Majority
[VOL. XFJll. THE JOHN GOODISON
THRESHER COMPANY
CORPORATION
TOWNSHIP OF McNAB
APPEAL from a decision of the Court of Appeal for Ontario reversing the judgment of a Divisional Court which sustained the verdict at the trial in favour of the plaintiffs.
The action was brought to recover compensation for injury to an engine of the plaintiff company, which went through a bridge in the defendant municipality owing, it was alleged, to negligence of the defendants in failing to keep such bridge in a proper state of repair. The plaintiffs succeeded at the trial, and in a Divisional Court, but their action was dismissed by the Court of Appeal, which, on application of the plaintiffs, granted an order extending the time for appealing to the Supreme Court of Canada. the damages recovered at the trial were only $807, there was no appeal to the latter court as of right, and the plaintiffs moved for special leave.
J. E. Jones for the motion.
Douglas K.C. contra was not called upon. JUSTICE.-Jn this case the judgment of the Court of Appeal for Ontario was pronounced on the 13th May, 1909.
On the 31st December of the same year, the Court of Appeal made an order on the application of the present appellants, which they purported to extend the time for appealing to the Supreme Court until the close of the present sittings, in order that an application might be made to the Supreme Court for leave to appeal. The appellants now apply, on notice, for such leave, under section 48(e), although the amount involved is less than $1,000. Before considering the latter question, however, we have to determine whether we have power to grant leave at all in view of section 69 of the Supreme Court Act, which provides that every appeal shall be brought within 60 days from the signing, or entering, or pronouncing of the judgment appealed from.
Although the 60 days have elapsed, the appellants contend that we have power to grant leave under section 71, which provides as follows:- The jurisprudence of this court is entirely against Goonscs our having any power to grant leave to appeal after the 60 days have expired.
of Toronto v. McCrae (2), this court held that neither the Supreme Court nor any judge thereof has jurisdiction under this section to extend the time within which an appeal must be brought.
In Barrett v. Syndicat Lyonnais du Klondyke(3), it was held that even where the court below, as in this case, had extended the time for bringing the appeal, nevertheless the Supreme Court had no power to grant leave to appeal per saltum.
In Canadian Mutual Loan and Investment Co. v. Lce(4), the court said:
We hold, therefore, that the court has no jurisdiction to grant the leave asked for, and the application must be dismissed with costs.
Motion dismissed with costs. Solicitors for the appellants: Cowan & Towers. Solicitor for the respondent: J. E. Thompson. - Contract - Delegation payment-Revocation of authority.
Appeal-Findings of fact-Division of partnership profits-Collateral business affairs-Trust ................
3-Agreement for sale of lands-Construction of contract -Right of action- Partition-Administration co-owners
-Trust-Interim account-Partial dis- Jurisdiction-Rivers and streams-Floating logs-Servitude- Faculty or license-Possessory action - Injunction-Matter in controversy-Practice- Costs. . . ..
.................
2-Breach of contract-Place of performance-Foreign judgment - .....................
3-Agreement for sale of lands-Con- -Partition-Administration co-owners-Trust-Interim account
Partial discharge of trustees .
............
Appeal-Quo ivarranto-Action by ratepayer-11unicipal corporation-Pay- Matter of form-"Montreal City Charter"
of statute ........
Rivers streams-Right of floating logs-Servitude-Faculty or license-Possessory action-Injunction-Matter in controversy
-Practice-Costs.]
In the Province the privilege of floating timber down water-courses, in common with others, is not a predial servitude nor does it confer an exclusive right of property in respect of which a possessory action would lie, and, in a case where the only controversy relates to the exercise of such a privilege, the Supreme Court of Canada has no jurisdiction to entertain an appeal.
The appeal was quashed without costs as the objection to the jurisdiction was not taken the respondents in the manner provided the Rules of Practice.
2--Jurisdiction-Commitment of judgment debtor-Final judgment-Manitoba King's Bench rules 755-"Matter judicial proceeding"
Act, s. 2(e).]
An order committal against a judgment debtor, under the contempt in refusing to make satisfactory covery is not a "matter" or "judicial proceeding" within the meaning of sub-sec. tion of section the Supreme Court Act but merely an ancillary proceeding by which the judgment creditor is authorized to obtain execution of his judgment and no appeal lies in respect thereof to the Supreme Court of Canada. Danjou v. Marquis Can. S.C.R. 3-Jurisdiction-Matter in controversy -Mf unicipal franchise-Demolition waterworks Title land - Future rights.]
The action, instituted in the Province of Quebec, was for a declaration of the plaintiff's exclusive right under a municipal franchise to construct and operate waterworks within an area defined in municipal by-law, for an injunction against the defendants constructing or operating a rival system waterworks within that area, an order for the removal of water-pipes laid them within that area, and for daman appeal from a judgment maintaining the plaintiff's action.-Held, APPEAL-Continted.
Gironard and Idington JJ. (dissenting)
, that, as it did not appear from the record that the sum or value demanded the action was of the amount limited the Supreme Court Act in respect to appeals from the Province Quebec nor that any title to lands or future rights were affected, an appeal would not lie to the Supreme Court Canada.
4-Appeal per saltum-Jurisdiction.]
application for leave to appeal per saltum from a judgment Ont. L.R.
refusing to quash a by-law, the objection to the -law was that it assumed to affect an Indian Reservation over which neither the corporation nor the Legislature of Ontario had authority.
The appellant had been too late to appeal to a Divisional Court, leave for an extension of time was refused, and there was no right of appeal to the Court
The motion was refused; Ot- Electric Brennan Can.
S.C.R.
followed. TowN- 218i
Dismissing appeal.] motion to quash an appeal from a judgment of the Court
Appeal Ont. L.R. affirming the judgment of the Divisional Court
Ont. L.R. which sustained an order setting aside a judgment entered default for non-appearance, the question involved was whether or not the defendant (plaintiff in an issue directed), was entitled to have the judgment set aside.
The appeal was, on this motion, dismissed
......
6--Jurisdiction - Amount in controversy-Addition of interest to amount verdict-Stay of execution.] The action was for damages for personal injuries sustained through the negligence of the company in the operation of their tram- The jury found for the plaintiff and assessed damages at which amount judgment was entered, time subsequently.
This judgment from Ont. L.R. 530).
The security offered on the proposed appeal to the
Supreme Court Canada was approved
Ont. L.R. 370), the view that interest ($43.50) from date of judgment on the verdict at per cent. per annum, allowed of the Judicature Act, R.S.O. should added to the amount of the judgment and that, consequently, an appeal would lie. The appeal was quashed, the Supreme Court of Canada holding that the amount controversy was that at which damages had been assessed the jury and interest had not been included in made part of such judgment it could added in order to bring the amount involved beyond the limit fixed the Supreme Court Act in respect to appeals from the Province of Ontario.-An application for stay of execution was refused. Note-On a subsequent application to the Court of Appeal for Ontario, special leave to appeal was refused Ont. L.R.
7-Jurisdiction-Alberta Liquor License Act-Cancellation of license - Persona designata-Curia nominatin - "Originating summons"-Court of superior Jurisdiction.] On an application for the cancellation of a liquor license issued under the Liquor License Act the Province of Alberta, a judge the Supreme Court of Alberta, in chambers, granted an originating summons ordering all parties concerned to attend before him, in chambers, and, after hearing the parties who appeared in answer to the summons, refused the application. The full court reversed this order and cancelled the license.
On an appeal the licensee to the Supreme Court of Canada. that the case came within the principle decided in the Canadian Pacific Railway The Little Seminary Ste. Thirdse Can. S.C.R. 606), and, consequently, the Supreme Court of Canada had no jurisdiction to entertain the Linitation of time-Railcay Comnissioners-Question of jurisdiction - Leave judge.]
Except in the case mentioned in rule there is limitation of the time within which a judge the Supreme Court may grant leave to appeal under sec. 56(2) of the Railway Act, on a question of the jurisdiction the Board of Railway Commissioners.
Special leave-Public interest - Important questions of law-Exemption from taxation rates
[1906] c. s. 48.]
By a municipal by-law an industrial company was given exemption from taxation for a term years.
P., a ratepayer of the municipality, applied for a writ of mandamus to compel the council to assess the pany for school rates, which, he claimed, were not included in the exemption. The decision to grant the writ was affirmed the Court of Appeal (20 Ont. L.R.
motion for special leave to appeal from the latter judgment.-Held, that the case was not one of public interest, and did not raise important questions of law.
It did not, therefore, fall within the principles laid down in Lake
Erie & Detroit River Railway V.
Marsh Can. S.C.R. for granting such leave.
Special leave-Time limit-Extension - R.S.O. [1906] s. 48(e).]
After the expiration of sixty days from the signing or entry or pronouncing a judgment of the Court of Apneal
Ontario, the Supreme Court of Canada is without jurisdiction to grant special leave to appeal therefrom, and an order of the Court Appeal extending the sixty days will not enable it to do
Appeal-Findings of fact-Division of partnership profits-Collateral business affairs-Trust . ...........
12-Jurisdiction - Appeal to Privy
Council-Stay of proceedings .....
Practice-ew points raised
.....................
14warranto-Action ratepayer-Municipal corporation-Payment of money-Statutory procedure-Matter of form-"Montreal City Charter" - ARBITRATION AWARD Statutory arbitrators-Jurisdiction-A wards "from time to time"-Res judicata.] The statutes authorizing the appointment of arbitrators to settle accounts between the Dominion and the Provinces of tario and Quebec and between the two provinces provided for submission questions agreement among the governments interested; for the making awards from time to time; and that, subject to appeal, the award of the arbitrators in writing should binding the parties to the submission.-The provinces submitted to the arbitrators determination the amount of the principal of the Common School Fund to ascertain which they should consider not only the sum held the Government Canada but also "the amount for which Ontario is liable."
In by award No. the arbitrators determined that moneys remitted to purchasers of school lands unless made in fair and prudent administration, and uncollected purchase money of patented lands, unless cause shewn non-collection should deemed moneys received tario, and in the amount of liability under these heads was fixed award No.
In the Privy Couneil held that the arbitrators had no jurisdiction to entertain a claim Quebec to have Ontario declared liable for the purchase money of school lands yet unpatented allowed to remain uncollected for many years.
In making their final award in the arbitrators refused an application by Quebec for inclusion therein of the amounts found due from tario for remissions and non-collections and held that they had exceeded their liability. appeal from this determination embodied in the final award:-Held, Fitzpatrick C.J. and Duff J. expressing opinion, that the arbitrators had no juribdiction to determine the liability Ontario for moneys remitted or not lected.
Attorney-General for Ontario v. Attorney-General for Quebec ([1903] ARBITRATION AWARD-Con.
followed.-Held, also, Fitzpatrick C.J. and Duff J. dissenting, that awards Nos. and 4 in so far as they determined this liability were absolutely null, and, therefore, not binding on tario. V.
.....................
granted, 1st.
Street railicay-Assumption by
Operation in two municipalities-Com- TAXES-Municipal corporation-Exemption
Edmonton-Construction of statute - "License fee." ....................
2-Appeal-Special leave - Public interest-Important questions of law - Exemption from taxation
School rates.
......................
ASSIGNMENT-Lease-Covenant not to assign - Assignment to co-partner - Right to renewal-Notice ..........
2-Lessor and lessee-Covenant to reterm
ATTACHMENT-Jurisdiction - Service out of jurisdiction - Manitoba King's
Bench Rules 202-Questions of practice.]
The court refused to interfere with the judgment appealed from (18
Man. R. affirming the judgment
Mathers J. 'Man. R. 59), on questions of procedure.
Williams Leonard
Can. S.C.R. and Green George
Can. S.C.R. referred to.
BAILMENT-Negligence - Damages-Slorage of meat.]
The decision the case depended upon evidence as to the condition of frozen meat placed in cold storage the plaintiffs (appellants) in the defendants' warehouse safekeeping.
The evidence established that the meat was in good and sound condition when delivered at the defendants' warehouse; the warehouse was properly constructed for the purpose of storage, the plant of first-class modern type and sufficient power; it was operated with proper care and men sufficient knowledge to conduct the business in an ordinary satisfactory manner, and the actual cause the spoiling the meat, which claimed, was not disclosed.
The judgment dismissing the plaintiffs' action from Man. R. 539).
The appeal with
BANKING-Customer's cheque - Evidence of presentation-Refusal to pay- Action for damages.] The action claimed damages for wrongful refusal to cash the plaintiff's cheque on his account at the the bank where the cheque was presented for payment, there being, at the time, sufficient funds to meet the cheque, which was duly drawn and indorsed.
The defence was non-presentment.
It appeared that a clerk from another bank, which held that cheque, presented it at the the defendant, but at the wrong wicket, and was directed to present it at another wicket to the clerk there who had charge of the ledger containing the drawer's account. There was no evidence that this was done, but the bank which held the cheque sent out a teiegram stating that the drawer had no account. The trial judge withdrew the case from the jury for want of sufficient evidence, and his order was alirmed the judgment appealed B.C. Rep. 345).
The appeal was dismissed with costs.
peachment of testimony-Evidence--Notice of imputations-Promissory note- Fraud - Suspicious circumstances - Transfer of negotiable instrument.] The court below held that the burden proving affirmatively that he was the BILLS NOTES--Continued.
holder in due course of a note in question in the case rested upon the plaintiff, that he had not satisfied the onus, that his neglect make inquiries, though not inconsistent with good faith, court dismissing the action Alta. L.R.
1, 201).
the appeal, the majority the judges of the Supreme Court of Canada held that, under the circumstances of the case, the courts below were not justified in refusing to accept the uncontradicted testimony of a witness (examined abroad under commission), as to particular facts, which notice had not been given in the pleadings or otherwise, relating to circumstances relied upon to sustain or point to the imputation of bad faith and no opportunity afforded to the witness of explaining qualifying the facts or conduct on which the attack upon his veracity or honesty was based.
Browne v. Dunn R.
was applied; Union Investment
Wells Can. S.C.R.
was followed; and the judgment appealed from was reversed.
BILLS - Mines and mining
Mining agreement
Interest ore to be mined-After-acquired chattels - Transfer and delivery-Registration - B.C. Bills of Sale Act, 1905-Construction of statute..................
See 1.
RAILWAY COMMISSION- Railway-Fencing
Commissioners-Construction of statute
Railway Act, R.S.C. ss.
Under the provisions of the
Railway Act the Board of Railway missioners for Canada does not possess authority to make a general order requiring all railways subject to its jurisdiction to erect and maintain fences the sides of their railway lines where they pass through lands which are not inclosed and either settled or improved;
it can so only after the special circumstances in respect of some defined locality have been investigated and the necessity of such fencing in that locality determined according to the exigencies of the case.
Duff J. contra.-The Rail- RAILWAY COMRS.-Con. way Act empowers the Board to order that, upon lines of railway not yet completed or open for traffic or in course construction, where they pass through inclosed lands, the railway companies construct and maintain such fenebs or take such other steps as may necessary to prevent cattle and other animals from getting upon the right-of- Idington
Ry. Co.
2-Appeal---Limitation of time-Railway Commissioners-Question of jurisdiction-Leave judge-Powers provide station-R.S. [1906] ss. 26, and 258.]
Except the case mentioned in rule there is no limitation of the time within which a judge of the Supreme Court may grant leave to appeal under 56(2) of the Railway Act, on a question of the jurisdiction the Board of Railway Commissioners of Canada.-That
Board has power to order railway company whose line is completed and in operation to provide a station at any place where it is required to afford proper accommodation for the traffic on the road. Idington and JJ.
Railways-Jurisdiction of Board of Railway Commissioners-Deviation tracks
Separation grades way"-Dedication-User-Public 'way means of communication-Access to harbour-Navigable waters-Construction statute-R.S.C. ss. 2(11), (28), 238, V. 48(D.).] Prior to the Grand Trunk Railway Company operated a portion its railway upon the "Esplanade" in the City of Toronto, and, in that year, the Canadian Pacific Railway Company obtained permission from the Dominion Government to in part of Toronto harbour lying south of the "Esplanade" and to lay and operate tracks thereon, which abutted the north side of the "Esplanade" and the general public passed along the prolongations of these streets, with vehicles and on foot, for the purpose of access to the harbour.
In an agreement was entered into between the city and RAILWAY COMRS.-Con.
the two railway companies respecting the removal of the sites of terminal stations, the erection of over-head traffic bridges and the closing or deviation some of these streets.
This agreement was ratified statutes of the Dominion provincial legislatures, the
Dominion Act Vict.
providing that the works mentioned in the agreement should works for the general advantage Canada.
To remove doubts respecting the right of the
Canadian Pacific Railway Company to the use of portions of the bed of the harbour on which they had laid their tracks across the prolongations of the streets mentioned, a grant was made to that company the Dominion Government of the "use for railway purposes"
on and over the filled-in areas included within the lines formed the production of the sides the streets.
At a later date the Dominion Government granted these areas to the city, in trust to used as public highways, subject to an agreement respecting the railways, known as the "Old Windmill Line" agreement, and excepting therefrom strips land feet in width between the southerly ends of the areas and the harbour, reserved as and for "an allowance for a public highway."
In June, the
Board of Railway Commissioners, on application by the city, made an order directing that the railway companies should elevate their tracks on and adjoining the "Esplanade" and construct a viaduct there.-Held, Girouard and Duff
JJ. (dissenting)
, that the Board has jurisdiction to make such order; that the street prolongations highways within the meaning the Railway Act; that the Act of Parliament validating the agreement made in was not a "special Act" within the meaning of the "Railway Act" and did not alter the character of the agreement as a private contract affecting only the parties thereto, and that the Canadian Pacific Railway Company, having acquired only a limited right or easement in the filled-in land, had not sucn a title thereto as would deprive the public of the right to pass over the same as a means communication between the streets and the harbour.
or .................
-Statutory contract-Construction-Bonds of railway company-Govcrnment guarantee ...............
BROKER-Sale of land-Principal and agent -Con mission for procuring purchaser-Sale to person introduced by broker.]
B.C. Rep. 389), which was affirmed, held that the appellant (plaintiff) was not entitled to commission for the introduction of a purchaser of land which was sold to the person so introduced, as he had been engaged only to sell the land at a price higher than that for which the sale was subsequently made and he had failed to prove an agreement of pay commission on the lower price. HEPBURN.................. BUILDERS CONTRACTORS-Negligence-Carelessness of en-Liability of employer-Dangerous appliances The appellant's husband was killed electric shock from a live wire of a company supplying electricity. As he passed along a public street he witnessed an accident to an employee of respondents, at a building they were constructing, through a derrick in use them coming in contact with the live wire; while attempting to extricate the man at the derrick, he received the shock which caused his death. The action was against the contractors, respondents, and the electric company, and the negligence attributed to the contractors was placing and operating the derrick in dangerous proximity with the live wire. The jury exonerated the deceased from blame, found the company at fault for not protecting the wire, and also that the contractors were not blamable for the accident.
The case was referred to the Court of Review which affirmed the verdict against the company, but on appeal the Court of King's Bench reversed this judgment and dismissed the action (Q.R. K.B.
further appeal to the Supreme Court of Canada was discontinued (Cout. Cas.
and the case was carried to the Privy Council where the judgment of the Court of King's Bench was affirmed ([1907]
The Court of Review dismissed the action against the contractors, and this judgment BUILDERS CONTRACTORS-Con.
from (Q.R. K.B. 471). The Supreme
Court of Canada allowed the appeal with
............
BY-LAW -Constitutional law-Legislatire jurisdiction-"Early closing by-lato
-Municipal affairs-Property and civil rights-Local and private matters-Regulation of trade and commerce.....
2--Appeal per saltum - ......................
CASES-Ahearn & Soper New York
Trust
Anderson v. Poster Ont. L.R.
reversing L.R. 362) affirmed
3-Angus v. Heinze B.C. Rep.
Armour v. of Onondaga (14
Ont. L.R. 606). Leave to appeal refused
. . . . .
5- Attorney-General of Ontario v. Attorney-General of Quebec ([1903]
39) followed .....................
Beauvais City of Montreal (Q.R.
7-Berlin
Ry. Town of Berlin
Ont. L.R. reversed
S-Bridgman v. Hepburn B.C. Rep.
Browne v. Dunn R. applied . . . . .........................
10-Canadian Pacific Ry. v. Alexander Brown Milling Ont. L.R. 11-Canadian Pacific Railway Co. v. Little Seminary of Ste. Thirdse Can. S.C.R. followed 12-Charrest Manitoba Cold Storage -Man. R. 539) affirmed.. 13-Danjou v. Marquis Can. S.C.R. 14-De
Lasalle Guilford 2 K.B. followed ...............
Dominion of Canada v. Province of Ontario Ex. C.R. 445) reversed 16-Doucet v. Shawinigan Carbide Co. (Q.R. K.B. reversing 17-Dum phy v. Martineau (Q.R. 17 K.B. -New trial ordered ..... 18- Dumphy v. Montreal Light, Heat & Power (Q.R. K.B. 11; Cout. Cas. 408; [1907] 454) noted 224 19-Fitzgerald Barbour Ont. 20-Forrest v. Traves B.C. Rep.
21-Furness Withy & Co. v. Great
Northern Ry. of Canada (Q.R.
varied .....................
22-Gordon v. Horne B.C. Rep.
reversed. ...................
21-Green v. George Ont. L.R.
Ont. L.R. 578) affirmed..........
24-Green v. George S.C.R.
25-Grenier v. Connolly (Q.R. 34
26-Hood v. Bank of Ottawa (Q.R.
reversed .............
27-Laidlaw v. Crowsnest Southern
Railway B.C. Rep. affirmed
......................
28-Lake Erie and Detroit River Ry.
v. Marsh Can. S.C.R. applied . . . . ......................
28a-Lapointe v. Larin (Q.R. K.B.
reversed....... .............
29-Lefebvre v. Nichols Chemical of Canada (Q.R. affirmed.
.....................
30-Lott
V. Sydney & Glace Bay Ry.
31-Martel v. Connolly (Q.R. 34 ...................
32-Mey v. Simpson Man. R. 33-Milligan v. Toronto Ry. (17 Ont. L.R. 370)
reversed; appeal from judgment of Court of Appeal Ont. L.R. 530) quashed ................
34-Moritz v. Canada Wood Specialty Ont. L.R. affirmed...... 35-McClellan V. Powassan Lumber Ont. L.R. 67; Ont. L.R. 36-McMillan v. American-Abell Engine and Thresher West. L.R. 37-Ottawa Electric v. Brennan Can. S.C.R. followed ...... 38-Pense v. Northern Life Assurance Ont. L.R. reversing Ont. 39-Peters v. Perras Alta. L.R. 1, 40-Pitt v. Dickson
Ont. W.R. reversed. ..................
41-Pitt v. Dickson Ont. W.R. 380; Ont. W.R. restored ........ 42- Price v. Power (Q.R. 43-Pringle v. City of Stratford
246)-Leave to
44-Rear
Imperial Bank of Canada
B.C. Rep. 345) affirmed ........
45- Robinson
V. Can. Pac. Ry.
([1892] referred to ......
46-Russia, Emperor of, v. Proskouriakoff Man. R. affirmed..... 226
47-Union Investment V. Wells
Can. S.C.R. followed .....
48-Union Investment
Wells
Can. S.C.R. 244) overruled....
49- Varley v. Coppard (L.R. C.P.
followed ....................
50--Wiiliams v. Leonard
Can.
S.C.R. referred to ............
51-York v. City of Edmonton Alta.
ante.
CIVIL-Art. 379 (Movables). 267
Art. 1054-(Quasi-delits)
Art. (Damages) ........
CIVIL-Continued.
4- Art. 2000 (Privileges and Hypoth- ............................
HYPOTHECS. CIVIL PROCEDURE-Arts. (New trials) ...........
2-Arts.
et seq. (Quo warranto) . . . . . ........................
MUNICIPAL-Art.
(Highways) . ........................
-Privileges and hypothecs-Tramway-Operation on highway- Title to land-Immobilization destination-Sale of tramway sheriff as a "going concern"-Unpaid vendor-Lien on price of cars-Pledge-Construction of statute, Edw. VII. (Que.)tribution-Arts. 379, 200 C.C.-Art. lun. Code. ......................
COMMISSION -Sale of land-Principal and agent-Commission for procuring purchaser-Sale to person introduced broker ..........................
COMMITMENT-Appeal-Jurisdiction- 755-"Matter or judicial proceeding" -Supreme Court Act, s. 2(e) ..... EMPLOYMENT - -Employer and employee-Duty of employer-Proper system ............
- Arbitration and award-Statutory arbitrators-Jurisdiction-Acards "from time to time"- Res judicata. ....................
Action for deceit-Agreement for sale-False representations - Compromise-Notice .
............
CONDITION-Contract-Supplying electrical energy-Delivery-Payment at flat rate-Obligation to pay for pressure not utilized-Sale of commodity-Agreement for service.......................
LAW-Indian lands
-Extinguishment of Indian title-Payment Dominion-Liability of Province
-Exchequer
Court Act, s. 32-Dispute between Dominion and Province.] WXnere dispute between the Dominion and a
Province of Canada, or between two
Provinces comes before the Exchequer
Court as provided of R.S.C.
[1906] ch. it should decided a rule or principle of law and not merely what the judge of the court considers fair and just between the parties.-In a treaty was entered into between the Government of Canada and the Salteaux tribe of Ojibeway Indians inhabiting land acquired the former from the Hudson Bay
By said treaty the
Salteaux agreed to surrender to the government all their right, title and interest in and to said lands and the government agreed to provide reserves, maintain schools and prohibit the sale of liquor therein and allow the Indians to hunt and to make a present for each man, woman and child the hands and pay each Indian year and salaries and clothing to each chief and sub-chief; also to furnish farming implements and stock to those cultivating land.
At the time the treaty was made the boundary between Ontario and Manitoba had not been defined. When it was finally determined, in it was found that 30,500 square miles the territory affected it was in Ontario and, in the Dominion Government brought before the Exchequer Court a claim to re-imbursed for a proportionate part of the outlay incurred in extinguishing the Indian title. The Province disputed liability and, counterclaim, asked for an account of the revenues received the Dominion while administering the lands in the Province under a provisional agreement pending the adjustment the boundary.-Held.
LAW-Con. reversing the judgment of the Exchequer Court Ex. C.R. Girouard and Davies JJ. dissenting, that the Province was not liable; that the treaty was not made for the benefit of Ontario, but in. pursuance of the general policy of the Dominion in dealing with Indians and with, a view to the maintenance of peace, order and good government in the territory affected; and that no rule or principle law made the Province responsible for expenses incurred in carrying out an. agreement with the Indians to which was not a party and for which it gave no Legislative jurisdiction -"Early closing by-la io"-Municipal affairs-Property and civil rights-Local or private matters-Regulation of trade and commerce-B.N.A. Act, s. s.-s. s. s.-ss. 16-57 50 (Que.).] Provincial legislation authorizing a municipality to regulate the closing shops of a particular character within its limits is a subject which falls within the classes matters enumerated as being within the exclusive jurisdiction provincial legislatures under sub-section or sub-section of section of the British North America Act, and is not an interference with the exclusive legislative jurisdiction the Parliament of Canada conferred the second subsection of section of that Act.-Unless a by-law, enacted in good faith under the authority of the Quebec statutes, Viet. and Edw. VII. c. appears to unreasonable, unfair or oppressive as to a plain abuse the powers conferred upon the municipal council it should not set aside.-Judgment appealed from fused, 1st December, per saltum-Jurisdiction ................
debtor-Examination-Refusal to ansiwer-Commitment- Appeal ...................
-Delegation of payment - '
Recocation of authority.] & a firm government contractors, sublet their contract to respondent.
The respondent questioned the manner in which payments for the works were to made to him, progressive estimates, and this formed the subject correspondence tween & A. and the bank, that firm having already given the Ottawa branch of the bank a power of attorney to draw these moneys from the government.
re -pondent wished to furnished with an undertaking the bank to pay to hint in Montreal the moneys it received under the power of attorney, and the bank's manager, at Ottawa, wrote letter to & 31. stating that "as each payment is made to the bank the government it will. with your consent, forwarded to W. H. & Son in payment their work."
This arrangement having been assented to B. & the bank wrote to the respondent in regard to drawing the moneys in Montreal, referred to the correspondence with & I. and enclosed a copy of their letter assenting to the arrangement above
The moneys received the bank from the government were credited to & and, upon their instructions, certain of the payments were forwarded to the respondent, none being so forwarded except those so authorized.
Subsequently,
& notified the bank to make more payments to the respondent and, their order, sonie payments were made to another person.
In August,
& became insolvent, the government cancelled their contract and the last payment received from the government the bank was placed to their credit.
refusal by the bank to recognize the respondent's demands for payments made from time to time, brought action against the bank for alleged to due to him out of in possession the bank, and for an account of all monevs received iv the bank from the government.
The defence was, in substance, that the only agreement the bank made was With
& that this contract was entered into
Ontario and was governed by the law of that province under which there exited no privity contract between it and the respondent.
The responlent's action was maintained at the trial and affirmed by the Court of Review
506).-The judgment appealed
CONTRACT-Con tin ited.
from was reversed.
H oon.
..........................
Construction of contract-Traffic agreeinent-Furnishing cargoes-Freight rates-Failure to find full cargoes-Vis major-Damages.]
The alleged breach of contract that the railway pany failed to obtain freight at Montreal rates and to provide freight for cubic feet of unfilled space in vessels sailing from the port Quebec. defence was that the railway company had never been put in default to settle and determine the freight rates obtainable in Montreal; that they were prevented fulfilling the contract by a fortuitous event; that they were not responsible for the empty space as they had not been put in default to same, and that the plaintiffs had joined causes action not susceptible of being united. The Superior Court allowed items as to differences in freight rates only, but allowed the full claim. Supreme Court of Canada varied the judgment appealed from reducing to amount assessed for difference in Quebec and Montreal freight rates to the extent of 40 per cent. of the cargo of the ship, in accordance with correspondence relating thereto.
FURNESS,
& ............................
Breach of contract-Place of performnance - 1orcign judgment-Artion.] The appellants
(defendants)
agreed to supply to the respondent, in London, Eng., a quantity of dowels or rungs chairs, and, failing to respondent obtained judgment against them England. He then brought action against them in Ontario, claiming his judgment and also for damages for breach of contract.
The plaintiff succeeded in all the courts below Ont. L.R. mainly on the round that the goods to supplied were of a special kind that could not procured elsewhere. The appellants contended that there were plenty similar goods on the market and also that the plaintiff had not proved special damages.
The Supreme Court of Canada dismissed the appeal with CONTRACT-Continued.
-Lease--Covenant not to assign - Assignment to co-partner-Right to renewal--Notice.]
Where partners are lessees of a term for years and have covenanted not to assign or sub-let without the consent in writing of the lessor an assignment by one of his interest in the lease to his co-partner without such consent is a breach of such covenant.
Varley V. Coppard (L.R. C.P. 505)
followed.-The lease provided that, having performed all their covenants and agreements contained in the lease the lessees on giving six months' notice writing to the lessor before the expiration of the term that they required it, would entitled to a renewal.-Held, that a breach (after the said notice was given) of their covenant in the lease not to assign without leave caused a forfeiture of the right to renewal.-Judgment appealed from Ont. L.R. 254)
5-Supplying electrical energy - Delivery-Condition-Payment at flat rate
-Obligation to pay for pressure not utilized-Sale of commodity-Agreement for service.]
A contract for the supply electrical energy provided that the company should furnish to the city at the switch-board in its pumping station, through a connection to there made the city with the company's wires, an electrical pressure equivalent to a certain number of horse-power units during specified hours daily, and the city agreed to pay for the same at a flat rate of "$20 per horse-power per annum for the quantity said electrical current or power actually delivered" under the contract.-Held, that supplying the pressure on their wires up to the point of delivery the company had fulfilled their obligation under the contract and were entitled to payment at the flat rate per horse-power per annum for. the energy so furnished notwithstanding that the city had not utilized it.-Per Girouard and Anglin JJ.-The agreement was a contract for sale of a commodity.
6-Statutory contract-Construction- Bonds of railway company-Government guarantee.] The Government of Canada, in contract with the Grand Trunk Paci- Railway published as a schedule
CONTRACT-Continued.
to and confirmed Edw. VII. ch. agreed to guarantee the bonds of the company to issued for a sum equal to per cent. of the cost of construction of the Western division of its railway. By a later contract (sch. to 4 Edw. VII. the government agreed to implement its guarantee, in such manner as might agreed upon, so as to make the proceeds of said bonds a sum equal to per cent. of such cost of construetion.-Held, that this second contract only imposed upon the government the liability of guaranteeing bonds, the proceeds of which would produce a defined amount and not that of supplying, cash or its equivalent, any deficiency there might between the proceeds the bonds and the said per cent. IN BY. Co.... 505 granted 18th March,
Railways-Jurisdiction of Board Railway Commissioners - Private contract - Ratification by statute-Special Act-R.S. [1906] s. 2(28).]
An Act Parliament Vict.
ratifying an agreement between two railway panies and the City of Toronto for the construction of railway works in the city is not a "special Act" within the meaning of section paragraph of the Railway Act though it provides that the works to constructed shall be works for the general advantage of Canada. RY. To- ...
.. ....................
8-Sale of land-Misrepresentation - Deceit-Warranty ...............
9-Sale of land-Contract for sale- Time of essence-Delay of vendor-Description-Statute of Frauds - Specific Privileges and hypothecs-Tramway-Operation on highway-Title to of cars-Pledge-Construction of statute, Edw. VI.
(Que.)-Priority CONTRACT-Continued.
claim-Collocation and distribution - Arts. 2000 C.C.-Art. Mun. Code.
.....................
11-Agreement for sale of lands-Con- Partition-Administration co-owners
-Trust-Interim. account-Partial dis- 12-Action for deceit-Agreement for sale-False representations-Compromise
13-Street railway-Assumption
Operation in two municipalities-Com- COSTS-Non-observance of rules fusal of costs.] The appeal was quashed without costs as the objection to the jurisdiction was not taken the respondents in the manner provided the
-Appeal-Jurisdiction-Alberta
Liquor License Act-Cancellation of license-Persona designata-Curia nominatim-"Originating summons"-Court superior jurisdiction.] an application for the cancellation of a liquor license issued under the Liquor License
Act the Province of Alberta, a judge of the Supreme Court Alberta, chambers, granted an originating summons ordering all parties concerned to attend before him, in chambers, and, after hearing the parties who appeared answer to the summons, refused the application.
The full court reversed this order and cancelled the license.
appeal the licensee to the Supreme
Court of Canada.-Held, that the case came within the principle decided .
the Canadian Pacific Railway v. The
Little Seminary of Ste. Thirdse Can.
COURT-Continued.
S.C.R. 606), and, consequently, the Supreme Court of Canada had no jurisdic- CROWN-Negligence-Injury on public work-Government railway-Fire from engine-R.S.C. s. 20(c). LANDS-Extinguishment of title to Indian lands-Payment Dominion -Liability of Province . .......... 2-Arbitration and award-Statutory arbitrators--Jurisdiction-Awards time to time"'-Res judicata. ....... Title to lands-Homestead and pre-emption rights - Unpatented Doof statute-Dominion Lands Act... - Negligence-Operation railway-Solatium doloris - Verdict - New trial.] The court refused to order a new trial or reduction of damages, under the provisions of articles 502, where it did not appear that, under the circumstances, the amount damages awarded the verdict was grossly excessive as to make it evident that the jury had been led into error or were influenced by improper motives. Davies J. dissented in respect of that part of the verdict awarding damages in favour of one of the sons who was almost years of age and earning wages at the time deceased was killed.-Quere.- In an action under article can a jury award damages in solatium doloris? Robinson v. The Canadian Pacific Railway Co. ([1892] 2-Construction of contract Traffic agreement-Furnishing cargoes- Freight rates-Failure to find full cargoes-Vis major.] The alleged breach of contract DAMAGES-Cont ned.
was that the railway company failed to obtain freight rates at Montreal rates to provide freight for cubic feet of unfilled space in vessels sailing from the port of Quebec.
The defence was that the railway company had never been put in default to settle and determine the freight rates obtainable in Montreal; that they were prevented fulfilling the contract a fortuitous event;
that they were not responsible for the empty space as they had not been put default to same, and that the plaintiffs had joined causes of action not susceptible of being united.
The Superior
Court allowed items as to differences freight rates only, but the judgment appealed from (Q.R. 121), allowthe full claim.
The Supreme Court
Canada varied the judgment appealed from by reducing to amount assessed for difference in Quebec and Montreal freight rates to the extent of 40 per cent. of the cargo the ship,. in accordance with correspondence relating therev. & Co..........
3-Negligence-Findings of fact-Common fault-Apportionment of damages.]
In actions to recover damages for personal injuries in the Province of where the plaintiff has been found guilty contributory negligence the damages should not divided equally between the parties. but apportioned according to the degree in which they were respectively blamible for its occurrence.-Judgment appealed from (Q.R.
firmed. NIcuoas
................
DECEIT-Action for deceit-Agreement for sale-False representations-Compromise-Yotice.]
P., living in Montreal, owned stock in a Cobalt mining company, and of Ottawa, looked after his interests therein.
Being informed by that the mine was badly managed and the property of little value, and that other holders were selling their stock, P. signed an agreement to sell his at par. assigned this agreement to a third party. Later learning that the stock was selling a premium and believing that had made an improvident bargain, entered into negotiations with the holder agreement, and a compromise was
DECEIT-Continued.
fected by a portion of P.'s holdings being sold to the assignee at par and the remainder returned to him.
It transpired afterwards that and the assignor were in collusion to get possession of the stock, and P. brought action against damages.-Held, that the compromise having been effected when P. was in ignorance of the real state of affairs, it did not bind him as against from whom he could recover as damages the difference between the par value of his remaining shares and their market value at the date of such compromise.-Judgment the Court of Appeal Ont. W.R. reversed and that of the trial judge (9 Ont. W.R. affirmed Divisional Court Ont. W.R. restored. fused, 22nd Feb.,
Sale of land-Mllisrepresentation - ('ontract-Warranty ..............
DEDICATION-Iailwvays of Board of Railway Commissioners - Highway-User-"Public way or means of conmmunication"-Access to harbour of statute-R.S.C. ss. 2(11), 241.... DEED-Sale land-Contract for sale -Time of essence-Delay of vendor - Description-Statute of Frauds-Specific DELIVERY -Contract-Supplying electrical energy-Condition-Payment at flat rate-Obligation to pay for pressure not utilized-Sale of conmodity-Agreement for service .......................
Mines and mining - Mining agreenent - Interest in order to mined -After-acquired chattels-Transfer and delivery-Registration-B.S. Bills Sale Act, 1905-Construction of statute. Evidence-Privilege - Notary-Jury trial-Practice-Charge to jury-Objections after verdict
Neir trial-Misdirection ...............
ARBITRATORS.
- Private way-Unity of ownership-Subsequent viral of easement-Reservation.] In two parcels of land, on one which was a grist-mill and the other a saw-mill, theretofore owned different persons, became vested in one owner who, in conveyed away to defendants' (respondents') predecessors in title both parcels except certain lots including that which stood the grist-mill which was afterwards conveyed to the plaintiff (appellant).
road from the highway a part of the saw-mill property had been used for access to the grist-mill from the time it was built, but was obstructed the defendants in andplaintiff sought an injunction to restrain them from continuing such obstruction and damages.
The judgment at the trial,
Divisional Court Ont. L.R. which held that the easement was extinguished by the unity ownership in and that, as the subsequent conveyances contained no reservation, express or implied, of the right to use the road, the plaintiff could not recover.
This judgment was affirmed the Court of Appeal Ont.
L.R. 32).-The appeal was dismissed for
Lrst- (Leave to appeal to the Privy Council was granted. 29th June,
CHARTER-llunicipal corporation-Assessnent eiption-Construction statute - "Lifee.........................
LAW-Election petition - Preliminary object ions-C oss-petit
Sufficiency of of corrupt acts- ELECTION LAW-Continued.
Particulars.] preliminary tioner entitled at qualified himself from voting treating on polling day.-Ield, that the second objection was not merely explanatory the first but the two were separate and independent: that the second objection was properly dismissed as treating only disqualifies a voter after conviction and not ipso facto; and that the first objection should not have been dismissed, the respondent to the petition being entitled to give evidence as to the status of the petitioner.-The respondent, by crosspetition, alleged that the defeated candidate personally and agents "committed acts and the of undue influence." -Held, that it would have been desirable to state the facts relied on to establish the charge of undue influence, but as these facts could obtained demand for particulars a preliminary objection ELECTRICITY -Contract
- Supplying elcettical encrgy-Delivery - Condition - Payment at flat rate-Obligation to pay for not utilized-Sale of coinnodity-Agreement for service.] A contract for the supply electrical ergy provided that the company should furnish to the city at the switch-board in its pumping station, through connection to there made the city with the company's wires, an electrical pressure equivalent to a certain number horse-power units during specified hours daily, and the city agreed to pay for the ame at a flat rate "$20 per horsepower per for the quantity of said current livered" under the contract.-Held, that supplying the pressure on their wires up to the point of delivery the company had fulfilled their obligation under the contract and were entitled to payment the flat rate per horse-power per annum for the energy so furnished notwithstanding that the city had not utilized it.- Per Gironard and Anglin JJ.-The agreement was a contract for the sale of a ELECTRICITY-Continued.
2-Negligence-Buildings and contractors-Carelessness of workmen-Liability of employer-Dangerous appliances - -Negligence-Duty of employer-Proper system
-Common employment.]
An employer is under an obligation to provide safe and proper places in which his employees can do their work and cannot relieve himself of such obligation delegating the duty to another.-It follows that if an employee is injured through failure his employer fulfil such obligation the latter cannot in an action against him for damages, invoke the doctrine of
2-Negligence-Builders and contractors-Carelessness of workmen-Liability of employer-Dangerous appliances - Electric wires-Volunteer - New trial.
. . . . . ........................
Ships and shipping---Perils of the sea
-Unseaworthy ship-Evidence-Warranty-Inspection of shipping- Certificate of seaworthiness-Construction of statute
-R.S.C.
c. s. 342-Drowning
Negligence-Dangerous works appliances
Art.
1054 C.C.-Res ipsa loquitur ......
EVIDENCE -Practice-Impeachment testimony-Evidence-Notice of imputations-Promissory note - Fraud-Suspicious circumstances-Transfer of negotiable instrument.] The court below held thart the burden of proving affirmatively that was holder in due course of a note in question in the case rested upon the plaintiff, that he had not satisfied the onus, that his neglect to make inquirthough not consistent with good faith,
[S.C.R. VOL. XLII. EVIDENCE-Continued.
court dismissing the action Alta. L.R. 1,
On the appeal, the majority of the judges of the Supreme Court Canada held that, under the circumstances of the case, the courts below were not justified in refusing to accept the uncontradicted testimony of a witness (examined abroad under commission), as to particular facts, of which notice had not been given in the pleadings or otherwise, relating to circumstances relied upon to sustain or point to the imputation of bad faith and no opportunity afforded to the witness of explaining or qualifying the facts or conduct on which the attack upon his veracity or honesty was based. Browne v. Dunn R. was applied; Union Investment Wells Can. S.C.R. was followed; and the judgment appealed from was reversed. 2-Railays
British Columbia Railway Act - Fire on right-of-way-Combustible matter on berm - Origin fire-Damage to adjoining property - Evidence-Practice points raised on appeal.] In an action against a railway company subject to the British Columbia Railway Act, there is no evidence that the company had knowledge or notice of the existence of a fire on their right-of-way, not caused the operation of the railway, the fact that the condition of the right-of-way facilitated the spread of the fire to adjoining property which was destroyed it does not amount to actionable negligence.-Judgment appealed from B.C. Rep. affirmed, Idington J. dissent- .........................
3-Practice-Adduction of evidence - Cross-examination at trial - Vexatious and irrelevant questions-Discretionary order-Propriety of review.]
The judge presiding at the trial of a cause has a necessary discretion for the protection witnesses under cross-examination and, where it does not appear that he has exercised that discretion improperly, his order ought not to interfered with an appeal.
Hence, an appellate court not justified in ordering a new trial the ground that counsel has been unduly restricted in cross-examination a ques- EVIDENCE-Continued.
tion being disallowed which did not, at the time it was put to the witness, have relevancy to the issues.-Idington J. dissented on the ground that, under the circumstances of the case, counsel was entitled to have the question answered.
...........
Negligence-Dangerous works - Defective appliances-Onus of proof - Presumption-Art. 1054 C..-"Res ipsa loquitur."] In an action to recover damages for injuries sustained him in consequence of an accident in the company's calcium carbide shewed a furnace operated upon a new system had been recently installed, that was employed with other workmen to charge the furnace, draw the liquid carbide when it was ready through openings in the base of the furnace, clean the orifices and re-plug them with moist mortar preparatory re-charging.
While the plaintiff was in the performance of his work in re-plugging one these orifices an explosion occurred which caused the injuries complained of. There was no evidence contributory negligence.-Held, Duff and Anglin JJ. dissenting, that, apart from any presumption arising under article the fact of the explosion occurring under such circumstances sufficiently established actionable negligence on the part of the company.-Per Fitzpatrick glin J. (Girouard and Duff JJ contra, and Idington J. expressing no opinion upon the question), that, under article of the Civil of Lower Canada, masters and employers, as well as other persons, are responsible for caused things under their control care where they fail to establish that the cause of the injury was attributable to the fault of the person injured, to vis major or to pure accident, or that occurred without fault imputable themselves.-Judgment appealed
(Q.R. K.B. reversing the decision of the Court of Review (Q.R. S.C.
285), affirmed, Duff J. dissenting.
Ships and shipping-Perils of the sea-Unsearcorthy ship-Warranty spection of shipping-Certificate of seaworthiness - R.S.C. s. 342-Drowning
EVIDENCE-Continued.
.............
6-Sale of land-Contract for sale - Time of essence-Delay of vendor - Descrip tion-Statute of Frauds-Specific ....... 7-Bailment-Negligence-Damages - Storage of meat..................
Privilege-Notary-Jury trial - Practice-Charge to jury - Objections after verdict-Yew trial-Misdirection- Discretion .......................
EXCHEQUER COURT-Disputes between Dominion and Provinces-Adjudication- Practice.] Where a dispute between the Dominion and a Province of Canada, between two Provinces comes before the Exchequer Court as provided of R.S.C. [1906] it should be decided on a rule or principle of law not what judge the fair just the parties.
EXECUTION -Appeal-Jurisdiction - 755-"Matter or judicial proceeding"-Supreme Court Act, s. (e).. . Appeal-Jurisdiction-Amount in controversy - Addition of interest - Amount of verdict-Stay of execution. ............ EXPROPRIATION-Lessor and lessee - Covenant to renew-Severance of term- Consent of lessor-Enforcement of covenant-Expropriation-Persons interest- .............................
EXPROPRIATION-Continued.
Street railway - Assumption by unicipality-Principle of valuation - Operation in tivo municipalities-Com- TRAUD-Practice-Impeachment of testimony-Evidence-Notice of imputations
-Promissory note-Fraud
Suspicious circumstaiices-Transfer of negotiable instrunent.]
The court below held that the burden of proving affirmatively that lie was holder in due course of a note in question in the case rested upon tne plaintiff, that had not satisfied the onus, that his neglect to make inquiries, though not inconsistent with good faith, court dismissing the action (1 Alta. L.R.
1, 201).
the appeal, the majority of the judges of the Supreme Court
Canada held that, tinder the circumstances the case, the courts below were not justified in refusing to accept the uncontradicted testimony of a witness
(examined abroad under commission), to particular facts, which notice had wise, relating to circumstances relied upon sustain bad faith and opportunity afforded to the witness of explaining or qualifying the facts or conduct on which the attack upon his veracity or honesty was based.
Browne Dunn R. was applied; Union Investment Wells
Can. S.C.R. was followed; and the judgment appealed from was reversed.
2- Action for deceit-Agreement for sale-False representa tions---Comlpromise
FUTURE RIGHTS-Appeal--Jurisdiction
-Matter in controversy-Municipal franchise-Demolition of waterworks-Title to land-Future rights. ...........
GUARANTEE-Railway bonds-Government guarantee-Statutory contract.
-Jurisdiction of Board Railway Commissioners-"Pu b lie way means of communication" - Access to harbour .........................
HIGHWAYS- Railways - 6f Board of Railway Commissioners - Deviation of tracks-Dedication-User- "Public way or means of communication" -Access to harbour - Navigable waters of statute-R.S.C. ss. 2(11) (28),
48(D.).]
Prior to the Grand Trunk Railway Company operated a portion of its railway upon the "Esplanade" in the City of Toronto, and, in that year, the Canadian Pacific Railway Company obtained permission from the Dominion Government to fill part of Toronto harbour lying south the "Esplanade" and to lay and operate tracks thereon, which it did.. Several city streets abutted on the north side the "Esplanade" and the general public passed along the prolongations of these streets, with vehicles and on foot, for the purpose of access to the harbour. In an agreement was entered into between the city and the two railway companies respecting the removal of the sites of terminal stations, the erection over-head traffic bridges and the closing or deviation of some of these streets. This agreement was ratified statutes the Dominion and provincial legislatures, the Dominion Act
Vict. providing that the works mentioned agreement the general advantage of Canada. doubts respecting the right Canadian
Pacific
Company to the use of portions of the bed of the harbour on which they had laid their tracks across the prolongations of the streets mentioned, a grant was made to that company the Dominion Government of the "use for railway purposes" and over the filled-in areas included within the lines formed the production of the sides of the streets.
At a later date the Dominion Government granted these areas to the city, in trust to used as public highways, subject to an agreement respecting the railways, known as the Windmill Line" agreement, and excepting therefrom strips of land feet in width between the southerly ends HIGHWAYS-Continued.
the areas and the harbour, reserved as and for "an allowance for a public
In June, the Board
Railway Commissioners, on application by the city, made an order directing that the railway companies should elevate their tracks on and adjoining the "Esplanade" and construct a viaduct there.
-Held, Girouard and Duff JJ. dissenting, that the Board had jurisdiction to make such order: that the street prolongations highways within the meaning of the Railway Act;
that the Act of Parliament validating the agreement made in was not a
"special Act" within the meaning the "Railway Act" and did not alter the character of toe agreement as a private contract affecting only the parties thereto, and that the Canadian Pacific
Railway Company, having acquired only a limited right or easement in the filledin land, had not such a title thereto as would deprive the public of the right to pass over the same as a means of communication between the streets and the harbour.
TRUNK Ry. Co. v. CITY
......................
2- Privileges and hypothecs-Tramway
-Operation of highway-Title to land- Iannobilization destination-Sale trauray sheriff as "going concern"
-Unpaid vendor-Lien on price cars
-Pledge-Conitract-Construction statute, VII. (Que.)-Priority of claiin-Collocation and distribution - Arts. 2000
.. C.-Art. Mun. Code
......
XOMESTEADS-Title to lands-Homestead and pre-eniption rights - Unpatented Dominion lands-"Transfer"- Incunibrance-Charge to secure debts - Sanction of ininister-Absolute nullity- Construction of statute-Dominion Lands
INDIANS -Constitutional law-Indian lands-Extinguishnient of Indian title- Payment Dominion-Liability of Prorince-Exchequer Court Act, s. 32-Dispute between Dominion and Province.]
In treaty was entered into between the Government of Canada and the Sal- INDIANS-Continued.
teaux tribe Ojibeway Indians inhabiting land acquireu the former from the Hudson Bay Company.
By said treaty the Salteaux agreed to surrender to the government all their right, title and interest in and to said lands and the government agreed to provide reserves, maintain schools and prohibit the sale liquor therein and allow the Indians to hunt and fish, to make a present of $12 for each man, woman and child in the bands and pay each Indian $5 per year and salaries and clothing to each chief and sub-chief; also to furnish farming implements and stock to those cultivating land.
At the time the treaty was made the boundary between Ontario and Manitoba had not been When was finally determined, in it was found that 30.500 square miles of the territory affected by it was in Ontario and, in the Dominion Government brought before the Exchequer Court a claim to re-imbursed for a proportionate part of toe outlay incurred extinguishing the Indian title. The Province disputed liability and, counterclaim, asked for an account the revenues received by the Dominion while administering the lands in the Province under a provisional agreement pending the adjustment of the boundary.-Held, reversing the judgment of the Exchequer Court Ex. C.R. Girouard and Davies JJ. dissenting, that the Province was not liable; that the treaty was not made for the benefit Ontario, but pursuance of the general policy of the Dominion in dealing with Indians and a view to the maintenance of peace, order and good government in the territory affected; and that no rule or principle of law made the Province responsible for expenses incurred in carrying out an agreement with the Indians to which it was not party and for which Appeal per sal'u n-Jurisdiction.] On application for leave to appeal per saltun from a judgment Ont. L.R. 606), refusing to quash by-law, the objection to the by-law was that it assumed to affect an Indian Reservation over which neither the corporation nor the Legislature Ontario had auth- INDIANS-Continued.
ority. The appellant had been too late to appeal to a Divisional Court, leave for an extension of time was refused, and there was no right to appeal to the Court
The motion was refused;
Ottawa Electric v. Brennan Can.
TOwN- INFANT-Operation of tramway jury to child of tender age-Recklessness of motorman......................
INJUNCTION-Appeal - Rivers and stream s-Floating logs-Servitude-Faeulty or license-Possessory action-Injunction-Matter in controversy-Practice-Costs ...
........
INSURANCE, LIFE policy-Payment of premium-Time for payment-Forfeiture.] By the judgment appealed from Ont. L.R.
judgment at the trial Ont. L.R. 613)
was reversed, on the ground that, on the proper construction of the terms of the policies, every year's premium was payable on a fixed date annually, and that payments had not been made in conformity therewith, and there had a forfeiture of benefits under the policies.
The Supreme Court of Canada dismissed the appeal, Girouard, Maclennan and Duff JJ. adopting the opinion of Meredith J. in the Court of Appeal for Ontario; Davies J. being of opinion that the reasons assigned by the Court of Appeal were right, and Idington J.
seeing no reason to disturb them.
Amount in controversy-Addition of interest-Amount of verdict-Stay of execution .. . .....................
755-"Matter or judicial proceeding"
Court Act, s. 2(e)......
JUDGMENT-Continued.
2-Default judgment-Order setting aside- Appeal ...................
Breach of contract-Place of performance-Foreign judgment - ...... JUDICIAL PROCEEDING debtor-Examination-Refusal to answer -Commitment
..................
JURISDICTION-Arbitration and award -Statutory arbitrators-Awards "from time to time"-Res judicata.] The statutes authorizing the appointment arbitrators to settle accounts between the Dominion and the Provinces of Ontario and Quebec and between the two provinces, provided for submission questions agreement among the governments interested; for the making awards from time to time; and that, subject to appeal, the award of the arbitrators in writing should be binding on the parties to the submission.-The provinces submitted to the arbitrators for determination the amount the principal of the Common School Fund to ascertain which they should consider not only the sum held by the Government of Canada but also "the amount for which tario is liable."
In by award No. the arbitrators determined that moneysremitted to purchasers of school landsunless made in fair and prudent administration, and uncollected purchase money of patented lands, unless good cause wereshewn for non-collection, should deemed moneys received Ontario, and the amount of liability under theseheads was fixed by award No. the Privy Council held that the arbitrators had no jurisdiction to entertain a claim Quebec to have Ontariodeclared liable for the purchase money of school lands yet unpatented allowed to remain uncollected for many years. In making their final award in the arbitrators refused application Quebec for inclusion therein amounts found due from Ontario for remissions and non-collections and held that they had exceeded their jurisdiction JURISDICTION-Contin in determining such liability. appeal from this determination embodied in the final award:-Held, Fitzpatrick C.J. and
Duff J. expressing opinion, that the arbitrators had no jurisdiction to determine the liability of Ontario for moneys remitted or not collected.
Attorney-General for Ontario-v. Attorney-General for
( followed.- Held, also, Fitzpatrick CJ. and Duff J.
dissenting, that awards Nos. and far as they determined this liability were absolutely null, and, therefore, not binding Ontario.
granted, December,
2-Appeal to Privy Council-Stay
When, as provided the Supreme Court Act, judgnent of the court has been certified the registrar to the proper the court original jurisdiction, and the latter has made all proper entries thereof the Supreme Court Canada has no power to stay proceedings for the purpose of an appeal from said judgment the Judicial Committee of the Privy
Council.
Investment Wells
Can. S.C.R.
utional lair-Legislative jurisdiction-"Early closing by-larc"-Municipal affairs-Property civil rights
-Local private matters-Regulation of trade ............
Appeal per saltunt-Jurisdiction over Indian ..............
Railways-Fencing - Uninclosed missioners-Coinstruction of statute
Railway Act,
30, .......................
Appeal-Linitation of tine-Jurisdiction of Board of Railway
JURISDICTION- Continned.
proride station ..................
7- Deriation of railway tracks-Hightray-Dedicationser-"Public way or of cominunication"-Access harbonr-Aa cigable ....... Set 1.
JURY-Charge to jury-Objections after verdict-New trial
Misdirection-Discretion.]
in his newspaper article accused having been drunk during election, and the judge, charging the jury, said, "You should consider the case as if the charge of drunkenness had been made against yourselves, your brother or your friend."-Held, that this was calculated to mislead the jury was a reason for granting a trial.-If objection to or more portions the judge's charge not presented until after the jury have rendered their verdict, the losing party cannot demand new trial as of right, but such case an appellate court, to prevent miscarriage of justice, may order a trial as matter of discretion. ......................
TENANT-Lease-Corenant not assign-ssignmient to partner-Right renewal-Notice.] Where partners are lessees a term for years and have covenanted not to assign or sub-let without the consent writing of the lessor an assignment of his interest in the lease to his partner without such consent is a breach of such covenant.
Varley 7 followed.-The lease provided that, having performed all their covenants and agreements contained the lease, the lessees, on giving six months' notice in writing to the lessor before the expiration of the term that they required it, would entitled to a renewal. that breach (after the said notice was given) of their covenant in the lease not to assign without leave caused a forfeiture the right to renewal.-Judgment appealed from Ont. L.R. 254) LEASE-Lessor and lessee-Covenant to renew-Severance of term-Consent enant for renewal of a lease for a term of years is indivisible and if the lessee assigns a part the demised premises neither he nor his assignee can enforce the covenant for renewal as to his portion.-The assignment of part of the leasehold premises included an assignment of the right to renewal of the lease for such part and the lessor executed a consent thereto.-Held, that did not thereby consent that his covenant for renewal would exercised in respect to a part only of the demised premises.
the case mentioned the lessee has severed his term cannot, when the land demised is expropriated a railway company, obtain compensation the basis of his right to a renewal his lease.-Judgment of the Court
Appeal Ont. L.R. affirmed.
LIBEL -Evidence-Privilege-Notary - Jury trial-Practice-Charge to jury - Objections after verdict-New trial-Misdirection-Discretion .............
LIEN-Privileges and hypothecs-Tramway-Operation of highway of statute, Edw. VII. (Que.) tribution-Arts. 2000 C.C.-Art.
2-Title to lands-Homestead and preemption rights-Unpatented Dominion
"Transfer"
Incumbrance
Charge to secure debts-Sanction of minister-Absolute nullity-Construction statute-Dominion Lands Act.......
LAWS-Municipal corporation -Assessment and taxes-Exemption - Charter of Edmonton-Construction statute "License fee"-N.W.T. Ord., of 1900-N.W.T. Ord., 1904 19-Con. Ord. N.W.T., c. 89.]
The provision the charter of the Town Edmonton (N.W.T. Ord., ch. title xxxii., sub-sec. exempting any person assessed in respect of any business from the payment of "a license fee in respect of the same business" does not apply to fees exigible upon licenses issued the provincial government under the Liquor License Ordinance, Con. Ord., N.W.T., 89.-Judgment appealed from
Alta. Alberta Liquor License Act-Cancellation of license -Persona designata-Curia nominatim- "Originating summons"-Court of superior jurisdiction.................. Mining agreement in ore to mined-After-acquired chattels-Transfer and delivery-Registration -B.C. Bills of Sale Act, 1905-Construction of statute.] An agreement creating an equitable interest in ore to mined an instrument requiring registration under the provisions of the British Columbia Bills of Sale Act, Edw. VII. S.-Judgment appealed from B.C. Rep. affirmed.
2-Negligence-Employer and employee -Duty of employer-Proper system - Common employment............... MORTGAGE-Title to lands-Homestead and pre-emption rights-Unpatented Doof statute-Dominion Lands Act.... HyPo- MOVABLES-Privileges and Hypothecs- Tramway-Operation of highway-Title MOVABLES-Continued.
to land--Immobilization destinationof statute, Edt. II.
(Que.)- Priority claim-Collocation and distribution-Arts. 2000 CC. Art.
.hun. Code. ......................
MUNICIPAL CORPORATION - Constitutional la to-Legislative jurisdiction- "Early closing by-law"-Municipal affairs-Property and civil rights-Local or private matters-Regulation of trade and commerce-B.A.A. Act, s.
2; 16-57
(Que.).]
Provincial legislation authorizing a municipality to regulate the closing of shops of a particular character within its limits, is a subject which falls within the classes matters enumerated as being within the exclusive jurisdiction provincial legislatures under sub-section or sub-section of section of the British North America Act, and is not an interference with the clusive legislative jurisdiction of the Parliament Canada conferred by the second sub-section of section of that
Act.-Unless a by-law, enacted in faith under the authority of the Quebec statutes, Vict. and Edw. VII appears to unreasonable, unfair or oppressive as to a plain abuse of the powers conferred upon the municipal council it should not aside-Judgment appealed from (Q.R. 17 v. ......................
fused, 1st December,
2-Assessment and taxes-Exemption
-Charter of Edmonton-Construction statiute-"License fee"-.W.T. Ord., of 1900-N.TV.T. Ord., 19-Con.
Ord. N.W.T.,
The provision the charter of the Town of Edmonton
(N.W.T. Ord., title xxxii., sub-sec. exempting any person assessed in respect of any business from the payment of license fee in respect of the same business" not apply to fees exigible upon licenses issued by the provincial government under the Liquor
License Ordinance, Ord., N.W.T.,
MUNICIPAL CORPORATION-Con. 89.-Judgment appealed from
Alta. 3-Appeal-Quo warranto-Action ratepayer
Payment Statutory procedure-Matter of form - "Montreal City Charter," ss. 334, -Construction of statute-3 Edto. VII. ss. and 27.]
An action a ratepayer of the City of Montreal to compel the members of the finance committee the city council to reimburse the city for moneys which it was alleged they authorized to illegally expended and asking for their disqualification under section of the "City Charter" is not a proceeding in quo warranto under the provisions of articles et seq. of the Civil Procedure.-By section of the charter Edw. VII. the city council of Montreal must at the end of each year appropriate the revenues of the city for the services during the coming year, including a reserve of per cent. of the total revenues, three per cent. of which is to provide for unforeseen expenses.
By section of the charter, as amended Edw. VII. the finance committee of the council must consider all recommendations involving the expenditure money, unless an appropriation has already voted for the purpose. An item of unforeseen expenditure came before the council and was passed and sent to the finance committee, which directed the city treasurer to pay the amount, and was paid accordingly.-Held, the Chief Justice and Girouard J. contra, that the reserve of three per cent. for unforeseen expenses was not an appropriation of the amount so directed to paid.-Held, also, the Chief Justice and Girouard J. dissenting, that under the provisions the charter it is essential that every recommendation for the payment of money, where there has been no previous appropriation for the payment to be made, must receive the consideration of the finance committee and sanctioned rejected by that committee before being finally acted upon the council. any such payment made without this formality, even when made bond fide and though, in fact, sanctioned by the finance committee after it had been finally dealt with by the council, and though the city suffered no prejudice in conse- S.C.R. VOL. XLII.]
MUNICIPAL CORPORATION-Con.
quence of such payment, is an illegal expenditure and involves the consequences provided in such cases the 338th tion of the "City Charter."
granted, 16th February,
Appeal--Jurisdiction-Matter in controversy-Municipal franchise-Demolition of waterworks-Title to land - Future rights....................
Sec
By-law affecting Indian reserves- ................
6- Street railway-Assumption by
Operation in two amunicipalities-Con- 7- Exemption taxation-School rates-Appeal-Extension of time.. 691
NEGLIGENCE-Operation of tramway- Injury to infant-Reckless running car.]
Upon seeing a child (aged one year and eleven months approaching the tracks, the company's motornan sounded the whistle of the car was driving; the child stopped for a moment and looked towards the car; the motorman then applied full speed without waiting to whether the child retreator making any effort to remove the dangerous position; the child moved quickly towards the tracks and received the injuries for which damages were claimed.
X.S.
duct of the motorman was recklessness for which the company was liathat failure to take proper precautions to avert injury to the child was not to excused the alleged sity complying with the time-table and preventing delay to passengers and that the failure of the company to provide its car with a fender was evidence
The appeal was dismissed
NEGLIGENCE-Continued.
with costs.
BAY LOTT .............
2-Builders and contractors-Carelessness of workmen-Liability of employer- Dangerous appliances-Electric wires - Volanteer-Neo trial.] The appellant's husband was killed electric shock from a live wire of a company supplying electricity.
As he passed along a public street he witnessed an accident to an employee respondents, at a building they were constructing, through a derrick in use them coming in contact with the live wire; while attempting to extricate the man at the derrick, he received the shock which caused his death. The action was against the contractors, respondents, and the electric company, and the negligence attributed to the contractors was placing and operating the derrick in dangerous proximity with the live wire.
The jury exonerated the ceased from blame, found the company at fault for not protecting the wire, and also that the contractors were not blamable for the accident.
The case was referred to the Court Review which gave judgment against the company,. but appeal to the Court of King's Bench such judgment was reversed and the action dismissed (Q.R. K.B.
further appeal to the Supreme Court of Canada was discontinued (Cout. Cas. the case carried to the Privy Council where the judgment of the King's Bench was affirmed
([1907]
Court of Review dismissed the action against the contractors and this judgwas affirmed the judgment appealed from (Q.R. K.B. 471). Supreme Court Canada allowed the appeal with costs and ordered a new trial. Dumpy Dangerous works-Defective appliances-Evidence-Onus of proof-Presuniption-Art. 1054 C.C.-"Res ipsa quitur."] In an action to recover damages for injuries sustained, him in consequence of an accident in the pany's calcium carbide works, the plaintiff's evidence shewed that a furnace operated upon a new system had been recently installed, that he was employed with other workmen to charge the furnace, draw the liquid carbide when it was ready through opdnings in the base NEGLIGENCE-Continued.
of the furnace, clean the orifices and replug them with moist mortar preparatory to re-charging.
While the plaintiff was in the performance of his work injuries complained of.
There was no evidence contributory negligence.-Held, Duff
JJ. that, apart arising artithe fact of the explosion part company.-Per Fitzpatrick
JJ.
that, article things their that injury attributable fault that without fault inputthemselves.-Judgmnt
Railirays-British
Act-Fire right-of-iray-Combustible termaOrigin fire properti-Eridoner-Praetice-lereappral.]
Rlilway riglt-of-way.
'odition facilitated ationable negligence.-Where matter support tion was not urged at the trial nor asrerl ort for the first time on an appeal to the
Supreme Court Canaida.-Judgment firmed. Idington J. dissenting.
NEGLIGENCE-Coiiuerd.
Findings of fact-Common fault - Apportionment injuries in the Province of where the plaintiff guilty tributory not parties, to occurrence.-Judgment firmed.
............... Eiployer employer-Proper ployment.]
obligation to provide safe and proper places in wx hich his employees can their work and cannot relieve himself dutv to another.-It follows that if employee is injured through failure his employer to fulfil such obligation the latter cannot in an action against danages, of common employment.
railtcay-Dam Solatini doloris-Verdict-Xetc ....... shipping-Jerils seaship-E7vidence-Warratity-Ilspretion shipping-Crtifistatutc-R.R.C. e. s. sailors master-Liability ...... en-Eridece
Storope meate.................. 10---Crorn-Injry tork (;orer-nmet
..... PurLIC
NEW TRIAL-Operation of railicay- Datages
Verdict.] NEW TRIAL-Contin ued.
visions of articles where it did not appear that, under the circumstances, amount of awarded the verdict was grossly excessive as to make it evident that the jury had led into error or were influenced improper motives.
Davies
J. dissented in respect of that part the verdict awarding damages in favour of one the sons who was almost years of age and earning wages at the time deceased was killed.-Quere. In an action under article can a jury award damages solatium doloris?
Robinson v. The Canadian Pacific Railway ([1892]
........................
Negligence-Builders and contractors-Carelessness of worlemen-Liability of employer-Dangerous appliances
........................
3- Evidence-Cross-examination-Discretionary order ..................
Privilege
Notary
Jury trial-Practice-Charge to jury - Objections after verdict-Misdirection- Discretion ......................
NOTARY-Evidence - Privilege-Jury trial-Practice-Charge to jury-Objections after verdict-New trial-Misdirection-Discretion.] H., to qualify as candidate in a municipal election procured from a friend a deed land giving him a contre-lettre under which he collected the revenues. Having sworn that he was owner of real estate to the value of
(that described in the deed), in his newspaper accused him of perjury and he took action against for libel.
the trial the deed to H. was produced, and the existence of the contre-lettre proved, but the notary having the custody of both documents refused to prothe latter, claiming privilege on the ground that it was, a confidential document.
The trial judge maintained this claim, but oral evidence was admitted
NOTARY-Con tin ued.
proving to some extent what the contrelettre contained.
verdict having given in favour of H.-Held, that the trial judge erred in ruling that the notarv was not obliged to produce the contre-letire, as it was impossible without its production to determine what, if any, limitations it placed upon the and .........................
Lease-Covenant not to assign-Assignment to co-partner-Right to renewal... ...................
Action for deceit-Agreement for sale-False representations - Compromise ...........................
PARTITION- Agreement for sale lands-Construction of contract-Right of action-Administration co-owners -Trust-Interim account - Partial discharge trustees.]
and being holders of the entire capital stock the and W. Railway Company, agreed that they would cause a moiety of the company's lands to vested in H. by a valid instrument to executed the company at the request of H. and in such form as he might require.
During years the lands were administered and but H. never requested received any conveyance of his moiety, and the title to the lands, in so far as they had not been disposed of, remained in the company.
In an action the plaintiffs against H. for partition of the lands and to have an order for an interim account by ana partial discharge and as trustees.-Held, that as, at the time of action, the title to the lands was still vested in the railway company which was not a party to the agreement, the order for partition could not granted, and that, independently of partition or other final determination of their trust, the plaintiffs were not entitled to the relief of an interim accounting and partial discharge as trustees.-Judgment appealed from B.C. PARTNERSHIP-Division of profits - ?LEADING.
Collateral business affairs-Trust-Account-Findings of fact.]
The action
See P was for dissolution of partnership, an account and division of profits from sale of lands.
The plaintiff, Gordon,
Tramwaytwo of the defendants (the Hollands), to land-Im were partners as real-estate brokers and,
Sale of tran aside from the agency business, entered concern"into investments on their own account of cars-Co in the purchase of three lots of land, tute 3 Edw making a payment on account of the price.
When instalments of the balance
Arts.
became due they took Horne into the transaction, it being agreed that he was to pay per cent. of the price and the
See P others to contribute per cent., and that the profits should divided tween them. Horne took over the agreee
O ments for the purchase and the lots were cgation eventually conveyed to him.
Under a authority.
verbal agreement, if a sale could effected before the second instalment came due and nettee per cent. profit, the old partnership was to share in the profits equally with Horne.
This sale jurisdicti was not made, but four months after the
-Costs wi instalment fell due Horne sold a half quashed
At the trial Morrison J. held that no partnership had been proved, dents in t
His judgment was reversed the judg- Rules Pr ment appealed
B.C. Rep.
Hunter C.J. and Clement J. holding that
Horne was a trustee for the partnership
2-Electic consisting of the plaintiff, himself and
Preliminary his co-defendants.
Irving J.
thought
Sufficiency
Horne could not be held to account until
Particulars.
he had been re-imbursed what he put tion to an into transaction.
Court Canada, Girouard and Idington petitioner
JJ. (dissenting)
, considered that the questo vote at tion was one fact depending upon the following o proper view of conflicting testimony and had disquali that the decision of the trial judge treating should not have been disturbed.
second objec
(Leave to appeal to Privy Council ate and granted, 1st December, objection w treating conviction a
Lease-Corenant not to assign the first
Assignment to co-partner-Right to redismissed tb newal-Notice . ...
..............
entitle status the eross-peti candhidate imitted acts
- Contract-Delegation of fluence."-H payment-Revocation authority.
desirable to to establish ence but
Privileges and hypothecs- Operation of highway-Title mobilization destinationaway sheriff as a "going npaid vendor-Lien on price ntract-Construction of sta- VII. c. (Que.)-Priority Collocation and distribution 2000 0.C.-Art. Mun. ..............
Contract payment-Revocation ........
on-Neglect to observe rules thheld.]
An appeal bout costs as objection to the was not taken the responmanner provided by the actice.
BRos. v. .............
n law-Election petition objections-Oross-petitioncharge of corrupt acts - ]
By a preliminary objecelection petition Q.R. it was claimed that the vas not a person entitled the election and the next bjection charged he himself from voting polling day.-Held, that the tion was not merely explanafirst but the two were separdependent; that the second properly dismissed disqualifies a voter after nd not ipso facto; and that ection should not have been respondent to the petition to give evidence as to the petitioner.-The respondent, tion, alleged that the defeated rsonally and agents "comand the of undue inthat it would have been state the facts relied the charge undue influthese facts could obtained PRACTICE PROCEDURE-Con.
a demand for particulars a preliminary objection was properly dismissed.
WEST CASE......
Juiisdiction ment of judgment debtor-Final judgment-.1fanitoba King's
755-"Matter judicial - Supreme Court Act, 2(e).]
order against for contempt in refusing to make satisfactory answers on examination discovery is not a "matter" or "judicial proceeding" within the meaning subsection of section of the Supreme
Act but merely an ancillary proceeding which the judgment creditor is authorized to obtain execution his judgment and appeal lies in respect thereof to the Supreme Court of Canada.
Danjou Marquis Can. S.C.R. 258)
SvENssoN
Dismissing motion to quash an appeal firming the judgment the Divisional
Ont. L.R. which sustained an order setting aside a judgment entered default for non-appearance, the question involved was whether not the defendant (plaintiff in an issue directed), was entitled to have the judgment set aside. The appeal was, this motion, dismissed with costs.
,.
5- Jurisdiction-errice cut of jurisdiction-Attachment-1anitoba
King's rules 202-Non-resident for- .eigner-Detention of pending suit- Substantial - Consolidating to Court of - The court refused to interfere with the judgment appealed from Man. affirming the judgment of Mathers J.
-Man.
R. on questions of procedure.
Williams Lconard Can. S.C.R.
and v.
Can. S.C.R.
...
.............
6-- Practice-Impeachient of testimony-Evidence
Notice of inputations-Prontissory notc-Fraud-Suspicious circumstances-Tiansfer of instrument.]
PRACTICE PROCEDURE-Con. that the burden of proving affirmatively that was holder in due course of a plaintiff, that that make faith, constituted faith, judgment the trial court dismissing the action (I Alta. L.R. 1, 201).
On the appeal, the majority of the judges of the Supreme Court of Canada that, under the circumstances of the case, the courts below were not justified in refusing to accept the uncontradicted testimony of a witness (examined abroad under commission), as to particular facts, which notice had not been given in the pleadings or otherwise, relating to circumstances relied upon to sustain or point to the imputation of bad faith and opportunity afforded to the witness explaining or qualifying the facts conduct on which the attack upon his veracity or honesty was based. R. was applied; Union [ncestment Wells followed; and the judgment ...... 7- Nec points raised on Causc of action.]
a matter relied support at trial to the provincial court it too late to put it forward for the first time to Privy Council-Stay When, as provided the Supreme registrar proper jurisdiction, latter stay Judicial Privv
Union Tells PERRAS Adduction ination at irreletant questions-I)iseret ioiary
Propiirty interfered appellate ssues.-Idington r. 368
Ecidence-Pririlege-Xotary
Jury trial-Practice-Charge jury tritl
Misdircetion-Diserrtion.]
deed contrc-lettle contie-lettre tidential contre-lettre trial ruling without its limitations t-o trial.
jury.
friend."-Held, jury t'n. until jury trial right, 11-ppeal-Npecial leace-Public tri est-liportant questions otici;alitY. writ rate,, deciion writ Eric elroit
Raiiray Co. such
Appe-Nprcial leare-Time limit -ELrtriusici-R..O.
dass Canada juris sicin ......... .1pprol-Jurisdiction reridict-Ntay reeution. PRACTICE PROCEDURE-Con.
15-Appeal-Findings of fact-Division of partnership profits - Collateral business affairs-Trust. ...........
Alberta
Liquor License Act-Cancellation of license-Persona designata-Curia nominatin-"Originating summons"-Court superior jurisdiction . ..............
17-Appeal-Limitation of time-Jur- Powers
PRESCRIPTION-Action in wrong jurisdiction-Transfer to court of competent jurisdiction-Empiration of time - Pleading prescription after transfer
PRINCIPAL AGENT-Sale of land
-Commission for procuring purchaser- Sale to person introduced broker.
PRIORITY-Privileges and hypothecs- Tramway-Operation on highway-Title to land-Immobilization destination
-Sale of tramway sheriff as a "going con cern"- Un paid vendor-Lien price of cars-Pledge-Construction statute, Edw. VII.
(Que.)
tribution-Arts. 379. C.C.-Art.
PRIVILEGES HYPOTHECS-Tramway-Operation on highway - Sale of tramway sheriff as "going of statute Edw. VII. ch. (Que.)- PRIVILEGES HYPOTHECS-Con. tribution-Arts. 2000 C.C.-Art. company operating an electric tramway, permission of the municipal corporation, on rails laid public streets vested in the municipality, to secure the principal and interest of an issue of its debenture-bonds hypothecated its real property, tramway, cars, etc., used in connection therewith, to trustees for the debenture-holders and transferred the movable property of the company and its present and future revenues to the trustees. By a provincial statute, Edw. VII. 1 (Que.), the deed was validated and ratified.
On the sale, execution, of the tramway, as a going concern.-Held that whether, at the time such sale, the cars in question were movable or immovable in character the effect of the deed and ratifying statute was to subordinate the rights of other creditors to those of the trustees, and, consequently, that unpaid vendors thereof were not entitled, under article 2000 the Civil Code of Lower Canada, to priority of payment privilege upon the distribution of the moneys realized on the sale in execution.-Per Girouard J., Duff J. contra. After the cars question had been delivered to the tramway company and used it in the operation of their tramway, they became immovable destination.-In the result, the judgment appealed from (Q.R. & peal to Privy Council-Stay of proceedings. . . . .......................
PROVINCIAL -Arbitration and award-Statutory arbitrators-Jurisdiction-Acards "fron time to time" -Res judicata. ..................
WORK-Crown-Negligence - Injury on public work-Government railway-Fire from engine-R.S.C. [1906] WORK-Continued.
s. 20(c).]
The words "on a public work" in of R.S.C. [1906]
(The Exchequer Court Act), are descriptive of locality and to make the Crown liable for injury to property under that sub-section buch property must situated on the work when injured.
-Appeal-Action by ratepayer Municipal corporation-Pay- Matter of form-"Montreal City Charter"-Construction of statute.......
RAILWAYS -Crown
Injury on public work-Government railway-Fire from engine-R.S. [1906]
s. 20(c).] The words "on a public work" in sub-sec.
R.S.
(The Exchequer Court Act), are descriptive of locality and to make the Crown liable for injury to property under that sub-section such property must situated on the work when injured.
British Columbia Railway Act - Fire on right-of-way-Combustible matter on berm-Origin of fire-Damage to adjoining property-Negligence
-Pr actice-New points raised on appeal.]
In an action against a railway company subject to the British Columbia Railway Act, if there is no evidence that the company had knowledge or notice of the existence of a fire on their right-of-way, not caused the operation of the railway, the fact that the condition of the right-of-way facilitated the spread of the to adjoining property which was destroyed it not amount to actionable negligence.-Where matter relied upon to support the action was not urged at the trial nor asserted on an appeal to the provincial court it is too late to put it forward for the first time on an appeal to the
Supreme Court of Canada.-Judgment appealed from Rep.
firmed. Idington J. dissenting.
Ry. Co.....
3-Fencing-Uninclosed lands - Jursioncrs-Construction of statute - Railway Act, R.S.C. ss.
RAILWAYS-Contin ned.
Under the provisions of the Railway Act the Board Railway Commissioners for Canada does not possess authority to make a general order requiring all railways subject to its jurisdiction to erect and maintain fences on the sides of their railway lines where they pass through lands which are not inclosed and either settled or improved; it can do only after the special circumstances respect of some defined locality have investigated and the necessity of such fencing in that locality determined cording to the exigencies of the case. Duff J. contra.-The Railway Act empowers the Board to order that, upon lines of railway not yet completed open for traffic or in course of construction, where they pass through inclosed lands, the railway companies should construct and maintain such fences or take such other steps as may necessary to prevent cattle and other animals from getting upon the right-of-way. Idington J. contra. ..................... 4-Appeal-Powers of Board of Railway Commissioners-Completed railway -Order to provide station-R.S. as. and The Board Railway Commissioners has power to order a railway company whose line is completed and in operation to provide new station at any place where it is required to afford proper accommodation for the traffic on the road. 5----Jurisdiction of Board of Railway Commissioners
Deviation of tracks - Separation of Grades - Dedication-User-"Public way or means of communication"-Access to harbour- Narigable waters-Construction of statute-R.S.C. c. ss. 2(11), 3, 237. 48(D.).] Prior Grand
Trunk Company operated a portion its Toronto harbour lying south of the "Es- RAILWAYS-Continued.
planade" and to lay and operate tracks thereon, which it did. Several city streets abutted the north side of the "Esplanade" and the general public passed along the prolongations these streets, with vehicles and on foot, for the purpose of access to the.harbour. In an agreement was entered into between the city and the two railway companies respecting the removal of the sites terminal stations, the erection overhead traflic bridges and the closing deviation of some of these streets. This agreement was ratified statutes the Dominion provincial legislatures, the
Dominion
Vict.
providing agreement works for the general advantage
Canada.
remove doubts specting the right of the Canadian Pacific
Railway Company to the use of portions of the bed the harbour on which they had laid their tracks across the prolongations of the streets mentioned, a grant was made to that company the
Dominion Government of the "use railway purposes" and over the filledin areas included within the lines formby the production the sides of the streets.
At a later date the Dominion
Government granted these areas the city, in trust to used as public highways, subject to an agreement respecting the railways, known as the Wind- Line"
agreement, and excepting therefrom strips land feet in width between the southerly ends of the areas and the harbour, reserved as and
"an allowance for public highway."
In June, the Board of Railway
Commissioners, application city. made an order directing that the railway companies should elevate their tracks and adjoining the "Esplanade"
construct a viaduct there.-Held.
Girouard and Duff JJ. (dissenting)
, that the Board had jurisdiction to make such order; that the street prolongations mentioned were highways within the meaning the Railway Act; that the Act
Parliament validating agreement made in was not a "special Act"
within the meaning of the "Railway
Act" and did not alter the character the agreement as private contract affecting only the parties thereto, and that the Canadian Pacific Railway pany, having acquired a limited
RAILWAYS-Continued.
right or easement in the filled-in land, had not such a title thereto as would deprive the public of the right to pass over the same as a means communication between the streets and the harhour.
Ry. V. 6--Tegligence-Operation of railway -Damages-Solatiun doloris-Verdict- 7-Statutory contract-Constructionof railway company-Government guarantee....................... 8-Leasor lessee-Covenant to reneic-Severance of term - Consent lessor-Enforcement of - REGISTRY LAWS-.1Iines and mining- Mining agreenent-Interest in order to mined - After-acquired chattels - Transfer and delivery-Reegistration - I.C. Bills of Sale Act, 1905-Construclion of statute...................
,Sec MINES 1.
JUDICATA-Arbitration award -Statutory arbitrators-Jurisdiction - Aiards "from time to time" .. ....... ing logs-Ser-itude-Faculty or license -Possessory action-Injunction.] property relates jurisentertain TANGUAY................ SALE-Sale of land-Principal and agent
-Commission for procuring purchaser- Sale to person introduced broker.]
389), which was appellant
(plaintiff), entitled introduction of a purchaser land which was sold to the person so introduced, as he had been engaged only to sell the land at a price higher than that for which the sale was subsequently made and had failed to prove an agreement of pay commission the lower price.
Sale of land-Misrepresentation- Deceit-Contract-Trarranty.] The fendant, respondent. on negotiations the sale of wild lands, which he had not seen, represented that they were fairly goods for farming.
large portion the lands proved unfit for farming purposes.
The court below
Man.
597), following De Lasalle Guilford
K.B. 215), held that the plaintiff could not recover damages by reason the defendant's misrepresentations, which should considered merely expressions of opinion not amounting to warranty.
The appeal was dislction for deceit-Agreement for sale-False representations - Compromise-\otice.1 owned stock in Cobalt mining company, and of Ottawa, looked after his interests therein.
Being informed by that the mine was badly managed and the property of little value, and that other holders were selling their stock, P. signed an agreement to sell his at par. assigned this agreement to a third party.
Later P.. learning that the stock was selling at a premium and, believing that had made an improvident bargain, entered into negotiations with the holder of his agreement, and a compromise was effected a portion of P.'s holdings being sold to the assignee at par and the remainder returned to him. It transpired afterwards that and the assignor were in collusion to get possession the stock, and P. brought action against for damages.-Held, that the compromise having been effected when
P. was in ignorance of the real state affairs, it did not bind him as against from whom he could recover as dam- SALE-Continued.
the difference between the par value of his remaining shares and their market value at the date such compromise.-Judgment of the Court of peal
Ont. W.R. 824) reversed and that the trial judge Ont. W.R. affirmed Divisional Court Ont. restored.
......... fused, 22nd February,
Privileges and hypothees-Trantray-Operation highway landimobilization destination - Sale of trami-ay sheriff as a "going concern"-lnpaid vendor-Lien on price of cars-Plrdge-onstruction of statute, 3 VI.
(Que.)-Priority clain-Collocation and distribution - Arts. 2000 C.C.-Art. Code ........ 5-Contract for sale-Time of essence -Delay of vendor-Description-Statute of Frauds-Specific performance . . .. ... . .. . . . .. ....
. . . . .. . 1 6-Agreeient for sale of lands-Con- Partition-Administration by co-owners -Trust-Interim account-Partial dis- Contract-Supplying electrical energy-Delivery-Condition-Payment at flat rate-Obligation to pay for pressure not utilized-Sale of commodity-Agreement for service.................. SCHOOLS-Appeal-Special leave-Public interest-Important questions of lato Exemption from taxation rates . . . ........................
SERVITUDE
Rivers and streams - Right of floating logs-Faculty or license -Possessory action-Injunction.] SERVITUDE-Continued.
the Province of Quebec the privilege floating timber down water-courses, common with others, is not a predial servitude nor does it confer an exclusive right of property in respect of which a possessory action would lie, and, in a case where the only controversy relates to the exercise of such a privilege, the
Supreme Court Canada has no jurisdiction to entertain an appeal.
SHAREHOLDER - Action for deceit - Agreement for sale-False representations-Compromise - SHIPS SHIPPING-Perils of the sea-Unseaworthy ship - Warranty-Inspection of shipping-'ertificate of seaworthiness-Construction statute-R.S.C. s. 342 - Drowning of sailors master - Liability of owner.] Actions were brought against the owner of the tug "Mersey"
(wrecked on the Lower
St. Lawrence), to recover damages consequence the drowning of two her crew. On an investigation, the wreck commissioner reported that the ship was seaworthy when she left Quebec on her last voyage; that her life-boat and appliances were sufficient to have saved all lives on board had the master made proper use of them, and that the evidence did not explain the use of the casualty which these sailors' lives were lost.
It was also found that the master and mate had been guilty cowardice and desertion of the ship and their certificates were cancelled.
The actions were first brought in the District of Quebec, but the court declared itself incompetent and referred the case to the Superior Court for the District of Montreal.
In the latter court the defendant (appellant), pleaded prescription, a year having elapsed before the actions came before a court of competent jurisdiction; that deceased were not passengers, but were engaged as part of the ship's crew; that the ship was seaworthy, and that the disaster was due to the perils of the sea. At the trials and the judgments appealed from (Q.R. 405)
plea of prescription was dismissed and
SHIPS SHIPPING-Continued. judgments were entered in favour the respectively.
Court of Canada dismissed the appeals SPECIFIC PERFORMANCE - Sale land-Contract for sale-Time of essence -Delay of vendor-Description-Statute of Frauds.] The plaintiff, F., made an offer letter to purchase defendant's land in Toronto, describing it as "No. Ann Street," and stating the dimensions.
The was to prepared at sion that "time shall the essence this offer."
The defence to the action for specific performance of the contract to purchase was that plaintiff had not performed his part within the time limited the offer and that the description of the property being defective, as there was no lot on Ann Street numbered the Statute of Frauds was not complied with.-The Court of Appeal Ont. L.R. held that time was terms the contract and did not relate only to the acceptance of the offer as held the Divisional Court
Ont. L.R. that the delay the plaintiff was due to defendant's failure to prepare the deed and was, therefore, no answer to the action; and that as the property was sufficiently described without reference to the number of the lot the Statute Frauds was complied with.-The judgment appealed from was affirmed. - Title to lands-Homestead and pre-emption rights-Unpatented Doof statute-60 Vict. R.S.C. s. 142.]
6th August, the holder of rights of homestead and pre-emption in Dominion lands, Manitoba, which had not then been patented or recommended for patent, assumed to "incumber, charge and create a lien" upon the lands as security the payment of a debt an instrument without Minister of the Interior.-Held, affirming the judgment appealed from West. L.R. that the instrument was in effect a "transfer" and was absolutely STATUTE-Continued.
null and void under the provisions the
Construction of statute-Gcncral and special Act-Inconsistency-Ontario
Railway Act, Edw. VII. c. ss. and
116-Charter of Toronto Railway s.
The Ontario Railway Act of
Edw. VII. is, made applicable to street railway companies incorporated the legislature, but, the same section, if provisions of the general and special Acts are inconsistent, those of the latter shall prevail.
of the general Act, a passenger on a railway train or car who refuses to pay his fare may ejected the conductor;
and of the Act incorporating the Toronto Railway a passenger such case is liable to a only.-Held, that these two provisions are not inconsistent, and the conductor of a street railway car may lawfully eject therefrom a passenger who refuses to pay his fare.
this case the company was held liable for damages, the passenger having been ejected from a car with unnecessary violence.
Statutory contract-Construction- Bonds of railway company-Government guarantee.] The Government of Canada, in a contract with the Grand Trunk
Pacific Railway published as a schedule to and confirmed by Edw. VII.
agreed to guarantee the bonds the company to issued for a sum equal to per cent. of the cost of construction of the Western division of its raila later contract
(sch. to 4
Edw. VII. 24) the government agreed to implement its guarantee, in such manner as might agreed upon, so as to make the proceeds of said bonds a sum equal to per cent. of such cost of construction.-Held, that this second contract only imposed upon the government the liability of guaranteeing bonds, the proceeds of which would produce a defined amount and not that of supplying, cash or its equivalent, any deficiency there might between the proceeds the bonds and the said per cent. IN granted, 18th March,
STATUTE--Continued.
Mines and mining-M1ining agreement-Interest in ore to mined - After-acquired chattels-Transfer and delivery-Registration-B.C. Bills of Sale Act, 1905-Construction of statute.] agreement creating an equitable interest in ore to mined is not an instrument requiring registration under the provisions of the British Columbia Bills Sale Act, Edw. VII. 8.-Judgment appealed from firmed.
Appeal-Quo warranto-Action by ratcpaycr-Municipal corporation-Pay- Matter of form-"Montreal City Charter," ss. 338-Construction statute-3 Edw. VII. ss. and An action a ratepayer of the City Montreal to compel the members of the finance committee of the city council to reimburse the city for moneys which was alleged they authorized to illegally expended and asking for their disqualification under of the "City Charter" is not a proceeding in quo warranto under the provisions of articles et seq. the Civil Procedure. section 334 of the charter Edw. VII. the city council Montreal must at the end of each year the services during the coming year, including a reserve of per cent, of the total revenues, three per cent. of which to provide for unforeseen expenses. section of the charter, as amended Edw. VII. the finance committee of the council must consider all recommendations involving the expenditure money, unless an appropriation has already voted for the pur- An item unforeseen expenditure came before the council and was passed and sent to the finance committee, which directed the city treasurer to pay the amount, and it was paid accordingly.-Held, the Chief Justice and Girouard J. contra, that the reserve the three per cent. for unforeseen expenses was not ted to paid.-Held, also, the Chief Justice and Girouard J. dissenting, that under the provisions of the charter it the payment of money, where there has no previous appropriation for the payment to made, must receive the STATUTE-Continu consideration of the finance committee and sanctioned or rejected that committee before being finally acted upon the council. That any such payment made without this formality, even when made bond fide and though, in fact, sanctioned the finance committee after had been finally dealt with by the counand though the city suffered no prejudice in consequence of such payment, is an illegal expenditure and involves the consequences provided in such cases the 338th section of the "City Charter."
granted, 16th February,
6- Street rail way-Franchise sum ption by inunicipality-Principle valuation-Operation in two miunicipalities-Compulsory taking-R.S.O. [1897]
c. 208.]
By of the Ontario Street
Railway Act (R.S.O. [1897] 208), no municipal council shall grant to a street railway company any privilege thereunder for a longer period than twenty years, and at the expiration of a franchise granted, or earlier if so agreed upon, it may, giving six months' previous notice to the company, assume the ownership of the railway and all real and personal property in connection with the working thereof payment of the value the same to determined arbitration where ownership sumed under this provision.-Held, reversing the judgment of the Court
Ont. 57), that the proper mode estimating the value the "railway and all real and personal property in connection with the working thereof," was not capitalizing its net permanent revenue and taking that as the value, but estimating what it was worth as a railway in use and capable being operated, excluding compensation for loss of franchise.-Held, also, that in view of the provisions in the
Street Railway Act authorizing the municipality to assume ownership of a street railway operating in two or more municipalities the company in this case whose railway was taken over the Town
Berlin was not entitled to compensation for loss of its franchise in the municipaliity of Waterloo.-On the expiration its franchise the company executed an agreement extending for two months the
FTATUTE-Contin tied.
time for assumption ownership the municipality, but did not relinquish possession until six months more had elapsed.
During the extended time an Act was passed the legislature reciting all the circumstances, ratifying and firming the agreement for extension and authorizing the municipality to take possession on payment of the award subject to any variation in the amount the court.-Held, that though this Act not expressly provide for taking possession on the same footing as if it had been done immediately on the expiration the franchise its effect was, not to confer on the municipality a new right expropriation in respect an extended franchise, but merely to extend the time for assumption ownership under the original conditions.-The rights of the company to compensation are defined statute, and there is no provision for an allowance of ten per cent. over and above the actual value the property. 7- Privileges and hypothecs - Tram- Operation highway
Title land-Iimobilization destination - Sale of tramwoay sheriff as a "going of cars-Pledge-Construction of statnte, Edw. VII. (Que.)-Priority of claim-Colloca lion and distribution- Arts. 2000 C.C.-Art. Mun. .. .... . Sec S-Ships and shipping-Perils of the sea-Unseaworthy ship-Evidence-Warranty-Inspection of shipping-Certificate of seaworthiness-Construction stalute-R.S.C. s. 342 - Drowning of sailors master-Liability of owner . ........ 9-Municipal corporation-Assessnent and taxes-Exemption-Charter of Edmonton-Construction of statute-"License fee........................
Railways-Fencing - Uninclosed Contin ucd.
Commissioners-Construction of statute
Railway Act, R.S.C.
ss. ......................
11-Appeal-Limitation of time-Jur- Powers
......
12-Railway-Jurisdiction of Board
Railway Commissioners - Dedication-Uscr-"Pub lie way or means of comnmuanication"-Access to harbour- Construction of statute-R.S.C.
3,
"Special Act," 58
V. (D.) ....
FRAUDS-Sale of land- Contract-Delay ................
STATUTES-30 V. 3, ss. (Imp.)
[B.N.A. Act, ................
2-R.S.C. ss. 254 [Railway Act] . . . ...................
3-R.S.C. 1906, ss.
and [Railways] ......... .557
4-R.S.C. ss. 2(11),
[Railway Act] .....
5-.S.C.
s. [Dominion Lands] ......................
6-R.S.C. s. [Seaworthiness of shipping] ...........
STATUTES-Continued.
7-R.S.C. [Supreme Court S-R.S.C. s. 48 [Supreme 9-R.S.C. s. [Supreme Court Act] ......................
R.S.C. 1906,
[Exchequer .... 11-R.S.C. 1906, s. 20(c) [Exchequer Court Act] ..............
12-58
48(D.)
[Toronto Esplanade] ........................
& V. s. [Dominion Lands] ......................
14-3
Edw. VII. [G.T.P. ........................
Edw. VII. [G.T.P. 16-R.S.O. [Street Railways] ..........................
c. (Ont.) [Toronto Rail- ...........................
Edw. VII. ss. (Ont.) [Railways] ......................
19-57
V. (Que.) [Early Closing of Shops, etc.] ...................
STATUTES-Continued.
20-3
Edw. VII. (Que.)
[Montreal City Charter] ..............
21-3
VII. 1
[Levis County Railway Debentures].
Edw. VII. (Que.) [Early
Closing of Shops, etc.] ............
23-5
Edw. VII. (B.C.) [Bills
S ale] ............................
24-7
Edw. VII. (Alta.)
[Procedurel .........................
N.W.T. Con. Ord., [Liquor
Licenses] ........................
26-N.W.T. Ord. [Charter
Edmonton] ....... ............
..
See 1.
TIMBER-Rivers and streams-Floating
Servitude
Faculty or
Possessory action-Injunction ......
TIME -Appeal-Limitation of time - Jurisdiction of Board of Railway Commissioners-Leave judge-Powers
TITLE LAND-Appeal - Jurisdiction-Matter in controversy-Municipal franchise-Demolition of waterworks - Future rights.] The action, instituted the Province of Quebec, was for a declaration of the plaintiffs exclusive right under a municipal franchise to construct and operate waterworks within an area defined in a municipal by-law, for an injunction against the defendants constructing or operating a rival system
TITLE LAND-Continued.
waterworks within that area, an order for the removal of water-pipes laid them within that area, and for daman appeal from a judgment maintaining the plaintiff's action.-Held, Girouard and Idington JJ. dissenting, that, as it did not appear from the record that the sum or value demanded the action was of the amount- limited the Supreme Court Act in respect to appeals from the Province Quebec nor that any title to lands or future rights were affected, an appeal would not lie to the Supreme Court of Canada. LA CIE. Homestead and pre-emption rights -Unpatented
Dominion lands-"Transfer"-Incumbrance - Charge to secure debts-Sanction of minister - Absolute nullity-Construction of statute-60 & Vict. s. 5; R.S.C. s.
6th August, the holder of rights of homestead and pre-emption in Dominion lands, in Manitoba, which had not then been patented or recommended for patent, assumed to "incumber, charge and create a lien" upon the lands as security for the payment of a debt an instrument executed without the sanction the Minister of the Interior. affirming the judgment appealed from West. L.R. that the instrument was in effect a "transfer" and was absolutely null and void under the provisions of the Dominion Lands Act. 3-Extinguishment of title to Indian lands-Payment Dominion-Liability of Province ......................
4-Easement-Private way-Unity ownership-Subsequent severance vival of easement-Reservation.. Privileges and Hypothecs -Tramway-Operation of highway-Immobilization by destination-Sale of tramway sheriff as a "going concern"-Unpaid vendor-Lien on price of cars-Pledge- Contract-Construction of statute, Edw. VII. (Que.)-Priority of claim- TITLE LAND-Continued.
Collocation and distribution-Arts.
2000 C.C.-Art. Man. Code .....
6--Lessor and lessee-Covenant to reneto
Severance of term-Consent
- Constitutional law - Legislative jurisdiction - "Early closing by-law" - Municipal affairs-Property and civil rights-Local and private matters-Regulation of trade and conmerce ....................
TREATIES.
Operation of tramway - Aegligence-Injury to infant-Reckless ttnning of car.]
Upon seeing a child
(aged one year and eleven months)
approaching the tracks, the company's motorman sounded the whistle of the car ie driving; the child stopped for a mom.ent and looked towards the car;
the motorrnan then applied full speed without waiting to whether the child retreated or making any effort to remove it from the dangerous position; the child moved quickly towards the tracks and received the injuries for which damages were claimed.
that the duct the motorman recklessness for which the company was liathat failure to take proper precautions to avert injury to the child was not to le excused by the alleged necessity complying with the time-table and preventing delay to passengers and that the failute the company to provide its car with fender was evidence of negligence.
'[he appeal was dismissed with
...................
Privileges and hypoties--Operation of tramway-Highray land-In mtobilization destination- Sale of trwtay sheriff as "going cncert-Lnpaid vr"ndor-Lieu price
Contin urd.
of cars-Pledge-Contract-Construct ion of statute, Edw. VII.ch. (Que.)- Priority of claim-Collocation and distribution-Arts. 379, 2000 0.C.-Art. company operating an electric tramway, permission of the municipal corporation, on rails laid public streets vested in the municipality, to secure the principal and interest of an issue of its debenture-bonds hypothecated its real property, tramways, cars, etc., used in connection therewith, to trustees for the debenture-holders, and transferred the movable property of the company and its present and future revenues to the trustees. By a provincial statute, Edw. VII. 1 (Que.), the deed was validated and ratified.
On the sale, execution, of the tramway, as a going cincern.-Held, that whether, at the time of such sale, the cars in question were movable or immovable in character the effect of the deed and ratifying statute was to subordinate the rights of other creditors to those of the trustees, and, consequently, that unpaid vendors therewere not entitled, under article the Civil Code Lower Canada, to priority payment privilege upon the diAtribution of the moneys realized on the sale in execution.-Per Girouard J. Duff J. contra. After the cars in question had delivered to the tramway company and used it in the operation of their tramway, they became immovable destination.-In the result, the judgment appealed from K.B. 3-and special Act-Inconsistency-Ontario Railway Act, Edw. VII
The Ontario Railway Act Edw. VII. is, by made applicable to street railway Panies incorporated the legislature, but. by the same section, if provisions the general and special Acts are incon- -istent, those of the latter shall prevail. By of the general Act, a passenon railway train or car who refuses to pay his fare may ejected the conductor; and of the Act incorporating the Toronto Railway a passenger in such case is liable to a only.-Held, that these two provisions are not inconsistent. and the conductor TRAMWAYS-Continued.
of a street railway car may lawful eject therefrom a passenger who refuses to pay his fare.-In this case the company was liable for damages, the passenger having been ejected from a car with unnecessary violence.
Ry. v.
Street railway
Franchise sumption municipality-Principle valuation-Operation in two municipalities-Compulsory taking-R.S.O. [1897]
208.]
By the Ontario Street
Railway Act (R.S.O. [1897] 208), municipal council shall grant to a street railway company any privilege thereunder for a longer period than twenty years, and at the expiration of a franchise granted, or earlier if so agreed upon, it may, on giving six months' previous notice to the company, assume the ownership of the railway and all real and personal property in connection with the working thereof on payment of the value the same to determined by arbitration where ownership was assumed under this provision.-Held, reversing the judgment of the Court Appeal Ont.
L.R. that the proper mode of estimating the value of the "railway and all real and personal property in connection with the working thereof," was not capitalizing its net permanent revenue and taking that as the value, but estimating what it was worth as a railway in use and capable of being operated, excluding compensation for loss franchise.-Held, also that in view the provisions in the Street Railway Act authorizing the municipality to assume ownership of a street railway operating in two or more municipalities the company in this case whose railway was taken over the Town of Berlin was not entitled to compensation for loss its franchise in the municipality
Waterloo.-On the expiration of its franchise the company executed an agreement extending for two months the time assumption of ownership the municipality, but did not relinquish possession until six months more had elapsed. During the extended time an Act was passed the legislature reciting all the circumstances, ratifying confirming the agreement for extension and authorizing the municipality to take possession payment of the award subject to any variation in the amount the court.- TRAMWAYS-Continued.
Held, that though this Act did not expressly provide for taking possession the same footing as if it had been done immediately the expiration of the franchise its effect was, not to confer the municipality a new right of expropriation in respect of an extended franchise, but merely to extend the time for assumption of ownership under the original conditions.-The rights of the company to compensation are defined statute, and there is no provision for an allowance ten per cent. over and above the actual value of the property. TowN TRUSTS-Agreement for sale of lands- Construction of contract-Right of action -Partition-Administration co-owners-Interim account-Partial discharge of trustees.] and being holders the entire capital stock of the and W. Company, agreed that they would cause a moiety the company's lands to vested in H. a valid instrument to executed the company at the request of H. and in such form as might require.
During some years the lands were administered and but H. never requested nor received any conveyance of his moiety, and the title to the lands, in so far as they had not disposed remained the pany.
In an action the plaintiffs against H. for partition of the lands and to have an order for an interim account and partial discharge of and as trustees.-Held, that as, at the time of action, the title to the lands was still vested in the railway company which was not a party to the agreement, the order for partition could not granted, that, independently partition or other final determination of their trust, the plaintiffs were not entitled to the relief of an interim accounting and partial discharge as trustees.- Judgment appealed from B.C. Rep. .. 2-Appeal-Findings of fact-Division of partnership profits-Collateral ness affairs- Trust ................
USER-Railways-Jurisdiction of Board of lailway Commissioners-Highway - USER-Continued.
Dedication-"Public way or means communication" - Access to harbour - Construction of statute-R.S.C.
(28), 238, .
VERDICT -Negligence - Operation railway-Damages
Solatium doloris
Verdict-New trial.. ..............
VIS MAJOR-Construction of contract- Traffic agreement-Furnishing cargoes- Freight rates-Failure to find full cargoes-Damages.] The alleged breach contract was that the railway company failed to obtain freight rates at Montreal rates and to provide freight for
60,000 cubic feet unfilled space vessels sailing from the port Quebec.
The deience was that the railway pany had never been put in default to settle and determine the freight rates tainable in Montreal; that they were prevented fulfilling the contract by a fortuitous event; that they were not responsible for the empty space as they had not been put in default to same, and that the plaintiffs had joined causes action not susceptible of being united.
The Superior Court allowed items as to differences in freight rates only, but the judgment appealed from (Q.R. S.0.
allowed the full claim.
The Supreme Court of Canada varied in judgment appealed reducing amount assessed for difference in Quebec and Montreal freight rates to the extent per cent. the cargo of the ship. in accordance with correspondence relating
. ....................
WARRANTY -Sale of land-Misrepresentation-Deceit-Contract.] The fendant, respondent, on negotiations the sale of wild lands, which he had not seen. represented that they were fairly good for farming. large portion of the lands proved unfit for farming purposes.
The court below Man. R. following Lasalle Guilford ([1901] K.B.
215). held that the plaintiff could not recover damages reason of the defend- WARRANTY-Continued.
ant' misrepresentations, which considered merely as expressions opinion not amounting to a warranty. The appeal was dismissed with costs. SImso
..................
2-Ships and shipping-Perils of the sea-Unseacorthy ship-Evidence spection of shipping-Certificate of seaworthiness- Construction of statute - R.S.C. s. 342-Drowning ....................
WATERCOURSES.
WATERWORKS-Appeal - -Matter in controversy-Municipal franchise-Demolition waterworks-Title to land-Future rights............. Scc
WORDS PHRASES.
1- "Actually delivered" ............ "Mattcr or judicial proceeding" "Municipal affairs" .......... 5a public .. .......... 6-"Public way or means of communication" ..........................
7- "Special Act" ...............
"Time to time," from ........
Statutes and regulations cited
-
- 3
- 237
- s. 142
-
Unresolved citations
- section 48(e)