Majority
Per Duff and Anglin JJ.-emble.-That the decision in The Bell Telephone v. City of Quebec (20 Can. S.C.R. 230) is binding authority on the Supreme Court of Canada, but this case may be decided irrespective of it.
Per Idington, Duff and Anglin JJ. (Davies J. contra) .- That, as the appeal was from the final judgment the highest court of final resort in the Province of Quebec in an action instituted in Charles Fitzpatrick C.J. and Girouard, Davies, Idington, Duff and Anglin JJ.
MOTION to quash an appeal from the Court of King's Bench, appeal side(1), which reversed the judgment of the Superior Court, District of Three Rivers, and maintained the plaintiff's action with costs. The action was instituted against the Town of Shawinigan and the Shawinigan
Hydro-Electrie Company by the Shawinigan Water and Power Company and others, ratepayers of the Town of Shawinigan, for the purpose of setting aside a by-law of the town corporation authorizing it to purchase the electric power-house and electric plant of the hydroelectric company and certain lands of the company used in connection with these works and installations, for the sum of $40,750, and also for an injunction to prohibit the town corporation carrying into effect the contract in respect thereof made with the hydroelectric company.
In the Superior Court, the final judgment dissolved the injunction and dismissed the plaintiffs' action with costs.
On an appeal by the plaintiffs, the Court of King's Bench reversed the decision of the Superior Court, maintained the conclusions of the action and made the injunction permanent. The hydro-electric company then brought an The questions raised on the motion by the present respondents to quash the appeal are stated in the judgments now reported.
-olden supported the motion.
GCofrion, K.O. contra.
JUSTICE.-This is an action brought by a ratepayer in the Superior Court, at Three Rivers, to set aside a by-law of the corporation of the Town of Shawinigan to which was joined an application for an interlocutory injunction. The action was dismissed by the first court; but on appeal to the Court of King's Bench that judgment was set aside, the bylaw was quashed and the interlocutory injunction declared absolute.
On this appeal the respondents challenge our jurisdiction on the ground that in proceedings to quash or annul by-laws commenced by action in the Superior Court in the Province of Quebec there is no appeal here.
A number of decisions of this court bearing on this question have been cited at bar, and others are to be found in Mr. Cameron's very useful book on the practice of this court.
I confess that I find it difficult to reconcile all those decisions and so I am driven back upon the sections of the statute which give an appeal to this court in cases arising in the Province of Quebec.
Section 39, sub-section (c), gives an appeal
In view of the fact that this section applies to all the provinces of Canada, I am of the opinion that the word "quash" should not receive a narrow interpretation and be held to apply only to proceedings by petition or motion without a writ, such as we find in the Province of Ontario, but must be read as
,0. synonymous with "annul" or "make void." Whether this view be correct or not, an appeal is given by seetion 36 of the Supreme Court Act
The generality of this section is not restricted in the Province of Quebec where a municipal by-law is attacked because section 47 expressly provides that section 46, which places a limitation upon appeals from that province, shall not apply to appeals in cases of municipal by-laws.
Unfortunately we have the case of The Bell Telephonc The City of Quebec(1), in which it was held that, in view of previous decisions, and more expressly of the ruling in The City of Sherbrooke v.
Mllaclanamy(2), this court is without jurisdiction to hear appeals in cases in which the validity of a by-law is attacked by direct action as in the present case;
the judgment in such an action not being "a rule order" quashing a by-law, within the meaning of section 39, sub-section (c).
On examination, I find that
The City of Sherbrooke Mlehlanany(2), upon the authority of which The Bell Telephone Co. v. The City of Quebec(1) was decided, was an action to recover taxes due the plaintiff municipality under its bylaw, and there Ritchie C.J. says, at page 596:
No question whatever as to quashing the by-law arises in this Hvnaoand Taschereau J. says, at page 597:
There is no by-law quashed a rule or order here.
In fact, there is none quashed at all the judgment appealed from. We are all agreed on this point, I believe.
The Chief
It is difficult, therefore, to see the relation between these two cases and how the latter could serve as a precedent for the former. In the case of Webster v. The City of Sherbrooke(1), where the validity of a by-law was attacked by petition, the question of jurisdiction was raised, the court dismissed the motion to quash and disposed of the proceeding on the merits. Strong C.J. said, at page 53:
This was an application to quash a by-law and not a case like the cases referred to and decided of the County of Vercheres v. The Village of Varennes(2) ; The City of Sherbrooke v. MoManamy (3); and others decided in this court, as in all those cases it was in a private action that the by-laws were impugned and the proceedings were not to quash or annul the by-laws.
Subsequently, in The City of St. Curnigonde v. Gougeon(4), a case in which the proceedings were initiated by petition under the provisions of the very same (The Town Corporations Act, R.S.Q. section 4389), as in Webster v. The City of Sherbrooke(1), it was held:
Where the Court of Queen's Bench has quashed such an appeal for want of jurisdiction no appeal lies to the Supreme Court of Canada from its decision.
So that, if The Bell Telephone Co. v. The City of Quebec (5) and The City of St. Cun6gonde v. Gougeon(4) are well decided, there can be no appeal here (1) Can. S.C.R.
Can. S.C.R. 594. Can. S.C.R.
Can. S.C.R. Can. S.C.R.
in any proceedings in which a by-law is attacked in the Province of Quebec, whether by petition or by an ordinary writ of summons. The distinction made in
Webster v. The City of Sherbrooke (1) by Taschereau
J. between cases in which proceedings to set aside a by-law are commenced by petition and those in which the validity of a by-law is attacked by direct action by any party interested, with respect to the effect of the judgment, is, I respectfully submit, not founded.
Under the Municipal Code, arts. 698 and 100, and under the "Town Corporations Act," R.S.Q. section
4389, the validity of a by-law may be attacked by petition by a municipal elector; but this does not exclude the common law right to proceed by writ. Any person whose rights or property may be injuriously affected by the acts of a corporation can invoke the ordinary procedure of the courts to get redress for his grievances.
County of Arthabaska v. Patoine
(2) ; Coriveau v. Corporation de St. Valier(3), at page 89; Farwell v. City of Sherbrooke (4) ; B6langer v. Ville de Montmagny(5).
And whether the proceeding is begun by petition or by writ, the result as to the validity of the by-law is the same.
In either case if the action is maintained, the judgment annuls the by-law which ceases to have any force or effect thereafter; (arts. 461- 462 Municipal Code).
The only difference being that if the proceedings are begun by petition either under the Municipal Code or under the "Town Corporations Act," there is no appeal to the provincial court of appeal, (art. 1077 Municipal Code and section 4614 "Town Corporations Act") and, consequently, no appeal to this court. But in both cases the proceeding is disposed of by a judgment which I hold to be the equivalent of the rule or order mentioned in section 39 (e).
Sub-section (d) of section 2 of the "Supreme Court Act" enacts that "judgnients" when used with *reference to the court appealed from, includes any judgment, rule, order, decision, decree, decretal order or sentence thereof, etc. In my opinion, therefore, Bell Telephone Co. v. City of Quebec was decided on an erroneous impression of the effect of City of Sherbrooke v. MciMananmy (2) and the terms of the "Supreme Court Act" are broad enough to provide an appeal here in all proceedings to quash or annul a by-law when the right of appeal to the provincial court of last resort is not taken away by the provincial legislature.
Vide per Strong C.J. in City of St. Cutdigoude v. Gotgeon(3) at page 83.
I would dismiss motion with costs.
J.-La Shawinigan AWater and Power Co. demande par sa requite a la cour sup~rieure des Trois-Rivibres, qu'un regleinent municipal de la corporation de la ville de Shawinigan Falls soit d6clar6 ill6gal, nul et de nul effet et qu'il soit annullM. Voici les conclusions de la demande:
a ]a demanderesse contre les ddfendeurs et les mi-en-cause, soit par le jugement final declar6s permanente et p6remptoire et A qu'il
I-, soit en consiquence enjoint aux d6fendeurs et aux mis-en-cause se conformer permannement aux conclusions contenues dans la dite
EL:cRIC requote demandant 1'dmanation la dite ordonnance, et sous les penaliths pourvues par la loi en pareil cas, tout avec d6pens contre les d6fendeurs dans tous cas, et contre les mis-en-cause au cas contestation lenr part.
Le juge de premiere instance a (boute
'action des Cirouard J. demandeurs avec d~pens; mais, en appel, ce jugement fut renvers6 et le r&glement en question fut d~clard ill6gal, et cass6 et annul6 avec d~pens contre la corporation imunicipale; differant, les honorables juges
Lavergue et Archambault.
Voici le dispositif du jugernent en appel:
Maintient I'appel et Faction. d6clare ilIlgal le riglement pass6 par le conseil la corporation intimde le et approuv6 le nofit, 1908; casse et annule dit reglement, d6clare absolue et peremptoire
1'ordonnance d'injonction interlocutoire
6mande cette cause et enjoignant la corporation intinbe ainsi qu'aux mis-en-cause ne pas donner efret au contrat bas6 sur le dit r glenient ni signer les billets promissoires, tout avec d6pens tant la cour suporieure que cette cour contre lintime, la corporation la ville Shawinigan Falls.
Dissidents, les honorables juges Lavergne et Archambault.
La Shawinigan Hydro-Electric Co., ai son tour, inscrit en appel devant cette cour; et la compagnie qui a r~ussi devant la cour d'appel fait motion que
Pappel devant nous soit cass6 faute de juridiction.
Avons-nous juridiction?
Voilh toute la question.
La constitution de la cour supr~me a kt plusieurs fois remodelke et a 6t( le sujet d'un grand nombre de discussions devant nous, tonjours au sujet de notre juridiction; hien qu'il ne semble pas, que, suir le suijet qui nous occupe presentement, la 1kgislation nit vari6.
La section 39, chapitre 139, paragraphe (e), sons le titre "Loi concerinant la cour supreme," (eclare qu'il y a appel it la cour suprenie
C'est A-peu-pr~s le langage du premier statut 6tablissant la cour supreme, 38 Vict. ch. 11, sec. 17. Cette disposition s'applique h toutes les provinces, mme Qubbec.
II est vrai que par les clauses 44, et 46 certaines exceptions et restrictions ont 6t6 cr46es en faveur de cette province; mais la section 47 d6clare qu'elles n'auront pas d'application dans le cas de r~glements municipaux.
En face d'un texte aussi positif, il est difficile de se rendre compte que la jurisprudence alt h6sit6 et alt m6me vari6.
On cite surtout quatre pricdents qui nient l'appel, dit-on.
City of Sherbrooke v. McManamy (1) ; mais & en juger par le rapport de la cause il ne parait pas qu'il s'agissait de la nullit6 d'un r~glement, ni que la cour ne l'alt prononc6e.
County of Verchdres v. Village of Varennes(2); m~me objection; il ne s'agissait pas ici d'un r~glement mais d'un prochs-verbal.
Egalement Toussignant v. County of Nicolet (3), que 'on cite contre notre juridiction, ne s'applique guire; car, en cette dernidre cause, il ne s'agissait pas d'un r~glement, mais d'un procs-verbal.
Bell Telephone Co. v. City of Quebec (4) ; ici la cour d'appel refusa d'annuller un riglement municipal pour des raisons que je ne puis appr~cier, car je ne puis comprendre que 1'ordre ou jugement de la cour d'appel ne soit pas la "rgle ou ordonnance d'une cour" dans le sens de la clause 39 de l'acte de la cour supr6me. Autrement il faudrait d6cider qu'il ne peut jamais y avoir d'appel A cette cour d'un riglement municipal dans la province de Quebec.
Le code municipal et les chartes de plusieurs villes donnent h tout contribuable un mode sommaire d'attaquer un riglement municipal devant un tribunal sp6cial, le plus souvent la cour de circuit on encore J. la cour du recorder, avec le droit d'appel & une autre cour indiquie; et nous venons de decider dans la cause de Montreal Street Railway Co. v. City of
Montreal (1909), (1), que dans des cas comme ceuxil n'y a pas d'appel h cette cour.
A moins de donner le droit d'appel h un int6ress6 dans une action de droit commun institude, comme dans l'espce, en cour sup6rieure, un r~glement municipal ne pourrait
4tre examin6 et revis6 par cette cour. Nous devons cependant donner effet h la clause 39, par. (e), de
Facte de la cour supreme, qui ne distingue pas entre des proc6dds en nullit6 de droit commun et ceux indiqubs an code municipal; dans Pun comme dans
P'autre cas, la clause 39 ne limite pas 1'effet de la nullit6 d'un riglement municipal aux parties ayant un int6r6t sp6cial et distinct de celui des contribuables ordinaires. Elle permet 1annullation d'un r~glement municipal sans restriction, c'est-h-dire A toutes fins quelconques a Ed6gard de tout le monde.
Enfin ii ne manque pas de d6cisions oii cette cour a exerc6 juridiction dans des appels de jugements sur des r~glements municipaux: Webster v. City of Sherbrooke (2) ; Longueuil Navigation Co. v. City of
Montreal(3) ; Town of Chicoutimi v. Price(4).
Pour ces raisons je suis d'avis de renvoyer la motion de lintim6e avec d6pens.
(dissenting).-If the question of our jurisdiction to hear an appeal from the Province of Quebec in a judgment such as the one in this case annulling and declaring void a by-law of a municipality was res integra, I would accept the reasoning and conclusion of the Chief Justice atlirining that jurisdiction. Unfortunately there is the case of The Bell Telephone Co. v. The City of Quebec(1), which expressly decides the other way. Until that decision is overruled I feel it binding upon me.
Upon the question whether the matter in controversy amounts to the sum of $2,000, I am unable to agree with the members of the court who hold that it does and dismiss the motion to quash on that ground. The real matter in controversy is the validity or invalidity of the by-law. With the collateral or incidental effect of a judgment upon that point one way or the other we are not concerned. Whether it results in affecting property over $2,000 or not is not the question. For these reasons I am constrained to allow the motion to quash.
J.-I think the right of appeal exists by virtue of section 46 and sub-section (c)
The substance of the matter directly in controversy here is the validity of a contract plainly involving twenty times the measure of importance sub-section assigns as one of the several tests thereof to be held sufficient for founding the jurisdiction of the Matters of quite as much importance may be often indirectly involved and yet not fall within the definition in question.
This matter in controversy herein is directly (and plainly so) involved.
The incidental feature arising from the validity of the by-law being in question does not seem to me to affect the question any more than it might have done in Ville de St. Jean v. Molleur(1), which involved as a consequence of a rescission of the contractual relation, the rescission of a by-law.
The jurisdiction to hear was attacked in that case, and though the exact point here in question was not taken, it is hardly likely we would have heard the case if the incident that the validity of a by-law being involved should have made any difference.
Moreover, suppose a municipality through its council had entered without any by-law at all, into some such contract, and a ratepayer, as here, had chosen to attack the transaction in the courts as invalid, and the third party concerned as well as the municipal authorities, were in course of such attack enjoined from acting under such contract merely because the court so enjoining held, perhaps erroneously, a by-law was needed. Could it be said that the third party whose rights were so adjudicated upon could have no relief or appeal, though his contention might be that no by-law was needed? If in truth no by-law was necessary in law in the case put, then, if this motion is founded on sound principle, the third party would be deprived of his rights (perhaps involving ten times the limit assigning a right of appeal) and of his right to maintain such a contention.
I would dismiss the motion with costs.
J.-I agree with Mr. Justice Anglin.
J.-With profound respect for the opinto the contrary of my Lord, the Chief Justice, and my brother Girouard, I incline to the view that we are constrained by the authorities in this court to hold this case to be not within section 39 (e) of the Bell Telephonc Co. v. City of Quebec(1) ; Toussign ant County of Nicolet(2). But, without determining that question, I think it clear that the motion to quash should be dismissed because this appeal is from the "final judgment of the highest court of final resort" in the province in an action instituted in a superior court (section 36), which the substantial purpose is to prevent the consummation of a contract for the sale of real estate at a price far exceeding $2,000.
The real matter in controversy is the right of the appellants to compel the municipality to take the land which it has agreed to buy and to make payment to them of the purchase money.
This the plaintiff seeks by injunction to prevent.
Such is the direct not merely the collateral or consequential effect of a judgment for the plaintiff.
It is in fact an integral part of the judgment itself. The matter directly in controversy, therefore, in my opinion, "amounts to the sum value of two thousand dollars," (section 46(c)). This suffices to establish the jurisdiction of this court to entertain appeal.
Cotd v. The James Richardson Co. (3), at page 49; Robinson, Little & Co. v. Scott & Soni(4).
The special jurisdiction conferred by section is supplementary. It does not exclude the general appellate jurisdiction conferred by section 36 in a case otherwise appealable, although the validity of a municipal by-la- may be brought in question in the That the appellants, who were made defendants in this action and who are bound by the existing judgment declaring their contract with the municipality to be illegal and void, have sufficient interest to give them a right of appeal to this court, I entertain no doubt.
The motion to quash should be dismissed with
Motion dismissed with costs.
Solicitors for the appellants; Geoffrion, Geoffrion &
Cusson.
Solicitors for the respondents: Meredith, Macpherson,
Hague & Holden.
- Limitations of actions-Contract for supply of electric light-Negligence- Injury to person not privy to contract- "Consolidated Railway Company's Act,
The appellant company, having acquired the property, rights, contracts, privileges and franchises the Consolidated Railway and Light Company, under the provisions of "The
Consolidated Railway Company's Act, Vict.
[B.C.], is entitled to-the benefit the limitation of actions provided section of that statute.
Idington J.
dissenting.-The limitation so provided applies to the case of a minor injured, while residing in his mother's house, contact with electric wire in use there under a contract between the pany and his mother.-Judgment pealed from
B.C. Rep. 224)
reversed,
Davies and Idington JJ. (dissenting)
.
2-Negligence- Shipping for personal injury-Limitation of liability-"Canada Shipping Act," s.
In an action for personal injury sustained a passenger in consequence the negligence of the officers in charge of a ship, the owners cannot invoke the limitation provided section
Shipping
The "Orwell' P.D.
and Roche v. London and South- Western Ry. (
FIsn
.......................
3--Negligence - Dangerous works
Joint tortfeasors - Judgment against one of several persons responsible for damages-Bar to action.] A proprietor principal contractor undertaking works in the circumstances inherently dangerous cannot delegate the duty providing against such danger so as to escape personal responsibility if duty neglected.-Failure to discharge such duty makes the proprietor and his
ACTION-Continued.
contractor, or the contractor and his sub-contractor, as the case may be, equally liable as joint tortfeasors for resultant injury.-A judgment for damages sustained in consequence of any such injury against one of such joint tortfeasors is a bar to a subsequent action therefor against another.-Judgment appealed from Man. R. & 4- Suretyship - Simple
Discharge of one surety under seal- Confirmation of original guarantee- Death of surety-Powers of executors- Continuance of guarantee ......... .299 Damages-Denial of traffic facilities -Injury reason of operation of railway-Limitation of action-"Railway Act," Edw. VII. s. 242-Construction of statute ..............
6-Negligence-Injury on public work Works Health Act"-Construction of statute-Regulations by order-incouncil-Breach of statutory duty-Misjoinder-Conmon law liability-Different causes of action............... Jurisdiction-Prohibition- Quebec appeals-R.S.C. [1906] ss. and 46-Construction of statute.] No appeal lies to the Supreme Court Canada from the judgment of a court of the Province of Quebec in any case of proceedings for or upon a writ prohibition, unless the matter in controversy falls within some of the classes cases provided for section 46 of the "Supreme Court Act," R.S.C. ch. Shannon v. The Montreal Park and Island Railway
Can. S.C.R. APPEAL-Continued.
2-Practice-Concurrent findings fact.]
The Supreme Court of Canada will not interfere with concurrent findings on questions purely of fact unless satisfied that the conclusions appealed from are clearly wrong.
of statute-B.N.A. Act, ss.
"Supreme Court Act" ss. 60-References Gov.-Gen. in Council-Opinions and advice-Jurisdiction of Parliament
-Independence of judges-Judicial functions-Constitution of courts-Administration of the laws of Canada-Provincial legislative jurisdiction.] Per Fitzpatrick C.J. and Davies, Duff and Anglin
JJ.-The provisions of see. of the
"Supreme Court Act," R.S.C., are within the legislative jurisdiction of the Parliament of Canada.-Per
Girouard and Idington JJ.-The provisions that section assuming to authorize references the Governor-General in Council to the judges of the Supreme
Court Canada for their opinions in respect to matters within legislative jurisdiction are ultra vires of the Parliament of Canada; but if the Governments of the Dominion and a Province unite in the. submissions the questions referred the judges the Supreme Court of Canada should entertain the reference.-Per Idington J.
administration of justice in each' province having been exclusively assigned to it the power Parliament in regard to the same is limited to creating a court appeal and courts for the administration of the laws of Canada.- Per idington J.-Parliament has no power to authorize the interrogation the Supreme Court of Canada except where the question submitted relates to some subject or matter respecting which it is competent for Parliament to legislate and respecting which it has legislated and competently constituted judicial authority in that court to administer or aid in administering the laws enacted.-Per Idington J.-Quwre.
As to the constitutionality of adopting a system interrogations of the judiciary when the questions are confined to subjects of the kind thus indicated. In
APPEAL-Continued.
Jurisdiction-Matter in controversy-Instalment of municipal tax- Collateral effect of judgment.] In an action instituted in the Province to recover the sum of claimed as an instalment of an amount exceeding $2,000, imposed on the defendant's lands for special taxes, the Supreme Court of Canada has no jurisdiction to entertain an appeal although the judgment complained of may conclusive in regard to the further instalments accruing under the same by-law which would exceed the amount mentioned in the statute limiting the jurisdiction of the court. Dominion Salvage and Wrecking v. Brown Can. S.C.R.
TowN or ..................
5-Concurrent findings of fact-Review on appeal.] Concurrent findings fact in the courts below ought not to disturbed on appeal unless a mistake 6-Jurisdiction-Special leave-"Judicial proceeding"-Discretionary orderinterest-Alberta "Liquor License Ordinance," s. 57-"Originating summons"--R.S.C. s. 37-8 Edw. VII. (Alta.), 7, ss. 1, Proceedings on an originating summons issued a judge of the Supreme Court of Alberta on an application for cancellation a license under section of the "Liquor License Ordinance," are judicial proceedings within the meaning of section of the "Supreme Court Act," R.S.C. and, consequently, the Supreme Court of Canada has jurisdiction to entertain an application for leave to appeal from the judgment the Supreme Court of Alberta thereon.-Where the decisions of the provincial court shew that the judges that court are equally divided in opinion as to the proper construction of a statute in force in the province and it appears to desirable in the public interest that the question should finally settled it is proper for the Supreme Court of Canada to exercise the discretion vested in it for the granting of special leave to appeal under the provisions section of the "Supreme Court Act." APPEAL-Continued.
Girouard J. dissented on the ground that the proceedings in question were intended to summary and that, in these circumstances, the case was not one in which special leave to appeal should granted.
7--Jurisdiction-Matter in controversy-Stare decisis-Miunicipal by-lawo
-Inju nction-Contract-C'ollatera leffect of judgment-Construction of Statute- "Supreme Court Act." R.S.C.
ss. (e), 46.] The action was brought the respondents and other ratepayers of the Town of Shawinigan, against the town and the hydro-electric conipany, to set aside a by-law of the town corporation authorizing the purchase certain lands with an electric power house and plant from the hydroelectric company for $40,750, and for an injunction prohibiting the carrying into effect of the contract of sale.
The final judgment in the Superior Court dissolved the injunction and dismissed the action, but on appeal the plaintiffs the Court
King's Bench maintained the action and made the injunction permanent.
a motion to quash an appeal the hydro-electric company to the Supreme
Court Canada.-Held, per Fitzpatrick
C.J. and Girouard J. that the Supreme
Court was competent to entertain the appeal under the provisions of section of the "Supreme Court
Bell Telephone v. City of Quebec
Can. S.C.R. disapproved.-Per Duff and Anglin JJ.-Semble.-That the cision in The Bell Telephone City of Quebec Can. S.C.R. is binding authority the Supreme Court
Canada, but-per Idington,
Duff
Anglin JJ. (Davies J. contra), that, as the appeal was from the final judgment the highest court final resort in the Province of Quebec in an action instituted in court of superior jurisdiction for the purpose preventing the consummation contract for sideration exceeding the Supreme
Court Canada was competent to entertain the appeal under sections and of the "Supreme Court Act."-Per
Davies J.
(dissenting), that the controversy related merely to the validity the by-law and did not involve the sum or value of $2,000, that the collateral or. incidental effects of the judgment were not in question on the appeal. and
APPEAL-Continued.
that, therefore, the Supreme Court Canada was not competent to entertain the appeal.
The Bell Telephone Co. V. City of Quebec Can. S.C.R. ARBITRATION AWARD-Expropriation-Forn of award-Evidence- View of property-Proceeding on wrong principle-Disregarding evidence.] In propriation proceedings under the "Railway Act," the arbitrators in making their award stated that they had found the expert evidence a valuable factor in assisting them in their clusions, and that, after viewing the property in question, they had reached their conclusions "reasoning I their own judgment and a few actual facts submitted in evidence."
On appeal from the judgment of the Supreme Court of Alberta setting aside the award and increasing the damages.-Held, that did not appear from the language used that the arbitrators had proceeded without proper consideration of the evidence adduced or upon what was not properly evidence and, therefore, the award should not have been interfered with. ........ TAXES-Lease- Construction of covenant-Taxes-Partial exemption.]
A society owned a building worth about which, the statute law of the province, was extaxation as it was used exclusively for the purposes the society.
portion of the building having been used at intervals for other purposes, it was assessed at a valuation of and the society paid the taxes thereon for some years. Such portion was eventually leased for term of years to used for other purposes than those of the society, and the valua- The lease contained this nant:-"The and will well and truly pay or cause to paid any and all license fees, taxes other rates or assessments which may payable to the City Halifax, chargeable against the said premises reason of the manner in which the same are used or occupied the lessees here- ASSESSMENT TAXES-Continued I BANKS BANKING-Continued. after, or which are chargeable or levied against any property belonging to the said lessees (the said lessor, however, hereby agreeing to continue to pay as heretofore all the regular and ordinary taxes, water-rates and assessments levied upon or with respect to said premises, and the personal property thereon longing to the lessor)."
The society was obliged to pay the taxes on such increased valuation and broixght action to recover the amount paid from the lessees.-Held, Fitzpatrick C.J. and Anglin J. dissenting, that the taxes paid were "regular and ordinary taxes" which the lessors had agreed to pay as theretofore and the lessees were not liable therefor under their covenant.
Instalment of municipal tax-Collateral effect of judgment...
& 7 Edw.
17..............................
AWARD.
BANKING-Security for debt-Assignment of lease-Transfer business
Operation bank
[1906] s. ss. 1 and (a), s.
By section sub-section 1
"The Bank Act" (R.S.C. [1906]
a bank may "engage in and carry on such business generally as appertains to the business of banking"; sub-section 2
(a) it shall not "either directly or indirectly
*
*
* engage or engaged in any trade or business whatsoever";
section authorizes the purchase land in certain cases of which a direct voluntary conveyance the owner not one.-Held, affirming the judgment the Court of Appeal Ont. L.R.
Duff and Anglin JJ. (dissenting)
, that these provisions of the Act do not prevent a bank trom agreeing to take in payment of a debt from a customer an assignment the latter's carry the going concern at the earliest possible moment.
Succession duties-New Brunswick statute-Foreign bank-Special deposit in local branch-Depositor domiciled in Nova Scotia-Debt due by bank-Notice withdrawal-Enforcement of payment............................
Suretyship-Simple contract-Discharge of one surety under seal-Confirmation of original guarantee-Death surety-Powers of executors-Continu- RAILWAY COMMISSION- "Through traffic"-Constitutional law-- Legislative jurisdiction - Powers Board of Railway Commissioners-Construction of statute-R.S.C. s. (b)-"B.N.A. Act," ss. "The Railway Act," R.S.C.
does not confer power on the Board Railway Commissioners for Canada to make orders respecting through traffic over a provincial railway or tramway which connects with or crosses a railway subject to the authority of the Parliament of Canada.
Davies and Anglin JJ. contra.-Per Fitzpatrick C.J. and Girouard and Duff JJ.-The provisions sub-section (b) of section of the "Railway Act" are ultra vires of the Parliament of Canada.
2-Consideration of complaints-Evidence-Rejection-Agreement as to special rates-Unjust discrimination.] A pany operating, subject to Dominion authority, a tramway through several municipalities adjacent to the City Montreal, and having connections and traffic arrangements with a provincial tramway in that city, entered into an COMMISSIONERS-Continued.
agreement under statutory authority with one the municipalities whereby, in consideration of special privileges conceded in regard to the use of streets, etc., lower rates of passenger fares were granted to persons using the tramway therein, transportation to and from the city, than to denizens of the adjoining municipality with which there was no such agreement.
the hearing of a complaint, alleging unjust discrimination in respect to fares, the Board Railway Commissioners
Canada refused to take the agreement into consideration when tendered in evidence to justify the granting of the special rates and ordered the company, appellants, to furnish the service to persons using the tramway in both municipalities at the same rates of fare. On an appeal, leave of the Board, in respect of the propriety overlooking the contract, submitted as a question of law.-Held, Dayies and Anglin JJ. dissenting, that as the existence of the contract was one of the elements bearing upon the decision the question of substantihl similarity in circumstances, the Board should have admitted the evidence so tendered in regard to the agreement in consideration which the special rates fares had granted.
Railways-Carriers - International through traffic-Reduction of joint ratemissioners- Practice - Parties a complaint in respect of a joint tariff, between the appellant company and
The Michigan Central Railroad Company, under which a rate three cents per hundred pounds was charged on pulpin car-lots for carriage from Thorin Ontario, to Suspension Bridge, the State of New ±ork, the Board cided that the rate should reduced and ordered the appellants to restore a joint rate which had previously existed two cents per hundred pounds for carriage such goods between the points mentioned.
The Michigan C4ntral Railroad Company, over whose railway the goods had to carried from the point where the appellants' railway made connection with at the international boundary to the foreign destination, was not made a party to the proceedings before the Board.
BOARD RAILWAY
COMMISSIONERS-Continued. appeal leave a judge to the Supreme Court of Canada.-Held, per Fitzpatrick C.J. and Idington and Duff JJ., that the Board had no jurisdiction to make the order.-Per Girouard, Davies and Anglin JJ.-As the Michigan Central Railroad Company was not a party to the proceedings, it was not competent for the Board to make the order.-The appeal was allowed without costs.
..........................
4-Railways-Construct ion of statute -R.S.C. ss. 336-Through traffic-Joint international tariffs-Filing foreign company-Assent of domestic company-Tariffs "duly filed"missioners.] Under section of "The Railway Act," R.S.C. tariffs filed foreign railway companies rates on through traffic originating foreign territory, to carried by continuous routes owned or operated two or more companies from foreign points to destinations in Canada, are effective and binding upon all Canadian companies participating in the transportation, althopgh not expressly assented to he latter, and may enforced the Board against such Canadian companies. Anglin J. contra.-Per Anglin J. (dissenting) .- "The Railway Act" requires concurrence the several companies interested as in other joint tariffs through traffic mentioned in the Act. 5-Jurisdiction- Municipal streets- Railway upon or along highway-Leave to construct-Approval of location-Condition imposed-Payment of damages to statute-R.S.C. (1906), ss. 47, 237.]
sent of the municipality to use certain streets for that purpose, the Railway Commissioners for Canada for leave to construct and approval the location the line of their railway upon and along the highways in question. None of the lands abutting on these highways were to appropviated tor COMMISSIONERS-Continued.
the purposes of the railway, nor were the rights or facilities access thereto to interfered with except in so far as might result from inconvenience caused the construction and operation of the railway upon and along the streets. In granting the application the Board made the order complained of subject to the should
"make full compensation to all persons interested for all damage them sustained reason of the location the said railway along any street."
Davies and Duff JJ. (dissenting)
, that, under the provisions of section of the "Railway Act," R.S.C. (1906), the Board had, on such application, the power to impose the condition directing that compensation should made the company in respect of the damages which might suffered the proprietors of the lands abutting on the highways of the municipality upon and along which the line of railway so located was constructed.
granted, 8th Nov.,
BUILDERS
CONTRACTORS-Negligence-Injury on public work-"Public
Works Health Act"-Construction s.
Regulations order-in-council-Breach of statutory duty-Action-Misjoinder.]
The provisions of section of the "Public Works Health Act," R.S.C.
do not impose on a Government
Department or a company constructing a public work the obligation to provide hospitals and surgical attendance the treatment of personal injuries sustained employees, whether of themselves or of their contractors or subcontractors, in the construction of such works.
Mehanics' lien-Contract-Overpayment-Liability of owner of land- Attaching of lien-Negotiation of note of lien-holder-Waiver-Estopternational through traffic-Reduction of joint rate-Jurisdiction of Board Practice - Want of parties-Refusal of costs. . CASES-Ainsley
Mining and Railway McDougall Can. S.C.R. 420) ........................
2-Attorney-General v. Newman 340; 1 Ont. L.R. questioned. ..... 3-Bell
Telephone v. City of Quebec (20 Can. S.C.R. 230)
disapproved Fitzpatrick C.J. and Girouard J.- Semble, binding per Duff and Anglin JJ.-Followed Davies J........ 4-Boulay V. The King Ex. C.R. varied ......................
5-Breckenridge & Lund v. Short et al. Alta. L.R.
reversed ......... 6-British
American Oil Grand Trunk Railway
7-Crompton v.
British Columbia Electric Ry.
B.C. Rep. reversed
..........................
8-Dominion Salvage and Wrecking Co. Brown Can. S.C.R. followed ..........................
9-Electric Fireproofing Electric Fireproofing of Canada 34 388) affirmed ............
CASES-Continned.
10-Holland v. Hodgson (L.R. C.P.
Isbister v. Dominion Fish (19
R. 430) affirmed .
..........
12-King, The, v. Burrard Power
Ex. C.R. affirmed ........
13-King, The, v. Cunard Ex. C.R.
14-King, The, v. Lovitt N.B. Rep.
reversed
..................
15-Leger v. The King Ex. C.R.
reversed ...................
Lonymore McArthur & (19
Man. R.
..........
17-The
"Orwell"
P.D.
ferred to ........................
Peterborough Hydraulic Power v. McAllister Ont. L.R.
19-The
Queen v. Farwell Can.
S.C.R. referred to ...........
20-Robinson
Canadian Northern
Railway Man. R. affirmed.
.......................
....
....
..
Roche v. London and South-Western Ry. ([1899], referred to .......................
CASES-Continued.
22-Shannon v. Montreal Park and Island Ry. Can. S.C.R. 374) overruled ...........................
Smith v. Baker ([1891], Art.
(Notarial W ills)
..........................
Limitations of actions-Contract for supply of electric light-Negligence--In- Jury to person not privy to contract- "Consolidated Railway Company Act, See AcTIoN 1.
jurisdiction-Crown lands - Terms union B.C., art. 11-Railway aid-Provincial grant to Dominion-Intrusion- Provincial legislation - Water-records within "Railway Belt"-Construction statute-B.N.A. Act, ss. 146-Imperial 16th May, Clauses Consolidation Act, R.S.B.C. 190.] While lands within the "Railway Belt" of British bia remain vested in the Government Canada in virtue of the grant made to it the Government of British Columbia pursuant to the eleventh article of the "Terms of Union" of that province with the Dominion, the Water Commissioners of the Province of British Columbia are not competent to make grants of waterrecords, under the provisions Clauses
Consolidation R.S.B.C., which would, in the operation of the powers thereby conferred, interfere with the proprietary rights of the Dominion of Canada there- The Queen v. Farwell Can. S.C.R. 392).
Judgment appealed from KING........... "Through traffic"-Legislative jurisdic- LAW-Continued.
j CONSTITUTIONAL LAW-Continued. tion-Powers of Board of Railway Commissioners- Construction of statute.]
Per Fitzpatrick C.J. and Girouard and
Duff JJ.-The provisions of sub-section
(b)
of section R.S.C.,
("The Railway Act") are ultra vires the Parliament of Canada.
Construction of statute-B.N.A.
Act, ss. 92, 101-"Supreme Court
Act," R.S.C.
References Governor-General in Council-Opinions and advice-Jurisdiction of Parliament-Independence of judges functions-Constitution courts-Administration of the laws
Canada-Provincial legislative jurisdiotion.]. Per Fitzpatrick C.J. and Davies,
Duff and Anglin JJ.-The provisions section of the "Supreme Court Act,"
are within the legislative jurisdiction of the Parliament of Canada.-Per Girouard and Idington
JJ.-The provisions of that section assuming to authorize references the- Governor-General in Council to the judof the Supreme Court of Canada their opinions in respect to matters within provincial jurisdiction are ultra vires the Parliament but, if the governments the Dominion and a province unite the submission of the questions so referred the judges of the Supreme Court of Canada should entertain the reference.-Per Idington J.-The administration of justice in each province having been assigned exclusively to it the power of Parliament in regard to the same limited to creating a court of appeal and courts for the administration of the laws of Canada.-Per Idington J.-Parliament has power to authorize the interrogation the Supreme Court
Canada except where the question submitted relates to some subject or matter respecting which it is competent
Parliament to legislate and respecting which it has legislated and competently constituted judicial authority in that court to administer or aid in administering the laws enacted.-Per Idington
J.--Quere.
As to the constitutionality of adopting a system of interrogations of the judiciary even when the questions are confined to subjects of the kind thus indicated.
CONTRACT-Delivery of goods-Conditions as to quality, weight, etc.-Inspection-Rejection
Crown officials-Liability of Crown -Deductions for short weight-Costs.] The Minister of Agriculture of Canada entered into a contract with the suppliants for the supnly of a quantity pressed hay for the use of the British army engaged in the operations during the late South African war, the quality of the hay and the size, weight and shape of the bales being specified. Shipments were to made f.o.b. cars at various points in the Province of to the port of Saint John, and were to subject to inspection and rejection at the ship's side there by government officials.
Some of the hay was refused the inspector, as deficient in quality, and some for short weight in the bales.
In weighing, at Saint John, fractions of pounds were disregarded, both in respect to the hay refused and what was accepted; there was also a shrinkage in weight and in number bales as compared with the waybills.
The hay so refused was sold by the Crown officials without notice to the suppliants, for less than the prices payable under the contract, and the amount received upon such sales was paid the government to the suppliants. making payment for hay accepted, ductions were made for shortage in weights shewn on the way-bills and invoices, and credit was not given for the discarded fractions.-Held,
Justice and Davies J. (dissenting)
, that the appellants were entitled to recover for so much the amount claimed the appeal was deducted for shrinkage or shortage in the weight of the hay delivered on account the government weighers disregarding fractions pounds in the weight of that accepted and discharged from the cars at Saint John.-Per Girouard, Idington and Duff JJ.-The manner in which the governient officials disposed of the hay so refused amounted to an acceptance which would render the Crown responsible payment therefor at the contract price. appealed from Ex. C.R. allowed in part with costs, the
Chief Justice and Davies J. (dissenting)
.
BouLAY v. THE KING..............
2-Assignment of patent rights-Inplied warranty-Privity-Validity patent-Caveat eniptor-Novelty- oibination-New and useful results.] In the absence of an express agreement special circumstances warranty might implied, an assignment of "all the right, title and interest" in a patent invention does not import any warranty on the part of the assignor as to the validity the patent.
appealed from (Q.R.
affirmed.-Per Idington J.-In the present case the patents were valid.
Suretyship-Simnple contract-Discharge one surety under seal-Confirmiation of original guarantee-Deati of surety-Powers of executors-Continuance of guarantee.] and others, writing not under seal, agreed to guarantee payment of advances by a bank to a company.
Later, writing under seal, all the sureties but one consented to discharge the latter from liability under the guarantee, the document providing that the parties did in every respect "ratify and confirm the said guarantee and consent to bound thereby as if the said Ogle Carss had never a party thereto."-Held, that the last mentioned instrument did not convert the original guarantee into specialty and having died an action thereon the bank against his executors instituted more than six years after his death was barred the Statute Limitations.-Held, per Davies, Idington and
Duff JJ., that the executors had no power to continue the guarantee terminated C.'s death consenting to an extension of time for payment of the amount then due notwithstanding the provision in the guarantee that it was to continuing and that the doctrines of law and equity in favour a surety should not apply thereto.
............
4-Municipal corporation-Public library-Offer of funds-Special legislation
-Contract for plans-Municipal porer s.]
sum of money was offered the City
Sydney for a public library on condition that the city procured the site and provided for its maintenance.
An Act the legislature authorized the purchase of the site and a special tax for its and future maintenance of the library. The City Council invited tenders for plans of the building and accepted that of Bros. & The scheme, however, fell through, the money offered was not paid nor the library built. Bros. & sued the city for the cost their plans.-Held, that the city had no authority to enter into any contract involving the expenditure of municipal funds action could not maintained. 5-Lease- Covenant for renewal- Construction.] A lease for years mill-races and lands on the old Welland Canal contained the covenant that:- "After the end of years, as aforesaid, if the said (lessors) do not continue the lease of the said water and works" they would compensate the lessees for their improvements.-Held, Gironard and Duff JJ. dissenting, that at the end of the years the lessees were entitled to renewal of the term but not to a new lease containing a similar covenant for renewal or compensation.
They had right to renewal or compensation but not to both.-After the original term expired the lessees remained in possession paying the same rental as before, for a further term of years, no formal lease therefor having been executed and none demanded or tendered for cution.
Ten years after the expiration of this second term they were dispossessed and claimed compensation for improvements petition of right.-Held, that the rights of the lessees were the same as if the original term years had been formally continued, renewed, for a further like term.-Held, per Idington J., Girouard J. contra, that the lessees having obtained renewal their right to compensation was gone.- Per Davies and Anglin JJ.-The lease was probably not renewed within the meaning the lessor's covenant, but there having been no proof of demand for renewal and the lessees having remained in possession for the entire perfor which they could have claimed a renewal. they can have no right to pensation for improvements.
If they ever had such a right in default of obtaining a renewal it was barred by the
Statute Limitations.
6-Implied warranty inachinery-New agreement - Breaches prior to new contract-Relinquishment of rights under former agreement.]
R. & N. purchased threshing machinery from the company, in Nov., under an agreement similar to that in part quoted below, and gave notes for the price. They dissolved their business connection, after using the machine some time, and, in March, after the threshing season was over, N. was released from his obligations under the agreement, the notes signed by R. & N.
were cancelled, and R. gave the company his own notes in their place and entered into a new agreement containing the following provisions:
"The said machinery is sold upon and subject to the following mutual and interdependent conditions, namely:
It is warranted to made of good material and durable with good care ana with proper usage and skilful management to as good work as any the same size sold in Canada.
If the purchasers after trial cannot make it satisfy the above warranty written notice shall within ten days after starting given, both to the company at
Winnipeg and to the agent through whom purchased, stating wherein it fails to satisfy the warranty and reasonable time shall given the company to remedy the difficulty, the purchasers rendering necessary and friendly assistance gether with requisite men and horses;
the company reserving the right to replace any defective part or parts; and if the machinery or any part of cannot made to satisfy the warranty it is to returned the purchaser free of charge to the place where received and another substituted therefor that shall satisfy the warranty or the money and notes immediately returned and this contract cancelled neither party in such case to have or make any claim against the other.
And if both such notices are not given within such time that shall conclusive evidence that said machinery is as warranted under this agreement and that the machinery is satisfactory to the purchasers.
If the company shall at purchaser's request render assistance of any kind in operating said machinery or any part thereof or in remedying any defects such assistance shall in no case deemed a waiver of any term or provision of this agreement or excuse for any failure of the purchasers to fully keep and perform the conditions of this warranty. When at the request the purchasers a man is sent to operate the above machinery which is found to have been carelessly improperly handled said company putting same in working order again the expenses incurred the company shall paid said purchasers. This warranty does not apply to second-hand machinery. It is also agreed that the purchasers will employ competent men to operate said machinery.
There are no other warranties or guarantees, promises agreements than those contained herein. warranties are to inoperative and void in case the machinery is not settled for when delivered or if the printed language above changed whether addition, erasure waiver or if the purchasers shall in any respect have failed to comply herewith." Some defects in the machinery had given rise to complaints, during the previous threshing season, and had been rectified the company before the execution the second agreement; they also made further repairs during the Autumn and then notified R. that future repairs must at his own expense. R. paid the first instalment of the price the machinery,. but, when subsequently sued on his other notes, contested the claim, pleaded breach of an implied warranty of fitness and counterclaimed for damages for this breach.-Held, that all claims for damages for breaches any kind prior second agreement had been waived provision that there were no other warranties, guarantees, promises or agreements than those contained in the agreement excluded all implied warranties.-Held, further, that the condition requiring written notice of breach of warranty applied only to the warranty that "with proper usage and skilful management" the machinery would "do as good work as any of the same size sold in Canada," and that it had application to the warranties machinery "made of good materials" and would
"durable with good care."
sideration for the release of and the acceptance of the sole liability of R. for the price the machinery was the execution of the new notes and agreement which involved the relinquishment both parties of all their rights under the first
7-Construction of statute-Limitations of actions-Supply of electric light
-Negligence-Injury to person not privy to contract-"Consolidated Railway Company Act, V. (B.C.), ss.
60........................1
Iechanics' lien
Overpayment- Liability of owner of land-Attaching lien-Negotiation of note-Claim of lienholder-Waiver-Estoppel .. ........
9-3Municipal by-law-Action to annul
-Injunction-Mlatter in
CONVERSION-Contract - Delivery goods-Conditions as to weight, quality,
Inspection
Rejection
Crown officials - Liability of Crown- Deductions for short weight-Costs..
International through traffic-Reduction of joint rate-Jurisdiction of Board of Railway
Practice
Want parties-Refusal of costs .........
COURT-Constitutional law- Construction of statute-B.Y.A. Act,
101-"Suprene Court Act,"
R.S.C., c. ss. 60-References
Governor-General in Council-Opinions and advice--Jurisdiction of Parliament-Independence of judges-Judicial functions-Constitution of courts-Administration of the laws of Canada-Provincial legislative jurisdiction......
CRIMINAL LAW-Criminal Code--6 & 7 Edw. VII. 8-Procedure-Alberta and Saskatchewan-Indictable offence- Preliminary inquiry-Preferring charge of Attorney-General-Powers of deputy-"Lord's Day Act," s. Section (a) of the Criminal & 7 Edw. VII. provides that, "In the Provinces of Alberta and Saskatchewan it shall not necessary to prefer any bill indictment before a grand jury, but it shall sufficient that the trial of any person charged with a criminal shall commenced a formal charge in writing setting forth as in an indictment the with which he is charged.-2. Such charge may preferred the Attorney-General or agent of the Attorney-General or by any person with the written consent of the judge of the court or of the Attorney- General or order of the court."-Held, Idington J. dissenting, that a preliminary inquiry before a magistrate is not necessary before a charge can preferred under this section.-Held, also, that the deputy of the Attorney-General for either of said provinces has no authority to prefer a charge thereunder without the written consent of the judge of the Attorney-General or an order the court.-Section of the "Lord's Day Act" provides that "no action or prosecution for a violation of this Act shall commenced without the leave of the for the province which the is alleged to have ."-Held, that puty of the Attorney-General of a province has no authority to grant such leave.
..... CROWN-Con tract-Delivery of goods- Conditions as to quality, weight, etc.- Inspection-Rejection-Conversion-Sale Crown officials-Liability of Crown- Deductions for short weight-Costs.. GRANT-Water lots-Expropriation-Statutory authority to grant lands ...........................
LANDS--Constitutional law- Legislative jurisdiction-Terms of union B.C., art. 11-Railway aid-Provincial grant to Dominion-Intrusion-Provincial legislation-Water-records within LANDS-Continued.
"Railway Belt"-Construction of statute
-B.N.A.
Imperial 0.0., 16th May, 1871-"lVater
Clauses Consolidation Act, R.S.
B.C.
. While lands within the
"Railway Belt" of British Columbia remain vested in the Government of Canada in virtue the grant made to the Government of British Columbia pursuant to the eleventh article of the
"Terms of Union" of that province with the Dominion, the Water Commissioners of the Province of British Columbia are not competent to make grants of waterrecords, under the provisions
"Water Clauses Consolidation Act, which would, in the operation of the powers thereby conferred, interfere with the proprietary rights of the Dominion of Canada there- The Queen v. Farwell Can..
S.C.R. 392).
Judgment appealed from
Ex. C.R.
Expropriation of land- Water lots-Expectation of enhanced value-Crown grant-Statutory authority.]
Land in Halifax, including a lot extending into the harbour, was expropriated for the purposes of the Intercolonial Railway. The title to the water lot was originally grant from the
Government of Nova Scotia, but no statutory authority for making grant was produced.
The lot could have made much more valuable the erection of wharves and piers for which, however, as they would constitute an obstruction to navigation, a license from the Dominion Government would have to obtained.
was tendered as the value of all the land expropriated appealed from the judgment of the Exchequer Court allowing that amount.- Held, Duff J. dissenting, that the owners were not entitled to compensation based on the enhanced value that could given to the water lot the erection of wharves and piers and the expectation that a license would granted therefor, and, if they were, the amount tendered sufficient.-Qucere.
Can a Crown grant of lands made without statutory I
DAMAGES-Continued.
authority ?-Held, per Duff J., that there was such authority in this case.-Judgment of the Exchequer Court Ex. 2-Construction of statute-Government railway-Fire from engine-Yegligence ..........................
3-Action-Denial of traffic facilities -Injury reason of operation of rail- Limitation action
Act," Edw.' VII. s. 242-Construction of statute ..............
streets Railway upon or along highway-Leave to construct-Approval of location- Condition imposed-Payment of dam.ages to abutting land-owners-Construction of statute-R.S.C. ss. ................
5-Railway rules
Special instructions-Common law negligence-Workmen's Compensation Act .......... Delivery goods-Conditions as to quality, weight, etc. - Inspection--Rejection-Conversion by Crown officials-Liability Crown-Deductions for short weight- The Minister Agriculture Canada entered into a contract with the suppliants for the supply of a quantity of pressed hay for the use of the British army engaged in the operations during the late South African war, the quality of the hay and the size, weight and shape the bales being specified. Shipments were to made f.o.b. cars at various points in the province of to the port of Saint John, and were to subject to inspection and rejection at the ship's side there government officials.
Some of the hay was refused the inspector, as deficient in quality, and some for short weight in the bales.
In weighing, at Saint John, frac- DELIVERY-Continued.
tions of pounds were disregarded, both in respect to the hay refused and what was accepted; there was also a shrinkage in weight and in number of bales as compared with the way-bills.
hay so refused was sold the Crown officials without notice to the suppliants, for less than the prices payable under the contract, and the amount received upon such sales was paid the government to the suppliants.
In making payment for hay accepted, deductions were made for shortage in weights shown the way-bills and invoices, and credit was not given for the discarded fractions.-Held,
Davies J. (dissenting)
, that the appellants were entitled to recover for so much the amount claimed on the appeal as was deducted for shrinkage or shortage the weight of the hay delivered on account of the government weighers disregarding fractions pounds in the weight that accepted and discharged from the cars at Saint John.-Per Girouard,
Idington
Duff
JJ.-The manner in which the government disposed of the hay so refused amounted to an acceptance which would render
Crown responsible payment therefor at the contract price.-Judg ment appealed from Ex. C.R.
allowed in part with costs, the Chief
Justice and Davies J. (dissenting)
. Bouduties
New
Brunswick statute - Foreign bank
Special deposit in local branch-Depositor domiciled in Nova Scotia-Debt due bank-Notice of withdrawal-Enforcenent of payment ............
DISCRETION-Leave to appeal-"Supreme Court Act," R.S.C. [1906] c.
s. ............................
EMINENT DOMAIN.
EMPLOYER'S LIABILITY-Railway accident
Operating rules structions-Defective system- Common lav negligence-Work-nen's Compensation Act ........................
ESTOPPEL--Mcchanic6' lien-Contract- Orerpayment-Liability of owner land-Attaching of lien-Negotiation note-Claim of lien-holder-Waiver. EVIDENCE-Board of Railway Commissioners-Consideration of complaints- Evidence-Rejection- Agreement as to special rates-Unjust discrimination.] A company operating, subject to Dominion authority, a tramway through several municipalities adjacent to the City Montreal, and having connections and traffic arrangements with a provincial tramway in that city, entered into under statutory with one of the municipalities whereby, in consideration special privileges conceded in regard to the use of streets, etc., lower rates of passenger fares were granted to persons using the tramway therein, for transportation to and from the city, than to denizens of the adjoining municipality with which there was such agreement.
On the hearing a complaint, alleging unjust discrimination in respect to fares, the Board Railway Commissioners for Canada refused to take the agreement into sideration when tendered in evidence to justify the granting of the special rates and ordered the company, appellants, to furnish the service to versons using the tramway in both municipalities at the same rates of fare.
an appeal, leave of the Board, in respect of the propriety of overlooking the contract, submitted as a question law.- Held, Davies and Anglin JJ. dissenting, that, as the existence of the contract was one of the elements bearing upon the cision of the question of substantial similarity in circumstances, the Board should have admitted the evidence tendered in regard to the agreement consideration of which the special rates had 2- Fixtures-Lessor and lessee-Buildings placed on leased land-Onus proof.]
In a dispute as to the degree and object of the annexation of buildings erected upon leased land the tenant in occupation under the lease, the onus of shewing that in the circumstances in which they were placed upon the land there was an intention that EVIDENCE-Continued.
they should become part of the freehold lies upon the party who asserts that they have ceased to chattels.
Holland v. Hodgson (L.R. fol- Arbitration award-Eapropriation-Form of awoard-Viewo property-Proceeding on wrong principle-Disregarding evidence.]
In expropriation proceedings, under the "Railway the arbitrators in making their award stated that they had not found the expert evidence a valuable factor in assisting them in their conclusions and that, after viewing the property in question, they had reached their conclusions by "reasoning from their own judgment and a few actual facts submitted in evidence."
peal from the judgment of the Supreme
Court of Alberta setting aside the award increasing damages.-Held, that it did not appear from the language used that the arbitrators had proceeded without proper consideration the evidence adduced or upon what was not properly evidence and, therefore, the award should not have been interfered ss. and 27-Secondary
Eject
Mesne
Section of the "Evidence Act"
Nova Scotia (R.S.N.S.
provides that "a copy of a notarial act or instrument in writing made in
Quebec before a notary public, rolled or enregistered such notary and certified by a notary or prothonotary to a true copy the original, thereby certified to in his possession as such notary or prothonotary. shall received in evidence in any court place of the original, and shall have the same force and effect as the original would have if produced and proved."
And by the first two sub-sections section it is provided that:
probate of a will or copy thereof certiunder the hand the registrar probate or found to a true copy the original will, when such will has recorded, shall received as eviof the original will, but the court may, upon due cause shewn upon davit, order the original will to pro- EVIDENCE-Continued.
duced in evidence, or may direct such other proof of the original will as under the circumstances appears necessary or reasonable for testing the authenticity of the alleged original will, and its unaltered condition correctness of the prepared copy. This section shall apply to wills and the probate and copies of wills proved elsewhere than in this province, provided that the original wills have been posited probate and copies granted in courts having jurisdiction over the proof of wills and administration of intestate estates, or the custody of wills."-Held, that a copy of a will executed before two notaries in the Province of Quebec, under the provisions of article 834 certified by one said notaries to a true copy of the original in his possession, is admissible in evidence the trial of an action ejectment in Nova Scotia, as provided in section
5-Negligence-Shipping
Action for daniages
Personal injury-Evidence- Res ipsa loquitur-Limitation of liability -"Canada Shipping Act," R.S.C. c. s. 921.]
ship lying at her dock caught fire during the night and destroyed.
in an action to recover damages for injuries sustained in consequence by a passenger, the owners adduced no evidence explain the origin the fire.-Held, affirming the judgment appealed from 'Man. R. that, in the circumstances, the only inference to drawn was that the owners were grossly neglitract-Discharge of one surety under seal-Confirmation of original guarantec-Death of surety-Powers of executors-Continuance of guarantee. EXPROPRIATION - Expropriation land-11fater lots-Expectation of enhanced ralue-Grown grant-Statutory Halifax. EXPROPRIATION-Continued.
cluding lot extending into the harhour, was expropriated for the purposes of the Intercolonial Railway.
The title to the water lot was originally grant from the Government of Nova Scotia, but no statutory authority for making grant was produced.
could have been made much more valuable by the erection of wharves and piers for which, however, as they would constitute an obstruction to navigation, a license from the Dominion Government would have to obtained.
was tendered as the value of all the land expropriated and the owners, claiming much more, appealed from the judgment of the Exchequer Court allowing that amount.-Held, Duff J. dissenting, that the owners were not entitled to compensation based on the enhanced value that could given to the water lot the erection of wharves and piers and the expectation that a license would be granted therefor, and, if they were, the amount tendered was, in the sufficient.
Quwre.
Crown grant lands made without statutory authority? - Duff J., that there was such authority in this case.-Judgment
Exchequer Court Ex. C.R. 414) affirmed.
.............
Arbitration and award-Form aiard-Evidence-Tiew; of property- Proceeding on wrong principle-Disregarding cridence.] In expropriation proceedings, under the "Railway Act," the arbitrators in making their award stated that they had not found the expert evidence valuable factor in assisting them in their conclusions and that, after viewing the property in question, they had reached their conclusions "reasoning from their judgment and actual facts submitted evidence."
appeal from the judgment of the preie Court of Alberta setting aside the award and increasing the damage.
that it did not appear from the language used that the arbitrators had proceeded without proper consideration of the evidence adduced or upon what was not properly evidence and. therefore, the award should not have interfered with.
FIXTURES-Lessor and lessee-Build. ings placed leased land-Evidence- Onus of proof ...................
References-Opinions-Advice
..... GUARANTEE-Suretyship-Simple contract-Discharge of one surety under seal-Confirmation of original guarantee-Death surety-Powers of executors-Continuance guarantee HIGHWAYS-Board of Railway missioners strects-Railway upon or along highway -Leave to construct-Approval of loca- Payment damages to abutting land-owners-Construction of statute-R.S.C. ss. 47, ....... Fixtures
Lessor and lessee-Buildings placed on leased land -Evidence-Onus of proof ........ INDICTMENT.
INJUNCTION-Appeal - Matter in controversy-Stare decisis- Municipal by-law--Contract-Collateral effect of judgment-Construction of statute
"Suprene c. ss. (c), 46.. INTRUSION-Constitutional lair-Legislative jurisdiction-Crown lands-Terms of union (B.C.) Art. 11-Railiway aid- Provincial grant to Dominion-Provincial legislation-TWater-records within "Railway Belt"-Clonstruction of statute -B.Y.A.
-Imperial
16th
May, Clauses
Consolidation . Constitutional law-Construction of statute-B.N.A. Act, ss.
101-"Supreme Court Act" R.S.C.
ss. 60-References by
Governor- General in
Council-Opinions and advice-Jurisdiction of parliament- Independence of judges-Judicial functions-Constitution of courts-Administration of the laws of Canada-Provincial legislative jurisdiction .....
Matter in controversy-Instalment municipal tax-Collateral effect of judgment ............................
by-law-Injunction- Contract-Collateral effect of judgment-Construction statutc-"Supreme Court Act."
ss. (c), ..
JUDICIAL PROCEEDING - Appeal-Alberta Liquor License Ordinance-Cancellation of license-"Supreme Court
...
TENANT-Fixtures- Lessor and lessee-Buildings placed leased land-Evidence-Onus of proof
........
.............
- Construction of covenant - Taxes-Partial exemption.]
A society owned a building worth about $20,000 which, the statute law of the province, was exempt from municipal taxation long as it was used exclusively for the purposes of the society.
portion of the building having been used intervals for other purposes, it was assessed at a valuation of $1,000 and the society paid the taxes thereon for some years.
Such portion was eventually leased for a term of years to
LEASE-Continued.
used for other purposes than those the society, and the valuation for assessment was increased to lease contained this covenant:-"The and truly pay or cause to be paid any and all license fees, taxes or other rates or assessments which may be payable to the City Halifax, or chargeable against the said premises by reason the manner in which the same are used or occupied the lessees hereafter, which are chargeable or levied against any property belonging said lessees (the said lessor, however, hereagreeing to continue to pay as heretofor all the regular and ordinary taxes, water rates and assessments levied upon or with respect to said premises, and the personal property thereon belonging to the lessor)." The society was obliged to pay the taxes on such increased valuation and brouglit action to recover the amount so paid from the lessees.-Held, Fitzpatrick. C.J. and Aiglin J. dissenting, that the taxes so paid were "regular and ordinary taxes"
lessors had agreed to pay as theretofore and the lessees were not liable therefor their
2-Fitures
Lessor and lessee- Buildings placed leased land-Evidence-Onus of proof.]
In a dispute as to the degree and object of the annexation of buildings erected upon leased land the tenant in occupation under the lease, the onus of shewing that othe circumstances in which they were placed upon the land there was an intention that they should become part of the freehold lies upon the party who asserts that they have ceased to chattels. Holland v. Hodgson (L.R. 7 C.P. Covenant for renewal-Construclion.]
lease for years of millraces and lands on the old Welland canal contained the covenant that: "After the end of years, as aforesaid, if the said (lessors) not continue the lease of the said water and works" they would their ments.-Held. Girouard and Duff JJ. dissenting, that at the end of the years the lessees were entitled to a re- LEASE-Continued.
newal of the term but not to a new lease containing a similar covenant for renewal or compensation.
They had a right to renewal or compensation but not to both.-After the original term expired the lessees remained in possession paying the same rental as before, for a further term years, no formal lease therefor having been executed and none demanded or tendered for execu- Ten years after the expiration this second term they were dispossessed and claimed compensation for improvements petition of right.-Held, that the rights of the lessees were the same as if the original term of years had been formally continued, or renewed, for a further like term.-Held, per
Idington J., Girouard J. contra, that the lessees having obtained a renewal their right to compensation was gone.-Per
Davies and Anglin JJ.-The lease was probably not renewed within the meaning the lessor's covenant, but there having been no proof of a demand for renewal and the lessees having remained in possession for the entire period for which they could have claimed a renewal, they can have no right to compensation for improvements.
If they had such a right in default obtaining a renewal it was barred by the Statute of Limitations. V.
............
4-Banking-Security for debt-Assignment of lease-Transfer of business
-Operation of bank-"Bank Act,"
.........................
MAXIMS-"Res ipsa loquitur"
........ ....
....................
LEGISLATION.
LIBEL-Election contest-Withdrawcal candidate-Allegation of improper motives-Trial of action-Verdict for fendant-ew trial.] K.
of the House of Commons prior to the election in and in August of that year a letter was published in the
Sydney Post which contained the following, which referred to him:
LIBEL-Continued.
doctor had great deal to say of the elections in
Well, I have some recollections that contest myself, and I ask the doctor: Why did you at that time withdraw your name from the liberal convention?
The majority of the delegates came there determined to see you nominated?
Why did you not accede to their request?
Doctor Kendall, what was your price?
Did you get it? Take the good liberals of this country into your confidence and tell them what happened in those two awful hours in a certain room in the Sydney Hotel that day?
The proceedings of the convention were held up for no reason that the delegates saw, but for reasons which are very well known to you and three or four others whom I might mention. speaker after another killed time at the Alexandria Hall while you were dread conflict with the machine. Finally the consideration was fixed and you took your coat and shouted for Johnston.
What was that considerathe trial of an action K. against the proprietors the Post the jury gave a verdict for the defendants.-Held, Davies and Duff JJ. dissenting, that the publication could only construed as charging K. with having withdrawn his name from the convention for personal profit, and was libellous.
The verdict was therefore properly set aside the court below and a new trial ordered.
lien-Contract-Overpayment-Liability of owner of land- Attaching of lien-Negotiation of note of lien-holder-Waiver-Estop- LIMITATIONS ACTIONS-Construction of statute-Contract for supply electric light-Negligence-Injury to person not privy to contract-"Consolidated Railway Company's Act, 59 V. (B.C.), ss.
The appellant having acquired the property, rights, contracts, privileges and franchises the Consolidated Railway and Light Company, under the provisions
"The Consolidated Railway [B.C.]), is entitled to the benefit LIMITATIONS OF ACTIONS-Contd.
the limitation of actions provided section of that statute.
Idington J.
dissenting.-The limitation so provided applies to the case of a minor injured, while residing in his mother's house, contact with an electric wire in use there under a contract between the company and his mother.-Judgment pealed from B.C. Rep. revers- Davies and Idington JJ. dissenting.
.....................
Denial traffic facilities-Injury reason operation of railway-Limitation of tions-"Railway Act, Edw. VII.
242-Construction of statute.]
juries suffered through the refusal a railway company to furnish reasonable and proper facilities for receiving, forwarding and delivering freight, as required the "Railway Act," to and from a shipper's warehouse, by means a private spur-track connecting with the railway, not fall within the classes of injuries described as resulting from the construction or operation railway, in section of the "Railway
Edw.. VII. and, conseqJuently, an action to recover damages therefor is not barred the limitation prescribed that section for the commencement of actions and suits indemnity.
Man. R.
affirmed, Girouard and Davies JJ. (dissenting)
.
3-Negligence - Shipping-Action for damages-Personal injury-Evidence
Res ipsa loquitur-Limitation of liability-"Canada Shipping Act,"
s. 921.]
ship lying at her dock caught fire during the night and was destroyed.
The officers of the in an action to recover damages for injuries sustained in consequence a passenger, the owners adduced no evidence to explain the origin of the fire.- Held, affirming the judgment appealed
-Man. R. 430)
that, in the circumstances, the only inference to drawn was that the owners were grossly negligent.-In such an action the owners
LIMITATIONS ACTIONS-Contd. of the ship cannot invoke the limitation provided section of the "Canada Shipping Act," R.S.C. The "Orwell"
P.D. and Roche v. London and South-Western 502), referred to. FISH 4-Sureyship-Simple contract-Discharge of one surety under seal-Confirmation of original guarantee-Death surety-Powers of executors-Continu- LAWS-Appeal-.Jurisdiction- Special leave-"Judicial proceeding"- Discretionary order-Matter of public interest-Alberta "Liquor License Ordinance" "Originating summons".. 646 ACT"-Criminal Codeand 7 Edw.
MECHANICS' LIENS-6 Edw. VII. (Alta.)-Contract-Overpayment to contractor-Liability of owner of land-Attaching of lien-Negotiation of note- Claim of lien-holder
Waiver-Estop- The action was to recover the price and to enforce a lien, under the "Mechanics' Lien Act," Edw. VII. (Alta.), for materials supplied during August and September, to the contractor for the erection of a number of buildings for the defendant. Plaintiffs had been paid for materials supplied to up to the end of July, and, being unable to complete his contract, 1st of Oct. the appellant took over completed the works. No formal cancellation the contract was made, but it appeared that it had in fact so taken over the appellant; that all subsequent payments made MECHANICS' LIENS-Continued.
formerly made, the amount paid largely exceeded the contract price.
It also appeared that, at the end of July, the payments made to exceeded what was then due him. At the trial Beck J., dismissed the action and held that there never was any sum owing and payable when deliveries were made
August and September and that no lien attached.
This judgment was reversed the judgment appealed from Alta.
L.R.
The Supreme Court of Canada allowed the appeal with costs and restored the trial judgment.
MOVABLES-Fixtures-Lessor and lessee
-Buildings placed on leased land-Evidence-Onus of proof. . ...........
library-Offer of funds-Special legislation-Oontract for plans powers.]
sum of money was offered the City of Sydney for a public library on condition that the city procured the site and provided for its maintenance.
An Act the legislature authorized the purchase the site and a special tax for its cost and future maintenance library.
The city council invited tenders for plans of the building and accepted that of
Bros. & scheme, however, fell through, money offered was not paid nor the library built.
Bros. & sued the city for the cost of their plans.-Held, that the city had no authority to enter into any contract involving the expenditure municipal funds in respect to the said I building and the action could not
Consideration of complaints-Ecidence- Rejection-Agreement as to special rates
-Unjust discrimination . ..........
3-Board of Railway Commissioners- Jurisdiction-Municipal streets way upon or along highway-Leave to
MUNICIPAL CORPORATION-Contd. tion imposed-Payment of damages to abutting land-owers-Construction statute-R.S.C. ss. ...................
controversy- Instalment of municipal tax-Collateral effect of judgment.. Appeal -Jurisdiction -Matter by-law-Injunction.--Contract-Collateral effect of judgment-Construction statute-"Supreme Court Act" NEGLIGENCE-Construction of statute and Edw. VII. s. 2-overnment railway-Fire from engine-Negligence-Damages.] By and Edw. VII. the Government of Canada liable for damage to property caused by a fire started by a locomotive working on a government railway, whether its or servants are or are not negligent, and by a proviso the amount damages is limited if modern and ent appliances have been used and the or servants "have not otherwise guilty any negligence."-Held, Davies J. dissenting, that the expression "have not otherwise been guilty of any means negligence in any respect and not merely in the use of a locomotive equipped with modern and efficient appliances.
Sparks from a motive set fire to the roof of a government building near the railway track and the fire was carried on to and destroyed private property. The roof this building had on several previous occasions caught fire in a similar way the government officials, though notified many of such occasions, had only patched it up without repairing properly.-Held, reversing the judgment of the Exchequer Court
Ex. C.R. 389), that the government officials were guilty of negligence in having a building with a roof in such condition so near to the track, and the owner of the property destroyed was entitled to recover total amount of his loss. ..............
NEGLIGENCE-Continued.
2-Railway-Accident-Railway rules
-Special instructions-Defective system
-Common law negligence-Workmen's
Compensation Act.]
The "Railway Act"
prescribes that rules and regulations travelling upon and the use or working of a railway must approved the
Governor-General in Council and that, until so anoroved, such rules and regulations shall have no force or effect;
when approved they are binding on all persons.
Rule of the rules of the
Grand Trunk Railway provides that
"In addition to these rules, the timetables will contain special instructions, as the same may found necessary.
Special instructions, not in conflict with these rules, which may given proper authority, whether upon the timetables or otherwise shall fully served while in force."
Trains running out of Brantford, Ont., are under control of the train-despatcher at London.
railway time-table has for many years contained following foot-note:- "Tilsonburg
Branch.-Yard-engines at
Brantford are allowed to push freight trains up the Mount Vernon grade and return to Brantford B. & T. station without special orders from the train-despatcher.
Yard-foreman in charge yard-engine will held responsible for protecting the return of the yard-engine, and for knowing such engine has returnbefore allowing a train or engine to follow.-A.
Council.
By Rule 224 "all messages orders respecting the movements trains must writing."- Held, Davies J. dissenting, that assuming the foot-note on the time-table to a "special instruction" under Rule it is inconsistent with the train-despatching system in force at Brantford and if. as the evidence indicates, it purports to authorize the sending out of gines under verbal orders to push freight trains up the grade it also inconsistent with Rule
Such instruction has, therefore, no legal operation.-Held, per Girouard and Anglin JJ., that was not a "special instruction" but a regulation, and not having been sanctioned by order in council operation under it was illegal.-By "The Railway
Act" a "train" includes any engine
NEGLIGENCE-Continued.
locomotive.
Rule provides that "includes an engine in service with without cars equipped with signals."- Held, per Girouard, Idington and Anglin JJ., that an engine returning to the yard after pushing a train up the grade, is a "train" subject to the provisions of Rule 224, and to the rules of the train-despatching system.-The accident in this case occurred through the yard-foreman failing to protect the engine on its return to the yard.-Held, Davies J. dissenting, that the company operated the yard-engines under an illegal system and were liable to common law damages and that sub-section of section the "Railway Act" applied.-Held, per Duff J., that since, as regards the danger of collision with trains stopping at Brantford for orders, the system of operating the yard-engines through the telegraphic despatches would clearly have afforded greater protection than that use, and since there was admittedly no impediment in the way of adopting the former system, there was evidence the jury of want of care in not adopting the safer system; and the fact that the existing system had been in operation for years was evidence from which the jury might infer that the general governing body the company was aware of it.
And, further, following Smith v. Baker ( and Ainslie Mining and Railway v. McDougall (42 Can. S.C.R. 420), that, in these circumstances, the company was responsible for the defects in the system. refused, July,
3-Negligence-Injury on public work -"Public Works Health Act"-Construetion of statute-R.S.C. s. - Regulations order-in-council - Breach of statutory duty-Action-Misjoinder.]
The provisions of section 3 of the "Public Works Health Act," R.S.C. do not impose a Government Department or a company constructing a public work the obligation to provide hospitals and surgical attendance for the treatment of personal injuries sustained by employees, whether of themselves or of their contractors sub-contractors, in the construction Co. v.
..................
NEGLIGENCE-Continued.
4-Appeal - Concurrent findings fact-Negligence of employees-Shipping for damages-Personal injury
-Evidence-Res ipsa loquitur-Limitation of liability - "Canada Shipping
Act," R.S.C. s. 921.]
current findings on questions of fact the courts below ought not to disturbed on appeal unless a mistake is clearly shewn.-A ship lying at her caught fire during the night and was destroyed.
the ship failed to arouse passengers in time to permit them to escape in safety and, an action to recover damages for injuries sustained in consequence by a passenger, the owners adduced no evidence to explain the origin of the fire.-Held, affirming the judgment appealed from
Man. R. 430), that, in the circumstances, the only inference to be drawn was that the owners were grossly negligent.-In such an action the owners the ship cannot invoke the limitation provided by section of the "Canada
Shipping Act,"
The "Orwell" P.D. 80), and Roche v.
London and South-Western Ry.
([1899] 502), referred to. Doit- 5--Dangerous works-Joint tortfeasors
-ludgnent against one of several persons responsible for damages-Bar to action.] proprietor or principal tractor undertaking works in the circumstances inherently dangerous cannot delegate the duty of providing against such danger so as to escape personal responsibility if that duty be neglected.
-Failure to discharge such duty makes the proprietor and his contractor, or the contractor and his sub-contractor, as the case may equally liable as joint tortfeasors for resultant injury.-A judgment for damages sustained in consequence of any such injury against of such joint tortfeasors is a bar to a subsequent action therefor against another.-Judgment
'Man.
6-Construction of statute
Linitations actions-Supply of electric light
-Injury to person not privy to contract ...........................
NEW TRIAL-Libel-Election contest- Withdrawal of candidate-Allegation improper motives-Trial of action-Verdict for defendant.]
K. was a member of the House of Commons prior to the election in and in August of that year a letter was published in the Sydney Post which contained the following, which referred to him: Doctor had a great deal to say of the elections in Well, I have some recollections of that contest myself, and I ask the Doctor: Why did you at that time withdraw your name from the liberal convention?
The majority of the delegates came there determined to you nominated?
Why did you not accede to their request?
Doctor Kendall, what was your price? Did you it ?
Take the good liberals of this county into your confidence and tell them what happened in those two awful hours in a certain room in the Sydney Hotel that day?
The proceedings the convention were held up for reason that the delegates saw, but for reasons which are very well known to you and three or four others whom I might mention.
speaker after another killed time at the Alexandria Hall while you were in dread conflict with the machine.
Finally the consideration was fixed and you took your coat and shouted for Johnston. What was that consideration?" the trial of an action by K. against the proprietors of the.Post the jury gave a verdict for the defendants.-Held, Davies and Duff JJ. dissenting, that the publication could only construed as charging K. with having withdrawn his name from the convention for personal profit, and was libellous.
The verdict therefore properly set aside by the court below and a new trial ordered. NOTARY-Evidence - Copy of notarial ......... Carriers-International through traffic- Reduction joint rate--Jurisdiction of Board of Railway Comnissioners-Practice-Want parties-Refusal of costs .........
PATENT
INVENTION-Contract- Assignment of patent rights-Implied waranty-Privity-Validity of patent- Caveat ptor-Novelty-Combination- New and useful results.] In the absence of an express agreement or of special might implied, an assignment of "all the right, title and interest" in a patent of invention does not import any warranty on the part of the assignor as to the validity of the patent.
affirmed.-Per Idington J.-In the present case patents were valid.
PAYMENT-Banking-Security for debt
-Assignment of lease-Transfer of business-Operation of bank-"Bank Act,"
Concurrent ings of fact.]
The Supreme Court
Canada will not interfere with concurrent findings on questions purely of fact unless satisfied that the conclusions appealed from are clearly wrong.
2-Concurrent findings of fact-Review on appeal.] Concurrent findings fact
FIsI
3--Railways-Carriers - International through traffic-Reduction of joint rate inissioners-Want of parties-Refusal
4-Arbitration and award-Expropriation-Form of award-View of property
-Proceeding on wrong principle-Disregarding evidence ...............
PRACTICE-Continued.
5-Criminal Code-6 & Edw.
Preferring charge
Powers of deputy- "Lord's Day Act," s. ...........
Misjoinder - Common law liability -Different causes of action ........ 7-Appeal
Discretionary order Matter of public interest -Alberta "Liquor License Ordinance"- "Originating summons" ...........
Jurisdiction- Matter Injunction lateral effect of judgment-Construction of statute-"Supreme Court Act," R.S.C. ss. 46 .. PRESCRIPTION.
PROHIBITION -Appeal-Jurisdiction- Quebec appeals-R.S.C. [1906] ss. and 46-Construction of statute.] No appeal lies to the Supreme Court Canada from the judgment of a court of the Province of Quebec in any case of proceedings for or upon a writ prohibition, unless the matter in controversy falls within some of the classes of cases provided for section 46 the "Supreme Court Act," R.S.C. Shannon v. The Montreal Park and Island Railway (28 Can. S.C.R. ....... INTEREST-Appeal- Jurisdiction-Special leave -"Judicial proceeding"
Discretionary order public interest-Alberta "Liquor License Ordinance"-"Originating summons" 646 WORKS-Expropriation land lots-Expectation of enhanced value-Crown grant-Statutory authority .............................
2-Negligence-Injury on public work
-"Public Works Health Act"-Construction of statute-Regulations by order-incouncil-Breach of statutory duty- Action-Misjoinder ...............
RAILWAYS-Construction of statute--7
& Edw. VII. s. 2-Government railway-Fire from engine-Negligence- Damages.] By & Edw. VII.
the Government of Canada liable for damage to property caused a fire started by a locomotive working on a government railway, whether its or servants are or are not negligent, and by a proviso the amount damages is limited if modern and cient appliances have been used and the or servants "have not otherwise been guilty of any negligence."-Held,
Davies J. (dissenting)
, that the expression "have not otherwise been guilty any negligence" means negligence in any respect and not merely in the use of a locomotive equipped with modern and efficient appliances.-Sparks from a motive set to the roof of a government building near the railway track and the fire was carried on to and destroyed private property. The roof this building had several previous occasions caught fire in a similar way and the government officials, though notified on many occasions. had only patched it up without repairing it properly.-Held, reversing the judgment of the Exchequer Court
Ex. 389), that the government officials were guilty of negligence in having a building with roof in such condition so near to the track, and the owner of the property destroyed was entitled to recover the total amount
2-Trairay
"Th traffic"-Constitutional law- Legislative jurisdiction-Powers of Board of Railway Conniissioners-Construction of statute-R.S.C.
s. 8(b)
-.
B.
Railway Act," R.S.C. does not confer power on the Board of Railway Commissioners for Canada to make orders respecting through traffic over a provincial railway or tramway which connects with or crosses a railway subject to the authority of the Parliament Davies and
Anglin JJ. contra.-Per Fitzpatrick C.J. and Girouard and Duff JJ.-The provisions sub-section
(b)
of section
"Railway Act" are ultra vires of the Parliament of Canada.
...... International through traffic-Reduction of joint rate-Jurisdiction of Board of Railway Commissio ters-Practice-Parties-Costs.] a complaint in respect to a joint tariff, between the appellant company and The Michigan
Central
Railroad under which a rate three cents per hundred pounds was charged on pulpwood in car-lots for carriage from Thorold, in Ontario, to Suspension Bridge, in the State of New York, the Board of Railway Commissioners for Canada decided that the rate should reduced and ordered the appellants to restore a joint rate which had previously existed two cents per hundred pounds for carriage of such goods between the points mentioned.
The Michigan Central Railroad Company, over whose railway the goods had to be carried from the point where the appellants' railway made connection with it at the international boundary to the foreign destination, was not made a party to the proceedings before the Board.
On appeal by leave of a judge to the Supreme Court Canada.-Held, per Fitzpatrick and Idington and Duff JJ., that the Board had no jurisdiction to make the order.- Per Girouard, Davies and Anglin JJ.- As the Michigan Central Railroad Company was not a party to the proceedings, it was not competent for the Board to make the order.-The appeal was allowed without
..... ss. 336-Through traffic -Joint international tariffs-Filing by foreign company - Assent of domestic company-Tariffs "duly fled"-Jurisdiction of Board of Railway Commissioners.]
Under section of "The Railway Act,"
R.S.C. ch. tariffs filed by foreign railway companies for rates through traffic originating in foreign territory, to be carried by continuous routes owned or operated by two more companies from foreign points to destinations in Canada, are effective and binding upon all Canadian companies participating in the transportation, although not expressly assented to the latter, and may be enforced the against
Canadian panies.
Anglin J. contra.-Per Anglin
J. (dissenting).-"The Railway Act" requires concurrence the several panies interested as in other joint tariffs on through traffic mentioned in the Act.
Action-Damnages-Denial of traffic facilities-Injury reason of operation of railway-Limitation of actions-"Railway Act," Bdw. VII. s.
Construction of statute.] Injuries suffered through the refusal a railway company to furnish reasonable and proper facilities for receiving, forwarding and delivering freight, as required the "Railway Act," to and from a shipper's warehouse, means of a private spur-track connecting with the railway, not fall within the classes of injuries described as resulting from the construetion or operation the railway, in tion 242 of the "Railway Act," Edw.
VII. and, consequently, an action recover therefor is not barred the limitation prescribed that section for the commencement actions and suits for indemnity. Judgment appealed from Man. R.
affirmed, Girouard and Davies JJ. disto Privy
6-Board of Railway Commissioners- Municipal streets way upon or along highway-Leave to tion imposed-Payment of damages to
237.]
sent of the municipality to use certain public streets for that purpose, the leave to construct and approval of the location of the line of their railway upon and along the highways in ques- None of the lands abutting these highways were to appropriated for the purposes of the railway, nor were the rights or facilities access thereto to interfered with except so far as might result from inconvenience caused the construction operation of the railway upon and along the streets. In granting the application the Board made the order complained subject to the condition that the pany should "make full compensation to all persons interested for all damage them sustained by reason the location of the said railway along any street." On appeal to the Supreme Court of Canada.-Held, Davies and Duff JJ. dissenting, that, under the provisions section of the "Railway Act," R.S.C. ch. the Board had, on such application, the dition directing compensation should made the company in respect of the damages which might suffered by the proprietors the lands abutting on the highways the municipality upon and along which the line of railwaV so located was to constructed.
7-Accident rules - Special instructions - Defective system-Coinmmon lato negligence-Workmen's Compensation Act.]
The "Railway Act," prescribes that rules and regulations for travelling upon and the use or working of a railway must approved by the
Governor-General Council and that, until approved, such rules and regulations shall have are binding on all persons.
Rule 2 of the rules the Grand Trunk Railway provides that "In addition to these rules, the time-tables will contain special structions, as the same may be found necessary.
Spocial instructions, not in conflict with these rules, which may given proper authority, whether upon the time-tables or otherwise, shall fully observed while in force."
Trains running out of Brantford, Ont., are under control of the train-despatcher at
London.
The railway time-table has many years contained the following footnote:-"Tilsonburg
Branch. - Yard-engines at Brantford are allowed to push freight trains up the Mount Vernon grade and return to Brantford & T.
station without special orders from the train-despatcher. Yard-foreman in charge of yard-engine will held responsible for protecting the return of the yard-engine, and for knowing such engine has returned before allowing a train or engine to follow.-A.
Superintendent."
This regulation or instruction had not then been submitted for the approval of the Governor-General in Council.
Rule "all messages or orders respecting the movement trains must writing."
Davies J. (dissenting)
, that assuming the foot-note on the time-table to a "special instruction" under Rule it is inconsistent with the train-despatching system in force at Brantford and if, as the evidence indicates, it purports to authorize the sending out engines under verbal orders to push freight trains up the grade it is also inconsistent with Rule
Such instruction has, therefore, no legal operation.-Held, per Girouard and Anglin
JJ., that it was not a "special instruetion" but a regulation, and not having sanctioned order in council operation under it was illegal.-By "The
Railway Act," a "train" includes any engine or locomotive.
Rule provides that it "includes an engine in service with or without cars equipped with signals."-Held, per
Girouard,
Idington and Anglin JJ., that an engine returning to the yard after pushing a train up the grade, is a "train" subject to the provisions of Rule and to the rules of the train-despatching system.accident this case ocurred through the yard-foreman failing to protect the engine on its return to the yard.
Davies J. (dissenting)
, that the company operated the yard-engines under an illegal system and were liable to mon law damages and that sub-section of section of the "Railway Act"
applied.-Held, per Duff J., that since, as regards the danger collision with trains stopping at Brantford for orders, the system of operating the yard-engines through the telegraphic despatchers would clearly have afforded greater protection than that in use, and since there was admittedly no impediment in the way adopting the former system, there was evidence for the jury of want of care in not adopting the safer system; and the fact that the existing system had been in operation for years was evidfrom which the jury might infer that the general governing body of the company was aware of it.
And further, following Smith Baker 325). and Ainslie Mining and Railway McDougall Can. S.C.R. 420), that, in these circumstances, the pany was responsible for the defects refused, July,
Limitations of actions-Supply of electric light -Yegligence-Injury to person not privy to contract-"Consolidated Railway Company Act, (B.C.), ss. .......................
Consideration of cornplaints-Eridence- Reiection-Agreement as to special rates -njust discrimination .......... Arbitration and award Expropriation-Form of award-View of property-Proceeding on wrong principle- Disregarding evidence .............
REFERENCES - Construction of statute-"B. Y. Act, ss. 101-"Supreme Court Act." R.R.C. ss. 3, 60-References Governor-General in Council -- Opinions and advice-Jurisdiction Independence of judges Judicial functions - Constitution courts-dninistration of the lairs REFERENCES-Continued.
Canada-Provincial legislative jurisdic- See 3.
RIVERS STREAMS-Constitutional
Legislative jurisdiction
Crown lands-Terms of union, B.C., art.
Railway aid-Provincial grant to Dominion-Intrusion-Provincial legislation- Water-records within "Railway Belt"- Construction of statute-"B. Act,
146-Imperial
0. 16th May,
"Water Clauses
Consolidation Act, R.S.B.C.
While lands within the "Railway Belt"
of British Columbia remain vested the Government of Canada in virtue the grant made to it by the Government of British Columbia pursuant to the eleventh article of the "Terms of Union"
of that province with the Dominion, the
Water Commissioners of the Province
British -Columbia. are not competent to make grants of water-records, under the provisions the "Water Clauses solidation Act, R.S.B.C., which would, in the operation of the powers thereby conferred, interfere with the proprietary rights of the Dominion
Canada therein.
The Queen
Farwell Can. S.C.R. 392).
Judgment appealed from Ex. C.R.
SALE-Contract-Delivery of goods- Conditions as to quality, weight, etc.- Inspection
Sale Crown officials - Liability
Crown - Deductions for short weight - See 1.
SHIPPING - Negligence-Shipping-Action for damages-Personal injury-Evidence-Res ipsa loquitur-Limitation liability-"Canada Shipping Act," R.S.C.
s. 921.]
ship lying her dock caught fire during the night and was destroyed.
The oflicers of the in an action to recover damages for injuries sustained in consequence a
SHIPPING-Continued.
passenger, the owners adduced no evidence to explain the origin of the fire.- Held, affirming the judgment appealed R. 430)
that, in the circumstances, the only inference to drawn was that the owners were grossly negligent.-In such an action the owners of the ship cannot invoke the limitation provided section of the "Canada Shipping Act," R.S.C. (1906), "Orwell" P.D. 80), and Roche London and South-Western Ry. Co. ( referred to. Dom- FisH v. ISBESTER........ And see - Limitations of actions - Contract for supply of electric light-Negligence-Injury to person not privy to contract- "Consolidated Railway Company's Act, appellant having acquired the property, rights, contracts, privileges and franchises of the Consolidated Railway and Light Company, under the provisions of "The Consolidated Railway Company's Act, Vict. [B.C.]), is entitled to the benefit the limitation of actions provided section that statute. Idington J. dissenting.-The limitation provided applies to the case of a minor injured while residing in his mother's house contact with an electric wire in use there under a contract between the company and his mother.-Judgment appealed from B.C. Rep. 224) reversed, Davies and Idington JJ. dis- CROMPTON................. 2-Construction of statute-7 & Edw. VII. s. 2-Government railway- Fire from engine-Negligence-Damages.] 7 & Edw. VII. the Government Canada is liable for dam- I age property caused a fire started locomotive working on a governient railway, whether its servants are or are not negligent, and by a proviso the amount of damages is limited if modern and efficient appliances have been used and the or servants "have not otherwise been guilty of any negligence."-Held, Davies J. dissenting, that the expression "have not otherwise been guilty of any negligence" means negligence in any respect and merely in the use of a locomotive equipwith modern and efficient appliances.
-Sparks from a locomotive set fire to the roof of a government building near the railway track and the fire was carried on to and destroyed private property.
The roof of this building had on several previous occasions caught fire in a similar way and the government officials, though notified on many of such occasions, had only patched it up without repairing it properly.-Held, reversing the judgment of the Exchequer Court
Ex. C.R. 389), that the government officials were guilty of negligence having a building with a roof in such a condition so near to the track, and the owner of the property destroyed was entitled to recover the total amount
3-Tramiway - "Through traffic"-Oonstitutional lato - Legislative jurisdiction-Powers of Board of Railway Commissioners-Construction of statute-R.S.C.
8(b)
-- B. N. Act," ss. 92.]
Railway Act," R.S.C.
not confer power on the Board
Railway Commissioners for Canada to make orders respecting through traffic over a provincial railway or tramway which connects with or crosses a railway subject to the authority the Parlianient Canada. Davies and Anglin J.
contra.-Per Fitzpatrick and Girouard and Duff J.-The provisions sub-section
(b)
of section
"Railway Act" are ultra vires of the
4-Railicays-Construction of statute
-R.8.O. ss. 336-Through traffic-loint international tariffs-Filing foreign company-Assent of doinestic company-Tariffs "duly filed"inissioners.]-Under section of "The
Railway Act," R.S.C. tariffs filed foreign railway companies for rates on through traffic originating in foreign territory, to be carried continuous routes owned or operated two or more companies from foreign points to destinations in Canada, are
I STATUTE-Continued.
effective and binding upon all Canadian companies participating in the transportation, although not expressly sented to the latter, and may enforced the Board Railway missioners for Canada against such Canadian companies.
Anglin J. contra.- Per Anglin J. (dissenting) -"The way Act" requires concurrence the several companies interested as in other joint tariffs on through traffic men- Banking
Security debt signment of lease-Transfer of business- Operation of bank-R.S.O. [1906] s. s.s. 1(d) and 2(a), s. 81.]-By tion sub-section 1 (d) of "The Bank (R.S.C. [1906] a bank may "engage in and carry on such business generally as appertains to the business of banking"; sub-section (a) it shall not "either directly or indirectly trade or business whatsoever"; section authorizes the purchase of land in certain cases of which a direct voluntary conveyance the owner is not one.- Held, affirming the judgment of the Court Appeal
Ont. L.R. Duff and Anglin JJ. dissenting, that these provisions of the Act do not prevent bank from agreeing to take payment of a debt from a customer an assignment of a lease of the latter's business premises and to carry on the business for a time with a view to disposing of it as a going concern at the earliest
6-Action-Damages-Denial of traffic facilities-Injury reason of operation of railway - Limitation of actions - "Railway Act," Edw. VII. s. 242 -Construction of statute.] Injuries suffered through the refusal by a railway company to furnish reasonable and proper facilities for receiving, forwarding and delivering freight, as required the "Railway Act," to and from a shipper's warehouse, means of a private spurtrack connecting with the railway, do not fall within the classes of injuries described as resulting from the construetion or operation of the railway, in tion of the "Railway Act," 3 Edw. VII. and, consequently, an action to recover damages therefor is not barred the limitation prescribed that tion for the commencement of actions and suits for indemnity.
Judgment appealed from Man. R. 300) affirmed,
Girouard and Davies
JJ. (dissenting)
.
Ry. v.
INsoN ..........................
7-Board of Railway Commissioners- Municipal streets way upon or along highway - Leave to tion imposed
Payment of damages to sent the municipality to use certain public streets for that purpose, the leave to construct and approval of the location the line of their railway upon and along the. highways in question.
None of the lands abutting on these highways were to appropriated the purposes of the railway, nor were the rights or facilities of access thereto to interfered with except in so far as might result front inconvenience caused the construction and operation the railway upon and along the streets. In granting the application the Board made the order complained subject to the should
"make full compensation to all persons interested for all damage them sustained reason the location of the said railway along any street."
-Held, Davies and Duff JJ. dissenting, that, under the provisions of section the "Railway Act," R.S.C. (1906), the Board had, on such application, power impose directing that compensation should made the company in respect of the damages which might suffered the proprietors of the lands abutting on the highways of the municipality upon and along which the line of railway so located was constructed.
.......................
8-Criminal Code-6 7 Edw. VII. c. 8
-Procedure-Alberta and Saskatchewan
^ Indictable offence
Preliminary inquiry-Preferring charge-Consent of Attorney-General - Powers of deputy - "Lord's Day Act," s.
Section (a) of the Criminal & 7 Edw. VII. 8) provides that, "In the Provinces of Alberta and Saskatchewan shall not necessary to prefer any bill of indictment before a grand jury, but it shall sufficient that the trial any person charged with a criminal offence shall commenced a formal charge in writing setting forth as in an indictment the offence with which he charged.
Such charge may preferred the Attorney-General or an agent of the Attorney-General or any person with the written consent of the judge of the court or of the Attorney- General or order of the court."-Held, Idington J. dissenting, that a preliminary inquiry before a magistrate is not necessary before a charge can preferred under this section.-Held, also, that the deputy of the Attorney-General for eiter of said provinces has no authority to prefer a charge thereunder without the written consent the judge of the Attorney-General or an order the court.-Section of the "Lord's Day Act" provides that "no action or prosecution for a violation of this Act shall commenced without the leave of the for the province which the is alleged to have "-Held, that the puty of the Attorney-General a province has no authority to grant such ...... Will
-R.S.N.S.
ss. and Secondary evidence -Ejectment-Mesne Section of the "Evidence Act" of Nova Scotia (R.S.N.S. provides that "a copy of a notarial act or instrument in writing made in Quebec before a notary public, filed, enrolled or enregistered such notary and certified a notary or prothonotary to a true copy of the original, thereby certified to in his possession as such notary or prothonotary, shall received in evidence in any court in place of the original, and shall have the same force and effect as the original would have if produced and proved." And by the first two sub-sections of tion it provided that:-"The probate of a will or a copy thereof certified under the hand of the registrar of probate or found to a true copy of the original will, when such will has recorded, shall received as evidence of the original will, but the court may, upon due cause shewn upon affidavit, order the original will to produced evidence, or may direct such other proof of the original will as unu r the circumstances appears necessary or reasonable for testing the authenticity of the alleged original will, and its unaltered condition and the correctness of the prepared copy.
This section shall apply to wills and the probate and copies of wills proved elsewhere than this province, provided that the original wills have been deposited and the probate and copies granted in courts having jurisdiction over the proof of wills and administration of intestate estates, the custody of wills."-Held, that a of a will executed before two notaries in the Province of Quebee under the provisions of article certified one of said notaries to a true copy of the original in his possession, is admissible in evidence on the trial of an action of ejectment in Nova Scotia, provided in section
.........................
10-Constitutional lawo-"B. Y.
Act," ss. 101-"Suprenmc Court
Act," ss. 3. 60-References Governor- General in council-Opinions and advice
-Jurisdiction of Parliament-Independence of judges-Judicial functions-Constitution of courts - Administration the laws of Canada-Provincial legislative jurisdiction.] Per Fitzpatrick C.J.
and Davies, Duff and Anglin JJ.-The provisions of of the "Supreme
Court Act," R.S.C., are within the legislative jurisdiction of the
Parliament of Canada.-Per Girouard and Idington JJ.-The provisions of that section assuming to authorize references the Governor-General in Council to the judges the Supreme
Canada for their opinions in respect to matters within jurisdiction are ultra vires of the Parliament of Canada; but, if the Governments of the Dominion and of a province unite in the submissions of the questions so referred the judges of the
Supreme Court of Canada should entertain the reference.-Per Idington J.- The administration of justice in each province having been exclusively assigned to it the power of Parliament regard to the same is limited to creating a court of appeal and courts for the administration of the laws of Canada.- Per Idington
J.-Parliament has no power to authorize the interrogation the Supreme Court of Canada except where the question submitted relates to some subject respecting which it is competent for Parliament to legislate respecting has legislated competently stituted court to administer or aid in administering the laws so enacted.-Per Idington J.-Queere. As to the constitutionality of adopting a system of interrogations of the judiciary even when the questions are confined to subjects of the thus
..... 11-Negligence-Injury on public work -"Public Works Health Act"-Construction of statute-R.S.C. s. Regulations order-in-council-Breach of statutory duty-Action-Misjoinder.] The provisions of section of the "Public Works Health Act," R.S.C. do not impose on a Government Department or a company constructing a public work the obligation to provide hospitals and surgical attendance the treatment of personal injuries sustained employees, whether of themselves or of their contractors or subcontractors, in the construction of such Crown lands
Terms union, B.C., art. 11-Railway aid-Provincial grant to Dominion legislation-Water-records within "Railway Belt" - "B.
16th May, "Water Clauses Consolidation Act, Prohibiappeals statute - 46 ..............................
Succession duties-New Brunswick statute-Foreign bank - Special deposit in local branch-Depositor domiciled in
Nova Scotia-Debt due bank-Notice of withdrawal-Enforcement of payment.
...........
15-Construction of statute-Leave to appeal-Equal division of opinion in provincial court ....................
STATUTES-(Imp.)
V. ss.
[B.N.A. Act] ......
(Imp.) 30 V. ss.
[B.N.A. Act,
..............
.......
R.S.C. ss.
[Railway Act]
..................
5-(D.)
[Bank Act]
.................
6-(D.)
[Railway Act] ..
7-(D.)
[Lord's Day Act] ...............
8-R.S.C.
[Railway Act] ........
STATUTES-Continued.
R.S.C. ss. [Supreme Court Act] ................
10-R.S.C. s. [Public Works Health Act] ..............
11-R.S.C.
s. [Canada Shipping Act] ...............
R.S.C. s. [Supreme Court Act] ................
(a), [Supreme Court Act].... 14-(D.)
[Railway Act]
..................
Edw. VII. [Railway ct] ............................
16-(D.) & 7 Edw. VII. [Criminal indictments] ..................
17-(N.S.) R.S.N.S.
[Wills executed in Quebec]. . 18-(B.C.) R.S.B.C.,
Consolidation Act, (B.C.)
[Consolidated Railway Cos. Act] .. . 20-(Alta.)
Edw.
[Mechanics' Liens] ...............
31ECITANIcS'
STATUTES-Continued.
21-(Alta.)
Edw.
[Liquor Licenses] ................
22-(N.W.T.) Con. Ord. c. s.
[Liquor Licenses] ............
DUTY-Succession duties- New Brunswick statute-Foreign bank deposit in local branch-Depositor domiciled in Nova Scotia-Debt due bank-Notice of withdrawal- Enforcement of payment.]
L., whose domicile was in Nova Scotia, had, when he died, $90,000 on deposit in the branch of the Bank of British North America, at St. John,
The receipt given him when the deposit was made provided that the amount would accounted for the Bank of British North America on surrender of the receipt and would bear interest at the rate of per cent.
per annum. Fifteen days' notice was to given of its withdrawal.
L.'s executors. on demand of the manager
St. John. took out ancillary probate of his will in that city, and were paid the money.
The Government of New
Brunswick claimed succession duty on the amount.-Held, reversing the judgment the Supreme Court of New Brunswick N.B. Rep. 558), Idington and
Duff JJ. (dissenting)
, that the Government was not entitled to such duty.- Held, per Davies and Anglin JJ., that notice of withdrawal could given and payment enforced at the head the bank in London, England, and perhaps at the branch in Montreal, the of the bank in Canada.
Attorney-General of Ontario v. Newman
340, 1 Out. L.R. 511), questioned. .....
granted, July,
Simple contract
Discharge of one surety under seal-Confirmation of original guarantee-Death of surety-Potoers of executors-Continuance of guarantee.]
and others, writing not under seal, agreed to guarantee payment of advances by a bank to company.
Later, writing under seal, all the sureties but consented to discharge the latter from
SURETYSHIP-Continued.
liability under the guarantee, the document providing that the parties did in every respect "ratify and confirm the said guarantee bound thereby as if the said Ogle Carss had never been a party thereto."-Held, that the last mentioned instrument did not convert the original guarantee into a specialty and having died an action thereon the bank against his cutors instituted more than six years after his death was barred by the Statute of Limitations.-Held, per Davies, Idington and Duff JJ., that the executors had no power to continue the guarantee terminated C.'s death consenting to an extension time for payment of tne amount then due notwithstanding the provision in the guarantee that it was to continuing and that the doctrines of law and equity favour a surety should not apply thereto.
TITLE LAND-Fixtures-Lessor and lessee-Buildings placed on leased land- Evidence-Onus of proof ......... lien-Contract Overpayment-Liability of owner of land -Attaching of lien-egotiation of note of lien-holder-Estoppel.. . MECHAICS'
2- Suretyship-Simple contract-Discharge of one surety under seal-Confirmation of original guarantee-Death of surety-Powers of executors-Continu- Implied machinery-Yew agreement ....... Implied warmachinery agreement-Breaches prior to new contract-Relinquishment of rights tinder former agreement.] R. & N. purchased threshing machinery from the company, in Nov., under an agreement similar to that in part quoted below, and gave notes for the price. They dissolved their business connection, after using the machine for some time, and,
March, after the threshing season was over, N. was released from his obligations under the agreement, the notes signed R. & N. were cancelled, and R.
gave the company his own notes in their place and entered into a new agreement containing following provisions:
"The said machinery is sold upon and subject to the following mutual and interdependent conditions, namely:
It is warranted to made of good material and durable with good care and with proper usage and skilful management to do as good work as any of the same size sold in Canada.
If the purchasers after trial cannot make it satisfy the above warranty written notice snall within ten days after starting given both to the company at Winnipeg and to the agent through whom purchased, stating wherein it fails to satisfy the warranty and reasonable time shall be given the company to remedy the difficulty, the purchasers rendering necessary and friendly assistance together with requisite and horses; the company reserving the right to replace any defective part parts; and if the machinery or any part of them cannot made to satisfy the warranty it is to returned the purchaser free of charge to the place where received and another substituted therefor that shall satisfy the warranty or the money and notes immediately returned and this contract cancelled neither party in such case to have or make any claim against the other.
if both such notices are not given within such time that shall conclusive evidence that said machinery is as warranted under this agreement and that the machinery is satisfactory to the purchasers.
If the company shall at purchaser's request render assistance of any kind in operating said machinery or any part thereof or in remedying any defects such assistance shall in no case deemed a waiver any term or provision of this agreement or excuse for any failure the
WARRANTY-Continued.
purchasers to fully keep and perform the conditions of this warranty. When at the request of the purchasers a man is sent to coperate the above machinery which is found to have been carelessly improperly handled said company putting same in working order again the expenses incurred the company shall paid said purchasers.
This warranty does not apply to second-hand machinery. It is also agreed that the purchasers will employ competent men to operate said machinery.
There are no other warranties or guarantees, promises or agreements than those contained herein. warranties are to inoperative and void in case the machinery is not settled when delivered or if the printed language of the above warranty is changed whether addition, erasure or waiver or if the purchasers shall in any respect have failed to comply herewith." Some defects in the machinery had given rise to complaints, during the previous threshing season, and had been rectified the pany before the execution of the second agreement; they also made further repairs during the autumn and then notified R. that future repairs must at his expense. R. paid the first instalment of the price the machinery, but, when subsequently sued on his other notes.
contested pleaded breach of an implied warranty of fitness and counterclaimed for damages this breach.-Held, that all claims damages for breaches any kind prior to the second agreement had been waiv-* ed that agreement and that the provision that there were no other warranties, guarantees, promises or agreements than those contained in the agreement excluded all implied warranties. further, that the condition requiring written notice breach of warranty applied only to the warranty that "with proper usage and skilful management" the machinery would "do as work as any of the same size sold Canada," and that it had no application to the warranties that the machinery "made good materials" and would "durable with good care." The consideration for the release of N. and the acceptance of the sole liability R. for the price of the machinery was the execution of the new notes and involved the relin- WARRANTY-Continued.
quishment by both parties of all their rights under the first agreement.
Evidence Act-R.S.
N.S.
ss. and
Secondary evidence-Ejectment-Mesne
Section of the "Evidence
Act" Nova Scotia (R.S.N.S.
provides that "a copy a notarial act or instrument in writing made in before a notary public, filed, enrolled or enregistered such notary and certified a notary prothonotary to a true copy of the original, thereby certified to in his possession as such notary or prothonotary, shall received in evidence any court in place of the original, and shall have the same force and effect as the original would have if produced and proved."-And the first two sub-sections of section it is provided that:- "The probate of will or a copy thereof certified under the hand of the registrar of probate or found to a true copy of the original will, when such will has been recorded, shall received as evidence of the original will, but court may, upon due cause shewn upon affidavit, order the original will to produced in evidence, or may direct such other proof of the original will as under the circumstances appears necessary reasonable for testing the authenticity the alleged original will, and its unaltered condition and the correctness the prepared copy.-(2)
This section shall apply to wills and the probate and copies wills proved elsewhere than in this province, provided that the original
WILL-Continued.
bate and copies granted in courts having jurisdiction over the proof wills and administration of intestate estates, the custody of wills."-Held, that a copy of a will executed before two notaries in the province of Quebec under the provisions of article 834 certified one of said notaries to a true copy of the original in his possession, is admissible in evidence on the trial of an action of ejectment in Nova Scotia, WORKMEN'S
Railway accident - Operating rules Special instructions-Defective system- Damages-Common law negligence. PHRASES.
1- "Business" ..................
"Duly filed" .................
"Have not otherwise been guilty ......................
"Judicial proceeding" .. ........ "Originating summons" .. ......