising funds and agreed to give warehouse receipts as security to the bank on discounting the note. It was arranged that the goods covered the warehouse receipts were to held and sold on joint account, each sharing equalin the profits or losses on the transaltered the without the H.. thereto the intiret sept par cent par an," and falsely represented to the bank that H. BILLS NOTES-Continued.
held the warehouse receipts as collateral security for his indorsement.
A couple of months later H., for the first time, became aware that the goods had never been purchased or placed in warehouse, that no warehouse receipt had been assigned to the bank and did not, until some months later, know that the alteration had been made in the note.
There was some evidence that H. had asked for time to make settlement of the amount due to the bank upon the note after he had become aware of the fraud and the alteration so made. Held, by Idington, Maclennan and Duff JJ.
that the instrument was a forgery and could not be ratified an ex post facto
The Merchants Bank v. Lucas
Can. S.C.R. 704; Cam. Cas.
and Brook v. Hook (L.R. Ex. 89), lowed.-Per Idington J.-The circumstances of the case did not shew that there had been assent to the alteration within the meaning of section of the
"Bills of Exchange Act."-Per
Maclennan J.-The assent required to bring an altered bill within the exception provided section of the "Bills of Exchange Act." R.S.C.
must be given the party sought to be bound at the time of or before the making the alteration.-Held, also, the
Chief Justice and Davies J. contra, that, in the special circumstances of the case, there was no partnership relation tween the parties to the note for the purposes of the transaction in question and there could no implied authorisation for the making of the alteration the note.-Per Fitzpatrick
C.J.-The transaction in question was joint venture or particular partnership for the enterprise in contemplation the parties and, consequently, R. had a mandate to make whatever agreement was necessary with the bank to obtain the funds and to provide for the payment interest on the advances required to carry out the husine-s.-Judgment apfealed from (Q.R. K.B. reversed, the
Chief Justice and Davies J. (dissenting)
.
BOARD RAILWAY COMMISSION- ERS-Jurisdiction-Location of railway
-Consent of municipality-Crossings- Leave of Board-Discretionary order.
..
.....
............
BROKER-Principal and agent-Secret profit-Trust-Clandestine transactions broker
Sha, purchaser-Commission-Quantum meruit.1
H., a broker, undertook to obtain two lots for F., as an investment of funds supplied F. for that purpose, at prices quoted and on the understanding that any commission or brokerage chargeable was to got out the vendors.
H. purchased one of the lots at a price lower than that quoted receiving, however, amount quoted from F., and, representing a sham purchase the other lot, got an advance from F. in order to secure it.
appealed from, -that H. was the agent of F. and could not make any secret profits out of the transactions, nor was entitled to any allowance way commission or brokerage in respect either lots so purchased. 2-Principal and agent-Sale of mining land-Commission-Change of purchaser - Continued transaction.] M., owner of mining lands, agreed to give thereof.
introduced a purchaser to and a contract for sale of the lands to said purchaser was executed. was replaced later contract which the sale price was reduced in sideration of an incumbrance on the property being paid the purchaser who borrowed the money for the purpose and assigned his interest in the contract to the lender, also signing release favour any claim against him on the contracts.
afterwards sold the mining lands to a person buying for the lenders the money to pay the incumbrance.
In an action for his commission:
Held, that he was entitled to the commission the full amount received for the land as finally sold.- Held, also, that the sale the land was not a transaction independent of the tract with the purchaser introduced but was a continianc ment appealed from affirmed, Davies J. CLENDTNNTNG
-Hescission-Delay-Liability of direfors ...
........................
Sec 1.
- Builders and contractors-Responsibility for faults in construction-Yegligence- Latent defect - Installations in constructed building-"Automatic sprinkler system"-Damages flooding-Injury sustained subsequent purchaser - Right of action-Assessment of damages
-Expertise-Arts.
CASES-Abrath North Eastern Ry.
Cas. referred to..128
2-Armstrong The King
C.R. affirmed ................
3-Attorney-General of Quebec Scott
Can. S.C.R. referred to 456
4-Bank of Montreal v. The King
Can. S.C.R.
distinguished .....
5-Battle
Willox Ont. W.R.
Out. W.R. 48; Ont. W.R.
Judgment appealed from reversed and
Divisional Court judgment restored..198
6-Beck
.tanufacturing
Valin et al. Ont. L.R. affirmed...
7- Hlonanza Creek Hydraulic Concession The King Can. S.C.R.
referred to ......................
8-Hour .ceLacllan
"Camosun" Ex. C.R. 214) affirmed
..........
...........
Brenurr Toronto R-ay. (15
Ont. L.R. affirmed ............
10-Brook v. Hook (L.R. Ex.
lowed . . . . . ......................
CASES-Continued.
11-Continental Caoutchouc and Gutta Percha Co. v. Kleinwort, Sons & Co. Times L.R. followed .......... Cox English, Scottish & Australian Bank ([1905]
referred 13-Douglas Fraser
-Man. 439) affirmed .....................
14-Durocher Bradford disapproved............128 15-Durrant v. Ecclesiastical sioners 234) followed ... .366 Farrell .M1anchester N.B. Rep. 364; N.B. Eq. 508) reversed.339 Faulkner (reer
Ont. 11alifax Election Cases Can. S.C.R. referred to ...... .... Ser
Hibert
La Banque Xationale (Q.R. K.B. reversed ...... 20-H~tu v. Dirrille Butter and Ch-ese A.ssociation K.B. affirmed . .. . .. .. . .. . . . . .. . . .. . .. . ... 8 21-Iredale V. London Ont. L.R. 286) reversed and trial court judgment Ont. L.R. modified ........ Inrerness (Q.R. K.B. affirmed..45 CASES-Continued.
23-Kleinwort, Sons & Dunlop
Rubber
Times L.R. 696)
followed . .. .
........
.............
gee
24-Lefrangois
The King
C.R. allirmed ................
25-Lloyd Guibert (L.R.
26-Marks Marks
Rep.
affirm .....................
Mlathewson Beatty
Ont.
L.R.
28-Merchants Bank
Lucas
Can. S.C.R. 704; Cam. Cas.
followed. .
......................
Aeighen Pacaud (Q.R.
405; K.B. affirmed ........
30-Miller Grand Trunk Ry.
([1906]
followed........229
31-Montreal Light, Heat Power
V. Regan (Q.R.
K.B. 246)
affirmed. . . . .....................
32-Mutual Ins. Dillon Can.
S.C.R. followed ...............
McBean Carlisle Jur.
34-McGarvey v. McNally
McGuire Fraser (Q.R. K.B.
R.L. [N.S.]
affirmed.......577
CASES-Continued.
36-Neoall Tomlinson (L.R. P. followed ..................
37-New Ontario S.S. Montreal Transportation
Ex. C.R. 38-Sharpe Willis (Q.R. Rev. Jur. 538) disapproved .. 39-St.
Jean, Ville de, v. Molleur (Q.R. K.B. 559) reversed ....... 40- Tanguay
Canadian Electric Light Co. (Q.R. K.B. affirmed..1 41-Tanguay Price Can. S.C.R. 42- Union Bank of Canada, Dominion Bank Man. R. affirmed..366 CHARTER-PARTY-Shipping-Material age"-Privilege of dernier 6quipeur - Round voyage-Personal debts of hirers -Seizure of ship-Arts. 2383, 2391 0.0. C.P.Q.-Construction of statute-Ordonnances de la Marine, ...... CHEQUE-Banks and Banking-Forged drawee-Payment
Mistake
Indorsement-Implied warranty-Principal and agent-Action-Money had and received -Change in position-Laches ..... CIVIL CODE-Arts. 400, 2192 .C.-(Rivers and streams) .......... 2-Arts.
2383, 2391 (Merchant shipping) .. . . ........................
CIVIL CODE-Continued.
Art. (Ddlits) ..........
4-Art.
("Lord Campbell's Act")
Arts. (Architects, builders and contractors) ..........
6-Art.
(Rescission of contracts)
. ...
....................
CIVIL PROCEDURE
(Action possessoire) .....
Art. (Attachment before judg- I
CIVIL SERVICE-Constitutional latcllunicipal taxation-Officials of I ion Government-Taxation on income- B.N.A. Act, ss. 92......
COMMISSION-Principal and agent- Secret profit-Trust-Clandestine transactions broker-Sham purchaser- Principal and agent-Broker-Sale of mining land-Commission-Change purchaser-Continued transaction...
COMPANY-Paid-up shares - Sale bit tors.] F. in June, purchased paidup shares in the capital stock of, an industrial company on the faith of statebroker employed to sell them.
In January, 1904, attended a meeting shareholders something he heard there suspected that some of said statements were untrue.
After investigation he demanded back his money from the broker and wrote to the president
COMPANY-Continued.
and secretary of the company repudiating his purchase.
At subsequent meetings shareholders le repeated such repudiation and demand for repayment and in December, brought suit Held, that his delay, from January to December, in bringing suit was not a bar and was entitled to recover against the company.-Held, also, that he could not recover against the directors who had instructed the broker to sell the shares as they were not responsible for the misrepresentations in the prospectus.
the Supreme Court New Brunswick N.B. Rep. 364), affirming the decision at the hearing Eq. 508) Sale of shares-Misrepresentation a director in an industrial company transferred shares the capital stock to the president to sold for him.
The president instructed an agent to sell said shares along with some his own and some belonging to the company.
The agent sold shares of G.'s stock to J.G. representing, and believing, that it was treasury stock and getting a note for the price favour of the company.
The note was indorsed over to
Later J. discovered that the stock he had bought was not treasury stock and had correspondence with the secretary of the company in which he complained of having been deceived the agent. Eventually he gave a four months' note in renewal of that given for the price of the stock but when it due refused to pay it the company having in the meantime become insolvent.
In an action the renewal note he filed a counterclaim for damages based on the misrepresentation deceit.
given against him on the note and for him the counterclaim. Held, that was responsible for the fraud practised on the purchaser of his shares by the misrepresentations the agent who sold them.-Held. also, Girouard and Davies JJ. dissenting, that the settlement of the claim for the price of the shares giving the renewal note and thus obtaining further time for payment was not a release of the purchaser's right of action for deceit.
CONDITION-Title to land-Sale--Construction of deed-Resorvation of grotoing timber-Rights of vendor and purchaser-Resolutive condition . .......
less ces-Procedure on inquiry-Judicial duties of arbiter . . .. ...........
3-Waterworks-Statutory contract- Exclusive franchise-Condition of feasance-Forfeiture of monopoly-De- -Rescission of contract-Art. 0.C.
V. (Que.) ..............
CONSTITUTIONAL LAW taxation-Official of Dominion Government-Taxation on income-B.N.A. Act, ss. and
Sub-sec.
B.N.A. Act, giving a provincial legislature exclusive powers legislation in respect to "direct taxation within the province, etc.," is not in conflict with sub-sec. of which provides that
Parliament shall have exclusive legislative authority over "the fixing and providing for the salaries and allowances of civil and other the
Government of Canada."
Girouard J.
contra.-Hold, therefore,
Girouard
J.
dissenting, that civil or other of the Government of Canada may lawfully taxed in respect to his income as such the municipality in which
.....
.............
CONTRACT-Share of profits-Absolute or conditional undertaking--Construction of contract-Damages.] contract between
W. and recited that W.
owned land to worked as a gravel-pit;
that was about to enter into contracts for supplying sand therefrom;
and that had requested to assist him financially to which B. had consented on certain conditions; it then provided that "the said W. is to enter into contracts as follows" naming corporations and persons to whom he would supply sand to a large amount at a minimum price per yard; that would indorse W.'s note to the extent of.$5,000
CONTRACT-Continued.
and have days to declare his option to take one-fourth interest in the profits from said contracts, or purchase a one-third interest in the property and business; that each party would account to the other for moneys received and expended in connection with the property; that if either party wished to sell his interest would give the other the first choice purchase; and that "each the parties hereto agrees to carry out this agreement to the best of his ability according to the true intent and meaning the same and to do what he can mutual benefit to the parties hereto." indorsed notes as agreed. W. entered into two the contracts, sold a quantity sand and then sold the property, without notice to B., who brought an action claiming his share of the profits that would have been earned if the contracts had been entered into and fully carried out. Held, Fitzpatrick C.J. and Maclennan J. dissenting, that the undertaking W. to enter into the contracts was absolute and having the sale put it out his power to perform it he was liable to who was titled to damages the basis the contracts having been carried out.-Held, also. Duff J. hesitante, that the clause quoted did not modify the rigour the absolute covenant W. to procure these contracts any event.-Judgment the Court Appeal Out. W.R. reversed, and the judgment of the Divisional Court Ont. W.R. reversing that Anglin J. Ont. W.R. restored.
W1aterworks-Statutory contract- Exclusive franchise- Condition of defeasance-Forfeiture of monopoly-De- -Rescission-Art.
C.C.-40 (Que.).]
By the Quebec statute, Viet. ch. Louis Molleur and others, now represented the defendants, were substituted waterworks St. John's in the place "The St. John's" incorporated under charged with all the obligations and responsibilities of said company. and. the said Act, 40 Vict. the new proprietors were grant'd the exclusive right and privilege of placing pipes or water conduits under the streets squares the Town of Saint John's CONTRACT-Continucd.
(now the City of St. John's), the appellant, under certain conditions and obligations in the last mentioned statute recited, and the monopoly created was, section liable to forfeited in case neglect of refusal in the disthe obligations thereby imposed.-Held, that the contract existing between the parties, in virtue the above recited statutes, was liable to rescission under the provisions article the Civil Lower Canada, upon default in the specific performance the defendants the obligations thereby imposed, and that, upon proof default in the specific performance any of the said obligations, the municipal corporation was entitled to maintain an action in its corporate capacity to have the exclusive right and privilege granted the statute declared forfeited, surrendered and annulled.
The judgdeciding that the action would lie for breach obligations expressly clared to involve forfeiture, was reversted.
Davies J. (dissenting)
.
V. M .......................
3- Mines and nincrals-Hydraulic regulations-Application for mining location-Duties imposed on Minister the Interior
Vested rights-Contract binding on the
Cro . ........................
4-Admiralty laic-Jurisdiction of the
Defects in construction-Damages..418
Contract-Construction of - Sale of timber-Fre simple-Right of removal-Reasonable time. ..........
LAW-Appeal
Criminal law-Reserved case - Application for
"during trial"-Crim. Code s. 1014(3).]
By 1014(3) of the Criminal either party may "during the trial"
CRIMINAL LAW-Continued.
a prisoner on indictment apply to have a question which has arisen reserved for adjudication the Court of Appeal. Held, that for the purposes of such provision the trial ends with the verdict after which no such application can be entertained.
.. CROWN-Rivers and streams-Crowen domain-Title to land -"Flottage" - Driving loose logs-Public servitude - Riparian manership-Action possessoire 400, 503, 2192 C.C.-Art. In the Province Quebec, floating loose logs, (flottables d baches article 400 of the Civil ers the adjoining riparian lands are, consequently, proprietors banks and beds of such streams and have the right action au possessoire in respect thereof.-There is, however, a right servitude over such watercourses respect to all advantages streams and their banks, in their natural condition, can afford to the public, there being no distinction, in this regard, tween navigable or floatable streams and those which are neither navigable floatable.
McBean Carlisle Jur. 276)
and Tanguay v. Price Can. S.C.R.
appealed from
(Q.R. K.B. affirmed, Girouard and Idington JJ. dissenting.
CO......................1 2-Negligence of felloto-servant-Operation of railiay-Defective switch Public work-Tort-Liability of Crown of action-Exchequer Court Act, s. 16(c)-Lord Campbell's Act - In consequence of a broken switch, at a siding on the Intercolonial Railway, (a public work of Canada), failing to work properly, although the moving the crank the pointsman had the effect changing the signal as to indicate that the line was properly set for an approaching train, an accident occurred which the locomotive engine was wrecked and the engine-driver killed. In an action to recover damages from the Crown, under article of the Civil of Lower Canada: affirming the judgment appealed from CROWN-Continued.
Ex. C.R. 119), that there was such negligence on the part of the officers and servants of the Crown as rendered liable in an action in tort; that the
"Exchequer Court Act," & Viet.
16(c), imposed liability upon the Crown, in such a case, and gave jurisdiction to the Exchequer Court
Canada to entertain the claim for damages; and that the defence that deceased, having obtained satisfaction or indemnity within the meaning of article of the Civil reason of the annual contribution made by the Railway
Department towards the Intercolonial
Railway Employees' Relief and Insurance Association, of which deceased was a member, was not an answer to the action. Miller v. The Grand Trunk Railway ([1906]
v. .......... 229
CROWN RESERVED-Appeal- Criminal law-Reserved case-Application for "during trial"-Criminal Code, s. 1014(3)-Construction of statute.272
CROWN LANDS-Mines and mineralsing on the Crown.] Under the hydraulic regulations for the disposal of mining locations in the Yukon Territory.
acted the Governor-General in Council on 3rd December, as amended subsequent regulations and the order in council of 2nd February, the Minister of the Interior is charged with the duty not only of pronouncing on the question whether or not the locations applied for should reserved disposal under such hydraulic regulations, but also determining the priority rival claimants, the extent of the locations and the conditions of any lease to granted-Until the minister has given a decision favourable to an applicant, there can no implied contract binding upon the Crown in respect to the location apnlied for. and the mere filing an application for an hydraulic lease confers no status or prior rights on the applicant in respect to the ground
CROWN LANDS-Continued.
therein described.
FooKs v. ..............
lease-Breach of conditions-Cons trueduties of arbiter.] Under a condition for defeasance in a lease of a mining cation, made the Crown in virtue the hydraulic mining regulations 3rd December, a provision that the Minister of the Interior is to the "sole and final judge" of the fact default the lessee does not entitle the Crown to cancel the lease and re-enter until the fact such default has been determined the Minister in the exercise the functions vested in him after an inquiry a judicial nature in which an opportunity has been afforded to all parties interested of knowing and being heard in respect to the matters alleged against them in such investigation.per Idington J.-Was there not sufficient evidence in the case to shew that there had been no such breach the conditions as could work a forfeiture duties of arbiter.] Under circumstances similar to those involved on the appeal in the case of The Bonanza Creek Hydraulic Concession v. The King Can. S.C.R. this appeal was allowed with costs for the reason that there could no right cancellation of the lease re-entry by the Crown until default by the lessees had been established upon an investigation of a judicial nature by the Minister the Interior in the exercise of the functions vested in him the hydraulic regulations and the terms of the lease.-Per Idington J.-The facts disclosed by the evidence could not justithe cancellation of the lease or reentry or breach of the conditions thereof. ......................
CROWN LANDS-Continued.
4-rown lands-Holders of location soil" - R.S.Q.
(1888), ss. 1441; &
20.]
The expression "proprietor the soil," in section the Revised
Statutes of Quebec, as amended
& 56 Vict. read in connection with Rev. Stat. Que., is not intended to designate the holder of a location ticket, and, consequently, persons holding Crown lands, merely as locaters, have no vested preferential rights to grants from the Crown of the mining rights therein, under sees.
and the Revised Statutes
Quebec, as amended
"Act to amend and consolidate the Mining Law," & Vict. ch.
CROWN OFFICER-Mines and minerals ing on the Crown................258 lease-Breach of conditions-Construeduties of arbiter.............281,
DAMAGES-Contract-Share of profits
-Absolute or conditional undertaking- Construction of contract.]
A contract between W. and recited that W. owned land to worked as gravel-pit; that was about to enter into contracts for supplying sand therefrom; and that he had requested B. to assist him financially to which B. had consented on certain conditions; it then provided that "the said W. is to enter into contracts as follows" naming corporations and persons to whom would supply sand to a large amount at a minimum price per yard; that B. would indorse W.'s note to the extent $5,000 and have days to declare his option to take a one-fourth interest in the profits from said contracts, or purchase a one-third interest in the property and business;
DAMAGES-Continued.
that each party would account to the other for moneys received and expended in connection with the property; that either party wished to sell his interest would give the other the first choice purchase; and that "each the parties hereto agrees to carry out this agreement to the best his ability cording to the true intent and meaning the same and to do what he can mutual benefit to the parties hereto." indorsed notes as agreed.
W. entered into two of the contracts, sold a quantity of sand and then sold the property, without notice to B., who brought an action claiming his share of the profits that would have been earned if the contracts had been entered into and fully carried out. Held, Fitzpatrick C.J. and Maclennan J. dissenting, that the undertaking W. to enter into the five contracts was absolute and having the sale put it out his power to perform it was liable to B. who was titled to damages on the basis of the contracts having been carried out.-Held, also, Duff J. hesitante, that the clause quoted did not modify the rigour of the absolute covenant W. to procure these contracts in any event.-Judgment of the Court of Appeal
Ont. W.R. reversed, and the judgment of the Divisional Court Ont. W.R. reversing that Anglin J. Ont. W.R. 4) re- 2-Trespass-Cutting timber-Sale to bond fide purchascr-Action owner land.] F. conveyed land to his wife for valuable consideration. Shortly after it was discovered that a trespasser had cut timber on said land and sold it to who bought in good faith and sold to another bond fide purchaser.
tion F.'s wife against the two purchasers the money was paid into court and an interpleader issue granted to cide which of the claimants, the plaintiff or was entitled to have it. affirming the judgment the Court which reversed the decision of the Divisional Court Ont. L.R. that the plaintiff was entitled to the whole sum. Duff J. expressed no opinion on the question. also, Idington J. dubitante and Duff J. dissenting, that if necessary the writ and interpleader order could be DAMAGES-Continued.
amended adding F. as a co-plaintiff with his wife.
3--Builders and contractors-Responsibility for faults in construction-Negligence-Latent defect -Installations constructed building-"Automatic sprinkler systen"-Damages flooding juries sustained subsequent purchaser of action-Assessment of danages-Expertise-Arts.
0.0.
4-- Malicious prosecution-Reasonable
0.0.-Pleading and practice.
....................
5-Admiralty lawe-Jurisdiction of the
-Defects in construction ..........
DEBTOR CREDITOR - Separate property
Liability for debts of husband-Registry law- "Real Property Act"-"Married Women's
Act"-Conveyance during coverture. .384
DECEIT-Company - Sale of shares - Misrepresentation-Fraud deceit-Accord and satisfaction ....
DEED-Title to land-Sale-Co nstrue- Reservation of growing timber-Rights of vendor and purchaser
-Resolutive condition.] deed of sale of wild lands to used for agricultural purposes clearly expressed certain specireservations and contained, in addition, a clause as follows: "Et plus prdsente vente est faite la condition expresse que dit acqudreur n'aura pas le droit couper, enlever ou charroyer aucun bois sur le terrain ci-dessus vendu pour faire batisses sur le terrain, clotures, et du bois chauffage; il est, conshquence, convenu que si reur coupait du bois en violation
DEED-Continued.
pr~sente clause, les vendeurs auront droit demander la r6siliation des sentes et reprendre possession des immeubles ci-dessus vendus sans rien payer D. l'acquhreur pour les amiliorations qu'il pourra avoir faites. Et tout bois coup6 violation des prhsentes deviendra, aussitat coup6, la propridt6 des vendeurs, tel est Ia convention expresse des parties et sans laiquelle prdsentes n'auraient pas eu lieu." Held, that, in the absence any contrary intention expressed in the deed, the title to the lot of land passed absolutely to the purchaser with the exception the special reservations.- Held, also, that the clause in question had not-the effect of reserving to the vendors all the timber standing upon the land sold, nor can it construed as giving them the right(without rescission upon breach the resolutive condition) to re-enter said land for the purpose of removing stumps or second growth timber. RIoux Easement appurtenant- Use of comcroachment on space over lane-Trespass of action.]
grant the right to use lane in rear of city lots "in common with others," as an easement appurtenant to the lots conveyed, entitles the purchaser to make any reasonable use, consistent with the common user, not only the surface but also of the space over the lane. The construction a fire-escape, three feet wide with its lower end feet above the ground (in compliance with municipal regulations), is not an unreasonable use nor inconsistent with the use the lane in mon others; consequently, its removal should not be decreed at the suit of the owner of the land across which the lane has been opened.
Judgment appealed from (Q.R. K.B. affirmed, Mac- 3-3Mining regulations lease-Breach conditions-Construcduties of arbiter.1 Under a condition defeasance in lease of mining location, made the Crown in virtue the hydraulic mining regulations of 3rd DEED-Continued.
December, a provision that the
Minister of the Interior is to the
"sole and final judge" of the fact of fault the lessee does not entitle the
Crown to cancel the lease and re-enter until the fact of such default has determined the Minister in the exercise the functions vested in him after an inquiry of judicial nature in which an opportunity has been afforded to all parties interested of knowing and being heard in respect to the matters alleged against them in such investigation.- Quaere, per Idington J.-Was there not sufficient evidence in the case to shew that there had been no such breach the conditions as could work forfeiture the lease?
.....
Forfeiture -Right duties arbiter.]
similar to those involved on the appeal in the case of The Bonanza Creek Hydraulic Concession v. The King Can.
S.C.R. this appeal was allowed with costs for the reason that there could be no right cancellation of the lease re-entry the Crown until default the lessees had been established upon investigation judicial nature the Minister of the Interior in the exercise the functions vested in him the hydraulic regulations and the terms lease.-Per Idington J.-The disclosed the evidence could not justify the cancellation of the lease or reentry or breach of the conditions thereof.
.......................
Privy
18th July,
Contract-Construction of deed
Sale of timber-Fee simple-Right of remoral-Reasonable time.]
remove it within ten years.
another agreement replaced this and the standing,
DEED- Continued.
ing or being on the land to have and to the same unto the said party of the second part, his heirs and assigns "forever" with a right at all reasonable times during years to enter and cut and remove the same.
exercised his rights over the timber at times up to his death in and his executors did after his death, -I. not objecting. In persons authorized said executors entered and cut timber and tinued until
The following year brought an action for an injunction against further cutting, a declaration that the right to take the timber had lapsed and for damages.-Held, affirming the judgment of the Court of Appeal Ont. L.R. 557), Davies and Duff JJ. dissenting, that the instrument executed in did not convey to the simple in the standing timber but only gave him the right to cut and remove it within a reasonable time and that such time had elapsed before the entry to cut in and was entitled to 6-Married woman-Separate property try law-"Real Property Act"-"Married Women's Act"-Conveyance during cover- DELIT-Malicious prosecution-Reasonable and probable cause-Bond lief in guilt-Burden of proof-Right action-Damages-Art. 1053 0.0.-Pleading and practice..................128 DEMURRER-Appeal--Final
Action in rem-Pleading-A batement of contract price-Mortgage on ship ..................
DERNIER EQUIPEUR-Shipping-Material men-Supplies furnished for "last voyage"-Privilege of dernier dquipeurdebts of hirers-Seizure of ship-Arts. 2383. 0..-Art.
0.P.Q.-Con- DERNIER EQUIPEUR-Continued.
struction of statute-Ordonnances de la steamship lying at the port of Liverpool was chartered the owners to P. for six months, for voyages between certain European ports and Canada, the hirers to bear all expenses navigation and upkeep until she was returned to the owners. The ship was livered to the hirers at Rotterdam where she took on cargo and sailed for Montreal.
arriving at Montreal she -unloaded and re-loaded for a voyage to Rotterdam, with the intention of returning to Montreal, and obtained a supply coal from the plaintiffs which was furn ished on the order of the hirers' agent at Montreal.
The ship sailed to Rotterdam and returned to Montreal in about one month, touching at Havre and Quedischarged her cargo and proceeded to re-load, obtaining another supply of coal from the plaintiffs in the same manner as the first supply had been furnished.
Within a few days, the price of these supplies of coal being still owing and unpaid, the hirers became insolvent, and the plaintiffs arrested the ship at
Montreal, claiming special privilege upon her as derniers dquipeurs in furnishing the first supply of coal her last round voyage, the right of attachment before judgment in respect of both supplies, and seizing her under the provisions arts.
the Civil Code and of the of Civil Procedure. Held, per Fitzpatrick C.J. and Davies, Maclennan and
Duff JJ., that the voyage from Montreal to Rotterdam and return was not the ship's "last voyage" within the meaning of article 2383 of the Civil that the voyage out from Montreal and that returning from Rotterdam did not constitute one round voyage, but were separate and complete voyages, and that, consequently, there was privilege upon the ship for the supply of coal furnished for her voyage from Montreal to Rotterdam.
And also, that the provisions article of the Civil Code did not render the ship liable to seizure personal debts the hirers. and, consequently, that she could not attached therefor by saisie-arrit. Judgment appealed from K.B. affirmed,
Girouard J. (dissenting)
.-Per Davies J.- The "last voyage" mentioned in article refers only to a voyage ending in the Province of Quebec.-Per Iding- DERNIER EQUIPEUR-Continued. ton J.-As the terms of the charterparty expressly excluded authority in the hirers to bind the ship for any expenses of supply and as nothing arose later that could by any implication law confer any such authority on any one and especially so in a port where the owners had their own agents any possible rights that might in a proper case arise under article 2383 of the Civil Code did not so arise here; and, therefore, though agreeing in the result he expressed no opinion on the meaning the term "last voyage" therein. Lloyd v. Cuibert (L.R. 1 should govern this case.
DISCRETIONARY ORDER - Board Railway Commissioners-Jurisdiction - Location of railway-Consent of municipality-Crossing-Lcave of Board ... LANDS.
See CRowN DONATION.
See Givr.
EASEMENT-Title to land-Construction of deed-Easement appurtenant- Use of common lane-Overhanging fireescape-Encroachment on space over lane -Trespass-Right of action.] grant of the right to use a lane in rear of city lots "in common with others," as an easement appurtenant to the lots conveyed, entitles the purchaser to make any reasonable use, consistent with the common user, not only of the surface but also of the space over the lane.
The construction of a fire-escape, three feet wide with its lower end feet above the ground (in compliance with municipal regulations), is not an unreasonable use nor inconsistent with the use of the lane in common others; consequently, its removal should not decreed at the suit of the owner of the land across which the Inne has been opened. appealed affirmed. Maclennan J. dissenting. v. PACAUD............... EASEMENT-Continued.
to land-Room in building- Adverse possession-Statute of Limitations-Incidental rights-Implied grant
-License or easement..............313
ELECTRIC WIRES-Negligence-Master and servant-Duty of employee-Insulation of electric wires-Onus of proof.
EMPLOYER EMPLOYEE.
Malicious prosecution
Reasonable and probable cause-Bond fide belief in guilt-Burden of proof- Right of action for damages-Art.
C.0.-Pleading and practice.] An action for damages for malicious prosecution will not lie where it appears that the circumstances under which the information was laid were such that the party prosecuting entertained a reasonable bond fide belief, based upon conviction founded upon reasonable grounds, that the accused was guilty of the charged. Abrath v. North Eastern Railway Cas. and Cox v.
English, Scottish and Australian Bank
( referred to.-Ssnble, that in such cases, the rule as to the burden of proof in the Province of Queis the same as that under the law of England, and the plaintiff is obliged to allege and prove that the prosecutor acted with malicious intentions or, least, with indiscretion or reprehensible want of consideration.
Sharpe v. Willis
29 14; Rev. Jur.
and Durocher v. Bradford disapproved.
pealed from K.B. affirmed.
v. DIXVILLE
2-Negligence-Master and servant- Duty of employee-Insulation of electric wires-Onus of proof.] An electric lineforeman in the company's employ met his death from contact with imperfectly insulated live wires while at work in proximity to them in the power-house.
The evidence left some doubt whether the duties of decaasel inclided the inspection
EVIDENCE-Continued.
and care of the wires both inside and outside of the power-house, or whether his engagement was to perform the duties in question in respect only to the wires outside the power-house walls. that the onus of proof as to the point dispute was on the defendants and, such onus not having been satisfied, they were liable in damages.
Judgment appealed from affirmed, Davies J. dissenting on a different view of the evidence, and holding that the duties of deceased included the inspection and care of the interior wiring.
v. FORTIN....................181 3-Construction of will-Description of legatee-Devise "to my wife"-Bigamous marriage-Burden of proof.] A devise made in a will "to my wife" was claimed by two women, with both whom the testator had lived in the relationship husband and wife. Held, per Idington J.-That, even if the first marriage was assumed to have been validly performed, all the surrounding circumstances shewed that, the words "to my wife," the testator intended to indicate the woman with whom he was living, in that relationship, at the time the execution the will and thereafter up to the time of his death.-Held, per Duff J.-That the woman who claimed to have been first married to the testator had not sufficiently proved that fact, and that the other woman, who was living with the testator as his wife the time of the execution of the will and up to the time of his death, was entitled to the devis-.-Held, per Davies and Maclennan JJ. (dissenting) .- That the first marriage was sufficiently proved and, consequently, that the devise went to the only person who was the legal wife of the testator.-Fitzpatrick C.J. was of opinion that the appeal should be dismissed.-Judgment appealed from (13 B.C. Rep.
Davies and Maclennan JJ. (dissenting)
.
Onus of proof-Affirmation and negative evidence-Weight of evidence.] Where conversation over the telephone was relied on as proof of notice, the evidence of the party asserting that took place, and giving the substance it in detail, must prevail over that EVIDENCE-Continued.
party states that does not recollect it.
.................
5-Negligence-Dangerous works-Protection of enployees-Evidence-Questions for jury-Judge's charge-Findings fact
Inferences.]
employee the defendants was killed an explosion illuminating gas while discharging his duties in the meterroom at the defendants' gas works.
was shewn that there might possibly have been an escape of gas from the controllers or other fixtures in the room or in the blow-room adjoining it; that there had been no special precautions the defendants to detect any such escape gas that might occasionally happen; and that the meter-room had always been and, at the time the cident, was lighted means open gas jets.
There was no exact proof any particular fault, attributable the defendants, which could have the whole cause of the explosion, and its origin and course were not explained.
In an action for damages by the widow and representatives deceased, the jury found that the explosion had resulted fault defendants in lighting the meter-room open gas jets, and contributory neglithe part of deceased was negatived.-Held, affirming the judgment appealed from (Q.R. K.B. 246), Davies and Maclennan
J. dissenting, that, in the circumstances, the jury were justified in finding that there had been such negligence and imprudence on the part injury
....................
6-Em ployer and employee-Improper appliances-Negligence-Proximate cause
-Finding of jury ...............
Public work-Tort-Negligence of fellooservant-Liability of Crown-Right action-Jurisdiction over claim for damages. ..
......................
EXCHEQUER COURT-Continued. Admiralty law-Jurisdiction of the Defects in construction-Damages.. EXECUTION-Married wonan-Separate property-Liability for debts of husband - Registry law -"Real Property Act"-"Married Women's Act"-Conveyance during coverture.............. Delay in approval security time-Stay of execution ........... EXECUTORS-Will-Powers of executors-Winding-up estate-Time limit- Legacy-Special legislation -Extension of time-3 Edw. VII. (Que.)- EXPERTS-Builders and contractors - Responsibility for faults in construction Negligence-Latent
Installations in constructed building-"Automatic sprinkler system"-Dam ages flooding-Injuries sustained subsequent purchaser-Right of act ion-Assessn t of damages-Expertise-Arts. 7696 C.C.
FALSE ARREST-Malicious prosecution -Reasonable and probable causo-Bond fide belief in guilt-Burden of proof - Right of action-Damages-Art. C.C.-Pleading and practice. ....... FAULT.
JUDGMENT- Jurisdiction-Demurrer . .. . ......................
FINDINGS FACT
Employer and employee-Improper appliances - Negligence-Proximate cause - Finding jury-Evidence . . . ................
FIRE ESCAPE-Title to land-Construction of deed-Easement appurtenant - Use of common lane-Overhanging fireescape-Encroachment on space over lane
-Trespass-Right of action. .......
FORGERY-Bills and notes-Malterial alterations-Partnership - Mandate - R. induced H. to become a party to and indorser of a demand note for the purpose raising funds and agreed to give warehouse receipts as security to the bank on discounting the note. It was arranged that the goods covered the warehouse receipts were to held and sold on joint account, each sharing equally in the profits losses on the transaction.
Subsequently
R. altered the note, without the knowledge or consent H., adding thereto tne words "avec intirit sept par cent par an," and falsely represented to the bank that H. held the warehouse receipts as collateral security for his indorsement.
couple of months later
H., for the first time, became aware that the goods had never been purchased placed in warehouse, that no warehouse receipt had assigned to the bank and did not, until some months later, know that the alteration had been made in the note.
There was some evidence that H. had asked for time to make a settlement the amount due to the bank upon the note after he had become aware of the fraud and the alteration so made.
Held, by Idington, Maclennan and Duff JJ. that the instrument was a forgery and could not ratified an ex post facto assent.
The Merchants
Bank v. Lucas Can. S.C.R. 704;
Cam. Cas. 275), and Brook v. Hook
(L.R. Ex. 89).
appealed from K.B.
versed, the Chief Justice and Davies J.
Banks and banking-Forged cheque
Payment-Mistake-Indorsement
-Action-Money had and received - Change in position-Laches......... 366
BANKING
FRANCHISE - TVaterworks-Statutory contract-Exclusive franchisc-Condition subsequent
Defeasance-Forfeiture monopoly-Demurrer-Right of action by municipality - Rescission of contract- Art. C.C.-40 (Que.) .. Sale shares Misrepresentation-Fraud deceit-Accord and satisfaction.] a director in an industrial company transferred 290 shares of the capital stock to the president to sold for him. The president instructed an agent to sell said shares along with some of his and some belonging to the company. The agent sold shares of G.'s stock to J. representing, and believing that it was treasury stock and getting a note for the price in favour of the company. The note was indorsed over to Later J. discovered that the stock had bought was not treasury stock and had correspondence with the secretary of the company in which complained having been deceived the agent. Eventually gave a four months' note in renewal of that given for the price of the stock but when it fell due refused to pay it, the company having in the meantime become insolvent.
In an action on the renewal note he filed a counterclaim for damages based on the misrepresentation and deceit. Judgment was given against him on the note and for him on the counterelaim.
Held, that was responsible for the fraud practised on the purchaser his shares the misrepresentations the agent who sold them.-Held, also, Girouard and Davies JJ. dissenting, that the settlement of the claim for the price the shares giving the renewal note and thus obtaining further time for payment was not a release the purchaser's right action for deceit. TRUNK RAILWAY OF ADA-Government railway lie work"-Construction of statute s. - 4c1"-R.S.C. 140, s. 20(c) .431 GIFT-Married woman-Separate pro:
perty-Liability for debts of husband - Registry law-"Real Property Act" - "Married Women's Act" - Conveyance during coverture ..................
GUARDIAN-Parent and child-Guardianship-Family arrangement - Public policy . . . ...................
HUSBAND
WIFE of will-Description of legatee-Devise
"to my wife".-Bigamovs marriage - Evidence-Burden of proof ........
2-Married woman-Separate property try law-"Real Property Act" - "Married Women's Act"-Conveyance during
INTERCOLONIAL
RAILWAY-Government railway-Operation over other lines
-Agreement for running rights-Extensions and branches-"Public work" - Construction of statute- "Government
Railways Act"-R.S.C. s.
Court Act"-R.S.C.
s. 20(c) ..................
Final judgment - Jurisdiction.] The declaration in an action by a municipality claiming forfeiture of a franchise for non-fulfilment of the obligations imposed in respect thereof alleged in counts as many different grounds for such forfeiture. The defendant demurred generally to the declaration and specifically to each count. The demurrer was sustained as to three counts and dismissed as to the other two.
On appeal from the decision of the registrar refusing an order to affirm the jurisdiction of the Supreme Court to entertain an appeal from the judgment maintaining the demurrer. Held, that each count contained a distinct ground on which forfeiture could be granted and a judg- JUDGMENT-Continued.
ment depriving the municipality its right to rely on any such ground was a final judgment in respect thereof which could appealed to the Supreme Court of Canada.
2-New trial-Final judgment-Alternative relief .....................
JUDICIAL FUNCTION-Mining regulations-Hydraulic lease-Breach of conditions-Construction of deed-Forfeiture -Right of lessees-Procedure on inquiry -,Judicial duties arbiter JURISDICTION-A dmiraltY lao-Jurisdiction of the Exchequer Court of Canada-Claim under mortgage on ship- Action in rem-Pleading-Abatement contract price-Defects in construction In an action in rem the builders a ship to enforce a mortgage thereon, given to them on account of the contract price for its construction, the owners, for whom the ship was built, may plead as a defence pro tanto that the ship was not constructed according to specifications and claim an abatement the price in consequence such fault and that the loss in value the ship, at the time delivery, attributable to such default should deducted from the claim under the mortgnte. Bow ....... Privy granted the Court ada;
2-Exchequer Court of Canada-Public work-Tort-Negligence of fellow-servant-Liability of Crown-Right of action-Jurisdiction over claim for damages..... ......................
3-Petition of right - Government railloay - Operation over other lines-Agreement for running rights-xtensions and branches-"Public work"-Construction of
"Government
Railways
Act" JURISDICTION-Continued.
s. 80-"Exchequer Court
Act"-R.S.C. s. 20 . .431
4-Board of Railway Commissionerssent of municipality-Crossings-Leave of Board-Discretionary order .....
JURY-Operation of railway-Yard siding-Sloping platform-Private passage
Dangerous way - Negligence-Procedure at trial-Objections to charge to jury.
. ............
..........
Employer and employee-Improper appliances-Negligence-Proximate cause
-Finding of jury-Evidence........ 396
3-Negligence-Street railway-Rules of company-Charge judge-Contributory negligence-Street crossings, etc.
.......................
4-Negligence-Dangerous works-Pro.
tection employees-Evidence-Questions for jury-Charge of judge-Findings of fact-Inferences...........
LACHES-Banks and banking-Forged
Payment
Mistake-Indorsement-Implied warranty-Principal and agent-Action-Money had and received
-Change in position............... 366
LANE-Title to land-Construction
Easement appurtenant common lane-Overhanging fire-escape- Encroachment on space over lane-Trespass-Right of action..............188
LEASE-Mining regulations-Hydraulic lease-Breach of conditions tion of deed-Forfeiture-Right of lessees
-Procedure on inquiry-Judicial duties of arbiter....................281,
Construction will Bur- 2-Will-Powers of executors-Winding-up estate-Time limit-Special legislation-Extension of time-3 Edw. VII. (Que.)-Construction of statute. ............. LEGISLATION-Will-Powers of executors-Winding-up estate - Time limit- Legacy-Special legislation of time-3 Edio. VII. (Que.)- Construction of statute............ 489 LICENSE-Title to land-Room in buildgrant-License or easement.........313 LIEN-Shipping-Material men - Supplies furnished for "last voyage"-Privilege of dernier dquipeur-Round voyage- Charter-party-Personal dcbts of hirers- Seizure of ship-Arts. 2383, Art. C.P.Q.-Construction of statute -Ordonnances de la Marine, 1681...45 LIMITATION ACTION - Title to land-Room in building-Adverse possession-Statute of Limitations-Incidental rights-Implied grant-License or ease- Possession of an upper room in a building supported entirely portions the story beneath may ripen into title thereto under the provisions of the Limitations.-I., one several owners of land with a building thereon, sold his interest to a co-owner and afterwards occupied a room in said building as tenant for his business. room was on the second story and inside the street door was a landing leading to a staircase which it was reached. had the only key provided for this street door and always locked it when leaving at night.
He paid rent for the room at first and then remained in possession without paying rent for twelve The annual tax bills for the whole premise3 were generally, during LIMITATION OF ACTION-Continued.
that period, left in the room he occupied and were sent him to the managing owner who paid the amounts.
action to restrain the owners from interfering with possession of said room and its appurtenances: Held, reversing the judgment the Court Appeal (15
Ont. L.R. 286)
and restoring with a modification that the trial judge (14
Idington and Maclennan
JJ. (dissenting)
, that I. had acquired a title under the Statute of Limitations to said room and to much of the structure as rested on the soil to which he had acquired title.-Held, per Davies J.- He had also acquired a proprietory right to the staircase and the portions of the building supporting said room.-Per Fitzpatrick C.J. and Duff J.-The Statute
Limitations does not as against the party dispossessed annex to title acquired possession incidents resting on the implication of a grant.
had, therefore, acquired no rights in the supports.-Per Idington and Maclennan JJ.
use the landing and staircase was, at most, an easement and must continue for twenty years to produce the statutory title, and to give title to the supports there would have to actual possession which was not the case here.
................
CAMPBELL'S ACT"-Indemnity and satisfaction-Negligence of fellowservant-Operation of railway-Defective switch-Public work-Tort-Liability
Court Act, s. 16(c)-Art. C.C..229
PROSECUTION - Reasonable and probable cause-Bohd fide belief guilt-Burden of proof-Right action for damages-Art. C.C.- Pleading and practice.] An action damages for malicious prosecution will not lie where it appears that the circumstances under which the information was laid were such that the party prosecuting entertained a reasonable bond fide belief, based upon full conviction founded upon reasonable grounds, that the accused was guilty of the offence charged. Abrath North Eastern Railway Cas. and Cox v.
English, Scottish and Australian Bank
PROSECUTION-Con. ( [1905] referred to.-Semble, that in such cases, the rule as to the burden proof in the Province of Queis the same as that under the law England, and the plaintiff is obliged to allege and prove that the prosecutor acted with malicious intentions or, at least, with indiscretion or reprehensible want of consideration.
Sharpe Willis (Q.R. 14; Rev. Jur. and Durocher Bradford disapproved.
pealed from I6 affirmed. Assoc'..
....................
- Mandamus to district judge-Lumber driving - Order to fix tolls-Past user of stream-Appeal - R.S.O. [1897] s.
By R.S.O. [1897] the owner of improvements in a river or stream used for floating down logs may obtain from a district judge an order fixing the tolls to be paid other parties using such improvements.
On application for a writ of mandamus to compel the judge to make such an order.-Held, affirming the judgment the Court of Appeal Davies J. dubitante and Idington J. expressing no opinion, that such an order had effect only case of logs floated down the river stream after it was made.-Held, per Idington J.-As gives the applicant for the order an appeal from the judge's refusal to make it mandamus will not lie.-Held, per Duff J.-The mandamus could issue if the judge had jurisdiction to make the order though he refused to do in the belief that a prior decision of a Divisional Court was res judicata as to his power. MANDATE-Bills and notes-Material alteration
Forgery
Partnership MARITIME
LAW-Shipping-Material age"-Privilege of dernier dquipeur- MARITIME LAW-Continued.
debts of hirers--Seizure of ships-Arts.
G.C.-Art. 931.P.Q.-Construction of statute-Ordonnances
MARRIAGE-Construction of ivill-De- Burdevise made in a will
"to my wife" was claimed two with both of whom the testator had lived in the relationship of husband and wife.
Held, per Idington J.-That. even if the first marriage was assumed to have validly performed, all the surrounding circumstances shewed that, the words
"to my wife," the testator intended to indicate the woman with whom living, in that relationship, at the time of the execution of the will and thereafter up to the time of his death.-Held, per Duff J.-That woman claimed to have been first married to the testator had not sufficiently proved that fact, and that the other woman, who was living with the te4.itor as wife at the time of the execution the will and up to the time his death, was entitled to the devise.-Held, per Davies and JJ. (dissenting) .- That the first marriage was sufficiently proved and, consequentlv, that the devise went to the only person who was the legal wife of the testator.-Fitzpatrick C.J.
was of the opinion that the appeal should dismissed.-Judgment appealed from Rep. affirmed, Davies and Maclennan JJ. dissenting.
MARRIED WOMAN-Separate property
-Liability for debts of husband-Execution of judgment-Registry lato-"Real
Property Act"-"Married Women's Act,"
R.S.M.
95-Conveyance during coverture.1 Where land was transferred, as a gift, to a married woman her husband, during the time that the "Married Women's Act," R.S.M.
was in force, the husband being then solvent, and a certificate of title therefor issued in her name under the provisions of the Manitoba "Real Property
Act," the beneficial as well as the
MARRIED WOMAN-Continued. interest in the land vested in her for her separate use, and neither the land nor its proceeds can taken in execution for debts the husband subsequently incurred, notwithstanding the provisions of the second section the "Married Women's Act" respecting property received a married woman from during
MASTER
SERVANT-Negligence -Proximate cause-Finding of juryan engineer, was scalded steam escaping when the front of a valve was blown out the pressure In an action for Jamages against his employers the jury found that the bursting was caused strain on the valve, that the employers were guilty negligence in allowing the engine to run an improper bed and that they did not supply proper appliances and keep them in proper condition for the work to done by T., the engine-bed and room all being in bad condition; they also found that the valve was not defective. that in the absence of finding that the negligence imputed to the employers was the proximate cause the injury to T., and evidence to justify such finding, Co............... 396 2-Negligence-Duty of employee-Insulation of electric wires-Onus of proof. . . ..
...
.... stoitch-Public cork-Tort-Liability Court Act, s. 16(c)-"Lord Campbell's Act"-Art. 0.0...............229 Negligence-Dangerous works - Protection of employees - Questions for jury-Charge of judg.-- Findings of fact-Inferences .... ... MINES
MINING regulations-Application for mining location-Duties imposed on Minister of the Interior
MINES MINING-Continued.
rights-Contract binding on the Crown.]
Under the hydraulic regulations for the disposal of mining locations in the Yukon
Territory, enacted by
Governor- General in Council on 3rd December, as amended subsequent regulations and the order in council 2nd
February, the Minister the Interior is charged with the duty not only of pronouncing on the question whether or not the locations applied for should reserved for disposal under such hydraulic regulations, but also of determining the priority rival claimants, the extent the locations and the conditions any lease to granted.-Until the Minister has given a decision favourable to an applicant, there can be no contract binding upon
Crown in respect to the location applied for, and the mere filing of an application for an hydraulic lease confers no status or prior rights on the applicant in respect to the ground therein described.
. . ......................
2-Mining regulations lease-Breach of conditions tion of deed-Forfeiture-Right of lessees
-Procedure on inquiry-Judicial duties of arbiter.] Under a condition for feasance in a lease of a mining location, made the Crown in virtue of the draulic mining regulations of 3rd December. a provision that the Minister the Interior is to the "sole and final judge" the fact default by the lessee does not entitle the Crown to canthe lease and re-enter until the fact such default has been determined the Minister in the exercise the functions vested in him after an inquiry of a judicial nature in which an opportunity has afforded to all parties interested knowing and being heard in respect to the matters alleged against them such investigation.-Quwre, per Idington J.-Was there not sufficient evidence in the case to shew that there had no such breach of the conditions as could work a forfeiture of the lease?
. . . .....................
MINES MINING-Continued. tion of deed-Forfeiture-Right of lessees -Procedure on inquiry--Judicial duties of arbiter.] Under circumstances similar to those involved on the appeal the case The Bonanza Creek Hydraulic Concession v. The King Can. S.C.R. 28]) this appeal was allowed with costs for the reason that there could no right cancellation the lease or reentry the Crown until default the lessees had been established upon an investigation of a judicial nature the Minister the Interior in the exercise of the functions vested in him the hydraulic regulations and the terms the lease.- Per Idington J.- The facts disclosed the evidence could not justify the cancellation the lease re-entry for breach of the conditions thereof.
Crown lands-Holders of location soil"-Construction of statute 1441; & The expression "proprietor of the soil," in section of the Revised
Statutes
Quebec, amended & Vict. 20, read in connection with Rev. Stat. is not intended to designate the holder of a location ticket, and, consequently, persons holding Crown lands, merely as locatees, have no vested preferential rights to grants
Crown of the mining rights therein, under sees. and of the Revised Statutes of Quebec, as amended the "Act to amend and consolidate the Mining Law,"
& Vict. MINISTER THE CROWN - Mines and minerals-Hydraulic regulations- Application for mining location-Duties imposed on Minister of the Interior- Status of applicant-Vested rights-Contract binding on the Crown ........ MINISTER THE CROWN-Con.
lease-Breach of conditions-Constructiontion of deed-Forfeiture duties of arbiter.............281,
MISDIRECTION-Operation of railway
-Yard siding-Sloping station platform
Private passage
Dangerous
Negligence-Procedure at trial-Objections to chage to jury-Practice.]
Where, on a specific objection to his charge, the trial judge recalled the jury and directed them as requested, the contention that the directions thus given were erroneous should not entertained on appeal. PAc. Ry. Co.
MISTAKE-Banks and banking-Forged drawee - Payment -Indorsement
- Money had and
Change in position-Laches.........
MONOPOLY-TWaterworks - Statutory contract-Exclusive franchise-Condition subsequent-Defrasance monopoly-Demurrer-Right of
-Art. C.C.-40 V. 68(Que.)
MORTGAGE-Admiralty law-Jurisdiction of the Exchequer Court of Canada- Claim under mortgage on ship-Action
Pleading Abatement tract price
Defects in construction- Constitutional laic-3Innicipal taxation-Officials of Dominion Government-Taxation on income-B.N.A. Act, ss.
.
....................
2-Board of Railway Commissioners- MUNICIPAL Con. sent of municipality-Crossings-Leave of Board-Discrctionary order..... 3-W aterworks-Statutory contractpoly-Demurrer-Right of action by Art. C.C.-40 V. 68(Que.). NEGLIGENCE-Miaster and servant - Duty of employee-Insulation of electric wires-Onus foreman in the company's employ met his death from contact with imperfectly insulated live wires while at work proximity to them in the power-house. The evidence left some doubt whether the duties of deceased included the inspection and care the wires both inside and outside of the power-house, whether his engagement was to perform the duties in question in respect only to the wires outside the power-house walls. Held, that the onus of proof as to the point in dispute was on the defendants and, such onus not having been satisfied, they were liable in damages. ment appealed from affirmed, Davies J. dissenting on a different view of the evidence, and holding that the duties ceased included the inspection and care of the interior wiring.
FORTIN...181 switch-Public work-Tort-Liability Court Act, s. 16 (c)-Lord Campbell's In consequence of a broken switch, at a siding on the Intercolonial
Railway, public work Canada), failing work properly, although moving crank by the pointsman had the effect changing signal so as to indicate that the line was properly set an approaching train, an accident eurred which the locomotive engine wrecked engine-driver killed.
In an action to recover damages from the Crown, under article the Civil Code of Lower Canada: Held. afirming the judgment appealed from Ex. C.R. that there was such negligence on the part of the and servants the Crown as rendered it liable in an action in tort; that the
"Exchequer Court Act," & Vict.
16(c), imposed liability upon the Crown, in such a case, and gave jurisdiction to the Exchequer Court Canada to entertain the claim for damages;
and that the defence that deceased, having obtained satisfaction or indemnity within the meaning of article the Civil reason of the annual contribution made the Railway Department towards
Intercolonial
Railway Employees'
Relief and Insurance Association, which deceased was a member, was not an answer to the
Miller The Grand Trunk
Railway ([1906] followed.
v. 229
Railway
Collision
Stop crossing - Statutory rule - Company's rule
Contributory negligence
R.S.
s. 278.]
train the
Wabash Railroad and one the
Canadian
Pacific
Railway proached a highway crossing at obtuse angles.
The former did not, as required
278 of the Railway Act, to a full stop; the latter did so at a semaphore nearly feet from the crossing and receiving the proper signal proceeded without stopping again at a
"stop post" some 400 feet nearer where rule of the company required trains to stop.
The trains collided and the gineer of the Canadian Pacific Railway was killed.
In an action his widow: Held, that the failure of the gineer to stop the second time was not contributory negligence which prevented the recovery of damages for the loss of plaintiff's husband caused admitted negligence of defendants.
Banks anl banking-Forged cheque
Payment
Mistake
Principal agent-Action-3foney had and received position cheque for drawn on the plaintiff, was fraudulently altered changing the date and the name of the payee, and raising the amount to drawee refused payment for want identification the person who presented it.
The defendant bank, without requiring identification, advanced cash to the forger on the forged cheque, placed the balance, to his credit in a deposit account, indorsed it and received the full amount of from drawee.
After receipt amount, the defendant paid the further sum to the forger out the amount placed to the credit of his posit account.
The fraud was discovered a few days later and, its refusal to refund the money it had thus received, the action was brought to recover it back from the defendant as indorser or as having received money paid under mistake of fact.
Held, that the drawee the cheque, although obliged to know the signature its customer, was not under a similar obligation in regard to the writing in the body of the cheque; that, as the receiving bank had dealt with the drawee as a principal and not merely as the agent for the collection of the cheque and had obtained payment thereas indorser and holder in due course, it was liable towards the drawee which had, through the negligence of the receiving bank, deceived in respect to the genuineness of the body of the cheque, and that the drawee was entitled to recover back the money which it had thus paid tinder mistake fact, notwithstanding that, after such payment. the position the defendant had changed paying over part the money to the forger.
The Bank of Montreal v. Can.
S.C.R. 258) distinguished.
Newall v. Tomlinson (L.B. ; Durant v. The Ecclesiastical Commissioners for England and Wales O.B.D. ?31 : The Continental Gaoucthouc and (tutta Percha v. Kleinwort. Sons & Times L.R. 403). and Kleinwort, Sons d v. The Dunlop Rubber Times L.R. Judgment appealed from (17 Man.
affirmed. Tdington J. dis- CANADA................366 Employer and employee-Improper appliamnces-Proximate cause Finding of jury-Evidence.]
an engineer, was scalded steam escaping when the front valve was blown out the ages against his employers the jury found that the bursting was caused strain the valve, that the employers were guilty negligence in allowing the gine to run on an improper bed and that they did not supply proper appliances and keep them in proper condition for the work to done the enginebed and room all being in bad condition;
they also found that the valve was not
Held, that in the absence a finding that the. negligence imoute-l to the employers was the proximate cause of the injury to and dence to justify such finding, the action must fail. THoPsoN
Street railway-Rules of company of judge-Contributory neqligence.]
rule of the Toronto Ry.
provides that "when approaching crossings and crowded nlaces where there possibility of accidents the spe-d must reduced and the car kept carefully under control.
very slowly over all curves, switches and intersections; never fast-r than three miles an hour girl the south side Queen Street wished to cross to University Avenue which reaches but not cross Queen.
She saw a car coming along the latter street from the east, and thought she had time to cross, but was struck and severely injured.
the trial of an damages the judge in his i charce said:
is not question, gentlemen of the jury, as to the motorman's duty under the rule. it is question what is reasonable for him to jury found that defend-ints were not guilty of negligence; that plaintiff the exercise of reasonable care could have avoided the injury; and that she failed to exercise such care not taking proper precautions before cross- The act'on was dismissed at the trial; Divisional Court ordered a trial on the ground that the judge had misdirected jury in withdrawing from their consideration the rules the company: the Court of Apneal restored the judgment at the trial. Held.
affirming the judgment of the Court
Appeal Ont. L.R.
aside the order of the Divisional Court for new trial Ont. L.R. Idington J. dissenting, that the action was properly dismissed.-Held, per Girouard and Duff JJ.-The judge's charge was open to objection but as under the findings the jury and the evidence plaintiff could not possibly recover trial should refused. Per Davies J.- There was no misdirection.
The jury were not to believe that the rules not to considered, but only that they should not the standard as to what was or was not negligence, which question should decided on the facts proved.-Per Maclennan J.-The place at which the accident occurred, where University Ave. meets Queen Street, not crossing nor intersection within the meaning the rules and they not apply in this case.
Ry. Co................... 7works-Protection employees-Evidenco-Questions for jury -- Judge's charge-Findings of fact-Inferences.]
An experienced employee the defendants was killed an explosion illuminating gas while discharging his duties in the meter-room at the defendants' gas works.
was shewn that there might possibly have been escape gas from the controllers other fixtures in the room or in the blowroom adjoining it; that, there had no special precautions the defendants to detect any such escape gas that might occasionally happen; and that the meter-room had always been and, at the time of the accident, was lighted means of open gas jets.
There was exact proof of any particular fault. attributable to the defendants, which could have been the whole cause the explosion, and its origin and course were not explained.
In an action for damages by the widow and representatives deceased, the jury found that the cx'plosion had resulted from the fault and imprudence of the defendants lighting the meter-room open gas jets, and contributory negligence the part of decoased was negatived.-Held. ing the judgment appealed from K.B. 246), Davies and Maclennan JJ.. dissenting. that, in circumstances, the jury were justified in finding that there had been such negligenc and imprudence on the part of the fendants, in such use open gas jets, as would render them responsible for the injury complained
H. & P. v.
8-Builders and contractors-Responsibility for faults in cons truction-Negligence--Latent defect - Installations in constructed building-"Automatic sprinkler systen"-Damages flooding-Injury sustained subsequent purchaser of action-Assessment of damages-Expertise-Arts.
0.0.
9-Operation of railway-Yard siding
-Sloping platform - Private passage- Dangerous way-Procedure at trial- Objections to charge to jury - Practice .....
........................
10-Government railway over other lines-Agreement for running rights-Extensions and branches- "Public work"-Construction of statute
Railways Act"-R.S.C.
s. 80-"Exchequer Court
Act"-R.S.C. s. 20(c)...431
NEW TRIAL-Appal - Alternative relief-Judgment granting one - Where the party failing at the trial moves the court of last resort for the province for judgment or, in the alternative, a new trial he cannot appeal to the Supreme Court Canada from the judgment granting the latter relief.
Mutual Ins. v. Dillon Can.
MCDOUGALL............270
2-Negligence-Street railway-Rules of company-Charge judge-Contributory negligence-Street crossings, etc.
. ..........
..........
PARENT CHILD-Guardiaship- Family arrangement - Public policy.]
Where a widow, whose husband left no estate, agrees to give up her natural right of guardianship over her daughter and transfer the same to the latter's
PARENT CHILD-Continued. grandfather who, on his part, agrees to educate her, provide for her afterwards and allow as full intercourse as possible between her and her mother, the fact that the arrangement includes an allowance to the mother for her maintenance does not necessarily make it void against public policy. Idington and Duff JJ.
PARTIES-Damages-Trespass-Cutting timber-Sale to bond flde purchaser-Action owner of land.] F. conveyed land to his wife for valuable consideration. Shortly after it was discovered that a trespasser had cut timber on said land and sold it to who bought in good faith and sold to another bond fide purchaser. In an action F.'s wife against the two purchasers the money was paid into court and an interpleader issue granted to decide which the claimants, the plaintiff or was entitled to have it. Court Appeal which reversed the decision of the Divisional Court Ont. L.R. that the plaintiff was entitled to the whole sum. Duff J. expressed no opinion on the question.-Held, also, Idington J. dubitante and Duff J. dissenting, that if necessary the writ and interpleader order could amended adding F. as a plaintiff with his wife.
PARTNERSHIP-Bills and notes-Material alterations-Forgery-Partnership -Mandate-Assent of parties-Liability of indorser-Construction of statute - "Bills of Exchange Act."]
R. induced H. to become a party to and indorser a demand note for the purpose raising funds and agreed to give warehouse recounting the note.
It was arranged that the goods covered the warehouse receipts were to held and sold on joint account, each sharing equally in the profits or losses on the transaction. Subsequently R. altered the note, without the knowledge or consent of H., by adding thereto the words "avec intir~t a sept par cent par an," and falsely represented to the bank that H. held the warehouse receipts as collateral security for his indorsement. A couple of months later H., for the first time, became aware PARTNERSHIP-Continued.
that the goods had never been purchased or placed in warehouse, that no warehouse receipt had been assigned to the bank and did not, until some months later, know that the alteration had been made in the note. There was some evidence that H. had asked for time to make a settlement of the amount due to the bank upon the note after he had become aware of the fraud and the alteration so made. Held, by Idington, Maclennan and Duff JJ. that the instrument was a forgery and could not be ratified an ex post facto assent.
The Merchants Bank v. Lucas Can. S.C.R.
704; Cam. Cas. 275), and Brook v. Hook
(L.R. Ex. 89), followed.-Per Idington
J.-The circumstances of the case did not shew that there had been any assent to the alteration within the meaning of section of the "Bills Exchange
Act."-Per
Maclennan J.-The required to bring an altered bill within the exception provided by of the
"Bills of Exchange Act," R.S.C.
ch. must given the party sought to bound at the time or of before the making the alteration.- Held, also, the Chief Justice and Davies
J. contra, that, in the special circumstances of the case, there was no partnership relation between parties to the note for the purposes of the transaction in question and there could be no implied authorisation for the making the alteration in the note.-Per Fitzpatrick C.J.-The transaction in question was a joint venture or particular partnership for the enterprise in contemplation of the parties and, consequently, R. had a mandate to make whatever agreement was necessary with the bank to obtain the funds and to provide for the payment of interest on the advances required to carry out the business.-Judgment appealed from (Q.R. 16 reversed, the Chief Justice and Davies J. dissenting. v. LA
.............
PAYMENT-Banks and banking-Forged drawee-Mistake plied warranty-Principal and agent - Action-Money had and received-Change in position-Laches . . . ............
PAYMENT-Continued.
Company-Sale of shares-Misre- -Accord and satisfaction .......... PLEADING PRACTICE - Admiralty - Preliminary act-Amendment - Collision-Evidence.]
In an action in admiralty claiming damages for injury to plaintiffs' ship, the "Neepawah," through collision with the "Westmount" belonging to defendants the preliminary act and statement claim alleged that the port quarter the latter struck the stern the "Neepawah."
The local judge, in his judgment, held that the evidence shewed a collision between the two ships stern to stern and, against objection defendants' counsel, of his own motion allowed the statement of claim to amended to conform to such evidence stating that its admission had not obiected to and that defendants were not misled.
Held, that such amendment should not have been made; that it set up a new case and one entirely different from that presented the preliminary act and statement claim and greatly prejudiced the defence; and that the local judge was wrong in stating that the evidence was admitted without objection as it was protested against at the trial.-Held, also, that errors in the preliminary act may corrected by the pleadings but, if not, the parties will be held most strongly to what is contained in their acts.-Held, per Davies, Maclennan and Duff JJ., that the plaintiffs had not satisfactorily established that the collision, even that charged under the amendment, had actually occurred.-Per Fitzpatrick C.J., that the evidence proved that no collision between the vessels took place-Idington J. concurred in the judgment allowing the
Co....................160
2--Operation of railway-Yard siding -Sloping station platform-Private passage-Dangerous way - Procedure at trial-Misdirection-Objections to charge to jury - Practice.] Where, on a specific objection to his charge, the trial judge recalled the jury and directed them as requested, the contention that the directions thus given PLEADING PRACTICE-Con.
were erroneous should not entertained on appeal.
3- Appeal-Alternative relief-Judgment granting one - Final judgment.]
party failing at trial moves the court of last resort for the province for judgment or, in the alternative, a new trial he cannot appeal to the Supreme Court of Canada from the judgment granting the latter relief.
Mutual Ins. v. Dillon Can.
v. .......
4-Pleading-Purchase for value without notice-Onus-Evidence-Affirmative and negative evidence-Wright of eviwithout must its tirety by the party offering it; it is not incumbent the opposite party to prove notice after the purchase for value es- 5-Malicious prosecution-Reasonable
-Damages-Art.
C.0 .
.......
Final judment-Jurisdiction . . . . ..........
7- Appeal-Criminal lawo-Reserved case-Application for "during trial"- Criminal Code, s. 1014(3)-Construction of statute........................272
Damages-Trespass-Cutting timber-Sale to bond fide purchaser-Action owner of land..................399
9-Admiralty law-Jurisdiction of the
Abatement of contract price-Defects in construction-Damages .. . ........
PLEADING PRACTICE-Con. Delay in approval security-Jurisdiction--Ewtension of time -Stay of execution ...............
TVaterworks-Statutory contractpoly-Demurrer - Right of action by Art. C.C.-40 V. (Que.) . POSSESSION-Title to land-Room in building-Adverse possession-Statute grant-License or easement. ....... PRINCIPAL AGENT-Secret profit -Trust
- Clandestine transactions by broker-Sham purchaser-Commission- H., a broker, undertook to obtain two lots for F., as an that at understanding that or brokerage chargeable was to got out of the vendors.
H. purchased one at than that quoted receiving, however, amount quoted from F., and, representing a sham purchase the other lot, secure it.
transactions, entitled either
2-Banks and banking-Forged cheque Payment-Mistake-Indorsement - Implied warranty-Action-Money had and received-Change in position - Laches. ........... 3-Broker-Sale of mining land-Commission
Change purchaser tinued transaction ...............
4-Bills and notes-Material alteration,-Forgery-Partnership-Mandate change Act.".....................458
PRIVILEGE-Shipping - Material men
-Supplies furnished for "last voyage"- Privilege of dernier dquipeur - Round voyage-Charter-party - Personal debts of hirers-Seizure of ship-Arts. 2383,
C.C.-Art. C.P.Q.-Construction of statute - Ordonnances de la
..................
Crown lands-Holders of location ticket-Prior ?ight to mining rights - Privilege reserved-"Propri tor of soil"-Construction -of statute-R.S.Q., ss. 1441;
.........
PROBABLE CAUSE-Malicious prosecution-Reasonable and probable cause - Bond fide belief in guilt - Burden proof-Right of action-Damages-Art.
C.C.-Pleading and practice. .
Sec
PUBLIC OFFICER-Mlines and minerals ing on the Crown .................
PUBLIC POLICY-Parent and child- Guardianship arrangement - Public policy.]
Where a widow, whose husband left no estate, agrees to give up her natural right of guardianship over her daughter and transfer the same to the latter's grandfather who, on his part, agrees to educate her, provide for her afterwards and allow as full intercourse as possible between her and mother, the fact that the arrangement includes an allowance to the mother for her maintenance does not necessarily make it void as against public policy.
Idington and Duff JJ. (dissenting)
. Cnss- "PUBLIC WORK"-Government railway -Operation over other lines-Agreement for running rights - Extensions and branches - R.S.O. s. - Act"-R.S.C., 1906, s. 20(c).] The agreement between the Government of Canada and the Grand Trunk Railway Company, made under the provisions of the Dominion statute, Vict. and powers over a portion of the Grand Trunk Railway, from Levis to Chaudisre, between two sections the Intercolonial Grand Trunk Railway a part of the Intercolonial Railway, under the provisions of "The Government Railways Act," as amended by 54 & Vict. and, consequently, a public work within the meaning of the "Exchequer Court Act," & Vict. ch. ; [R.S.C., ch. 20 (c) ]. [Leave to appeal was refused the switch-Tort-Liability of Crown-Right action-"Exchcqurr Court 16 (c)-"Lord Campbell's Act-Art. .C... .
......................
RAILWAYS-Operation of railwray-Defective switch-Public work-Tort-Liability of Crown-Right of action-"Exchequer Court Act,"
s. 16(c)-"Lord Campbell's Act"-Art. at work Canada), failing to work properalthough the moving of the crank the pointsman had the effect of changing the signal so as to indicate that the line was properly set for an approaching train, the engine-driver kill-d.
In an action to article Canada:
appealed from Ex. C.R. that part the and servants of the Crown tort; that the 50 & Vict. (c), im- RAILWAYS-Continued.
posed liability upon the Crown, in such a case, and gave jurisdiction to the Exchequer Court of Canada to entertain the claim for damages; and that the defence that deceased, having obtained or indemnity within the meaning of article of the Civil
Code, reason of the annual contribution made the Railway Department towards the Intercolonial Railway Employees' Relief and Insurance Association, which deceased was a member, was not an answer to the action. Miller
Grand Trunk Railway
([1906] followed.
v. ....................
2-Collision-Stop at crossing-Statutory rule
Company's rule-Contributory negligence - [1906] c. 37,s.
278.]
train of the Wabash Railroad and one of the Canadian Pacific Railway approached a highway crossing at obtuse angles.
The former did not, as required 278 of the Railway Act, come to a full stop; the latter did so at a semaphore nearly 900 from the crossing and receiving the proper signal proceeded without stopping again at a "stop post" some 400 feet nearer where a rule of the company required trains to stop.
The trains lided and the engineer the Canadian
Pacific Railway was killed.
action his widow:
Held, that the failure of the engineer to stop the second time was not contributory which prevented the recovery of damages for the loss plaintiff's husband caused the admitted negligence of fendants.
3--Government railway lic work"-Construction of statute s. 80-"Exchequer Court Act"
s. 20(c).]
agreement between the Government of
Canada and the Grand Trunk Railway
Company, made under the provisions the Dominion statute, Vict.
and powers over a portion of the Grand
RAILWAYS-Continued.
Trunk Railway, from Levis to Chaudiere, between two sections of the Intercolonial Grand Trunk Railway a part of the Intercolonial Railway, under the provisions
Government Railways Act," as amended 54 & Vict. ch. 50(D.), and, consequently, a public work within the meaning of the "Exchequer Court Act," & Vict. ch. see. 16(c),
; [R.S.C., ch. sec. v. .431 [Leave to appeal was refused by the 4-Board of Railway Commissionerssent of municipality-Crossing-Leave Board-Discretion.] 12th Aug., the Township Sandwich West passed a by-law authorizing the W.
etc., Ry. to construct its line along a named highway in the municipality but the powers and privileges conferred were not to take effect unless a formal acceptance thereof should filed within thirty days from the passing the law. Such acceptance was filed on 12th Sept.,
This was too late and 20th July, the council Sandwich West and that of Sandwich East respectively passed by-laws containing the necessary authority.
In April, the location of the line of the E. T. Ry. was approved by the Board. June, the Board made an order allowing the W. etc., Ry. to cross the line of the C.P.R. In March, another order respecting said crossing was made and also an-order approving the location the W. E. Ry. the municipal consent being obtained three months later. The E. T. Ry. applied to the Board to have the orders June, and March, rescinded and for an order requiring the W. E. Ry. to remove its track from the highway at the point where the applicant proposed to cross it; to discontinue its construction at such point or, in the alternative, for an order allowing it to cross the line of the W. E. Ry. said highway.
The applicants claimed to be the senior road and that the W. E. Ry. had never obtained the requisite authority for locating its line. a case stated to the Supreme Court RAILWAYS-Continued.
the Board.-Held, that the Board had power to refuse to set aside the said orders; that the by-laws passed in July, were sufficient to legalize the struction of the W. E. Ry. Co.'s line on said highway; and that the Board can now lawfully authorize the latter company to maintain and operate its railway thercon.-Held, further, leave the Board is necessary to enable the E. T. Ry. to lay its tracks across the railway the W.
gaid highway.-Held, also,
Board, in exercise of its discretion has power by order to authorize the maintenance and operation of the W.
along said highway and to give leave to the E. T. Ry. to cross it and the line of the C.P.R. near the present crossing and to apportion the cost of maintaining such crossing equally between the two companies instead of imposing two-thirds thereof upon the E. T. Ry.
as was done a former order not acted upon; and to order that if the
E. T. Ry. finds it necessary in its own interest to have the points of crossing differently placed it should bear the expense of removing the line the W.
E. Ry. to the new point of crossing.
EssEx RY.
RY. CO
.......................
Operation of railway-Yard siding
-Sloping platform-Private passage - Dangerous way-Negligence-Procedure at trial-Objections to charge to jury- Practice ... . . .
..................
RATIFICATION-Bills and notes-Material alteration-Forgery-Partnership
-Mandate--Assent of parties-Liability of indorser-Construction of statute - "Bills of Exchange Act"..........458
"REAL PROPERTY woman-Separate property-Liability for debts of husband-Execution of judg- Registry
"Real Property
Act"-"Married Women's Act," R.S.M.
ch. 95-Conveyance during coverture.] Where land was transferred, as a gift, to a married woman her husband, during the time that the "Mar- "REAL PROPERTY ACT"-Continued. ried Women's Act," R.S.M. force, husband then solvent, a certificate of title issued therefor in her name under the provisions of the Manitoba "Real Property Act," the beneficial well as the legal interest in the land vested in her for her separate use, and neither the land nor its proceeds can be taken in execution for debts the husband subsequently incurred, notwithstanding the provisions the second section of the "Married Women's Act" respecting property received a married woman from her husband during REGISTRY LAW
Married tooman - Separate property-Liability for debts of husband-Registry law-"Real property Act"-"Married Women's Act"- Conveyance during coverture........ 384 RESERVED CASE.
RETRAXIT-Appeal - Amount in controversy-Retrawit-R.S. s. 46(c).]
tion for $10,000, damages, a few days before trial and after issues were joined and the case set down for hearing, the plaintiff filed a retraxit reducing her at the trial, her claim would limited to that amount.
By the judgment appealed from, the damages awarded to the plaintiff were reduced to on account contributory negligence found by the jury. A motion to quash on the that retraxit the amount in controversy to less than the appealable limit and that the case actually tried was for only, and, consequently, that there could no appeal under R.S.C.
46(c), was allowed and the appeal was quashed v. ..............
RIPARIAN RIGHTS.
Crown main-Title to land---"Flottage"-Driving loose logs-Public servitude-Riparian ownership - Action possessoire
2192 C.C.-Art.
In the Province of Quebec, of floating loose logs, (flottables 4 batches article 400 the Civil ers the adjoining riparian lands are, consequently, the proprietors of the banks and beds such streams and have the right of action au possessoire in respect thereof.-There is. however, a right servitude over such watercourses in respect to all advantages which the streams and their banks, in their natural condition, can afford to the public, there ing no distinction, in this regard, tween navigable or floatable streams and those which are neither navigable nor floatable.
McBean v. Carlisle (19
Jur. 276) and Tanguay v. Price Can.
S.C.R.
pealed from (Q.R. K.B. affirmed,
Girouard and Idington JJ. (dissenting)
.
..............................
Mandamus-Lumber driving-Order to fix tolls-Past user of stream-Appeal-R.S.O. [1897] s.
R.S.O. [1897] the owner improvements in a river or stream used for floating down logs may obtain from a district judge an order fixing the tolls to paid other parties using such improvements.
On application for writ of mandamus to compel the judge to make such an order.- Held, affirming the judgment of the Court
Appeal Ont. L.R. Davies J.
dubitante and Idington J. expressing no opinion, that such an order had only in case logs floated down the river or stream after it was made.- Held, per Idington J.-As gives the applicant for the order an appeal from the judgp's refusal to make it mandamus will not. lie.-Held, per Duff
J.-The mandamus could issue if the judge had jurisdiction to make the order though he refused to do in the belief that a prior decision of a Divisional
Court was res judicata as to his power.
\lFG.
SALE-Title to land-Construction deed-Reservation of growing timber- Rights of vendor and purchaser-Resolutive condition.] A of sale of wild lands to used for agricultural purposes clearly expressed certain specific reservations and contained, in addition, a clause as follows:
"Et de plus la pr4sente vente est faite A la condition expresse que le dit acqu6reur n'aura pas le droit couper, enlever ou charroyer aucun bois sur le terrain ci-dessus vendu pour faire des batisses sur terrain, des clotures, et du bois ehauffage; est, en consdquence, convenu que si 1'acqu6reur coupait du bois en violation pr6sente clause, les vendeurs auront droit demander la r6siliation des prdsentes et reprendre possession des immeubles ci-dessus vendus sans rien payer a l'acqudreur pour les am6liorations qu'il pourra avoir faites. Et tout bois coup6 en violation des pr6sentes deviendra, aussit~t coupd, la propridtd vendeurs, car tel est la convention expresse parties et sans laquelle les prdsentes n'auraient pas eu lieu."
Held, that, in the absence of any contrary intention expressed in the deed, the title to the lot of land sold passed absolutely to the purchaser with the exception of the special reservations.-Held. also, that the clause in question had not the effect of reserving to the vendors all the timber standing upon the land sold. nor could construed as giving them the right (without rescission upon breach of the resolutive condition) to re-enter on said land for the purpose of removing stumps or second growth timber. Rioux v. .......... 2-Principal and agent-Sale of wining land-Commission-Change of purchaoer - Continued transaction. M., owner of mining lands, agreed to give G. a commission for effecting a sale thereintroduced a purchaser to and a contract for sale of the lands to said purchaser was executed.
This was replaced by a later contract which the sale price was reduced in consideration an incumbrance on the property ing paid off by the purchaser who borrowed the money for the nurpose and assigned his interest in the contract to the lender, also signing a release in favour of M1. of any claim against him the contracts.
MY. afterwards sold the SALE-Continued.
mining lands to a person buying for the lenders the money to pay the incumbrance.
In an action for' his commission:
Held, that he was entitled to the commission on the full amount received for the land as finally sold.- Held, also, that the sale of the land was not a transaction independent of the contract with the purchaser introduced but was a continuance thereof.- Judgment appealed from affirmed, Davies tors. . . . .......................
Damages-Trespass-Outting timber-Sale to bond fide purchaser-Action owner of land................399
5-Company - Sale of shares-Misre- -Accord and satisfaction ..........
SERVITUDE- Rivers and streams - Crown domain-Title to land-"Flottage"-Driving loose logs-Public servitude-Riparian ownership-Action possessoire-Arts. 400, 507, 2192
There is a right servitude over watercourses in respect to all advantages which the streams and their banks, in their natural condition, can afford to the public, there being distinction, in this regard, between navigable or floatable streams and those which are neither navigable nor floatable.
McBean v. Carlisle Jur.
and Tanguay v. Price Can. S.C.R.
Judgment appealed from
K.B. 48)
affirmed, Girouard
Idington JJ.
-Easement appurtenant-Use of comcroachment on space over lane-Trespass of action.] A grant of the right to use a lane in rear of city lots
SERVITUDE-Continued.
common with others," as an easement appurtenant to the lots conveyed, entitles the purchaser to make any reasonable use, consistent with the common user, not only of the surface but also the space over the lane.
The construction of fire-escape, three feet wide with its lower end feet above the ground (in compliance with municipal regulations), is not an unreasonable use nor inconsistent with the use the lane in common by others; consequently, its removal should not decreed at the suit of the owner of the land across which the lane has been opened. Judgappealed affirmed, Maclennan J. dissenting. SHAREHOLDER - Company-Paid-up shares-Sale broker-Prospectus lay-Liability of directors ......... 2-Sale of shares-Misrepresentation-- SHIPS SHIPPING - Shipping - Material men
Supplies furnished for "last voyage" - Privilege of dernier dquipeur-Round voyage-Charter-party -Personal debts of hirers-Seizure ship-Arts. 2383, C.C.-Art. 0. P.Q.-Construction of statute-Ordonnances de la Marine.
steamship lying at the port of Liverpool was chartered the owners to P. for six months, for voyages between certain European ports and Canada, the hirers to bear all expenses of navigation and upkeep until she was returned to the owners.
The ship was delivered to the hirers at Rotterdam where she took cargo and sailed for Montreal. On arriving at Montreal she unloaded and reloaded for a voyage to Rotterdam, with the intention returning to Montreal, and obtained a supply of coal from the plaintiffs which was furnished on the order of the hirers' agent at Montreal. The ship sailed to Rotterdam and returned to Montreal in about one month, bouching at Havre and Quebec, dis- SHIPS SHIPPING-Continued.
charged her cargo and proceeded to reload, obtaining another supply coal from the plaintiffs in the same manner as the first supply had been furnished.
Within a few days, the price these supplies coal being still owing and unpaid, the hirers became insolvent, and the plaintiffs arrested the ship at Montreal, claiming special privilege upon her as derniers 6quipeurs in furnishing the first supply of coal on her last round voyage, the right of attachment before judgment in respect of both supplies, and seizing her under the provisions articles of the Civil Code and the of Civil Procedure.
Held, per
Fitzpatrick C.J. and Davies, Maclennan and Duff JJ., that the voyage from Montreal to Rotterdam and return was not the ship's "last voyage" within the meaning of article the Civil that the voyage out from Montreal and that returning from Rotterdam did not constitute one round voyage but were separate and complete voyages, and that, consequently, there was no privilege upon the ship for the supply of coal furnished for her voyage from Montreal to Rotterdam.
And also, that the provisions article of the Civil did not render the ship liable to seizure for personal debts of the hirers, and, consequently, that she could not attached therefor by saisie-arrdt. Judg- Cirouard J.
dissenting.-Per
Davies J.-The "last voyage' mentioned in art. 2383 refers only to a voyage ending in the Province of Quebec.-Per
Idington J.-As the terms of the charter-party expressly excluded authority in the hirers to bind the ship for any expenses supply and as nothing arose later that could by any implication law confer any such authority on anyone and especially so in a port where the owners had their own agents any possible rights that might in a proper case arise under article 2383 of the Civil Code did not arise here: and, therefore, though agreeing result express no opinion on the meaning of the term
"last voyage" therein.
Lloyd Guibert
(L.R. 1 should govern this
AL......................45
Admiralty - Preliminary act - Amendment-Collision-Evidence.] In an
SHIPS SHIPPING-Continued. action in admiralty claiming damages injury to plaintiffs' ship, the "Neepawah," through collision with the "Westmount" belonging to defendants the preliminary act and statement claim alleged that the port quarter of the latter struck the stern of the "Neepawah."
The local judge, in his judgment, -held that the evidence shewed a collision between the two ships stern to stern and, against objection defendants' counsel, his own motion allowed the statement claim to amended to conform to such evidence stating that its admission had not been objected to and that defendants were not misled. Held, that such amendment should not have been made; that it set up a new case and one entirely different from that presented by the preliminary act and statement of claim and greatly prejudiced the defence; and that the local judge was wrong in stating that the evidence was admitted without objection as it was protested against at the trial.-Held, also, that errors the preliminary act may be corrected the pleadings but, if not, the parties will held most strongly to what contained in their acts.-Held, per Davies, Maclennan and Duff JJ., that the plaintiffs had not satisfactorily established that the collision, even that charged under the amendment, had actually curred.-Per Fitzpatrick C.J., that the evidence proved that no collision between vessels took place.- Idington J. concurred in the judgment allowing the v. Co...........160 3-Admiralty law-Jurisdiction of the -Defects in construction-Damages.] In an action in rem by the builders of a ship enforce a mortgage thereon, given to them on account of the contract price for its construction, the owners, for whom the ship was built, may plead as a defence pro tanto that the ship was not constructed according to specifications and claim an abatement the price in consequence of such default and that the loss in value of the ship, at the time of delivery, attributable to such default, should deducted from the claim under the mortgage. Bow SHIPS SHIPPING-Continued.
granted by the Supreme Court of Canada; 430.]
STATUTE-Married woman
Separate property-Liability for debts of husband
-Execution of judgment-Registry law
-"Real
Property Act"--"Married Women's Act," R.S.M.
95-Conveyance during coverture.] Where land was transferred, as a gift, to a married woman her husband, during the time that the "Married Women's Act" R.S.M.
was in force, the husband being then solvent, and a certificate title therefor issued in her name under the provisions the Manitoba "Real
Property Act," the beneficial as well as the legal interest in the land vested her for her separate use, and neither the land nor its proceeds can be taken execution for debts of the husband subsequently incurred, notwithstanding the provisions of the second section of the
"Married Women's Act" respecting property received a married woman from her husband during coverture.
Government railway rights-Extensions and branwhes-"Public work"-Construction of statute s. - Act"-R.S.C.,
20(c).]
The agreement between the Government of Canada and the Grand Trunk Railway Company, made under the provisions of the Dominion statute, Viet. ch.
and powers over a portion the Grand
Trunk Railway, from Levis to Chaudibre, between two sections of the Intercolonial
Grand Trunk Railway a part of the Intercolonial Railway, under the provisions of "The Government Railways Act," as amended by 54 & Viet.
and, consequently, a public work within the meaning of the "Exchequer Court
Act," & Viet. ch. see.
(D.), [R.S.C., ch. see. 20(c)1.
TE v. LEFrAcoIs .........
[Leave to appeal was refused by the
STATUTE-Continued.
"Supreme Court Act," ss. Appeal-Delay in approval of security- Jurisdiction-Extension of time-Stay execution.]
Application for approval the security on an appeal to the Supreme Court of Canada was made within the time limited the statute, but the hearing of the application was not completed until afterwards, and the judge made an order, after the expiration of sixty days from the rendering of the judgment appealed from, approving the security offered the appellants. Held, Idington J. dissenting, that although the record did not shew that the judge had expressly made an order to that effect he impliedly extended the time by accepting the security offered, and that this was a sufficient compliance with the statute. An objection that the security approved was not such as contemplated by the 75th and 76th tions of the "Supreme Court Act," (the amount thereof being insufficient for a stay of execution), was not entertained for the reason that the amount in controversy was sufficient to bring the case within the competence of the court and it was immaterial whether or not execution could be stayed.
The Attorney- General of Quebec v. Scott Can. R. 282) and The Halifax Election Case Can. S.C.R. referred to. CO..................455 4-Bills and notes-Material alterations-Forgery-Partnership - Mandate -Construction of statute-"Bills of Es- R. induced H. to become a party to and indorser of a demand note for the purpose of raising funds and agreed to give warehouse receipts as security to the bank on discounting the note.
was arranged that the goods covered the warehouse receipts were to held and sold on joint count, each sharing equally in the profits or losses on the transaction. Subsequently R. altered the note, without the knowledge or consent of H., by adding thereto the words "avec intdrlt sept par cent par an," and falsely represented to the bank that H. held the warehouse receipts as collateral security for his A couple of months later H., for the first time, became aware that the goods had never been purchased or STATUTE-Continued.
placed in warehouse, that no warehouse receipt had been assigned to the bank and did not, until some months later, know that the alteration had.been made in the note.
There was some evidence that H. had asked for time to make a settlement of the amount due to the bank upon the note after he had become aware the fraud and the alteration so made.
Held, Idington, Maclennan and Duff
JJ. that the instrument was a forgery and could not ratified by an ex post facto assent.
The Merchants Bank v.
Lucas Can. S.C.R. 704; Cam. Cas.
275), and Brook V. Hook (L.R. Ex.
89), followed.-Per Idington J.-The circumstances of the case did not shew that there had been any assent to the alteration within the meaning of section of the "Bills of Exchange Act."-Per
Maclennan J.-The assent required to bring an altered bill within the exception provided section of the
"Bills of Exchange Act," R.S.C.
must be given by the party sought to bound at the time or of fore the making of the alteration.-Held, also, the Chief Justice and Davies J.
contra, that, in the special circumstances of the case, there was no partnership relation between the parties to the note for the purposes the transaction question and there could be no implied authorisation for the making of the alteration in the note.-Per Fitzpatrick
C.J.-The transaction in question was a joint venture or particular partnership for the enterprise in contemplation the parties, and, consequently, R. had a mandate to make whatever agreement was necessary with the bank to obtain the funds and to provide for the payment of interest on the advances required to carry out the business.-Judgment appealed from versed, the Chief Justice and Davies J.
Will-Powers of executors-Winding-up estate-Time limit-Legacy - Special legislation-Estension of time- Edw. VII. (Que.)-Construction of statute.] The provisions the Questatute, Edw. VII. ch. have not the effect extending indefinitely the time limited by the will of the late
Owen McGarvey for the investment
$50,000 for the appellant's benefit as
STATUTE-Continued.
directed by the will. Judgment appealed from (Q.R. 364) reversed. Mc- 6-Shipping-Material men-Supplies furnished for "last voyage"-Privilege dernier 6quipeur-Round. voyage-Charter-party - Personal debts of hirers - Seizure of ship-Arts. 2383, C.C.- Art. C.P.Q.-Construction of statute -Ordonnances de la Marine, 45 Appeal-Criminal law-Reserved case-Application for "during trial"- Criminal Code, s. 1014(3)-Construction of statute. ......................
54 & V. 29(D.)-"Admiralty Act, 1891"-Jurisdiction of Exchequer Court of Canada-Mortgage on ship - Action in rem-Pleading-Abatement contract price-Defects in construction Mandamus
Lumber driving - Order to fix tolls-Past user of stream -Appeal--R.S.O.
s. Constitutional law tawation-Offlcials of Dominion Government-Taxation on income-B.N.A. Act, ss. 92...................597
Waterworks-Statutory contract -Exclusive franchise-Condition of defeasance-Porfeiture of monopoly of contract-Art. -40
V. 68(Que.) ..............
12-Crown lands-Holders of location soil"-Construction of statute-.S.Q., ss. 1441; & V. gee
STATUTE LIMITATIONS-Title to land-Room in building-Adverse possession
Incidental rights grant-License or easement.........
STATUTES-30 V. (Imp.)
Act,
.......................
2-53
& V. (Imp.) ["Colonial
Courts Admiralty Act, 1890"1...418
3-R.S.C.
......................
4-43
[Government Railways] . . .......................
50 & V. s.
chequer Court Act)...............229
& V. 16(D.)
Court Act]
......................
7-54
& 55 V. ["Admiralty
Act, 1891"] ......................
8-54
& V.
[Government Railways] ..................
9-R.S.C. (1906) s. 46(c) (Supreme Court Act) ................
10-R.S.C.
s. (Rail- Act; Operation railway)
s. 1014(3)
(Crim- 12-R.S.C.
Court Act]
......................
R.S.C.(1906)c. ss. (Supreme Court Act)
................
STATUTES-Continued.
14-R..C.
s. (Bills of Exchange Act) .................
R.S.O.
s. 13 [Watercourses] ....
..............
16-40
V. 68(Que.) [St. John's City ss.
[Mines and Mining] ......... 6. 47 See 4.
& V. 20(Que.) [Mines and Mining] . .. . .................
19-3
Edw. VII. (Que.) [Will of Owen McGarvey]...............489 R.S.M.
Women's Act") ..................
R.S.M.
("Real Property Act")
.....................
22-55
V. (Man.)
(Real Property Act)
......................
TENANT-Title to land - Room in building-Adverse possession-Statute grant-License or easement ........ Contract deed-Sale of timber-Fee simple - Right of removal-Reasonable time.] In owner timber land, sold to the pine timber thereon with the right to remove it within ten years. another agreement replaced this and conveyed all the timber standing, growing or being on the land to have and to hold the same unto the said party of the second part, his heirs and assigns "forever" with a right at all reasonable times during
TIMBER-Continued.
to enter and cut and remove the same.
B. exercised his rights over the timber at times up to his death in and his executors did so after his death, M.
not objecting.
In persons authorized said executors entered and cut timber and continued until following. year brought an action for an injunction against further cutting, a declaration that the right to take the timber had lapsed and for damages.- Held, affirming the judgment of the
Court of Appeal
Davies and Duff JJ. (dissenting)
, that the instrument executed in did not convey to B. the fee simple in the standing timber but only gave him the right to cut and remove it within a reasonable time and that such time had elapsed before the entry to cut in and M.
was entitled to damages.
. . . . .................
land
Sale
Reservation of growing timber-Rights of vendor and purchaser-Resolutive condition ........
TITLE TO LAND-Sale of deed-Reservation of growing timber
-Rights of vendor and purchaser-Resolutive condition.] deed of sale of wild lands to be used for agricultural purposes clearly expressed certain specific reservations and contained, in addition, a clause as follows: "Et plus la pr6sente vente est faite 11 la condition expresse que le dit acqudreur n'aura pas le droit de couper, enlever ou charroyer aucun bois sur terrain ci-dessus vendu pour faire des bfttisses sur le terrain, des clOtures, et du bois chauffage; il est, consequence, convenu que si l'acqudreur coupait du bois en violation de la pr6sente clause, les vendeurs auront droit de demander la rEsiliation des presentes et reprendre possession des immeubles ci-dessus vendus sans rien payer
A. l'acqudreur pour les amOliorations qu'il pourra avoir faites.
Et tout bois coup6 violation des prdsentes deviendra, aussitdt coup6, la proprift6 des vendeurs, car tel est la convention expresse parties et sans laquelle les pr6sentes n'auraient pas eu lieu." Held, that, in
TITLE TO LAND-Continued. the absence of any contrary intention expressed in the deed, the title to the lot of land sold passed absolutely to the purchaser with the exception of the special reservations.-Held, also, that the clause in question had not the effect reserving to the vendors all the timber standing upon the land sold, nor can it construed as giving them the right (without rescission upon breach of the resolutive condition) to re-enter on said land for the purpose of removing stumps or second growth timber. Rioux . .......... 2-Room in building-Adverse possession-Statute of Limitations-Incidental rights-Implied grant-License or ease- Possession of an upper room in a building supported entirely portions of the story beneath may ripen into title thereto under the provisions of the Statute of Limitations.-I., one several owners land with a building thereon, sold his interest to a co-owner and afterwards occupied a room in said building as tenant for his business.
The room was on the second story and inside the street door was a landing leading to a staircase which it was reached. had the only key provided for this street door and always locked it when leaving at night.
He paid rent for the room at first and then remained in possession without paying rent for twelve The annual tax bills for the whole premises were generally, during that period, left in the room he occupied and were sent by him to the managing owner who paid the amounts. action to restrain the owners from interfering with his possession of said room and its appurtenances: Held, reversing the judgment of the Court Appeal Ont. L.R. 286) and restoring with a modification that of the trial judge (14 Ont. L.R. Idington and Maclennan JJ. dissenting, that I. had acquired a title under the Statute of Limitations to said room and to so much of the structure as rested on the soil to which he had acquired title.-Held, per Davies J.-He had also acquired a proprietary right to the staircase and the portions of the building supporting said room.- Per Fitzpatrick C.J. and Duff J.-The of Limitations does not as against the party dispossessed annex to TITLE LAND-Continued.
a title acquired by possession incidents resting on the implication of a grant. I.
had, therefore, acquired no rights in the supports.-Per Idington and Maclennan
JJ.-The use of the landing and staircase was, at most, an easement and must continue for twenty years to produce the statutory title, and to give title to the supports there would have to actual possession which was not the case here.
LOUDON................
3-Rivers and Streams - Crown domain-"PFlottage"-Driving loose logs- Public servitude-Riparian ownership- Action possessoire-Arts. 400, 503,
2192 0..-Art. 1064 .........
Mines and Minerals regulations-Application for mining location-Duties imposed on Minister of the
Interior rights-Contract binding on the Crown.
.....................
5-Married woman-Separate property try laib-"Real Property Act"-"Married Women's Act"-Conveyance during
Contract-Construction of deed - Sale of timber-Fee simple-Right removal-Reasonable time .........
7-Crown lands-Holders of location soil"-Construction of statute-R.S.Q., ss. 1441; & V.
. . ..........
.............
TOLLS-Mandamus-Lumber driving - Order to fix tolls-Past user of stream- Appeal-R.S.O. s. 13-523
TORRENS SYSTEM.
TORT-Negligence of fellow-servant - Operation of railway-Defective switch -Public work-Liability of Crown- Right of action-Exchequer Court Act, "Lord Campbell's ......................
TRAMWAYS - Negligence-Street railway
Rules judge-Contributory negligence.] A rule of the Toronto Ry. provides that "when approaching crossings crowded places where there is a possibility accidents the speed must reduced and the car kept carefully under control.
very slowly over all curves, switches and intersections; never faster than
A girl on the south side of Queen Street wished to cross to University Avenue which reaches but does not cross Queen. She saw a car coming along the latter street from the east and thought she had time to cross, but was struck and severely injured.
On the trial action for damages the judge in his charge said:
is not a question, gentlemen the jury, as to the motorman's duty under the rule, it is a question of what is reasonable for him to The jury found that defendants were not guilty of negligence; that plaintiff by the exercise of reasonable care could have avoided the injury; and that she failed to exercise such care by not taking proper precautions before crossing. The action was dismissed at the trial; a Divisional Court ordered a new trial on the ground that the judge had misdirected the jury in withdrawing from their consideration the rules The company; the Court of Appeal restored the judgment at the trial.-Held, affirming the judgment of the Court of Appeal Ont. L.R. which set aside the order of the Divisional Court for a new trial
Ont. L.R. 423)
Idington J. (dissenting)
, that the action was properly dismissed.-Held, per Girouard and Duff JJ.-The judge's charge was open to jection but as under the findings of the jury and the evidence plaintiff could not possibly recover a new trial sbould be refused.-Per Davies J.-There was no misdirection.
The jury were not to believe that the rules were not to considered, but only that they should not be the standard as to what was TRAMWAYS-Continued.
not question should decided on the facts proved.
-Per Maclennan J.-The place at which the accident occurred, where University
Av. meets Queen Street, is not a crossing nor intersection within the meaning the rules and they do not apply this case.
............
.........
TRESPASS-Damage
Cutting timber
-Sale to bond fide purchaser-Action owmer of land.]
F. conveyed land to his wife for valuable consideration.
Shortly after it was discovered that a trespasser had cut timber on said land and sold it to who bought in good faith and sold to another bond fide purchaser. In an action F.'s wife against the two purchasers the money was paid into court and an interpleader issue granted to decide which of the claimants, the plaintiff or was entitled to have it.
of the Court of Appeal Ont. L.R.
which reversed the decision of the
Divisional Court that the plaintiff was entitled to the whole sum.
Duff J. expressed no opinion on the question.-Held, also, Idington J. dubitante and Duff J. dissenting, that if necessary the writ and interpleader order could amended adding F. as a co-plaintiff with his wife.
FAULKNER...............
-Easement appurtenant-Use of comcroachment on space over lane-Right
..........
3-Contract-Construction of deed- Sale of timber-Fee simple-Right of removal-Reasonable time ...........
TRUST-Principal and agent - Secret profit - Clandestine transactions broker-Sham purchaser-Commission-- VENDOR PURCHASER-Title to land-Sale-Construction of deed-Reservation of growing timber-Rights vendor and purchaser-Resolutive condi- 2-Principal and agent-Secret profit. -Trust - Clandestine transactions broker-Sham purchaser-Commission- Quantum meruit.................134 3-Title
-Easement appurtenant-Use of common lane-Fire-escape - Encroachment of space over lane-Trespass-Right ...... -- Construction of deed-Sale of timber-Fee simple-Right of removal - Reasonable time ..................
WARRANTY
Banks and banking - Forged
Responsibility of drawee-Payment-Mistake- Indorsem ent-Implied warranty-Principal and agent-Action-Money had and received-Change in position- Laches. ......... WATERCOURSE.
WATERWORKS-Statutory contract poly
Art. C.C.-40 V. 68(Que.) ... WIFE-Construction of will-Description of legatee-Devise "to my wife"- Evidence-Burden of proof. ........................
WILL-Construction of will-Description of legatee-Devise "to my wife"-Bigamous marriage
Burden proof.] A devise made in a will "to my WILL-Continued.
wife" was claimed two women, with both whom the testator had lived the relationship husband and wife.
Held, per Idington J.-That, even if the first marriage was assumed to have validly performed, all the surrounding circumstances shewed that, the words
"to my wife," the testator intended to indicate the woman with whom he was living, in that relationship, at the time of the execution of the will and thereafter up to the time his death.-Held, per Duff J.-That woman who claimed to have been first married to the testator had not sufficiently proved that fact, and that the other woman, who was living with the testator as his wife at the time of the execution of the will and up to the time his death, was entitled to the devise.-Held, per
Daviesand Maclennan JJ. (dissenting)
.- That the first marriage was sufficiently proved and, consequently, that the devise went to the only person who was the legal wife the testator.-Fitzpatrick
C.J. was of opinion that the appeals should dismissed.-Judgment pealed from B.C. Rep. affirmed,
Davies and Maclennan JJ. (dissenting)
.
.................
2-Powers of executors-Winding-up estate-Time limit
Special legislation-Extension of time-3 Edw.
VII. (Que.)-Construction of statute.] provisions the Quebec statute, Edw. VII. have not the effect of extending indefinitely the time limited by the will of the late
MeGarvey for the investment of $50,000 for the appellant's benefit as directed the will. Judgment appealed from (Q.R.
. . . . ...... ...........
WORDS PHRASES.
"Branch" .....
...............
"During trial" .. .............. "Flottage" .
. . . ............... "In common with others" ....... 7- "Last voyage" ..........
...... S- "Proprietor of the soil". . 9-"Public work" ...............
"Sole and final judge"....281, 11--"Tife"; "To my wife". ..... See WIL