Judgment of the Court
J.-The defendants, marine insurance underwriters, appeal from the judgment of the Superior Court of the Province of Quebec, sitting in review, affirming the judgment of Hutchison J. in favour of the plaintiffs (the insured) upon a policy of marine insurance on the cargo of the barge "Maria." risk, was upon "total loss" of the cargo caused "by total loss of vessel."
The jury found that there was an actual total loss of the cargo and a constructive total loss of the barge.
The appeal is against the latter finding and generally upon grounds of misdirec- The respondents raise two objections to the jurisdiction of this court: 1st, that the amount involved, J. $2,700, does not give the right of appeal; 2ndly, that no notice of appeal was given by the appellant pursuant to section 70 of the Supreme Court Act.
The provincial legislation raising the limit of cases appealable from the Court of Review to the Privy
Council from E500 to $5,000 (8 Edw. VII. c. 75) became law on the 25th April, 1908. The judgment in appeal was rendered by the Court of Review on the
22nd April, 1908.
The right of appeal had already vested in the appellants when the statute upon which the respondents rely was passed. The statute, which contains no provision making it retroactive and does not deal with procedure only but affects rights, does not in my opinion take away the right of appeal in this case conferred by section 40 of the "Supreme
Court Act."
The other objection, based upon section 70 of the
Supreme Court Act, is, I think, also ill-founded. That section is as follows:
This is not an appeal upon a special case, nor from a judgment upon a motion to enter a verdict or nonsuit upon a point reserved at the trial. No point was reserved at the trial. Neither do I think it is an appeal "from the judgment upon a motion for a new trial" within the meaning of that phrase in section 70. The motion in the court below was for judgment in favour of the defendants non obstante veredicto, and, J. only in the event of the defendants not being entitled to this relief and as an in-cidental alternative, for a new trial. In my view the words "motion for a new trial," in section 70, should be read as meaning "motion for a new trial only" and not as including cases in which the motion is substantially for other relief and only as an alternative for a new trial. Leishman v. Garland (1), at page 243.
Upon any other construction this section would apply to almost every appealable case, which was manifestly not intended.
I therefore think the objections to the jurisdiction cannot prevail.
Upon the merits there can be no doubt that there has been a partial mistrial of this action. The questions for the jury were framed and the trial itself was conducted upon the principles laid down by the English Court of Appeal in Angel v. Merchants Marine Insurance Co. (2).
The mixed question of law and fact, whether or not there had been a constructive total loss of the vessel, was left to the jury, but upon a direction by the learned judge which gave to them an entirely mistaken standard as to what constitutes a constructive total loss.
The test of constructive total loss according to the Angel Case(2) should be whether the cost of permanent repair would or would not exceed the value of the ship so repaired, and the shipowner is not entitled to add the value of the wreck to the cost of repair in determining whether there was a constructive total loss of the ship. This decision was distinctly overruled by the House of Huse
Lords in Macbeth v. Maritime Insurance Co.(1), and it was there decided that
The jury were not asked to find and have not found the break-up value of the wreck as she lay on the bottom of the river. The evidence upon this point, to which little attention seems to have been directed, is unsatisfactory and conflicting.
But the defendants' interests were not prejudiced by the application of the test propounded in the Anglel
Case (2), which is more favourable to them than that established by the Macbeth Case (1).
This misdirection might not therefore, without more, warrant the setting aside of the finding that the vessel was a constructive total loss.
That every vessel which sinks in one of our rivers is ipso facto to be deemed a constructive total lossas contended by the learned counsel for the respondents-is a view, in my opinion, not warranted by anything said in the Macbeth Case (1), and not consonant with the test of constructive total loss there formulated.
In his charge the learned trial judge applied to the question of constructive total loss of the vessel a test prescribed by article 2522 of the Civil Code for determining when a loss is constructively total, which appears to be intended for application only to the case of loss of cargo. The article reads:
The learned judge told the jury in effect that a total loss of the cargo would result in the voyage and adventure of the barge being lost or rendered worth pursuing and, therefore, that if they found that the cargo was a total loss they might find for that reason that the vessel itself was a constructive total loss. He put it in this way:
It is impossible to support the finding of constructive total loss of the vessel based upon this direction. There remains the question whether the motion of the appellants for judgment in their favour non obstante veredicto should prevail, or whether their relief must be limited to the granting of a new trial. Upon this question being raised in the course of argument counsel referred to articles 496 and 508 of the Code Civil Procedure. These provisions are both found in chapter XXI, which is intituled "Trial by jury" and in section X, which is headed "Remedies against Judgments and Proceedings in Reserved Cases."
Article 496 reads:
496. The court may, in all cases where the judgment of the trial judge, or the verdict in a reserved case, is attacked, apply any remedy by which it considers that the ends of justice will attained, even if such remedy has not been specifically demanded by any of the parties.
Article 508 reads:
A judgment different, in whole or in part, from that ren- Anglin J. dered by the trial judge, or from the verdict in a reserved case, may rendered in any of the following cases:
1. When the facts as found the jury require a judgment in favour of the party moving or inscribing, or the judge has erred as to the real effect of the verdict;
When the allegations of the party in whose favour the verdict or the judgment has been rendered, are not sufficient in law to maintain his pretensions;
When it is absolutely clear from all the evidence that no jury would be justified in finding any verdict other than one in favour of the party moving or inscribing.
Dealing first with article 508, it is apparent that when the party moving attacks merely the judgment and does not seek to set aside the verdict the appellate tribunal is given jurisdiction to enter in favour of the party moving any judgment warranted by the findings of fact or the real effect of the verdict. But when the party moving attacks the verdict itself and must set it aside to obtain relief, two restrictions are placed upon the exercise of its power by the court: First, it must be a verdict "in a reserved case"; and secondly, it must be absolutely clear from all the evidence that no jury would be justified in finding any verdict not in his favour.
We are not dealing with a reserved case and it cannot be contended that the other provisions apply. It follows that the appellant cannot have judgment non obstante veredicto under article 508.
Turning to article 496, it is apparent that a motion against a judgment merely, involving no attack upon the verdict, may be made in any case; but where the party moving would attack the verdict there must have been a reserved case to enable the court to exercise the powers conferred by this article. There was not, as already stated, a case reserved by the trial judge. This action came before the Court of Review by inscription of the defendants.
Neither under article 508 nor under article 496, therefore, are the appellants entitled to ask that the findings of the jury should be set aside, new findings made upon conflicting evidence and thereupon judgment entered in their favour.
An instance in which article 496 was successfully invoked by a party dissatisfied with the judgment in an action tried with a jury is found in Roberts v. Hawkins(1), in 1898.
Whether, where there is a reserved case under articles 496 and 508, the appellate courts in Quebec should exercise wider powers than are exercised by English appellate tribunals under the judicature rules is a question which I desire to leave open for future consideration should such a case arise.
See authorities collected in Snow's Annual Practice, 1909, at page 574, in the Yearly Practice, 1909, at page 539, and in Holmested & Langton's Judicature Act, (Ont.) (3 ed.) pages 812-814, 1059; also Ferguson v. Grand Trank Railway Co. (2), per Lemieux J., at p. 82. Upon the important question as to the break-up value of the wreck there is no finding of the jury. Their finding of constructive total loss based upon misdirection as to the application and effect of article 2522 C.C. must be set aside. The making of a new finding upon that question would involve determining the breakup value, which, according to the evidence, may be any sum between $100 and $700, and it might be necessary to pass upon the credibility of the witnesses who give evidence upon it.
That is eminently a function of the jury which should not in my view be usurped by an appellate court.
McLachlan v. The
Accident Ins. Co. of North America, in 1890, (1).
Some of the findings of the jury, such as the 8th and 9th, seem quite irrelevant; but, if disregarded, they will probably be innocuous.
They may, therefore, be allowed to stand with the other findings properly made.
The questions covered by these latter findings it seems unnecessary to submit to the consideration of a fresh jury.
It follows that the judgment below should be vacated and the finding of the jury upon the 10th question set aside. The action should be remitted to the Superior Court in order that another jury may determine the break-up value of the wrecked vessel, which they should be asked to find specifically. They should also be asked to find whether the vessel was or was not a constructive total loss according to the test propounded in Macbeth & Co., Ltd. v. Maritime Ins. Co. (2).
Upon the findings already made and which are undisturbed, supplemented by such new findings, the Superior Court will then direct such judgment to be entered as it deems proper.
The appellants should have their costs of the appeal to this court and of the proceedings in the Court of Review.
The costs of the abortive trial should abide the event of the new trial.
Motion to quash dismissed and appeal allowed with costs. Solicitors for the appellants: Lafleur, Macdougall, o
Macfarlane & Pope. Solicitors for the respondents: Brown, Montgomery & McMichael. pothecation securities pledge-Duty of pledge. ...........
Tort
Liability of the Crown
Demise of the
Personal action
Release
Operation of railway-common employment-Exchequer Court Act, & V.
s. 16(c).]
Under sub-sec.
of of the "Exchequer Court Act"
& Vict. ch. an action in tort will lie against the Crown, represented the Government of Canada.-Under the Civil Lower Canada, in case of death by negligence of servants the Crown, an action for damages may maintained by the widow of the ceased on behalf of herself and her children.-The action of the widow is not barred her acceptance of the amount of a policy of insurance on the life deceased from the Intercolonial
Railway Employees'
Relief and Insurance
Association, under constitution, rules and regulations of which
Crown is declared to be released from liability to make compensation for injuries to or death of any member the association.
Miller v. Grand Trunk
Railway Co. ( (1906) followed.
right of action for compensation for injury or death negligence
Government employees does not abate on demise of the Crown.
Viscount Canterbury v. The Queen L.J. Ch. 281)
referred to.
........
2-Appeal-Actio Pauliana versy involved-Title to land
R.S.C.
[1906] s. 46.]
In the Province of Quebec, the actio Pauliana, though brought to set aside a contract for sale of an immovable, is a personal action and does not relate to a title to lands so as to give a right of appeal to the
Supreme Court of Canada.
... .....................
ACTION-Continued.
of stock-Evidence of title- When shares in the stock company are sold for cash and a certificate delivered with a form of transfer indorsed purporting to signed holder named therein who is not the seller, the latter must taken to affirm that a title which will enable the purchaser to become the legal holder is vested him virtue such certificate and transfer.-A transfer was signed the wife of the holder at his direction but not acted upon until after his death. Held, that the authority of the wife to with the certificate was revoked the holder's death and on a cash sale of the shares the purchaser who received the certificate and transfer signed being unable, under the company's rules, to registered as bolder had a right of action to recover back the purchase money from the seller.
The fact that the purchaser endeavoured to have himself registered as bolder of the shares was not an acceptance him of the contract sale which deprived him his right of action to have it rescinded. Nor was his action barred by loss the defective certificate no fault his nor of the seller.
pealed from B.C. Rep. reversed. .. .. .. ... .. . .. ... ... . .. . . .. .. . . 8 4-Conmpany-Sale of shares-Resolutive condition-Hypothecary security- Construction of contract-Rescission. ......... Agreement for sale land-Deferred conveyance- Default in Maritime law - Failure hear signal-Evidence.] The "Senlae" was coming out Halifax harbour taking the eastern side of the channel. There was a dense fog at the time and the fog signals were sounded at regular intervals.
She was making about six knots and having passed
George's Island heard the whistle of an incoming steamer.
Fog signals were given in reply and when the incoming vessel, the "Rosalind," was estimated to about half a mile the "Senlac,"
gave *a single short blast and directed her course to starboard.
The "Rosalind" replied to this signal and stopped her engines.
Within a few seconds the
"Senlac" was seen about a ship's length away on the port bow and almost at the same moment the latter gave two short blasts on her whistle and swung to port threatening to cross the "Rosa,lind's" bow.
The "Rosalind's" engines immediately put
"full speed astern" but too late to avoid a collision in which the "Senlac"
was seriously damaged.
At the trial of an action the latter reliance was placed on the failure of the "Rosalind" to respond to her signals but the first signal admitted to have been heard on the "Rosalind"
was the one short blast when the "Senlac" went to starboard.
The result the trial was that both vessels were found in fault and, on appeal by the
"Rosalind":-Held, that the "Senlac"
was in fault in continuing on her course when the vessels were quite near together instead of stopping and reversing and was alone to blame for the collision, and that the failure to hear her signals was not negligence on the part of the "Rosalind" and did not contribute in any material degree to the accident.
grounds
Admiralty law-Collision.]
should not consider a ground not previously relied on unless satisfied has all the evidence bearing upon that could have been produced at the trial and that the party against whom it is urged could not have satisfactorily explained it under examination.-In this case damages were claimed from the owners of the "Euphemia" for collision
ADMIRALTY LAW-Continued. with plaintiffs' ship and the latter their preliminary act charged that the "Euphemia"
was in fault for not reversing her engines.
Court judgment held plaintiffs' ship alone in fault and on appeal the majority the Supreme
Court refused to consider the ground not previously urged that the "Euphemia" when ihe saw the other ship attempting to cross her bow held too long on her course instead reversing.-Fitzpatrick C.J. and Davies J. were opinion that under the circumstances this point was open to tne plaintiffs.
- APPEAL-Jurisdiction-Final judgment -Time for appealing-Exchequer court Act, R.S.C.
c. s. 82-Exchequer Court rules.]
Notwithstanding report referee within the fourteen days mentioned in sections and the General Rules and Orders of the Exchequer Court of Canada (12th December, 1899), an appeal will lie to the Supreme Court Canada from an order the judge confirming the report, as required the said sections, within the thirty days limited section of the Exchequer Court Act, R.S.C. . ........ judgment.] In the United Lumber executed a contract for sale to all its lumber and interests therein the price to payable in three instalments at fixed -dates. By a contemporaneous agreement the undertook to get out logs who was to make advances for the purpose.
The agreement sale was carried out and two instalments the purchase money paid. At the time these contracts were executed the Union Bank had advanced money to the company and shortly after the contract for sale was assigned to the bank as security for such and for future advances.
The company having assigned in insolvency the bank brought action against for the last instalment the purchase money to which he pleaded that had paid in advance to the pany and the bank more than the sum claimed.
The trial judge held that the bank had no notice of the second agreeunder which claimed to have advanced the money and gave judgment for the bank with a reference to ascertain the amount due.
The full court set aside this judgment and ordered a reference to ascertain the amount due the bank and, if anything was found to due, to ascertain the amount due to from the company.
The bank sought to appeal from the latter decision.- Held, that the judgment of the full court was not a final judgment from which an appeal would lie under the Supreme Court Act to the Supreme Court
Canada.
HALIFAX
..........
case-Final judgment-Origin in Superior Court-Supreme Court Act, ss.
and An information was laid fore the police magistrate of St. John, charging the
License sioners with a violation the Liquor
License Act the issue more licenses in Prince Ward than the Act authorized.
The informant and the Commissioners agreed to a special case being stated for the opinion of the Supreme
Court New Brunswick on the construction of the Act and that court, after hearing counsel for both parties, ordered that "the Board
License
Commissioners for the City of Saint
John and they are hereby, advised that the said Board License
Commissioners can issue eleven tavern licenses for Prince Ward in the said City of Saint John and no more"
N.E.
Rep. 508).
appeal the Commissioners to the Supreme Court of Canada.-Held, that the proceedings not originate in a superior court, and are not within the exceptions mentioned in of the Supreme Court Act;
that they were extra cursum curia; and that the order of the court below was not final judgment within the meaning of sec. 36; the appeal, therefore,
44% did not lie and should quashed. ............... 4--Jurisdiction - Supreme Court -Duty or fee-Interest in land-Future rights.] Under a by-law the fendant company every person desiring to enter the park was required to pay a fee for admission.
An action was brought for a declaration as to the right of the company to exact payment such from the lessee land in the park.-Held, that the matter did relate to the taking of a "customary other duty or fee" nor to "a like mand of a general or public nature affecting future rights" under sub-sec. R.S.C. [1906] nor was "the title to real estate or some interest therein" in question under sub-see. (a). There was, therefore, no appeal to the Supreme Court of Canada from the judgment of the Court of Appeal in such action Ont. L.R. 386).
..... ............ 5---Jurisdiction-Amount in dispute- Interest
An action having been brought against the makers and indorser of a note for $2,000 the makers sued the indorser in warranty claiming that no consideration was given for the note and asking that the indorser guarantee them against any judgment obtained in the main ac- They also asked that an agreement under which the makers were to become liable for $3,000 be declared null.
The two actions were tried together and judgment given for the plaintiff in the action on the note while the action in warranty was dismissed. appeal from the latter judgment.-Held, that the amount in dispute was $2,000, the value of the note sued on; that the costs of the action in warranty could not added and without them the sum £500 was not in controversy even if* interest and costs in the main action were added; the appeal, therefore, did not lie.-Held, also, that the agreement which the plaintiffs in warranty sought to avoid was only a collateral matter to the issues raised on the appeal and could not be considered in determining the amount in dispute.-Interest after the commencement of the action, unless specially claimed as damages, cannot be added to the amount claimed in the claration in determining the amount controversy for the purposes of giving jurisdiction upon an appeal to the Supreme Court Canada.
LANGLOIS.........................
6-Actio
Pauliana - Controversy involved-Title to land-R.S.C. [1906] c.
8. 46.]
In the Province Quethe actio Pauliana, though brought to set aside contract for sale of an immovable, is a personal action and does not relate to a title to lands as to give a right of appeal to the Supreme
Court of Canada.
7-New grounds - Admiralty law - A court of appeal should not consider a ground not previously relied on unless satisfied it has all the evidence bearing upon it that could have been produced at the trial and that the party against whon it is urged could not have satisfactorily explained it under examination.-In this case damages were claimed from the owners the "Euphemia" for collision with plaintiffs' ship and the latter in their preliminary act charged that the "Euphemia" was in fault for not reversing her engines.
judgment held plaintiffs' ship alone in fault and on appeal the majority of the
Supreme Court refused to consider the ground not previously urged that the
"Euphemia" when she saw the other ship attempting to cross her bow held too long on her course instead of reversing.-Fitzpatrick
C.J. and Davies J.
were of opinion that under the circumstances this point was open to the plain- "Eu- 8-Jurisdiction - Court of
Review
-Reduction of damages - Confirmation
Superior Court judgment-R.S.C.
[1906] c. s. 40.]
There can be no appeal to the Supreme Court of Canada from a judgment of the Court of King's
Bench, appeal side, quashing an appeal from the Superior Court, sitting in review for want of jurisdiction.
tty of
Ste.
Cunigonde v. Gougeon (25
Can.
Idington J. (dissenting)
.-In an action for where the plaintiff obtains a verdict at the trial and the Court of Review reduces the amount awarded thereon the judgment the Superior Court is confirmed and, therefore, no appeal lies to the Court of King's Bench, but there might be an appeal from the judgment of the Court of Review to the Supreme Court of Canada.
Simpson v. Palliser Can. S.C.R. distinguished. Idington J. dissenting.
9-Collection of municipal taxes-Accharter, V. 58 (Que.)-Jurisdiction--Judgment Court of Review- Special tribunal-Court of last resort- Supreme Court Act, R.S. [1906] c. s.
Under the provisions of the Montreal City Charter, Viet. 484 (Que.), an action was brought the city, in the Recorder's Court, to recover taxes on an assessment of the company's property in the city. ment was recovered for $39,691.80, and an appeal to the Superior Court, sitting in review, under the provisions of the Statute,
Vict.
ch. as amended Edw. VII. was dismissed.
an application by the company to affirm the jurisdiction of the Supreme Court of Canada to hear an appeal from the judgment the Court Review.-Held that
Superior Court, when exercising its special appellate jurisdiction in reviewing this case, was not a court of last resort created under provincial legislation to adjudicate concerning the assessment of property for provincial or municipal purposes within the meaning of section Supreme
Court Act," R.S. [1906] and, consequently, there could no jurisdiction to entertain the ............. 10-urisdiction-Amount in controversy
Reference to assess damages- Final judgment.] In L. purchased from W. his creameries on the faith a statement purporting to be made up from the books and shewing an outprit for the years equal to or greater than that of
Having discovered that this statement was untrue they brought action for rescission of the contract to purchase and damages for the loss in operating during judgment at the trial dismissing the action was affirmed by the Divisional
The Court of Appeal reversed the latter judgment, held that rescission could not ordered but the only remedy was damages and ordered a reference to assess the amount.
On appeal to the Supreme Court of Canada:- Held, Girouard J. dissenting, that as can not ascertained from the record what the amount in controversy on the appeal was, or whether or not it is within the appealable limit, the appeal not lie.-Held, per Idington J. The judgment appealed against is not final judgment.-Per Girouard J. dissenting.
is established by the evidence at the trial, published on the record, and admitted the respective counsel the parties, that the amount in dispute exceeds
The court, therefore, has jurisdiction to hear the appeal.
11-Court of Review-Appeal to Privy
Appealable amount ment to statute-Application-Notice appeal-New trial.] An appeal lies to the Supreme Court of Canada from a judgment of the Court of Review which is not appealable to the Court of King's
Bench but is susceptible of appeal to His
Majesty in Council.
By Edw. VII.
the amount required to permit of an appeal to His Majesty in Council was fixed at $5,000 instead of as theretofore.-Held, that said Act did not govern a case in which the judgment the Court of Review was pronounced fore it came into force.-By section the Supreme Court Act notice must given of an appeal from the judgment, inter alia, "upon a motion for a new
Held, that such provision only applies when the motion is made for a new trial and nothing else and notice is not necessary where the proposed appeal is from the judgment on a motion for judgment non obstante or, in the alternative, for a new trial. V.
Negligence-Tort-Liability of the
Crown-Demise of the Crown-Personal
Act, 50 & Vict. s. (c)-Appeals to Privy Council . ............ 13-Construction of contract Findings of trial judge-Appreciation of evidence-Reversal on appeal . ........ ASSESSMENT TAXES-Municipal corporation-Powers-Land tax sales- Purchase corporation - Vesting title-Manitoba Real Property Act- Agreement to re-convey-Necessity of ............................
2-Collection of municipal taxes-Ac- Charter, Vict. (Que.)-Appeal resort-Supreme Court Act, R.S.C., ATTACHMENT - Conditional sale - Price payable before delivery-Title to goods-Rescission of sale-Action--Legal maxims
Attachment
Possession judgment debtor-Ownership-Procedure bailiff-Guardian to second seizure-Sale super non domino et non possedente-Adjudication upon invalid seizure.]
The hull of a steamer sunk in a canal had been attached under judicial process and, while standing on the bank at a distance from which he could not see or touch the materials, a bailiff assumed to make a second seizure, gave no notice of his proceedings to those on board the hull, and appointed a guardian other than the one placed charge of the hull at the time of the first debtor, named in the second writ, had made a bargain for the purchase of the hull subject to the price being paid before livery, but had not paid the price nor had the property been delivered into his possession.
Subsequently, the bailiff adjudicated the hull to the appellant judicial sale at auction.-Held, ATTACHMENT-Continued.
there had been no valid seizure under the second writ; that the purchaser quired no title to the property, by the adjudication, and the sale to him should rescinded; that, under the circumstances, there could no application the maxim "en fait de meubles possession vaut titre" and that the maxim
"main justice ne dessaisit pas" must taken subject to the qualification that a seizure under judicial process places the goods seized beyond the control an ecution debtor.
The Connecticut and
Passumpsic Rivers Railroad Co. Morris Can. S.C.R. distinguished, and the judgment appealed from (Q.R.
K.B. affirmed.
servation for highway
Opening first front road-Appropriation - Indemnity
-Procos-verba-Descrsption
Formal
Municipal Code, arts. 906, 914,
.. ..........................
BANKRUPTCY.
BANKS BANKING-Trust-Hypothecation of securities pledge-Duty of pledgee.] B. sold property to the Syndicat and took as security for the price mortgages on real and personal property and a promissory note and transferred the securities to the bank to secure his present and future indebtedness to it.
He signed a document authorizing the bank to realon the same in its discretion, to grant extensions and give up securities, accept compositions, grant releases and discharges and otherwise deal with them as it might see fit without prejudice to
B.'s liability. The note not being paid maturity, the bank sued the Syndicat and upon it and on the covenants in the mortgages and obtained judgment against both.
In the same action, the
Syndicat, on counterclaim damages for deceit, had judgment against which was eventually set aside, but,
BANKS BANKING-Continued. while it existed, the bank made a settlement with the Syndicat and discharged the latter from all liability on the judgment of the bank on payment of over $20,000 less than the debt. B. was not a party to this settlement and the bank afterwards refused to give him any information about it or to give him a statement of his account with the bank itself.
In an action for an account and to have the bank enjoined from further dealings with the securities.-Held, that the power given to the bank to deal with the securities was to exercised for the purpose of liquidating B.'s debt, and, as to the surplus, for B.'s benefit; that, the settlement having been made solely for the benefit of the bank and in sacrifice of B.'s interests, the bank violated its duty, and had not satisfied the onus upon it shewing that, had the whole amount the judgment been recovered from the Syndicat, would not have benefited thereby.
BILLS NOTES-Contract-Nova- Sub-contractor
Order from contractor ouner-Evidence. Appeal-Amount in dispute-Interest-Costs - BOARD OF RAILWAY COMMISSION- ERS-Jurisdiction of Board of Railway Commissioners - Railway crossing - Contribution to cost-Party interested -Municipality-Distance work.] municipality may a "party interested" in works for the protection of a railway crossing over a highway though such works are neither within or immediately adjoining its bounds and Board Railway Commissioners has jurisdiction to order it to pay a portion the cost of such work. BROKER-Sale of lands-Conditions- Deposit of price-Compliance with instructions-Vendor refusing to complete- Broker's commission-Remuneration for procuring purchaser.]
broker, in- BROKER-Continued.
structed to sell lands for a price to deposited in a bank pending arrival of clear title, procured a purchaser who made the deposit to his own credit without appropriating it to any special purpose.
refusal the vendor to complete the bargain, the broker sued him for a commission or remuneration for the services rendered.-Held, reversing the judgment appealed from (1 Sask. L.R. 247)
Idington J. (dissenting)
, that there had not been such compliance with the terms of the instructions as would entitle the broker to recover commission or remuneration for his services in procuring a purchaser.
2-Principal and agent-Broker sell- Board rules-Indemnity.] 14th August, the defendant, who resided
State the lowing letter to tne plaintiffs, grain dealers at Winnipeg, Man.:
"Yours of recent date enclosing market report rec'd.
I shall North in about four weeks to look after the new crop and, if you can sell No. oats for better, in store Fort William, you had better sell 4,000 bus. for me, and I will up at Snowflake then so I can after the loading of them, and I will send the old oats then."
The plaintiffs, who were also brokers on the Winnipeg
Stock Exchange, sold the oats at cents on the "Board," without disclosing the name their principal, for October delivery, becoming personally liable the performance of the contract according to rules the Exchange. Upon defendant refusing to deliver the oats,.
the plaintiffs, purchased the quantity of oats sold at an advance in price in order to make the delivery brought;
recover amount their loss tous sustained.
-Held.
reversing appealed from Man. R. that the authority so given did not authorize the plaintiffs to make a sale under the
Grain
E'xcliange
Rules binding upon their principal; that no contract binding on the principal outside of these rules had been entered into, and, sequently. that was not liable to indemnify them for any loss sustained
BROKER-Continued.
reason of their contract.
& Co....................618 BUILDERS
CONTRACTORS - Negligence-Sale of ruined building- Personal responsibility
Where a ruined building is sold to B., engaging himself to remove the materials from the ground, there no responsibility imposed upon under the provisions of article of the Civil Lower Canada, respect of injuries sustained in consequence of the negligence of in the removal of the materials, as had control over the operations of demolition and removal and his workmen.
(Q.R. BANK.........259 BY-LAW - Powers-Land tax sales-Purchase corporation-Vesting of title-Manitoba Real Property Act-Agreement to re-convey-Necessity of by-law.]
After the City of Winnipeg had become purchaser of lands within the city sold for arrears of overdue taxes, and had obtained a certificate title therefor under the Real Property Act, a resolution of the city council was passed agreeing that the land should re-conveyed to the former owner on payment of the taxes in arrears with interest and costs.- Held, that the corporation bound the resolution as the re-conveyance of the lands could be made only under the authority of a by-law as provided the city enarter.
Waterous Engine Works v.
The Town Palmerston Can. S.C.R. 556) District of North Vancouver v. Tracy nent appealed from Man. .........
PLANS - Dedication highway-Conditions in Crown grant- Access to beach-Plan of sub-division- Destination owner-Limitation of user -Long usage public-Acquisitive prescription-Recita Is in deeds-References and notices
Presumptions ......... Will
Testamentary capacity-Suggestion-Undue influence- Interdiction-Evidence--Onus of proof.
....
...
... ... ... ... ... ...
CASES-Adam & Burns v. Bank
Montreal Can. S.C.R. referred
2-Armstrong The King (not reported) referred to ................
--- Baptist v. Cie de Papier des Laurentides (Q.R. K.B. affirmed..105
Brook Booker
(Q.R. K.B.
affirm .....................
Canterbury, Viscount, The Queen
L.J. referred to .......
Castleman Waghorn, Gwynne &
B.C. Rep. reversed ......
Connecticut and Passumpsic Rivers
Railroad v. Morris Can. S.C.R.
8-Cox v. Adams Can. S.C.R.
'9-Desrosiers v. The King Ex. C.R.
10-Dominion Textile Co. Angers
K.B. affirmed .........
11-Eastern Townships Bank v. De- Kerangat (Q.R. K.B. 232) affirmed.
. ...................
CASES-Continued.
12-Eastern Townships Bank et al. Vaughan et al. B.C. Rep. .......................
13-Fellowes Lord Gwydyr (1 Sim. distinguished .445 14-Hamburg-American Packet Co. The King Can. S.C.R. distinguished ...
.
....................
14a-Hayes v. Day Alta. L.R. Hildreth V. Mcormick Manufacturing Ex. C.R. affirmed.246 16-Irving v. Grimsby Park (16 Ont. L.R. 386) appeal quashed ...... 17---Jamieson Blaine Rep. appeal quashed................ 18-King's Asbestos Mines Township of South Thetford (Q.R. K.B. 19-Laird v. Pim (7 M. & W. 474) 20-Laramde Ferron (Q.R. K.B. 4 .... See WILL.
Miller Grand Trunk Rway Co. 22- Mitchell City of London Assurance Ont. App. R. 262) distinguished.........................491 23-ifontrial, Cit6 de, v. Vie des Chars Urbains de Montrial (Q.R. appeal refused ...................
CASES-Continued.
24- Montreal, Light, Heat and Power
Co. Archambault (Q.R. K.B. 410)
......................
25-ontreal
Light, Heat and Power v. Sedgwick (Q.R. re- 26- Murphy Butler Man. R.
27-North Vancouver
District
Tracy (34 Can. S.C.R. followed.18
28-Ponton v. City of Winnipeg (17
Man. R. 496) affirmed ..............
29-Purdy Porter N.B. Rep.
30-Quebec Railway, Light and Power v. The Recorder's Court of the City
Quebec (Q.R. K.B. affirmed.
31-Rhodes Perusse (Q.R. K.B.
32-Ste.
Cun6gonde, City of, v. Gougeon Can. S.C.R. followed..419
33-Shallow v. Gazette Printing
K.B. 309) reversed........ 339
34-Simard v. Thompson (Q.R. K.B.
24) affirmed .....................
35-Simpson Palliser
Can.
S.C.R. distinguished............
CASES-Continued.
36-Star Mining and Milling v. Byron N. White Co. B.C. Rep. 234) affirmed.........................377 37-Stuart
Bank of Montreal (17 Ont. L.R. 436) reversed ............
38-Thompson Equity Fire Insurance et al. Ont. L.R. re- 39-"Tordenskold," The, v. The "Euphemia" Ex. C.R. 234) affirmed..154 40-Vivian, The H. H. v. Clergue Ont. L.R. affirmed ......... 41-Wald v. Winnipeg Electric Rway. Man. R. affirmed ...... 431 42-Waterous Engine Works v. Town of Palmerston................ 43-Watson Perkins Jur. 44-Whitman Fish v. Winnipeg Fish 'Man. R. reversed..453 Wilson Davies (not reported) referred to ........................
46-Yates v. Reser (1 Sask. L.R. 247) COMPANY-Sale of stock-Evidence title-Duty of vendor-Defective certificate.]
When shares in the stock of a company are sold for cash and a certificate delivered with a form of transfer indorsed purporting to signed the holder named therein who is not the seller, the latter must taken to affirm COMPANY-Continued.
that a title which will enable the purchaser to become the legal holder vested in him virtue of such certificate and transfer.-A transfer was signed the wife of the holder at his direction, but not acted upon until after his death.
-Held, that the authority of the wife to deal with the certificate was revoked the holder's death and on a cash sale the shares the purchaser who received the certificate and transfer so signed being unable, under the company's rules, to registered as holder had a right action to recover back the purchase money from the seller.-The fact that the purchaser endeavoured to have himself registered as holder of the shares was not an acceptance him of the contract sale which deprived him of his right action to have it rescinded.
Nor was his action barred loss of the defective certificate no fault of his nor of the seller. Judgment appealed from B.C.
Rep. reversed.
GwYN & Co...................88
2-Sale of shares-Resolutive condi- Hypothecary security
Construction of contract-Rescission.] By the judgment appealed from (Q.R. K.B.
affirming the judgment of the Superior Court (Q.R. 56), it was held that the acceptance of a proposal to purchase shares in a joint stock pany for a price payable half in bonds and half in the stock of a new company to formed to take over the business the first mentioned company, on condition that the shares sold should deposited in trust as security for the payment of the bonds and that, so as all the shares of that company were deposited and its real estate transferred to the new company, a mortgage the real estate should executed to secure payment of the bonds, was a sale subject to a resolutive condition to complete -and effective only in the event of the new company acquiring the property of the first company and cuting the mortgage, and that, on breach of the condition respecting the security to given for payment the bonds, the sale became ineffective and should be rescinded.
an appeal to the Supreme
Court of Canada, the judgment appealed
Novation
Sub-contractor - Order from contractor on owner T. was contractor for building a house and F. sub-contractor for the plumbing work. When F.'s work was done he obtained an order from T. on the owner in the following terms: "Please pay F. the sum and charge to my account on building, Lucknow Street."
F. took the order to the owner who agreed to pay if the architect certified that the work had performed. F. and T. saw the owner and architect together shortly after and being informed the latter that the account was proper and there were funds to pay it the owner told F. that would be all right and retained the order when F. went away. F. no mechanic's lien, but other sub-contractors did the next day, and T. assigned in insolvency. In an action F. against the owner: Held, Davies J. dissenting, that there was a novation of the debt due from the owner to T.; that it was not merely an agreement the owner to answer to F. for T.'s debt nor was the order to treated as a bill of exchange and accepted as such.
...... Construction of contract-Findings of trial judge-Appreciation of evidence -Reversal on appeal.] In a dispute as to the nature and effect of a contract, the trial judge, on his view as to the weight of evidence, found the facts in favour the plaintiff and gave judgment accordingly.
His decision was reversed a majority of the court in banco, and the action was dismissed with costs.-Held, per Idington, Maclennan and Duff JJ., reversing the decision of the full court, Alta. L.R. 441), that the findings of the trial judge, who had seen and heard the witnesses, should not have been reversed.-The Chief Justice and Davies
J.
considered that the trial judge had not made his findings the result of conclusions arrived at him having regard to the conduct and appearance of the witnesses in giving their evidence, and, on their view of the conflicting testimony, were of the opinion that the full court was right in reversing the judgment at the trial and that the appeal from their judgment ought to dismissed.
v. ........... of shares
Resolutive condi- Hypothecary security - Construe- CONTRACT-Continued.
tion of con tract-Rescission.] By the judgment appealed from (Q.R. K.B.
63), affirming the judgment of the Superior Court (Q.R. 56), it was held that the acceptance of a proposal to purchase shares in a joint stock company for a price payable half in bonds and half in the stock of a new company to formed to take over the business of the first mentioned company, on condition that the shares so sold should posited in trust as security for the payment of the bonds and that, so soon as all the shares of that company were so posited and its real estate transferred to the new company, a mortgage on the real estate should executed to secure payment of the bonds, was a sale subject to a resolutive condition to complete and effective only in the event the new company acquiring the property of the first company and executing the mortgage, and that, on breach of the condition respecting the security to given for payment of the bonds, the sale became ineffective and should be rescinded.
an appeal to the Supreme
Court of Canada, the judgment appealed
4-Husband and wife-Contract-Separate estate-Security for husband's debt-Independent advice-Stare decisis.]
confidential relations between husband and wife are such that where the latter conveys or encumbers her separate property for her husband's benefit she is entitled to the protection of independent advice; without that her action does not bind her.
followed, Idington J.
dissenting.-Only in very exceptional circumstances should the Supreme Court refuse to follow its own decisions. Judgment of the Court of Appeal Ont.
5-Agreement for sale of land-Deferred conveyance-Default in payment- Remedy of vendor
Reading "or" as
"and."] Where, in accepting an offer
V. for the sale of land, undertook to pay certain instalments of the purchase money before receiving the deed V. could sue for recovery of unpaid instalments, his remedy not being confined to an
CONTRACT-Continued.
action in damages for breach of contract. Laird v. Pim (7 -1. & W. 474) distinguished.-The offer having been accepted for "myself or assigns," to avoid holding the contract void for uncertainty as to the purchaser's identity, the word "or" was read as "and."
Idington J. (dissenting)
, on this point.-Judgment the Court of Appeal Ont. L.R. maintaining that of a Divisional Court Ont. L.R. affirmed.
Co...................607
G- Land tax sale-Purchase by corporation-Agreement to re-convey-Necessity of by-law ..........................
7-Appeal-Actio Pauliana versy involved-Title to land-Supreme Court Act, s. 46....................80 costs"
Taxation to counsel and solicitor-Construction Statute-1 Edw. VII. (Man.)- Contract with solicitor engaged on salary - Conflict of laws.................. 366 Sale of goods by sample-Delivery R.S.M. 152-Notice of rejection ...................
10-Vendor and purchaser-Agreement for sale of land-Principal's duty and terest-Fiduciary relationship-Speciperformance ..................
Principal and agent-Broker sell- Board rules-Indemnity ............ CONTROVERTED ELECTION. COSTS-"Lawful costs"-Taxation fees to counsel and solicitor-Construc- -tion of statute, 1 d Edw.
(Man.)-Contract with solicitor engaged on salary-Conflict of laws.] Section of the charter of the City of Winnipeg
(1 & Edw. VII. 77), provides that where the city solicitor is engaged at a stated salary, the city has the right, law suits and proceedings, to recover and collect "lawful costs," in the same manner as if such solicitor were not receiving such salary. The corporation enacted a by-law appointing its solicitor at an annual salary and, in addition thereto, that he should entitled, for his use, to such lawful costs as the corporation might recover in actions and proceedings, except disbursements paid the city.
Upon the taxation of the costs awarded to the respondent on an appeal to the Supreme Court Canada Can.
S.C.R. :-Held, that the statute and contracts above recited applied to costs awarded on said appeal and that, on the taxation, the usual fees to counsel and solicitor should allowed.
Hamburg- American Packet v. The King
Can. S.C.R. distinguished.
..............
2-Appeal-Amount in dispute-Interest-Collateral matter ..............
COURT-Collection of municipal taxes- Action in Recorder's Court - City Charter, V. (Que.)-Appeal
-Jurisdiction--Judgment by Court resort-Supreme Court Act, R.S.C.
s. 41......................427
Appeal-Court of Review-Appeal
Notice of appeal..................639
CRIMINAL LAW-Indictable offence-- Summary trial-Jurisdiction of magistrate - Offence committed in another county.] If a person is brought before a justice of the peace charged with an committed within the province but out of the limits of the jurisdiction
CRIMINAL LAW-Continued. of such justice the latter, in his discretion, may either order the accused to taken before some justice having jurisdiction in the place where the was committed (Cr. Code [1892] sec. 557; Cr. [1906]
or may proceed as if it had been committed within his own jurisdiction. brought before the stipendiary magistrate of the City of Halifax charged with having committed burglary in Sydney, C.B.-Held, that the stipendiary magistrate could, with the consent of the accused, try him summarily under Cr. [1892] as amended in (Cr. [1906]
Tort Liability of the Crown-Demise of the Crown-Personal action-Release-Operation of railway-Common employment -Exchequer Court Act, & V. 16(c)-Appeals to Privy Council..71 DAMAGES-River improvements-Precaution against danger to existing constructions-Alteration of natural conditions - Responsibility for damages Vis major.]
Where works constructed river altered its natural ice formed in larger quantities than did prior to such works, and which, during the spring freshets after a severe winter, was driven with such force against the superstructure of a bridge to partially for the damages so caused, notwithstanding bridge against like trouble, foreseen at the time of the construction the works, and that the formation ice in increased weight and thickness in the reservoir had resulted from natural climatic during unusually winter.
appealed from (Q.R. K.B. 410) & 2-Municipal corporation - Negli- Drainage
Capacity drain -Vis major.] F. brought action against DAMAGES-Continued.
the City of Ottawa claiming damages for the flooding of his premises water backed up from the sewer with which his drain pipe was connected. -Held,
Idington and Duff JJ. (dissenting)
, that according to the evidence the sewer capable of carrying a fall of inches of water per hour, which is sidered as meeting the requirements good engineering and is the standard adopted all the cities of Canada and the Northern States; the city, therefore was not liable.-Held, also, that a fall of rain at the rate of inches hour could not reasonably be expected and for which the city was not obliged to provide.
......
of Review - Reduction of damages - Confirmation of Superior Court judgment-R.S.C. [1906]
s.
40.]
Court of Canada from a judgment the Court of King's Bench, appeal side, quashing an appeal from the Superior
Court, sitting in review, for want
City of Ste. Cundgonde v. Gougeon (25 Can. S.C.R.
followed, Idington J. (dissenting)
.-In an action for damages where the plaintiff obtains a verdict at the trial and the
Court of Review reduces the amount awarded thereon the judgment of the
Superior Court is confirmed and, therefore, no appeal lies to the Court
King's Bench, but there might appeal from the judgment of the Court of Review to the Supreme Court of Canada.
Simpson
Palliser (29 Can.
J.
......
4-New trial-Misdirection - Questions for jury-Verdict on issues - Quantum of damages.] An order for a new trial should not granted merely on account of error in the form the questions submitted to the jury where no prejudice has been suffered in consequence of the manner in which the issues were presented the charge of the judge at the trial and the jury has passed upon the questions substance.-The
DAMAGES-Continued.
Justice hesitante, as to the quantum of the Ry. v.
5-Appeal - Final judgment -Jurisdiction .......................
6-Admiralty law-Salvage - Injury to salving ship-Necessities of service Seamanship
Appeal nautical question ........................
7-Negligence-Sale of ruined building-Personal responsibility of vendor S-Sale of goods by sample-Delivery s. 152-Notice of rejection -Reasonable time-Breach of warranty ..................
9-Appeal-Amount in controversy- Reference to assess damages - Banking-Hypothecation of securities- Terms of pledge-Duty of pledgee. 561 DEDICATION-Dedication of highway -Conditions in Crown grant-Access to beach-Plan of sub-division-Destination owner-Limitation of user - Long usage public-Acquisitive prescription-Recitals in deeds-Cadastral plans, references and notices-Evidence -Presumptions
..................
Servitude
Construction deed-Purchase of dominant and servient tenements-Unity of ownership- Extinction of servitude-Revival sale of dominant tenement-Effect of sheriff's DEED-Continued.
Reference to former deed creating charge
By the judgment appealed from (Q.R. K.B. 24), reversing the judgment of the Superior
Court (Q.R. 289), it was held that (1)
Where the purchaser of two parcels of land upon one of which there existed a servitude for the benefit of the other, that was extinguished the unity of ownership thus restored, cutes a deed of sale of the former, subject to the servitude as constituted the original title deed to which it made reference, such deed of sale in turn I comes a title which revives the servitude;
The situation of a servitude giving a right of passage, which has not been defined in the title which it was created, is sufficiently determined the description given of its position, accompanied a plan, in a deed of compromise between the owners of the two parcels land submitting their differences in regard to the servitude to the decision an arbitrator;
Both before and since the promulgation of the Civil Code, apparent servitudes are not purged adjudication on a sale the sheriff under a writ of execution.
On appeal to the Supreme Court of Canada the judgment appealed from was affirmed.
2-Contract-Agreement for sale land-Deferred conveyance-Default in payment-Remedy of vendort-Reading
DRAINAGE-Municipal drainage-Capacity of city sewers-Negligence - Vis major ..........................
DURESS-Will-Testamentary capacity
-Captation
- Suggestion-Undue influence-Interdiction - Evidence-Onus of proof ........................
Jurisdiction- Supreme Court Act-Duty or fee-Interest in land-Future rights . ..........
[S.C.R. VOL. XLI. I EASEMENT.
ELECTION LAW-Controverted election -Service of petition-Extension of time -Substitutional service-.S.C. [1906] 7, ss. and
The provision sub-sec. of the Controverted Elections Act
(R.S.C.
7), for substitutional service of an election petition where the respondent cannot be served personally is not exclusive and an order for such service on the ground that prompt personal service could not effected as in the case of a writ civil matters may made under 17.-The time for service may extended, under the provisions of after the period limited that section has expired.
Gilbert v. The King uan.
BnoaOUn EMINENT DOMAIN.
EMPLOYER EMPLOYEE-Negligence-Personal action-Common employment.]
The doctrine of common employment does not prevail in the Province v. DESuOSIERs EVIDENCE-Will-Testamentary capacity-Captation-Suggestion-Undue influence-Intcrdiction-Onus of proof:] The existence of circumstances which might raise suspicion that the execution of a will was procured by captation, improper suggestions or undue influence the part of those promoting it is not a sufficient ground to justify an appellate court in interfering with the concurrent findings of the courts below as to the validity the will.
appealed from (Q.R. K.B. 215) firmed, Girouard and Maclennan JJ. dissenting. ...... Maritime law-Collision - Negligence-Failure hear signals of stock-Evidence of title- EVIDENCE-Continued.
4-Construction of contract-Findings of trial judge-Appreciation of evidence
-Reversal on appeal ............
Admsiralty lao-Salvage-Injury to salving ship-Necessities of service- G-Servitude
Construction of deed
-Purchase of . dominant and servient tenements-Unity of ownership
Extinction of servitude-Revival sale dominant tenement-Effeot of sheriff's
- Reference to former deed creating charge-Lost deed ...............
7-Dedication of highway-Conditions in Croon grant-Access to beach-Plan of sub-division-Destination owner- Limitation of user-Long usage by public-Acquisitive prescription-Recitals in deeds-Cadastral plans, references and notices-Presumptions ............
8-Mines and mining-"B. Mineral
Act, 1891"-Apew location-Exploitation of vein-Continuity-Extralateral workings-Encroachment - Trespass - Onus of proof ..................
EXCHANGE
RULES - Principal and agent-Broker selling on Grain Exchange in broker's name-Liability of principal-"Futures" - "Options"-Boa; (I rules-Indemnity
Appeal-Jurisdiction-Final judgment-Time for appealing-Exchequer Court Act, R.S.C.
s. 82-Exchequer Court rules.]
Notwitnstanding that no appeal has been taken from the report a referee within the fourteen days mentioned in sections and of the General Rules and Orders of the Exchequer
Court of Canada (12th December, an appeal will lie to the Supreme Court
EXCHEQUER COURT-Continued. of Canada from an order by the judge confirming the report, as required said sections, within the thirty days limited by section the Exchequer Court Act,
Practice
Privy Council-Stay of execution-Security.]
Where after judgment on appeal to the Supreme Court of Canada the losing party proposes to appeal to the Judicial Committee of the Privy Council the court will order proceedings such judgment in the court of original jurisdiction to stayed on satisfactory security being given for the debt interest
& N. 2-Conditional sale-Price payable before delivery-Execution against mov- Ounership-Procedure bailiff-Guar- Rescission
Legal naxims.]
in a canal had been attached under judicial process and, while standing the bank at a distance from which he could not or touch the materials, a bailiff assumed to make a second seizure, gave no notice of his proceedings those on board the hull, and, appointed a guardian other than the one placed in charge of the hull at the time of the first The execution debtor, named in the second writ, had made a bargain for the purchase of the hull subject to the price being paid before delivery, but had not paid the price nor had the property been delivered into his possession. Subsequently, the bailiff adjudicated the hull to the appellant by judicial sale at auction.-Held, that there had been no valid seizure under the second writ; that the purchaser acquired no title to the property, the adjudication, and the sale to him should be rescinded; under the circumstances, there could be no application of the maxim "en fait meubles possession vaut titre" EXECUTION-Continued.
and that the maxim "main de justice ne dessaisit pas" must be taken subject to the qualification that a seizure under judicial process places the goods seized beyond the control of an execution debtor.
The Connecticut and Passumpsic Rivers
Railroad Co. v. Morris Can. S.C.R.
distinguished, and the judgment appealed from (Q.R. K.B.
EXPROPRIATION - Municipal corporation-Reservation for highway-Opening first front road-Appropriation-Indemnity
Award
Description of lands and oumers-Formal defects-Quebec Municipal Code, arts.
918...............585
Supreme Court Act-Duty or fee-Interest in land-Future rights..............35
FINAL JUDGMENT.
FINDINGS OF FACT-Construction contract-Findings of trial judge - Appreciation of evidence-Reversal
FORCE MAJEURE.
FRAUDULENT CONVEYANCE-Appeal
-Actio pauliana-Controversy involved- Title to land-Supreme Court Act, s.
.............................
Jurisdiction-Supreme Court Act-Duty or fee
-Interest in land
Broker selling on Grain Exchange - Contract in broker's name-Liability principal-Board rules-Indemnity.. HIGHWAY -Dedication of highway Conditions in
Crown grant-Access to beach-Plan of subdivision-Destination owner-Limitation of user-Long usage by public-Acquisitive prescription-Recitals in deeds-Cadastral plans, references and notices-Evidence-Presumptions.]
A strip land, extending from a public road to the River St. Lawrence, formed part of a beach granted by the Crown, in condition that, in case of subdivision into building lots, "a sufficient number cross-streets shall left open as to afford easy communication between the public highroad, in rear of the said beach lot, and low water mark in front there- Prior to the lot was subdivided and, on the plan of subdivision, the strip of land was shewn as a lane passage.
Reference to this lane or passage was made in a deed of sale cuted the owner, in and the cadastral plan of the municipality, made in for registration purposes, shewed it as a public road. In in connection with the registration of charges the land, the owner made a statutory declaration and gave a notice to the registrar of deeds, as required the "Cadastral Act," describing tne strip land in question as "a road feet wide." It was also shewn that, during more that thirty years prior to the action, the strip of land had been used as a lane or passage the general public.-Held, affirming the judgment anvealed from (Q.R. K.B. 60), Idington J. dissenting, that these circumstances constituted complete, clear and unequivocal evidence the intention of the owners of the beach lot to dedicate the strip of land in question for the purposes of a public highway, that no formal acceptance such dedication by the corporation of the municipality was necessary to render such dedication effective in favour of the general public, and that, even if there had originally been any limitation reserved as to the use thereof a special class persons only, it had become a public highway by reason long user as such. Although no right of ownership HIGHWAY-Continued.
can affected cadastral plans, they must, in view of their publicity, sidered as having some probative in respect to persons having interests the lands described therein.
........................
2-Municipal corporation-Reservation for highway-Opening first front road- Appropriation
Indemnity
Award
Procs-verbal-Description of lands and owners-Formal defects-Quebec Municipal Code, arts. 914,
In proceedings for the opening of first front roads for which reservations have been made in the grants of land the
Crown, the provisions the Quebec
Municipal Code requiring a description of the lands appropriated for the highway and the owners thereof are imperative and not merely matters of form which may cured the provisions article that and failure to comply with these requirements nullithe proceedings.
Judgment annealed from (Q.R. K.B. 566) reversed, Davies and Idington JJ. dissenting.
THETFORD.........................
WIFE
Separate estate-Security for husband's debt-Independent advice - Stare decisis.] The confidential relations between husband and wife are such that where the later conveys or encumbers her separate property for her husband's benefit she is entitled to the protection of independent advice; without that her tion does not bind her.
Can. S.C.R. 393) followed, Idington
J. dissenting.-Only in very exceptional circumstances should the Supreme Court refuse to follow its own decisions. Judgment of the Court of Appeal Ont.
......................
HYPOTHEC.
lIY- INSOLVENCY-Appeal-Actio Pauliana
-Controversy involved-Title to land- Supreme Court Act, s. 46............80
INSURANCE, FIRE-Insurance against fire-Statutory condition-R.S.O. [1897] s. s.-s. (f)-Construction statute-Gasoline "stored or kept."] One of the conditions of the contract of insurance against fire imposed tario Insurance Act (R.S.O. [1897] ch. sub-sec. (f) ), is that an insurance company is not liable for a loss occurring while gasoline, inter alia, is "stored or kept in the building insured is writing the company." T. effected insurance on a building used as a drug and furniture shop having in his employ a qualified chemist who occupied rooms the upper part as tenant. This clerk had a gasoline stove which he used occasionally for domestic purposes and later brought it down to the shop and used it in making syrups, and while doing the building took fire and was totally destroyed.-Held, that this was a "keeping" gasoline on the insured premises within the meaning of the statutory condition and the insurance company were not liable for the loss.
Mitchell v. City of London Assur. Ont. App. R. Ont. L.R.
Anglin JJ. (dissenting)
. Tno-psoN .......................
INSURANCE, MARINE-Appeal-Court of Review-Appeal to Privy Council- Appealable amount-Amendment to statute-Application-Notice of appeal- New trial-Constructive total loss-Trial jury-Misdirection.] Every vessel submerged in a river is not ipso facto to deemed constructive total loss. total loss of its cargo rendering the further prosecution the particular voyage or adventure "not worth pursuing" does not, in itself, warrant a finding that vessel is a constructive total loss; and the trial judge having instructed the jury that, if they found such a loss on cargo they might, thereupon, find, under article 2522 of the Civil Code, that the vessel itself was a constructive total loss, their finding that the vessel was a constructive total loss was set aside for misdirection and a partial new trial was ordered.
from (Q.R. reversed.-In order to determine whether or not ship is a constructive total loss under a policy INSURANCE, MARINE-Continued.
of marine insurance the value of the hull when broken up should be added to the cost of repairs. Macbeth v. Maritime Insurance (
144) followed.
Co.....................639
INTERDICTION - Will-Testamentary capacity-Captation-Suggestion - Undue influence-Evidence-Onus of proof.
..........
...........
INTEREST-Appeal-Amount dispute-Costs-Collateral matter.
INVENTION - Patent of invention
Anticipation.]
Canadian patent
No.
79392 for improvements in candy-pulling machines granted on Feb. 17th, declared void for want of invention having been anticipated earlier inventions in the United States.
the Exchequer Court Ex. C.R.
this
IRRIGATION-Rivers and streams-B.C.
"Land Act, and amendments-Preemption of agricultural lands-Water records - Appurtenances -Abandonment of pre-emption-Lapse of water record.]
Where holders of separate pre-emptions agricultural lands, under the provisions the "Land Act, Vict.
(B.C.), and the amendments there- 49 Viet. (B.C.), with the object of vesting their respective pre-emptions in themselves as partners, surrendered the separate pre-emptions to the Crown, and, on the same day, relocated the same areas as partners, taining a pre-emption record thereof their joint names, the joint water record previously granted to them, as partners, in connection with their separate preemptions, cannot considered to have been abandoned.
The effect of the transaction caused the areas to become unoccupied lands of the Crown, within the meaning the statute, and, upon their re-location, the water record in connection therewith continued to subsist as a right appurtenant to the joint pre-emption. Judgment appealed from B.C.
IRRIGATION-Continued.
Rep. reversed, the Chief Justice and Duff J. dissenting.
-Final judgment.]
In the United Lumber executed a contract for sale to of all its lumber lands and interests therein the price to payable in three instalments at fixed dates. a contemporaneous agreement the company undertook to get out logs for who was to make advances for the purpose.
The agreement for sale was carried out and two instalments of the purchase money paid. At the time these contracts were executed the Union Bank had advanced money to the and shortly after the contract for sale was assigned to the bank as security for such and for future advances. company having assigned in insolvency the bank brought action against the last instalment purchase money to which he pleaded that he had paid in advance to the company and the bank more than the sum claimed. trial judge held that the bank had no notice of the second agreement under which claimed to have advanced the money and gave judgment for the bank with a reference to ascertain the amount due.
The full court set aside this judgment and ordered a reference to ascertain the amount due the bank and, if anything was found to be due, to ascertain the amount due to from the The bank sought to appeal from the latter decision.-Held, that the judgment the full court was not a final judgment from which an appeal would lie under the Supreme Court Act to the Supreme Court of Canada. case-Final judgment
An information was laid before the police magistrate of St. John, N.B., charging the License Commissioners with a violation of the Liquor License Act the issue of more licenses in Prince Ward than the Act authorized.
The informant and the Commissioners agreed to a special case being stated for the opinion of the Supreme JUDGMENT-Continued.
Court of New Brunswick on the construction of the Act and that court, after hearing counsel for both parties, ordered that "the Board of License Commissioners for the uity of Saint John be, and they are hereby, advised that the said Board of License Commissioners can issue eleven tavern licenses for Prince
Ward in the said City of Saint John and no more" N.B. Rep. 508).
appeal the Commissioners to the Supreme Court of Canada,-Held, that the proceedings did not originate in a superior court, and are not within the exceptions mentioned in of the Supreme Court Act; that they were extra cursum curiae; and that the order the court below was not a final judgment within the meaning of 36; the appeal, therefore, did not lie and should quashed.
-Appeal-Amount in controversy- Reference to assess damages-Final judgment.] In L. and others purchased from W. his creameries on the faith a statement purporting to made up from the books and shewing an output for the years equal to or greater than that of
Having discovered that this statement was untrue they brought action for rescission of the contract to purchase and damages for tne loss in operating during
The judgment at the trial dismissing the action was affirmed by the Divisional Court.
The Court of Appeal reversed the latter judgment, held that rescission could not be ordered but the only remedy was damages and ordered a reference to assess the amount.
On appeal to the Supreme
Court of Canada,-Held, Girouard
J.
dissenting, that as it can not be ascertained from the record what the amount in controversy on the appeal was, whether or not it is within the appealable limit, the appeal does not lie.-Held, per Idington J.-The judgment appealed against is not a final judgment.-Per
Girouard J. (dissenting)
.-It is established by the evidence at the trial, published the record, and admitted by the respective counsel for the parties, that the amount in dispute exceeds court, therefore, has jurisdiction to hear the appeal.
JUDGMENT-Continued.
Notice of appeal-New trial-Trial by jury-Misdirection .
..............
JURISDICTION-Operation of tramway Powers of municipal corporation Legislative authority-Use of streets- By-law- Conditions imposed-Penalty for breach of conditions-Repeal of Contractual obligation against by-law-Jurisdiction of Recorder's Court-Prohibition.] The city enacted by-law granting the company permission to use its streets for the construction and operation of a tramway and, in conformity with the provisions and conditions of the by-law, the city and the company executed a deed of agreement respecting the same. A provision of the by-law was that "the cars shall follow each other at intervals not more than minutes, except from eight o'clock at night to midnight, during which space of time they shall follow each other at intervals not more than ten minutes.
The council may, resolution, alter the time fixed for the circulation of the cars in the different sections."
For neglect or contravention of any condition or obligation imposed by the by-law, a penalty $40 was imposed to paid by the company each day on which such default occurred, recoverable before the Recorder's Court, "like other fines and penalties." amendment to the by-law, a subsequent by-law, provided that "the present disposition shall be applicable only such portion of the city where such increased circulation is required the demands of the public."-Held, that fault to conform to the conditions and obligations so imposed on the company was an offence against the provisions the by-law, and that, under the statute, 29 & Vict. ch. 50 (Can.), the exclusive jurisdiction to hear and decide in the matter of such offence was in the Recorder's Court of the City Judgment appealed from (Q.R. K.B. 256),
- Appeal-Court of Review-Appeal
2-Board of Railway Commissioners- Railway crossing - Con- JURISDICTION-Continued.
tribution to cost
Municipality - Distance from work.]
municipality may a "party interested" in works for the protection of a railway crossing over a highway though such works are neither within or immediately adjoining its bounds and the
Board of Railway
Commissi6ners has jurisdiction to order it to pay a portion
Indictable offence-Summary trial magistrate committed in another country .
......
JURY-New trial-Misdirection-Questions for jury-Verdict on issues-Damages.] An order for a new trial should not be granted merely on account of error in the form of the questions submitted to the jury where no prejudice has been suffered in consequence the manner in which the issues were presented the charge of the judge at the trial and the jury has passed upon the questions of substance.
appealed from Man. R. 134) was affirmed, the Chief Justice dissenting, and Davies J. hesitante, as to the quantum of the damages awarded.
.....
2-Appeal-Court of Review-Appeal
Notice of appeal-New trial-Marine insurance-Constructive total loss-Trial jury-Misdirection. ...........
JUSTICE THE PEACE-Criminal law-Indictable offence-Summary trial of magistrate - Offence committed in another county.] If a person is brought before a justice of the peace charged with an offence committed within the province, but out of the limits the jurisdiction of such justice the latter, in his discretion, may either order the accused to taken before some justice having jurisdiction in the place where the offence was committed
(Cr.
557;
Cr.
[1906] 665) or may proceed as if
JUSTICE THE PEACE-Continued. had been committed within his own jurisdiction. was brought before the stipendiary magistrate of the City of Halifax charged with having committed burglary in Sydney, Held, that the stipendiary magistrate could, with the consent of the accused, try him summarily under
Cr. [1892] as amended in (Cr. Code [1906] 777).
LANDLORD TENANT-Lessor and lessee-Lease for years-Covenant to re- Option
Ejectment- Equitable plea.] A lease for years provided that on its termination the lessor, at his option, could renew or pay improvements.
When it expired lessor notified the lessee that he would not renew and that he had appointed a valuator of the improvements requesting her to do the same, which she did. The valuation was made and the amount thereof tendered to the lessee which she refused on the ground that valuable improvements had not been appraised, and refusing to give up possession when manded the lessor brought ejectment. By her plea to the action the lessee set up the invalid appraisement and claimed that as the lessor's option could not be exercised until a valid appraisement had been made he was not entitled to possession.
By a vlea on equitable grounds she again set up the invalid appraisement and asked that it be set aside and the lessor ordered to specifically perform the condition in the lease for renewal and for other and further relief.- Held, affirming the judgment appealed against Rep. 465), Idington J. dissenting, that though the appraisement was a nullity that fact did not defeat the action ejectment; that the acts of the lessor in giving notice of intention not to renew, demanding possession and bringing ejectment, constituted a valid exercise of his option under the lease, and that the lessor was entitled to possession.-Held, also, Idington, J. dissenting, that 289 the "Supreme Court Act of New Brunswick" did not authorize that court to grant relief to the lessee under her equitable plea; that such a plea to an action of ejectment must state facts which would entitle the defendant to retain possession, which the plea this did not do.
. 471 LEASE-Lessor and lessee-Lease for years-Covenant to renew-Option of lessor
Ejectment
Equitable plea.]
A lease for years provided that on its termination the lessor, at his option, could renew or pay for improvements.
When it expired the lessor notified the lessee that would not renew and that he had appointed a valuator of the improvements requesting her to same, which she did. The valuation was made and the amount thereof tendered to the lessee which she refused on the ground that valuable improvements had not been appraised, and refusing to give up possession when demanded the lessor brought ejectment.
By her plea to the action the lessee set up the invalid appraisement and claimed that as the lessor's option could not be exercised until a valid appraisement had been made was not entitled to possession.
By a plea on equitable grounds she again up the invalid appraisement and asked that it set aside and the lessor ordered to specifically perform the condition the lease for renewal and for other and further relief.-Held, affirming the judgment appealed against N.B. Rep.
465), Idington J. dissenting, that though the appraisement was a nullity that fact did not defeat the action ejectment;
that the acts of the lessor in giving notice of intention not to renew, ing possession and bringing ejectment, constituted a valid exercise of his option under the lease, and that the lessor was entitled to possession.-Held, also, Idington J. dissenting, that 289 of the
"Supreme Court Act of New Brunswick"
did not authorize that court to grant relief to the lessee under her equitable plea; that such a plea to an action ejectment must state facts which would entitle the defendant to retain possession, which the plea in this did not do.
Pon- MAXIMS-"En fait de menbles possession raut titre."
.........
".1Iain de justice ne dessaisit pas." 331
Privileged publications ports of judicial proceedings - Public policy
- Pleadings filed
LIBEL-Contintied.
actions - Proceedings not in open The publication of the statements contained in a pleading in the course of a civil action, merely because such statements form part such a pleading, is not a privileged publication within the rule which throws the protection of privilege about fair reports of judicial proceedings.
appealed from (Q.R. K.B. 309), versing the judgment of the Superior Court (Q.R. 338), was affirmed, Girouard J. dissenting.
LIEN.
LIMITATIONS ACTIONS.
LAWS-Appeal case-Final judgment-Origin in Superior Court................. "MARGINS"-Principal
Broker selling on Grain Exchange-Contract in broker's name-Liability of principal-Board rules-Indemnity. MARITIME LAW-Salvage-Injury to salving ship-Necessities of service- In an admiralty case the Supreme Court Canada must weigh the evidence for itself unassisted by expert advice and will, if the evidence warrants it, reverse the judgment appealed against a question of seamanship navigation.-The ship brought an action for the value of salvage services rendered to the part of the damazes claimed being for injury to the in performing such services.- Held, Girouard and Maclennan JJ. dissenting, that the evidence established that said injury was not caused ce;Rities the service but unskilful the judgment appealed against should. consequently. varied a substantial reduction of the damages allowed MARITIME LAW-Continued.
the local judge.-The dissenting judges was not shewn for disturbing the findings the trial judge.
MARRIED WOMAN-Husband and wife
-Contract-Separate estate- Security for husband's debt-Independent advice
-Stare decisis.]
The confidential relations between husband and wife are such that where the latter conveys or encumbers her separate property for her husband's benenu she is entitled to the protection of independent advice; without that her action does not bind her.
Adams followed, Idington J. (dissenting)
.-Only in very exceptional circumstances should the Supreme Court refuse to follow its own decisions.
Judgment, of the Court of Appeal Ont. L.R. 436) reversed.
MINES MINING-B.C. "Mineral
Act, 1891"-Apen location-Exploitation of vein-Continuity-Extralateral workings-Encroachment-Trespass-Onus proof.]
To justify an encroachment the exercise of the right, under the British Columbia "Mineral Act,
Vict. ch. of following and exploiting a mineral vein extralaterally beyond the vertical plane of the side-line of the location within which it has its apex, the owner of the apex must prove the identity and continuity of the vein from such apex to his extralateral workings..
the present case, as the appellants failed to discharge the onus thus resting upon them, the judgment appealed from (13
B.C. Rep. 234)
was affirmed.'
N.
............................
MOVABLES-Sale of standing timber- Registration of real rights-Ownership- Distinction of things-Movables and immovables-Priority of title . .......
Conditional sale-Price payable before delivery - Execution against mov- MOVABLES-Continued.
Ownership-Procedure by bailiff-Guar- Rescission of sale-Action-Legal maxim s.
............
Municipal council-Powers-Land tax sales- Purchase corporation - Vesting title
Manitoba Real Property Act- Agreement to re-convey-Necessity of After the City Winnipeg had become purchaser of lands within the city, sold for arrears of overdue taxes, and had obtained a certificate of title therefor under the Real Property Act, a resolution of the city council passed agreeing that the land should re-conveyed to the former owner on payment of the taxes in arrears with interest and costs.-Held, that the corporation was not bound the resolution as the re-conveyance of the lands could made only under the authority of a law as provided the city charter. Waterous Engine Works v. The Town of Palmerston Can. S.C.R. 556) and District of North Vancouver Tracy ment appealed from Man. R. 2-Municipal sewers - Negligence - Drainage-Capacity of drain-Vis major.] F. brought action against the City of Ottawa claiming damages for the flooding of his premises water backed up from the sewer with which his drain pipe was connected.-Held, Idington and Duff JJ. dissenting, that according to the evidence the sewer is capable of carrying a fall of inches of water per hour, which is considered as meeting the requirements of good engineering and the standard adopted all the cities Canada and the Northern States; the city, therefore, was not liable.-Held, also, that a fall of rain at the rate of 3 inches per hour for nine minutes was one which could not reasonably expected and for which the city was not MUNICIPAL CORPORATION.-Con.
3-Board of Railway Commissioners- Railway crossing -Contribution to cost
Municipality-Distance from work.]
A municipality may a "party interested"
in works for the protection of a railway crossing over a highway though such works are neither within or immediately adjoining its bounds and the Board
Railway Commissioners has jurisdiction to order it to pay a portion of the cost of such work.
or
4-Reservation for highway-Opening first front road-Appropriation-Indenni ty-Award-Procks-verbal-Description of lands and owners-Formal defects- Quebec Municipal Code, arts.
914, 918.]
In proceedings for the opening of first front roads for which reservations have been made grants of land by the Crown, the provisions the Quebec Municipal Code requiring a description of the lands appropriated highway and the owners thereof are imperative and not merely matters form which may cured the provisions of article of that and failure to comply witht these requirements nullifies the proceedings.
Judgment appealed from (Q.R. 17
K.B. 566) reversed, Davies and ldington
JJ.
McrTY. . . ..
5-Operation of tramway-Powers
Legislative authority-Use of streets-By-law-Conditions imposed-Penalty for breach conditions-Repeal of by-law-Contractual obligations-Offences against by-law
-- Jiiisdiction of Recorder's Court-Prohibition. ........................
6-Collection municipal taxes-Ac- Charter. Vict. (Que.)-Appeal rcsort-Supreme Court Act, R.S.C.,
NAVIGATION-Admiralty law-Salvage
-Injury to salving ship-Necessities
NAVIGATIOI1-Contin ied.
service-Seamanship-Appeal on nautical question.] In an admiralty the Supreme Court of Canada must weigh the evidence for itself unassisted expert advice and will, if the evidence warrants it, reverse the judgment appealed against on a question of seamanship or navigation.-The ship "M." brought an action for the value salvage services rendered to the part of the damages claimed being for injury to the in performing such services. -Held, Girouard and Maclennan JJ. dissenting, that the evidence established that said injury was not caused cessities of the service but by unskilful seamanship and improper navigation; the jadgment appealed against should, conseq'uently, varied a substantial reduction the damages allowed the local judge.-The dissenting judges were of opinion that sufficient ground was not shewn for disturbing the findings of the judge.
"MYsTIc.". ......................
NEGLIGENCE-Maritime law-Collision Failure hear signal
The "Senlac" was coming out Halifax harbour taking the eastern side of the channel.
There was a dense fog at the time and the fog signals were soundat regular intervals.
She was making about six knots and having passed George's Island heard the whistle of an incoming steamer.
Fog signals were given in reply and when the incoming vessel, the "Rosalind," was estimated to about half a mile off the "Senlac" gave a single short blast and directed her course to starboard. The "Rosalind" replied to this signal and stopped her engines. Within a few seconds the "Senlac" was seen about a ship's length away the port bow and almost at the same moment the latter gave two short blasts on her whistle and swung to port threatening to cross the "Rosalind's" bow. The "Roalind's" engines were immediately pul "full speed astern" but too late to avoid a collision in which the "Senlac" was seriously damaged.
At the trial an action by the latter reliance was placed on the failure of the "Rosalind" to respond to her signals but the first admitted NEGLIGENCE-Continued.
the "Rosalind" was the one short blast when the "Senlac" went to starboard.
The result the trial was that both vessels were found in fault and on appeal the "Rosalind."-Held, that the
"Senlac" was in fault in continuing her course when the vessels were quite near together instead of stopping and reversing and was alone to blame the collision, and that the failure to hear her signals was not negligence the part the "Rosalind" and did not contribute in any material degree to the accident.
2-Negligence-Tort-Liability of the
Crown-Demise of the Crown-Personal
Act, & V. s. 16(c) -Appeals to Privy Council.]
Under sub-sec.
of of the "Exchequer Court Act"
& Vict. an action in tort will lie against the Crown, represented the Government of Canada.-Under the Civil of Lower Canada, in case death negligence of servants of the
Crown; an action for damages may maintained the widow of the deceased behalf herself and her children.
The action of the widow is not barred her acceptance the amount a policy insurance on the life of deceased from the Intercolonial Railway
Employees' Relief and Insurance Association, under the constitution, rules and regulations of which the Crown is clared to be released from liability to make compensation for injuries to death any member the association.
Miller Grand Trunk
Railway followed.-The trine common employment does not prevail in the Province of Quebec.-The right action for compensation for injury or death negligence of Government employees does not abate on demise of the Crown.
Viscount Canterbury
The Queen L.J. referred to.
Judicial Committee of the Privy
Council refused leave to appeal from a judgment of the Supreme Court of Canada in accord with a long series of decisions in the Dominion. Armstrong Case referred to the Chief Justice at page
........
NEGLIGENCE-Continued.
Sale of ruined building-Personal responsibility
H here a ruined building is sold to engaging himself to remove the materials from the ground, there is no responsibility imposed upon under the provisions of article of the Civil of Lower Canada, in respect of injuries sustained in consequence the negligence of in the removal the materials, as had no control over the operations of demolition and removal and his workmen.
from K.B. affirmed. v. TowNsiPs ....... River improvements - Precautions against danger to existing constructions -Alteration of natural conditions-Responsibility for damages-Vis major. 5-Appeal-- New grounds - . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . 4 6-Municipal corporation - Drainage -Capacity of drain-Vis major... Sec Misdirection tions for jury-Verdict on issues-Dam ages ...........................
Trade mark "Buster Brown"-Validity of registration.] The term "Buster Brown" or "Buster Brown and Tige" for use as the title to a comic section of a newspaper cannot registered as a trade mark.
appealed from Ex. 1) was affirmed, Davies and Duff JJ. dissenting. Libel - Privileged publications - Reports of judicial proceedings-Public policy-Pleadings in civil actions-Proceedings not in open court.......... Misdirection-Questions for jury-Verdict on issues-Damages.]
An order for a new trial should not granted merely on account of error the form of the questions submitted to the jury where no prejudice has suffered in consequence of the manner in which the issues presented the charge the judge the trial and the jury has passed upon the qnestions of substance.
The judgment appealed from Alan. R.
was affirmed, the Chief Justice dissenting, and Davies J. hesitante, as to the quantum of the damages awarded.
WIN- 2-Appeal-Court of Review-Appeal
Notice of appeal-Marine insurance - Constructive total loss-Trial jury- Misdirection.] By of the Supreme
Court Act notice must given of an appeal from the judgment, inter alia, "upon a motion for a new trial."-Held, that such provision only applies when the motion is made for a new trial and nothing else and notice is not necessary where the proposed appeal is from the judgment on a motion for judgment non obstante or, in the alternative, for a new trial.- In order to determine whether or not a ship is a constructive total loss under a policy of marine insurance the value the bull when broken up should be added to the cost of repairs.
Macbeth v.
Maritime Insurance ( followed.-Every vessel submerged in a river is not ipso facto to be deemed a constructive total loss. The total loss its cargo rendering the further prosecution of the particular voyage or adventure "not worth pursuing" does not, itself, warrant a finding that a vessel a constructive total loss; and the trial judge having instructed the jury that, they found such a loss on cargo they might, thereupon, find, under article 2522 of the Civil that the vessel itself was a constructive total loss, their finding that the vessel was a constructive total loss was set aside for misdirection and a partial new trial was ordered.- Judgment appealed from (Q.R.
Co......9.
NOTICE - Appeal-Court of Review
Appeal to Privy Council - Appealable
NOTICE-Continued.
amount-Amendment to statute-Application-Notice of appeal-New trial. NOVATION - Con tract-Sub-contractor -Order from contractor owner - T. was contractor for building a house and F. sub-contractor the plumbing work.
When F.'s work was done he obtained an order from T. on the owner in the following terms: "Please pay F. the sum of and charge to my account on building, Lucknow Street."
F. took the order to the owner who agreed to pay if the architect certified that the work had been periormed.
F. and T. saw the owner and architect together shortly after and being informed the latter that the account was proper and there were funds to pay it the owner told F. that would all right and retained the order when F. went away.
F. filed no mechanic's lien, but other sub-contractors did the next day, and T. assigned insolvency.
In an action F. against the owner:-Held, Davies J. dissenting, that there was a novation of the debt due from the owner to T.; that it was not merely an agreement the owner to answer to F. for T.'s debt nor was the order to treated as a bill of exchange and accepted as such.
........................ "OPTIONS" -Principal
Broker selling on Grain Exchange-Contract in bioker's name-Liability principal-Board rules-Indemnity. .618 PATENT OF INVENTION-Invention- Anticipation.]
Canadian patent No. for improvements in candy-pulling machines granted on Feb. 17th, clared void for want of invention having been anticipated earlier inventions in the United States. Judgment of the Exchequer Court Ex. C.R. reversed on this point.
ANUFACTURING Co....... 246 PLANS-Dedication of highway-Conditions in Crown grant-Access to beach- Plan of sub-division-Destination by owner-Limitation of user-Long usage public-Acquisition prescription-Re- PLANS-Continued.
citals in deeds-Cadastral plans-References and notices-Evidence-Presumptions..
........................
PLEADING PRACTICE-Practice to Privy Council-Stay of execution-Security.]
Where after judgment on appeal to the Supreme Court
Canada the losing party proposes to appeal to the Judicial Committee of the
Privy Council the court will order proceedings on such judgment in the court original jurisdiction to stayed satisfactory security being given for the debt interest and costs.
& N.
STAR
2-Lessor and lessee-Lease for years
-Covenant to renew-Option of lessor- Ejectment-Equitable plea.] A lease for that its termination the lessor, at his option, could renew pay for improvements.
When it expired the lessor notified the lessee that would not renew and that he had appointed a valuator of the improvements requesting her to do the same, which she
The valuation was made and the amount thereof tendered to the lessee which she refused on the ground that valuable improvements had not been appraised, and refusing to give up possession when demanded the lessor brought ejectment.
By her plea to the action the lessee set up the invalid appraisement and claimed that as the lessor's option could not exercised until a valid appraisement had been made he was not entitled to possession.
By a plea equitable grounds she again set up the invalid appraisement and asked that set aside and the lessor ordered to specifically perform the condition in the lease for renewal and for other and further relief.-Held, affirming the judgment appealed against N.B. Rep.
465), Idington J. dissenting, that though the appraisement was a nullity that fact did not defeat the action of ejectment;
that the acts of the lessor in giving notice of intention not to renew, demanding possession and bringing ejectment, constituted a valid exercise of his option under the lease, and that the lessor was
PLEADING PRACTICE-Con. entitled to possession.-Held, also, Idington J. dissenting, that section 289 of the "Supreme Court Act of New Brunswick" did not authorize that court to grant relief to the lessee under her equitable plea; that such a plea to an action ejectment must state facts which would entitle the defendant to retain possession, which the plea in this did not do. PURDY..................471 judgment-Time for appealing-Exchequer Court Act, R.S.C. s. s. 82-Exchequer Court Rules........... 1 4-Conditional sale-Price payable fore delivery-Execution against mov- Ownership-Procedure bailiff-Guar- Rescission sale
Legal maxims. . . . .....................
5-Libel-Privileged publications-Reports of judicial proceedings - Public policy-Pleadings in civil actions-Proceedings not in open court.......... 6-Controverted election-Service tional service-R.S.C. ss. 7-Appeal-Court of Review-Appeal Notice of appeal-Trial jury-Misdirection. . ......................
pothecation of securities pledge-Duty of pledgee.]
sold property to the Syndicat and took as security the personal property and a promissory note and transferred the securities to the bank to secure his present and future indebtedness to it.
He signed a docu- PLEDGE-Continued.
ment authorizing the bank to realize the same in its discretion, to grant extensions and give up securities, accept compositions, grant releases and discharges and otherwise deal with them as it might see fit without prejudice to
B.'s liability.
The note not being paid at maturity, the bank sued the Syndicat and B. upon it and on the covenants the mortgages and obtained judgment against both.
In the same action, the
Syndicat, on counterclaim for damages for deceit, had judgment against which was eventually set aside, but, while it existed, the bank made a settlement with the Syndicat and discharged the latter all liability on the judgment of the bank on payment of
$20,000 less than the debt. was not a party to this settlement and the bank afterwards refused to give him any information about it or to give him a statement of his account with the bank itself.
In an action for an account and to have the bank enjoined from further dealings with the securities:- Held, that the power given to the bank to deal with the securities was to be exercised for the purpose of liquidating
B.'s debt, and, as to the surplus, for benefit; that, the settlement having made solely for the benefit of the bank and, in sacrifice of B.'s interests, the bank violated its duty and had not satisfied the onus upon it of shewing that, had the whole amount of the judgment been recovered from the Syndicat, would not have benefited thereby.
PRESCRIPTION-Dedication of highway
-Conditions in Crown grant-Access to beach-Plan of subdivision-Destination ownr-Limitation of user-Long usage public-Acquisitive prescription
-Recitals in deeds-Cadastral plans, references and notices
Presumptions.] A strip of land, extending from a public road to the River St.
Lawrence, formed part of a beach lot granted the Crown, in on condition that, in case of subdivision into building lots, "a sufficient number cross-streets shall left open so as to afford easy communication between the public highroad, in rear of the said beach lot, and low water mark in front there- Prior to the lot was subdivided and, on the plan of subdivision,
PRESCRIPTION-Continued.
the strip of land was shewn as a lane passage.
Reference to this lane or passage was made a deed of sale executed the owner, in and the cadastral plan of the municipality, made in for registration purposes, shewed it as a public road. In in connection with the registration of charges on the land, the owner made a statutory declaration and gave a notice to the registrar deeds, as required by the "Cadastral Act," describing the strip of land in question as "a road feet wide." was also shewn that, during more than thirty years prior to the action, the strip land had been used as a lane or passage the general public.-Held, affirming the judgment appealed from (Q.R.
K.B. 60),
Idington J. (dissenting)
, that these circumstances constituted complete, clear and unequivocal evidence of the intention of the owners the beach lot to dedicate the strip of land in question for the purposes of a public highway, that no formal acceptance of such dedication the corporation the municipality was necessary to render such dedication effective in favour of the general public, and that, even if there had originally been any limitation reserved as to the use thereof by a special class of persons only, it had become a public highway reason of long user as such.-Although no right of ownership can affected cadastral plans, they must, in view of their publicity, considered as having some probative effect in respect to persons having interests in the lands described therein.
On 14th August, the defendant, who resided in the State of Nebraska, wrote the following letter to the plaintiffs, grain dealers at Winnipeg, Man.: "Yours recent date enclosing market report rec'd.
I shall North in about four weeks to look after the new crop and, you can sell No. oats for or better, in store Fort William, you had better sell 4,000 bus. for me, and I will up at Snowflake then so I can look after the loading of them, and I will send the oats then."
The plaintiffs, who were AGENT-Con.
also brokers on the Winnnpeg Grain Exchange, sold the oats at cents the "Board,"
without disclosing the name of their principal, for October livery, becoming personally liable for the performance of the contract according to the rules of the Exchange.
Upon defendant refusing to deliver the oats, the plaintiffs purchased the quantity of oats sold at an advance in price in order to make the delivery and brought the action to recover the amount of their loss thus sustained.-Held, reversing the judgment appealed from Man. R. that the authority so given did not authorize the plaintiffs to make a sale under the
Grain Exchange
Rules binding upon their principal; that no contract binding on the principal outside of these rules had been entered into, and, consequently, that he was not liable to indemnify them for any loss sustained reason of their contract.
2-Agreement for sale of land-Principa's duty and interest-Fiduciary relationship-Specific performance
PRIVILEGE-Libel-Privileged publications-Reports of judicial proceedings- Public policy-Pleadings filed in civil actions-Proceedings not in open court.]
The publication of the statements contained in a pleading filed in the course a civil merely because such statements form part of such a pleading, is not a privileged publication within the rule which throws the protection privilege about fair reports of judicial proceedings.
appealed from (Q.R. K.B. 309), reversing the judgment of the Superior Court (Q.R.
338), was affirmed, Girouard J.
dissenting.
PRIVILEGES HYPOTHECS-Sale of standing timber-Registration of real rights-Ownership-Distinction of things
-Movables and immovables-Priority title..... .......................
PRIVY COUNCIL-Practice-Appeals to
Privy Council.] The Judicial Committee
PRIVY COUNCIL-Continued.
the Privy Council refused leave to appeal from a judgment of the Supreme Court of Canada in accord with a long series of decisions in the Dominion. Armstrong Case referred to by the Chief Justice. v. see 2.
2-Practice-Appeal to Privy Council -Stay of execution-Security.] Where after judgment on appeal to the Supreme Court of Canada the losing party proposes to appeal to the Judicial Commitof the Privy Council the court will order proceedings on such judgment the court of original jurisdiction to be stayed on satisfactory security being given for the debt interest and costs. & V. B. N. & ....................
3-Appeal-Court of Review-Appeal Notice of appeal .................
PROCES-VERBAL - Municipal corporation-Reservation for highway-Opening first front road-Appropriation-Indemnity-Award-Description of lands and owners-Formal defects-Quebec Municipal Code, arts. 914, 918. .......... PUBLIC POLICY- Libel - Privileged publications-Reports of judicial proceedings-Public policy-Pleadings filed in civil actions-Proceedings not in open The publication of the statements contained in a pleading filed in the course of a civil action, merely because such statements form part of such a pleading, is not a privileged publication within the rule which throws the protection of privilege about fair reports of judicial proceedings.
appealed from (Q.R. K.B. 309), reversing the judgment of the Superior Court (Q.R. 338), was affirmed, Girouard J. dissenting.
SHALLOW................339 RAILWAYS-Board of Railway Commissioners
Railway ing-Contribution to cost-Party inter- Municipality
Distance from work.] A municipality may a "party interested" in works for the protection a railway crossing over a highway though such works are neither within or immediately adjoining its bounds and the
Board of Railway Commissioners has jurisdiction to order it to pay a portion of the cost of such work.
2-Negligence-Tort-Liability of the
Croion-Demise of the Crown-Personal
Act, & V. s. 16(c)-Appeals to Privy Council...................71
REAL PROPERTY ACT-Municipal corporation-Powers-Land tax sales-Purchase corporation-Vesting of title- Manitoba Real Property Act-Agreem to re-convey-Necessity of by-law ..... 18
Sec 1.
RECORDER'S
Operation tramway-Powers of municipal corpora- Legislative authority streets-By-law - Conditions imposed- Penalty for breach of conditions-Repeal of by-law - Contractual obligation - Offence against by-law---Jurisdiction
Recorder's Court-Prohibition.] The city enacted a by-law granting the company permission to use its streets for the construction and operation of a tramway and, in conformity with the provisions and conditions of the by-law, the city and the company executed a deed of agreement respecting the same.
A provision of the by-law was that "the cars shall follow each other at intervals of not more than minutes, except from eight o'clock at night to midnight, during which space of time they shall follow each other at intervals of not more than ten minutes.
The council may, by resolution, alter the time fixed for the circulation of the cars in the different tions."
For neglect or contravention any condition or obligatipn imposed the by-law, a penalty of $40 was imposed to paid the company for each day
RECORDER'S COURT-Continued. on which such default occurred, recoverable the Recorder's Court, "like other fines and penalties."
An amendment to the by-law, by a subsequent law, provided that "the present disposition shall applicable only in such portion of the city where such increased circulation is required by the demands the public."-Held, that default to conform to the conditions and obligations imposed on the company was an offence against the provisions of the by-law, and that, under the statute, & Vict. (Can.), the exclusive jurisdiction to hear and decide in the matter such offence was in the Recorder's Court of the City of Quebec.
appealed
K.B. RY., ...
....
........ ...... 2-Collection of municipal faxes Action in Recorder's Court-Montreal City Charter, V. (Que.)-Appeal resort-Supreme Court Act, R.S. [1906] c. s. 41.] Under the provisions of the Montreal City Charter, Vict. ch. 484 (Que.), an action was brought the city, in the Recorder's Court, to recover taxes on an assessment of the company's property in the city. ment was recovered for $39,691.80, and an appeal to the Superior Court, sitting in review, under the provisions of the Quebec statute,
Vict. ch. as amended Edw. VII. was dismissed.
On an application the company to affirm the jurisdiction of the Supreme Court of Canada to hear an appeal from the judgment of the Court Review,-Held, that the Superior Court, when exercising its special appellate jurisdiction in reviewing this case, was not a court of last resort created under provincial legislation to adjudicate concerning the assessment of property for provincial or municipal purposes within the meaning of section of "The Supreme Court Act," R.S. [1906] ch. and, consequently, there could be no jurisdiction to entertain the appeal. Final judgment-Time for appealing- Exchequer Court Act, R.S.C. 1906, s. 82-Exchequer Court rules ........ 1
REGISTRY LAWS - Sale of standing timber - Registration of real rights - Ownership-Distinction of things-Movables and immovables-Priority of title.]
A deed of sale of the right, during twenty years, to cut and remove standing timber, with permission to make and construct such roads and buildings as might be necessary for that purpose, does not affect the title to the lands which the trees are growing, but merely conveys the personal right to the timber as and when cut under the license. The registration of such a deed, in conformity with the provisions of the Civil
Lower Canada, respecting the registration of real rights, is unnecessary and, if effected, cannot operate to secure to the vendee any right, privilege or priority of title in or to the timber as against a subsequent purchaser of the lands.
Watson v. Perkins Jur.
The judgment appealed from (Q.R. K.B. was affirmed.
REVIEW, OF.
RIVERS STREAMS - River improvements - Precaution against danger to existing constructions-Alteration natural conditions - Responsibility for damages-Vis major.] Where works constructed in a river altered its natural conditions as to create a reservoir which ice formed in larger quantities than it did prior to such works, and which, during the spring freshets after a severe winter, was driven with such force against the superstructure of a bridge as to partially demolish it, those who constructed the works are responsible for the damages so caused, notwithstanding that they had taken precautions for the protection of the bridge against like troubles, foreseen at the time of the construction of the works, and that the formation of ice in increased weight and thickness in the reservoir had resulted from natural climatic conditions during an unusually rigourous winter. Judg- RIVERS STREAMS-Continued. ment appealed from (Q.R. K.B. 410) & 2-Irrigation-B.C. "Land Act, and amendments-Pre-emption of agricultural lands- Water records-Appurtenances-Abandonment of pre-emption- Lapse of water record.] Where holders of separate pre-emptions of agricultural lands, under the provisions the "Land Act, Vict. (B.C.), and the amendment thereof, Vict. 10 (B.C.), with the object of vesting their respective pre-emptions in themselves as partners, surrendered the separate preemptions to the Crown, and, on the same day, re-located the same areas as partners, obtaining a pre-emption record thereof in their joint names, the joint water record previously granted to them, as partners, in connection with their separate pre-emptions, cannot be considered to have been abandoned. effect of the transaction caused the areas to become unoccupied of the Crown, within the meaning of the statute, and, upon their re-location, the water record in connection therewith continued to subsist as a right appurtenant to the joint pre-emption.
pealed from B.C. Rep. reversed, the Chief Justice and Duff J. dissenting. RULES PRACTICE.
SALE-Sale of stock-Evidence of title When shares in the stock of a company are sold for cash and a certificate livered with a form of transfer indorsed purporting to be signed the holder named therein who is not the seller, the latter must be taken to affirm that a title which will enable the purchaser to become the legal holder is vested him virtue of such certificate and transfer.-A transfer was signed by the wife the holder at his direction but not acted upon until after his death. Held, that the authority of the wife to deal with the certificate was revoked by tne holder's death and on a SALE-Continued.
cash sale of the shares the purchaser who received the certificate and transfer so signed being unable, under the company's rules, to registered as holder had a right of action to recover back the purchase money from the seller.- The fact that the purchaser endeavoured to have himself registered as holder of the shares was not an acceptance him of the contract of sale which prived him of his right of action to have it rescinded.
Nor was his action barred loss of the defective certificate no fault of his nor of the seller. Judgment appealed from
B.C. Rep. re- & Co......................88
-Sale of standing timber-Registration of real rights-Ownership-Distintion of things-Movables and immovables-Priority of title.] A deed of sale of the right, during twenty years, to cut and remove standing timber, with permission to make and construct such roads and buildings as might necessary for that purpose, does not affect title to the lands on which the trees arc growing but merely conveys the personal right to the timber as and when cut under the license.
Tne registration of such a deed, in conformity with the provisions of the Civil Code of Lower
Canada respecting the registration real rights, is unnecessary and, if fected, cannot operate to secure to the vendee any right, privilege or priority of title in or to the timber as against a subsequent purchaser of the lands.
Watson v. Perkins Jur.
The judgment appealed from (Q.R. K.B.
was affirmed.
3-Conditional tale-Price payable fore delivery-Title to goods-Rescission of sale-Action-Legal maxims - Attachment
Possession judgment debtor-Oumership-Procedure bailiff-Guardian to second seizure- Sale super non domino et non possedente
-Adjudication upon invalid seizure.]
The hull of a steamer sunk in a canal had been attached under judicial process and, while standing on the bank at a distance from which he could not see touch the materials, a bailiff assumed
SALE-Continued.
of his proceedings to those on board the hull, and appointed a guardian other than the one placed in charge of the hull at the time of oe first seizure. execution debtor, named in the second writ, had made a bargain for the purchase the hull subject to the price ing paid before delivery, but had not paid the price nor had the property delivered into his possession. Subsequently, the bailiff adjudicated the hull to the appellant judicial sale at auction-fleld, that there had been valid seizure under the second writ; that the purchaser acquired no title to the property, the adjudication, and the sale to him should rescinded; that, under the circumstances, there could be no application of the maxim "en fait meubles possession vaut titre" and that the maxim "main justice ne dessaisit pas" must be taken subject to the qualification that a seizure under judicial process places the goods seized beyond the control of an execution debtor. The Connecticut and rassumpsic Rivers Railroad v. Morris Can. S.C.R. distinguished, and the judgment appealed from (Q.R. K.B. affirmed. 4-Sale of goods sample-Delivery R.S.M.
152-Notice of rejection-Reasonable time-Breach of warranty-Damages.] By contract made at Winnipeg, Man., plaintiffs sold to the defendants, sample, a carload of cured fish to be shipped during the winter from their warehouse at Canso, N.S., Winnipeg."
The sample sound and satisfactory.
The fish arrived in Winnipeg in a frozen state and were received the defendants and kept by them in an outhouse for several weeks before being placed in the freezer, the atmospheric conditions being such that the fish could not, in the meantime, have deteriorated thawing. Some of the fish when sold proved unsound, returned customers and the whole shipment was found up sample unfit food.
On inspection the health spector condemned the whole aarload and it was destroyed.
About six weeks after the fish had been received them, the defendants notified the plaintiffs SALE-Continued.
the rejection of the carload so delivered.
In an action for the price at which the fish had been sold, the defendants counterclaimed for damages for breach warranty and consequent loss in their business.-Held, reversing appealed from
Man. R. 620), that the sale had been made subject to delivery at Winnipeg, that any loss occasioned deterioration in transit not necessarily incident to the course transit should borne the sellers, that the loss in this case was not incident, and that, under the circumstances, the purenasers had notified the sellers of the rejection within a reasonable time, as contemplated the "Sale
Goods Act," R.S.M.
that the plaintiffs could not recover and that the defendants were entitled to have damages on their counterclaim.
FISH
FISH
.....................
5-Sale of lands-Conditions-Deposit of price-Compliance -with instructions- Vendor refusing to complete-Broker's comnission-Remuneration for procuring purchaser.] A broker, instructed to lands for a price to deposited in a bank pending arrival clear title, procured a purchaser who made the posit to his own credit without appropriating it to any special purpose.
refusal the vendor to complete the bargain, the broker sued him for a commission or remuneration for the services rendered.-Held, reversing the judgment appealed from (1 Sask. i.R. Idington J. dissenting, that there had not been such compliance with the terms the instructions as would entitle the broker to recover commission or remuneration for his services in procuring a
6-Contract-Agreement for sale land-Deferred conveyance-Default in
Where, in accepting an offer V. for the sale of land.
undertook to pay certain instalments the purchase money before receiving the deed V. could sue for recovery of unpaid instalments, his remedy not being confined to an action in damages for breach of contract. Laird v. Pim & W.
distinguished.-The offer having been accepted for "myself or as- SALE-Continued.
signs," to avoid holding the contract for uncertainty as to the purchaser's identity, the word "or"
was read Idington J. dissenting, on this point.-Judgment of the Court of Appeal Ont. L.R. 372) maintaining that a Divisional Court Ont. L.R. 280) & 7-Appeal-Actio pauliana versy inoolved-Title to land-Supreme Court Act, s.
...............
8-Servitude-Construction of deed- Purchase of dominant and servient tenements-Unity of ownership-Extinction of servitude
Revival sale dominant tenement-Effect of sheriff's Reference to former deed creating charge Negligence-Sale of ruined building-Personal responsibility of vendor. ............ 10-Principal and agent-Broker sell- -"Futures"-"Margins" - Board rules-Indemnity. ......... SALVAGE-Admiralty law - Injury to salving ship-Necessities of service - ... SERVITUDE - Construction of deed Purchase of dominant and servient tenements-Unity of ownership-Extinction of servitude-Revival by sale of dominant tenement-Effect of sheriff's sale- Purgation of apparent servitude-Reference to former deed creating charge- Lost deed-Evidence.] By the judgment appealed from K.B. 24), reversing the judgment of the Superior .ourt SERVITUDE-Continued.
(Q.R. 289), it was held that (1)
Where the purchaser of two parcels land upon one of which there existed a servitude for the benefit of the other, that was extinguished the unity ownership thus restored, executes a deed of the former, subject to the servitude as constituted the original title to which it made reference, such deed sale in turn becomes a title which revives the servitude;
The situation of a servitude giving a right of passage, which has not been defined in the title which it was created, is sufficiently determined the description given its position, accompanied by a plan, in a deed of compromise between the owners of the two parcels land submitting their differences in regard to the servitude to the decision of an arbitrator;
Both before and since the promulgation of the Civil Code, apparent servitudes are not purged adjudication on a sale the sheriff under a writ of execution.
On appeal to the Supreme Court
Canada the judgment appealed from was
.
SHERIFF'S SALE-Extinction of servitude-Effect of sheriff's sale-Purgation of apparent servitude-Evidence.] Both before and since the promulgation of the
Civil apparent servitudes are not purged adjudication on a sale the sheriff under a writ
SHIPPING.
SOLICITOR-"Lawful costs"-Taxation of fees to counsel and solicitor-Construction of statute-I & Edw.
(Man.)-Contract with solicitor engaged on salary-Conflict of laws.........
SPECIFIC PERFORMANCE and purchaser-Agreement for sale land-Principal and agent-Fiduciary relationship.] Where an intending purchaser, disguising his intentions under the role of a disinterested friend imposed on the confidence thus established
SPECIFIC PERFORMANCE-Con. and induced the owner of land to accept an offer for the purchase of it which probably would not otherwise have accepted without independent investigation, specific performance of an agreement for sale thus procured should not be enforced.
Fellowes v. Lord G-wydyr (1 Sim.
discussed and distinguished. ........ STARE DECISIS-Husband and wife- Contract-Separate estate-Security for husband's debt - Independent advice.] The confidential relations between husband and wife are such that where the. latter conveys or encumbers her separate property for her husband's benefit she is entitled to the protection of independent advice; without that her action does not bind her.
followed, Idington J. (dissenting)
.-Only in very exceptional circumstances should the Supreme Court refuse follow its own decisions. Judgment of the Court of Appeal (17 Ont.
L.R. 436)
Irrigation
Rivers and streams-B.C. "Land Act, amendments-Pre-emption of agricultural lands-Water records-Appurtenances- Abandonment of pre-emption-Lapse water record.] Where holders of separate pre-emptions of agricultural lands, under the provisions the "Land Act Vict. ch. (B.C.), and the amendment thereof,
Viet. ch. (B.C.), with the object of vesting their respective pre-emptions in themselves as partners, surrendered the separate preemptions to the Crown, and, on the same day, re-located the same areas as partners, obtaining a pre-emption record thereof in their joint names, the joint water record previously granted to them, as partners, in connection with their separate pre-emptions, cannot considered to have been abandoned. effect of the transaction caused the areas to become unoccupied lands of the Crown, within the meaning the statute, and, upon their re-location, the water record in connection therewith continued to subsist as a right appurtenant to the joint pre-emption.
B.C. Rep.
reversed, the Chief Justice and Duff J. dissenting. STATUTE-Continued.
2-"Lawful costs"-Taxation of fees to counsel and solicitor-Construction of statute, 1 & Edw. VII. (Man.)- Contract with solicitor engaged on salary
-Conflict of laws.]
Section 468 of the charter of the City of Winnipeg (1 & 2
Edw. VII. provides that where the city solicitor is engaged at a stated salary, the city has the right, in law suits and proceedings, to recover and collect "lawful costs," in the same manner as if such solicitor were not receiving such salary.
The corporation enacted by-law appointing its solicitor at an annual salary and, in addition thereto, that he should entitled, for his use, to such lawful costs as the corporation might recover in actions and proceedings, except disbursements paid the city. Upon the taxation of the costs awarded to the respondent on an appeal to the Supreme Court Canada Can.
:-Held, that the statute and contracts above recited applied to costs awarded said appeal and that, on the taxation, the usual fees to counsel and solicitor should allowed.
Hamburg- American Packet v. The King
Can. S.O.R. distinguished.
3-Mines and mining-B.C. "Mineral
Act, 1891"-Apex location-Exploitation of vein-Continuity-Extralateral workings-Encroachment
Trespass of proof.] To justify an encroachment the exercise the right under the
British Columbia "Mineral Act,
Viet.
following and exploiting mineral vein extralaterally beyond the vertical plane of the side-line the location within which it has its apex, the owner the apex must prove the identity and continuity of the vein from such apex to his extralateral workings.
in the present case, as the appellants failed to discharge the onus thus resting upon them, the iudgment appealed from B.C. Rep. 234) was affirmed.
&
4- Controverted election - Service tional service-R.S.C. [1906] ss. 17
The provision in subof the Controverted Elections Act
(R.S.C. [1906] for substitutional
STATUTE-Continued.
service of an election petition where the respondent cannot be served personally not exclusive and an order for such service on the ground that prompt personal service could not be effected as in the case of a writ in civil matters may made under 17.-The time for service may extended, under the provisions of after the period limited that section has expired.
Gilbert v. The King
CASE. Insurance against fire - Statutory condition - . O. 203, s.
(f) - Construction of statute-Gasoline "stored or kept."]
One the conditions of the contract of insurance against fire imposed the
Ontario
Insurance Act (R.S.O. [1897] 203, sub-sec. 10(f), is that an insurance company is not liable for a loss occurring while gasoline, inter alia, is "stored or kept permission is given in writing by the T. effected insurance on a building used as a drug and furniture shop having in his employ a qualified chemist who occupied rooms in the upper part as tenant.
This clerk had a gasoline stove which he used occasionally for domestic purposes and later he brought it down to the shop and used it in making syrups, and while doing the building took fire and was totally destroyed.-Held, that this was a "keeping" gasoline on the insured premises within the meaning the statutory conditions, and the insurance company were not liable for the loss. Mitchell v. City of London Assur. Ont. App. R. 262)
pealed from Ont. L.R. 214) reversed, and Anglin JJ. dissenting. .....................
6-Appeal-Court of Review-Appeal Notice of appeal.] An appeal lies to the Supreme Court of Canada from a judgment of the Court of Review which not appealable to the Court of King's Bench but is susceptible of appeal to His Majesty in Council.
By Edw. VII. ch. STATUTE-Continued.
(Que.) the amount required to permit of an appeal to His Majesty in Council was fixed at $5,000 instead of as theretofore.-Held, that said Act did not govern a case in which the judgment the Court of Review was pronounced before it came into force.-By 70 the Supreme Court Act notice must be given of an appeal from the judgment, inter alia "upon a motion for a new trial."-Held, that such provision only applies when the motion is made for a new trial and nothing else and notice is not necessary where the proposed appeal is from the judgment on a motion for judgment non obstante or, in the alternative, for a new trial.
PowER Co....
7- Collection of municipal taxes - Action in Recorder's Court
City Charter, V. 58(Que.)--Appeal
-Jurisdiction-Judgment resort-Supreme Court Act,
8-Sale of goods by sample-Delivery
R.S.M. s. 152-Notice of rejection
... . . . ...........................
STATUTES-29 & 30 V. (Can.)
[Recorder's Courts] ..............
2-R.S.C., as. [Controverted Elections] ..............
R.S.C. ss. [Supreme Court Act] ...............
4- R.S.C. s. 40 [Supreme
Court Act] ......................
s. [Supreme
Court Act] ......................
STATUTES-Continued.
R.S.C. 1906, s. 46 [Supreme Court Act] ......................
R.S.C. 1906, s. ...... 8-R.S.C. 1906, c. 140, s. [Exchequer Court Act] .................
R.S.C. 1906, s. [Criminal Code, 1906] .................
50 & V. s. 16(c) [Exchequer Court Act] ..................
R.S.O. 203, s. s.-s. 10(f) [Fire Insurance] ..........
V. c. (Que.) [Montreal City Charter] ........................
14-2
Edw. VII. [Montreal City Charter] ........................
Edw. VII. c. (Que.)
. 16-R.S.M. [Sale of uoods A ct] ............................
17-1
& Edw. VII. c. (Man.) [Winnipeg City Charter] .......... 18--47 V. (B.
[Land Act, 1884] ..........................
(B.C.)
[Land Act Amendment]
.....................
STATUTES-Continued.
20-54
V. 25 [B.C. "Mineral Act,"
...........................
TIMBER - Sale of standing timber - Registration of real rights-Ownership
-Distinction of things-Movables and immovables-Priority of title.......
judgment-Time for appealing-Exchequer Court Act, R.S.C. s.
82-Exchequer Court Rules ........
Controverted election-Service tional service-R.S.C. ss.
..............................
Sale of goods sample-Delivery
R.S.M. 152-Notice of rejection- ....................
See 4.
TITLE LAND-Municipal corporation-Powers-Land tax sales-Purchase corporation-Vesting of title-Manitoba Real Property Act-Agreement to re-convey-Necessity of by-law .....
Supreme
Court Act-Duty or fee-Interest in land-Future rights. .............
Appeal-Actio pauliana versy involved-Supreme Court Act, s.
..............................
Sale of standing timber-Registration of real rights-Ownership-Distinction of things-Movables and immovables
-Priority of title ...............
TITLE LAND-Continued.
5-Servitude-Construction of deed- Purchase of dominant and servient tenements-Unity of ownership-Extinction of servitude-Revival sale of dominant tenement-Effect of sheriff's sale-Purgation of apparent servitude-Reference to former deed creating charge - 6-Pre-emption of agricultural land- B.C. Land Act-Water records-Appurtenances ........................
"Buster Brown" Validity of registration.]
term "Buster Brown" or "Buster Brown and Tige" for use as the title to a comic section of a newspaper cannot registered as a trade mark.
appealed from Ex. C.R. 1) was affirmed, Davies and Duff JJ. dissenting. TRAMWAYS-Operation of tramway- Powers of municipal corporation-Legislative authority-Use of streets-By-law Conditions imposed
Penalty breach of conditions-Repeal of by-law- Contractual obligations-Offences against by-law--Jurisdiction of Recorder's Court - Prohibition ....................
2-Newt trial-Misdirection-Questions for jury-Verdict on issues-Damages. .......... Hypothecation securities-Terms of pledge-Duty pledgee.] sold property to the Syndicat and took as security for the price mortgages on real and personal property and a promissory note and transferred the securities to the bank to secure his present and future indebtedness to it. He signed a document authorizing the bank to realize on the same in its discretion, to grant extensions and give up securities, accept compositions, grant releases and discharges and otherwise deal with them as it might see fit without TRUST-Continued.
prejudice to B.'s liability. The note not being paid at maturity, the bank sued the Syndicat and upon it and on the covenants in the mortgages and obtained judgment against both.
In the same action, the Syndicat, on counterclaim for damages for deceit, had judgment against
B. which was eventually set aside, but, while it existed, the bank made a settlement with the Syndicat and discharged the latter from all liability on the judgment of the bank on payment of
$20,000 less than the debt.
B. was not a party to this settlement and the bank afterwards refused to give him any information about it or to give him a statement of his account with the bank itself. In an action for an account and to have the bank enjoined from further dealings with the securities:-Held, that the power given to the bank to deal with the securities was to exercised for the purpose of liquidating B.'s debt, and, as to the surplus, for B.'s benefit; that, the settlement having made solely for the benefit of the bank and in sacrifice of B.'s interests, the bank violated its duty, and had not satisfied the onus upon it of shewing that, had the whole amount of the judgment been recovered from the Syndicat, B. would not have benefited thereby.
VENDOR PURCHASER - Agreement for sale of land - Principal and agent-Fiduciary relationship - Specific performance.] Where an intending purchaser, disguising his intentions under the role of a disinterested friend imposed nn the confidence thus established and induced the owner of land to accept an offer for the purchase of it which probably would not otherwise have been accepted without independent investigation, specific performance of an agreement for sale thus procured should not enforced.
Fellowes Lord Gwydyr
(1 Sim. discussed and distinguished.
THoMPsoN...........445
2-Sale of lands-Conditions-Deposit of price-Compliance with instructions- Vendor refusing to complete-Broker's commission-Remuneration for procuring purchaser ... ...................
VENDOR PURCHASER-Con. 3-Contract - Agreement for sale land-Deferred conveyance - Default in VIS MAJOR-River improvements-Precaution against danger to existing constructions-Alterations of natural conditions - Responsibility for damages.] Where works constructed in a river altered its natural conditions as to create a reservoir in which ice formed larger quantities than it did, prior to such works, and which, during the spring freshets after a severe winter, was driven with such force against the superstructure of a bridge as to partially demolish it, those who constructed the works are responsible for the damages so caused, notwithstanding that they had taken ineffectual precautions for the protection of the bridge against like troubles, foreseen at the time of the construction the works, and that the formation of in increased weight and thickness in the reservoir had resulted from natural climatic conditions during an unusually rigourous winter.
from (Q.R. K.B. 410) affirmed. ..... 2- Municipal corporation-Negligence -Drainage-Capacity of drain-Unusual rain storm .......................
WARRANTY-Sale of goods sample- Delivery
Condition
"Sale Goods Act," R.S.M.
Notice of rejection-Reasonable time- Breach of warranty-Damages.] By contract made at Winnipeg, Man., plaintiffs sold to the defendants, sample, a carload of cured fish to shipped during the winter from their warehouse at Canso,
Winnipeg." sample was sound and satisfactory. The fish arrived in Winnipeg in a frozen state and were received the defendants and kept them in an outhouse for several weeks before being placed in the freezer, the atmospheric conditions being such that the fish could not, in the meantime, have deteriorated by thawing. WARRANTY-Continued.
Some of the fish when sold proved unsound, were returned by customers and the whole shipment was found not up to sample and unfit for food. On inspection the health inspector condemned the whole carload and it was destroyed. About six weeks after the fish had been received them, the defendants notified the plaintiffs of the rejection of the carload delivered. In an action for the price at which the fish had been sold, the defendants counterclaimed for damages for breach of warranty and consequent loss in their business.-Held, reversing the
Man. R.
620), that the sale had been made subject to delivery at Winnipeg, that any
,,loss occasioned deterioration in transit not necessarily incident to the course of transit should borne by the sellers, that the loss in this case was not incident, and that, under the circumstances, the purchasers had notified the sellers of the rejection within a reasonable time, as contemplated by the "Sale of Goods Act," R.S.M. (1902)
that the plaintiffs could not recover and that the defendants were entitled to have damages on their counterclaim.
v. Co...453
2-Appeal-Amount in dispute--Interest
WATERCOURSES.
WILL-Testamentary capacity - Capta- Suggestion
Interdiction-Evidence-Onus of proof.] The existence of circumstances which might raise suspicion that the execution of a will was procured by captation, improper suggestions or undue influence the part of those promoting it is not a sufficient ground to justify an appellate court in interfering with the concurrent findings of the courts below as to the validity of the will. Judgment appealed from K.B.
affirmed, Girouard and Maclennan JJ. (dissenting)
. WORDS PHRASES.
1- "Buster Brown" ...............
"Buster Brown and Tige" ...... 229 See 4.
"Or".........................607 "Stored or kept"................ 491
Statutes and regulations cited
-
- s. 46
- s. 82
- ss. 17
-
- s. 41
- s. 10(f)