Majority
MOTION for leave to appeal from a decision of the Court of Appeal for Ontario affirming the judgment of Meredith C.J.(1), who sustained the refusal of a referee to place S.
The facts are fully stated in the judgment of Mr. Justice Anglin on the application for leave.
W. N. Tilley for the motion.
Wallbridge, for McKinnon, contra.
J.-The liquidator applies under section 106 of the Dominion "Winding-up Act" for leave to appeal to this court from the judgment of the Court of Appeal for Ontario, affirming the judgment of Meredith C.J. (1), who dismissed an appeal by the liquidator from the refusal of the referee to place the name of Mr. S. F. McKinnon on the list of contributories in respect of a sum of $5,000 unpaid on certain shares of the insolvent company.
To the liquidator's claim McKinnon has pleaded, inter alia, that it is res judicata that he is not the holder of these shares. This plea is based upon a consent judgment dismissing an action brought by the company, in 1902, to recover from McKinnon the same sum of $5,000 in respect of unpaid calls.
To the company's claim he then answered that he was not.a shareholder and, alternatively, that the calls sued upon had not been regularly made. He also brought in a third party against whom he claimed indemnity.
The judgment dismissing the action provided for the withdrawal of the claim against the third party.
In reply to the plea of res judicata the liquidator urges that since irregularity in the making of the calls would, if established, have been a sufficient defence to the company's action, the record does not shew a determination in McKinnon's favour of the issue whether he was or was not a shareholder.
In the present proceedings the regularity of the calls is admitted. Referring particularly to this admission, the learned Chief Justice of the Common Pleas held that it was sufficiently established that In delivering the unanimous opinion of the Court of Appeal the learned Chief Justice of Ontario makes special mention of the withdrawal of McKinnon's claim against the third party as indicating that it was intended that there should be "an end to all claims upon the shares."
I do not, however, understand him to reject the grounds upon which Sir W. R. Meredith based his judgment, but rather to add to them another leading to the same conclusion. Looking at all the circumstances of the former action including those which appear to have re- J. ceived special attention in the provincial courts, and also the conduct of the company and its officers in regard to the respondent's status as a shareholder from the date of the judgment in 1904 down to the commencement of the liquidation in 1908 he did not receive notice of the meetings or other proceedings of I see no reason to doubt the correctness of the judgment against which the liquidator seeks to appeal.
That a consent judgment will support a plea of res judicata is conceded.
Although contested by counsel for the applicant, the proposition that the court may look beyond the judgment and the pleadings to ascertain what issue was actually determined in an action, is well established by the authorities which the learned Chief Justices cite. The facts proper to be considered in this case make it reasonably clear that by the consent judgment the parties meant to dispose finally of the issue whether the defendant was or was not a shareholder in the plaintiff company. The judgment of which the liquidator now complains-I say it with respect-seems to me to be plainly right. Leave to appeal might properly be refused on this ground. But, whether right or wrong, that judgment merely decides that from particular facts the proper inference is that by the consent judgment dismissing the company's action it was determined that McKinnon was not a shareholder.
The proposed appeal raises no question of public importance. Dominion Council of Royal Ternplars of Temperance v. Hargrove(1). J. The affirmance or reversal by this court of the judgment of the Ontario Court of Appeal would not settle any important question of law or dispose of any matter of public interest.
Whyte Packing Co. Pringle(2).
These usual grounds for seeking leave to appeal are therefore absent.
I have not overlooked the fact that in section (e)
of the "Supreme Court Act," under which the cases that I have cited were decided, "special leave" is mentioned, while in section 106 of the "Winding-up Act," "leave" is the term used.
But "leave" must be granted in the exercise of judicial discretion. Matters other than the amount involved in the appeal must be considered and amongst them those to which I have alluded.
Notwithstanding Mr. Tilley's able argument, unless leave to appeal to this court should be given as a matter of course in every case in which a substantial amount is at stake, I find no reason for granting the present application. Having twice appealed unsuccessfully, the liquidator has certainly discharged his whole duty. Although he has carried his case to the court of last resort in the province, his contention has not been accepted by a single judge. In a further appeal I see no prospect of any advantage to the insolvent estate, but rather a very great probability of its being involved in useless additional heavy expense.
This litigation has been already prolonged. The respondent should not lightly be subjected to the worry and the cost of further proceedings, which, so far as I can see, would serve no good purpose.
This seems to be eminently a case in which the judgment of the provincial Court of Appeal should be accepted as final.
The motion will be dismissed with costs fixed at the figure usual in this court - $50.
Motion dismissed with costs.
ACCOUNT-Appeal- Jurisdiction bats de compt c-Issue on reddition- A mount in controversy.] An action (taken in the Province of Quebec) was for an order directing the defendant to render an account and, in default reddition, the plaintiff claimed the judgment appealed from the reddition compte was ordered and, in default compliance with the order, the defendant was condemned to pay the plaintiff the amount of demanded.-Held, that the controversy was limited and the Supreme Court of Canada had no jurisdiction to entertain an appeal.
Bell v. Vipond
-Secret profit by broker-Participation account-Purchaser in good faith-Disclosure of suspicious circumstances
Cross-appeal
Practice.] being aware that was an agent for the sale of certain lands, entered into an agreement with him for their purchase on joint account in his own name, upon the understanding that they should each owners of one-half the lands and share profits equally upon a re-sale.
transferred one-half his interest to who gave valuable consideration therefor with knowledge, at the time, of B's agency for the sale the lands. Shortly after the conveyance of the lands by the owner, P., to they were re-sold to another person at a large profit, and P., having discovered the nature the transactions, brought action against and to recover the amount the profits which they had realized upon the re-sale the lands.-Held, affirming the judgment appealed from Sask. L.R. 417), Fitzpatrick C.J. and Anglin J. dissenting, that the agreement between and was a partnership transaction; that thereby became subject to the fiduciary relationship existing between and P.
in respect of the sale the property;
that he was disqualified as a purchaser
Account-Continued.
of the lands which were the subjectmatter of B.'s agency, and that he was equally responsible with to account to P. for the profits realized from the re-sale of the property.-In regard to NT. it was held, also affirming the judgment appealed from, Idington J. dissenting, that as the evidence did not shew that he was other than a bond fide purchaser for valuable consideration be was under no obligation to account profits realized upon the sale of the interest in the lands acquired him under the transfer from
Coy Pom- ........ 3-Construction of statute-N.-W. Ter. Ord., 34-Extra-judicial seizure mortgage-Sale through bailiff-Excessive costs-Penalty-Waiver- "Bank Act," R.H.C.
s. -Settlement of account stated-Voluntary payment-Surcharging and falsifying-Reduction of rate-Removal mortgaged property-Negligence-Measure of damages................... precedent-Arbitration and award-Right of action.] A contract the sale of timber limits contained a guarantee the vendor that the quantity timber thereon at the time of the sale would prove equal to that shewn statement annexed and a covenant that would re-pay to the purchasers the amount any shortage found in proportion to the price at which the sale was made. In another clause, provision for arbitration was made in case of dispute as to the amount of any such shortage but it did not in express terms deprive the purchaser of the right to recover any claim for shortage until after an award had been obtained.-Held, affirming the judgment appealed from B.C. Rep. Idington
J.
dissenting, that an award by arbitrators had not been made a condition precedent to recovery for Action-Continued.
Action-Continued.
the amount of any deficiency in the
5-Condition of contract-Noticequantity of timber guaranteed to up- Policy of accident insurance-Tender limits.
fore action-aiver...............386 Industrial improvements-Raising height of dam-Nuisance-Damages- 6-Petition of right
Expertise and arbitration-Right of action-Condition precedent-Pleading continental railway-Liability of Crown New objections. on appeal-Prescription
The mode of ascertainment of damages the arbi- (D.)......................448 tration of experts provided by article
5536 of the Revised Statutes of Quebec, not exclude the right of ac- 7-Leas-Iater lot-Status of lessee tion to recover compensation
-Riparian owner-Injunction-Action to courts.-In such cases the measure have access lot................629 damages is the amount of compensation for injuries sustained up to the time of the action; they ought not to assessed for all, en bloc, but recourse may reserved in regard to future damages arising from the same cause.
Idington and Anglin
JJ.-Objections based upon provisions of and employeeabling statutes which have not been set
Compensation for injury-Contributory up in the pleadings nor relied upon in negligence-Construction the courts below cannot entertained
"Workmen's Compensation Act," 2 Edw. upon an appeal to the Supreme Court
74, s. ss. and schl Canada.
Hamelin v. Bannerman art. 4-Remedial legislation-Refusal Can. S.C.R. followed.-Per Anglin damages-Right appeal-Evidence.] J.-An action, brought in for recovery of damages in respect injuries
British 'Columbia claiming damages unoccasioned improvements executed in der the "Employers' Liability Act" and, many alternatively, years before that time, is not subject to
Compensation Act," the plaintiff, at the the prescription of thirty years; nor trial, abandoned the claim under the can the prescription provided article former Act, and, thereupon, the judge of the Civil applied where dealt with the case as a claim under the the action has been commenced within
Compensation Act," found two years from the time the injuries that the plaintiff's deceased husband complained were sustained.
came to his death solely in consequence his own "wilful and serious misconee ivss duct," and, therefore, under sub-section AND2 of section the Act, held that she was precluded from obtaining Railways-Construction and operapensation in consequence his death. -Per Davies
Duff and Anglin JJ.- The right appeal from decision the course proceedings to which artacquired-Mandamus-Use of hightoayice the second schedule Crossing public lane-Nuisance .
"Workmen's Compensation Act" applies available only for questioning the the court or judge upon Appeal-Nature of action-Equit- some question of law.
Decisions upon relief--"Suprcme Court fact adjudicating 38c-Appeal from referee-Final judg-before the SupremeCourt 38c-ppel frm rfere-Fial jdg-under sub-section of section that Act are not subject to appeal. Whether not there is any reasonable evidence Appeal-Continued.
to support a finding wilful and serious misconduct is an appealable question.-In the circumstances of the case the court held, Davies and Anglin JJ., dissenting, that there was not reasonable evidence to support the finding wilful serious misconduct.-The from the judgment of the Court of peal for British Columbia B.C. Rep.
was dismissed, Davies and Anglin,
JJ.
v. ...
ature of action-Equitable relief
-"Supreme
Court Act," (c)-Appeal from referee-Final judgment.]
Where a statement of claim discloses only a common law cause action and the cause was dealt with at the trial the facts that the indorsement on the writ indicates a claim for equitable relief and that the trial judge in ordering a reference to assess the damages, reserved further directions do not make it a judicial proceeding in the nature a suit in equity within the meaning
(c) the "Supreme Court Act."
judgment of the Court Appeal varying the report the referee directed to assess the damages for the plaintiff in an action is not a final judgment from which an appeal lies to the Supreme Court Canada.
.............................
3-Leave judge-Jurisdiction
Railway Board-Doubt as to decision
Board.]
judge of the Supreme Court of Canada will not grant leave to appeal from the decision of the Board of Railway
Commissioners on a question jurisdiction if he has no doubt that such decision was correct.
4-Pleading tions raised on appeal.] Per Idington and Anglin JJ.-Objections based upon provision of enabling statutes have not been set up in the pleadings nor relied upon in the courts below cannot entertained upon an appeal to the Supreme Court of Canada. Hamelin v. Bannerman Can. S.C.R. 534)
5-Appeal-Setting down for hearing
Appeal-Continued.
lions of law.]
The Supreme Court Canada will not entertain an appeal under section of "The Railway Act," R.S.C. unless some specific question is stated, or otherwise defined, in the order granting leave to appeal made the Board of Railway Commissioners for Canada which, in its opinion, is a question of law. RY. v. 6-Jurisdiction
D6bats de compte- Issue on reddition-Amount in controversy.]
An action (taken in the Province of was for an order directing the defendant to render an account and, in default reddition, the plaintiff claimed
By the judgment appealed from the reddition de compte was ordered and, in default compliance with the order, the defendant was condemned to pay the plaintiff the amount of demanded.-Held, that the controversy was limited to and the Supreme Court of Canada had no jurisdiction to entertain an appeal. Bell v. Vipond Can. S.C.R. distinguished.
.. . .. . . . .. .. .. .. . . .. .. .. . .... .. . . 7- Cross-appeal - Parties-Practice.] Quere.-On the appeal against the judgment declaring him liable to account for illegitimate profits on the transactions in question, had the Supreme Court Canada jurisdiction to entertain a cross-appeal P. to obtain recourse against M1. who had been exonerated the court below and was not made a party to the appeal taken Mc- Nichol v. Malcolm Can. S.C.R. Final judgment-Action for comnissions-Reference-Reservation of further directions and costs.] In an action against an insurance company for agent's commissions on policies and renewals the trial judge gave judgment for the plaintiff, ordered an account to taken and reserved further directions and costs.
His judgment was affirmed the Court Appeal.-Held, Fitzpatrick C.J. dissenting, that the decision of the Court of Appeal was not a final judgment from which an appeal would Appeal-Continued.
lie to the Supreme Court of Canada.
9-Criminal law-Trial for murder- Improper admission of evidence-Substantial wrong or miscarriage-Criminal
Code, s. 1019....................
ARBITRATION
AWARD struction of contract-Condition precedent-Right of action.1 the sale of timber limits contained a guarantee the vendor that the quantity timber thereon at the time the sale would prove equal to that shewn a statement annexed and a covenant that would repay to the purchasers the amount any shortage found proportion to the price at which the sale was made.' In another clause, provision for arbitration was made in case dispute as to the amount of any such shortage but it did not in express terms deprive the purchaser of the right to recover any claim for shortage until after an award had been obtained.-Held, affirming the judgment appealed from (15
Rep. Idington J. dissenting, that an award arbitrators had not made condition precedent to recovery for the amount any deficiency in the quantity of timber guaranteed to upon the limits.
2-Industrial improvements-Raising height of dam-Nuisance-Damages- Expertise and arbitration-Right of action
Condiition precedent arts. 5536.]
The mode ascertainment of damages the arbitration experts provided article of the Revised Statutes Quebec, not exclude the right of action to recover compensation
TAXATION-Municipal corporation-Assessment and taxes
-Exemption from taxation-Board
Revision-Judicial functions - Administrative powers-Construction of statute
-"Vancouver
Incorporation Act,"
s. ss.
The "Vancouver In- Assessment and Taxation-Continued. corporation Act," Vict. sub-section 3 of section provides that "the buildings and grounds of and attached to and belonging to * * any incorporated seminary learning, hospital, incorporated charitable institution, whether vested trustees or otherwise, long as such buildings and grounds are actually used and occupied such institution, or if unoccupied, but not if otherwise used occupied;
provided, that such grounds shall not exceed in extent the amount actually necessary for the requirements of the institution.
The question as to what amount of land is necessary shall decided the Court Revision, whose decision shall final."-Held, per Davies, Duff and Anglin JJ., that the functions in respect of the limitation exemptions from taxation vested the Court of Revision are quasi-judicial and must exercised each case with respect to that case alone; it is not vested with power to lay down general rule based solely upon general considerations.-Per Idington J.-That the provision in question was merely a delegation of a legislative or administrative power, probably carrying with it a duty, but in no manner implying the discharge a judicial duty subject to review supervision.-In proceedings, certiorari. to remove a decision of the Court Revision, the evidence adduced support the contention that the court had failed to dispose of the question in proper manner consisted merely of a minute its proceedings whereby resolved "that all charitable institutions mentioned in sub-section section of 'Vancouver Incorporation Act' exempted from taxation to the extent of the area occupied the buildings thereon and an additional amount land equal to per cent. of the area, and that the assessment roll for 1900, as amended, confirmed."-Held, affirming the judgment appealed from B.C. Rep. 344), that this minute, the absence of further evidence, was not incompatible with the view that the Court of Revision had examined each particular case before deciding to act the sense of the minute and that would a proper direction in each in- Assessment and Taxation-Continued.
Words phrases-"Terrain"
movable property-Charter of the Town
Westmount-56 V.
s.
Section of the statute the Province of Quebec, Vict. ch. referred to as "The Westmount Charter," authorized the town council to levy assessments "on every lot, town lot, or portion lot, whether built upon or not, with all buildings and erections thereon.'
The words used in the French version of the statute were, "toute terrain, lot de yille ou portion de lot." The by-law enacted in virtue of the statute purported to impose a tax upon "all real estate" within the municipality, and unaer the by-law the property of the company, respondents, consisting of their equipment for the transmission of gas and electric currents installed upon and under the public streets, squares, etc., of the town, was assessed as subject to taxation and described on the rolls
"gas-mains and equipment, poles, transformers, wires, etc."
In an action the municipal corporation for the recovery the amount taxes claimed in virtue of the by-law and assessment:
Held, Idington J.
dissenting, that neither poles carrying electric wires gas-mains, and their respective equipments, placed on or under the public streets, etc., of the town, can deemed taxable real estate within the meaning the word "terrain" used in the French version, nor of the word "lot" used the English version of the provisions made section of the statute,
Vict. (Que.).
Judgment appealed
K.B.
of mortgaged property-Negligence-Measure of damages . ...... BANKING - Burden of proof-Shifting of onus-Sale of bank stock-Allotment to shareholdei s-Shares refused or relinquished- Authority s. 34.............. See 4; 1. statute-N.W.T. seizure through bailiff-Excessive costs-Penalty-Waiver-"Bank Act," R.S.C., e.
s. 91-Interest-Contract-Excessive charges-Settlement of account stated - Voluntary payrnent-Surcharging and falsifying-Reduction of rate- Reioval of mortgaged property-Negli-gence-Measure of damages ........ ASSOCIATION-Life insuance
Transfers between lodges-Member in good standing-Regularity of affiliation -Payment of dues and assessments-Evidence-Presumption the constitution of a benefit association provides that members shall transferred from one lodge to another unless all dues and assessments have paid, up to and including those the month in which the application afliliation is made, the fact that, upon an application, a member transferred from one lodge to another involves the presumption as against the association that the transfer was regularly made when the member was good standing and in accordance with regulations.
....... struction of statute-"Railway Act," R.S.C. ss. Branch of railway-Estoppel-Res inter alios.]
The Board Railway missioners for Canada has not the power, (except on expropriation or consent Board Railway Commissioners-Con.
the owner,) to order that a private industrial spur-track or siding, constructed and operated under an agreement tween a railway company and the owner the land upon which it is laid and used only in connection with the business of such owner, shall be also used and operated as a branch of the railway
2-Appeal-Leave judge-Jurisdiction of Railway Board-Doubt as to decision of Board ..................
3-Appeal-Setting down for hearing tions of law......................
BOUNDARY-Deed of land-Description
-Ambiguity-Admissions
........
CULVERTS-Construction of statute-Crossing bridges- Engines- Condition precedent - 242-3 Edw.
Edw. VII. s. ..........
2-Irrigation works-Duty to build and maintain bridges .............
BROKER-Principal and agent-Commission on sale of land-Introduction purchaser-Efficient cause of sale-Completion of contract owner on altered terms.] An agent, instructed to secure a purchaser for lands, introduced a prospective purchaser who associated himself with other persons, whose identity was unknown to the agent, to carry out the purchase the property. The individual thus introduced and his associates subsequently carried on negotiations with the owner personally which resulted in the purchase, on altered terms, of the property in question, together with other lands, his associates alone while retired from the
Broker-Continued.
transaction.
owner refused to pay the agent any commission on the sale the ground that he had not been the ent cause of the sale which was finally made as above stated.-Held, reversing, in part, the judgment appealed from (3 Sask. L.R. 286), that as the steps taken the agent had brought the owner into relation with the persons who finally became purchasers he was entitled to recover the customary commission upon the price at which the property in question had been sold.
Burchell v. Gowrie and Blockhouse Colleries ([1910] -Secret profit broker-Participation -A ccount .......................
BUILDERS
- Mechanics' lien-Construction of statute -"Alberta
Mechanics' Lien Act"-6 ss. 11-Building erected lessee-Liability of "owner." ........... BY-LAW-Benefit association-Life insurance - Transfers between lodges-Member in good standing-Regularity of affiliation -Payment
Evidence-Presumption---Waiver. . . 2-Taxation of electric and gas installation on streets-Construction -"Lot"-Immovable property-Charter of Town of Westmount-56 V. s. 100.............................
Municipal corporation
Dangerous constructions ateimient of nuisance-Condition precedent-Notice-Order to repair-Demolition structure-Trespass-Forcible entry-Tort-Damages-Construetion statute-Montreal city charter.-- CASES-Ainslie Mining and Railway
McDougall Can. S.C.R. 420) fol- 2-Bell v. Vipond
Bell Bros. v. Hudson Bay Ins.
(3 Sask. L.R.
4-Burchell Goorie and Blockhouse
Collieries ([1910]
applied
....... ........
.................
5-Crockett Town of Campbelltown
N.B. Rep. affirmed.......
Fakkema
Brooks,
Scanlon,
O'Brien Co. B.C. Rep.
......
7-Fredericks v. Northwest Thresher
(3 Sask. L.R.
S-Granick v. British Columbia Sugar
Refining B.C. affirmed
. .. . .. . .. . .. . ... . . .. .. .. .. .. .. . .. 5
9-Ha ines Canadian Railway Accident Ins. 'Man. affirmed
....
..................
Hamelin Bannerman Can.
S.C.R.
followed 305
11-Johnston
The King
Karavokiris Canadian Rubber
Cases-Continued.
The King The Alberta Railway and Irrigation
14-The
King Cap Rouge Pier, Wharf and Dock
Ex. C.R. 15-The King Jones Ex.C.R. reversed 495 3IcHugh Union Bank of Canada Alta. L.R. affirmed in part .. Visbett and Potts' Contract, In re ([1905] 1 391; 1 followed 458 18----O'Reilly O'Reilly Ont. L.R. 19--Ponmmerenke Bate Sask. L.R. 20-Prairie City Oil v. Standard Mutual Fire Ins. Man. R. 720) 21-Prairie City Oil Standard .1! tul
Fire Ins.
Reddy Strople (44 N.S. Rep. 22a- Robson v. Biggar ([1907] 1 K.B. 23-Rex
Allen
Cases-Continued.
Rodd County of Essex Ont.
L.R. affirmed ...............
25-Scratch V. Anderson Alta. L.R.
affirmed 86
Seely
Francis Kerr
27-Sisters of Charity of Providence
City of Vancouver B.C. Rep.
28-tuckey,
In re ([1906] 1 follow .........................
Swift David Rep.
affirm
Toms Toronto Railway
Ont. L.R. 204) affirmed ..........
31-Vachon v. Stratton (3 Sask. L.R.
reversed in part ............
32-Victorian Railway Conmissioners
Coultas
App. Cas.
distinguished .........................
Wallberg The King
Westmount, Town of, Montreal
Light, Heat and Power (Q.R:
K.B. affirmed
Whitehorn
Bros.
Davison
1 K.B. distinguished. 458
36-Williame v. Box
Man.
R.
560) reversed 1
CERTIORARI-Exemption from municipal taxation--Judicial functions-Administrative powers-Board of Revision. MORTGAGE-Construction statute-N.-W. Ter. Con. Ord., 34-Extra-judicial seizures-Chattel mortgage-Sale through bailiff "Bank Act," R.S.C., s. Settlement of account stated-Voluntary payment-Surcharging and falsifying- Reduction of rate-Removal of mortgaged property-Negligence-Measure The parties to a chattel mortgage may waive the provisions the third section of the North-West Territories Ordnance, in respect to the expenses of the seizure and sale the mortgaged property. Robson v. Biggar (
1 K.B. 690), reversed.-Where terest in excess the rate seven per cent. per annum has been voluntarily paid upon the settlement of accounts stated between a bank and its debtor, the amount so paid cannot recovereu back from the bank the payer. respect unsettled accounts between a bank and its debtor, charges of interest in excess the rate limited section of the "Bank Act," R.S.C., made in virtue an agreement tween the parties, should reduced to the rate of seven per cent. per annum upon the surcharging and falsifying such accounts.
Alta. L.R. affirmed, Idington J. dissenting-Where loss occurs to mortgaged property in consequence of want reasonable care in its removal from the place of seizure to the place at which it is sold under the authority a chattel mortgage, the proper measure the damages recoverable the mortgagor is the amount of depreciation value caused the negligent manner present case, the evidence being insufficient to justify the assessment made by the trial judge,. it was referred back to have properly assessed. Judgment appealed from Alta. L.R. varied, Duff and Anglin JJ. dis- Chattel Mortgage-Continued.
.......................
CIVIL CODE-Arts. 2242,
Broker
Principal agent-Commission on sale of land-Introduction of purchaser-Efficient cause of sale-Completion of contract on altered terms. .....................
COMPANY-Joint stock company-Allotment of shares-Surrender allottee
-Unpaid calls-Transfer-Waiver.]
subscribed for shares in a mining coinpany, was notified of allotment of the same and paid the amount due on a first call as agreed.
Later he notified the company that he withdrew his subscription and refusing to pay further calls was sued therefor.
It turned out that when subscribed for the stock all the shares had been allotted the company and those given to him had obtained surrender from the original allottees.-Held, that under the Ontario Companies Act, when stock has been allotted a company, the only ease in which the directors can regain control of it, is that of forfeiture non-payment of calls.
As in this case there was no forfeiture, the company did not legally own the stock allotted to and could not compel him to pay for it.
also, that the provision in said
Act that stock on which calls are unpaid cannot transferred, is imperative and cannot waived the company.
2-Dngerous Works-Defective system-Negligence of Employee-Liability of employer for injury ............
CONDITION-Construction of cont? act- Condition precedent-Arbitration and award-Right of action ..........
Construction of statute-Bridges- Crossing engines-Condition preced- Condition-Contin ued.
ent-R.S.O.
242-3 Edw.
......... .. 3--Accident insurance policy-Notice-Tender before action- 4--Fire insurance-Conditions of pol- Non-payment of premium-TVaiver-Application of statute-Remedial clause. ..... Nuisance struction of highways-Duty to build and maintain bridges-Construction 6-Municipal corporation by-law-Dangerous construction-Abatestructure
Tort-Damages-Construction of statute -M1ontreal
CONTRACT-Construction of contract- Condition precedent-Arbitration and arard-Right of action.] contract the sale timber limits contained a guarantee the vendor that the quantity timber thereon at the time the sale would prove equal to that shewn in a statement annexed and a covenant that he would repay to the purchasers sale was made.
In another clause, proarbitration dispute as to the amount any such shortage but it did not in express terms deprive the purchaser of the right to recover any claim for shortage until after an award had been obtained.- Held, affirming the judgment appealed Idington J. dissenting, that an award by arbitrators had not been made a condition precedent to recovery for the amount any ficiency in the quantity of timber guaranteed to upon the limits.
Donatio inter vivos-Ante-nuptial contract-Gift to wife-Payment death of husband-Institution contractuelle-Onerous gift.]
An ante-nuptial contract provided that "in the future view of the said intended marriage he, the said Edward O'Reilly, for and consideration of the love and affection and esteem which he hath for and beareth to the said Miss Eliza Petrie, hath given, granted and confirmed these presents give, grant and confirm unto the said Miss Eliza Petrie, twenty-five thousand dollars, currency of Canada, payable unto the said Miss
Eliza Petrie the heirs, executors, administrators or assigns of him the said
Edward O'Reilly, the payment whereof shall become due and demandable after the death of him the said Edward
O'Reilly."
The parties were married and on the death of the said O'Reilly his wife claimed the right to rank on his estate as a creditor for the said sum of which claim was contested the general body of creditors who had all become such after said contract was made.- Held, affirming the judgment of the
Court of Appeal that this clause in the contract must construed as a donatio inter creating a present debt in favour the future wife, payment of which was deferred; that, in the absence of proof fraud, such a contract could not be attacked by subsequent creditors;
that the wife was entitled to rank the estate for the amount of said gift.- Held, per Girouard J., that the donation was one "a titre ondreua."
& v. O'REILLY...........
3-Public work-Work dehors contract-Acceptance by
Grown-Payment
-Fair value.] W. was contractor with the Crown for constructing a car and locomotive repair plant at Moncton, and was subject to the orders the government engineer.
By order of the engineer and with no contract writing therefor he constructed sewers and a water system in connection with said works, and on completion of his contract the Crown accepted the additional work and agreed to pay its fair value, but not the amount claimed, which was deemed excessive.
partment of Railways referred the claim to the Exchequer Court and, consent, it was referred to the Registrar of the court to. have the damages assessed, the order reference providing that 'the amount to ascertained shall the fair value or price thereof allowed on -a quantum meruit."
The Registrar fixed the amount at $53,205, as the fair value the work reasonably executed on a somewhat different plan.
The judge the Exchequer Court added $39,000 to this amount, holding that the Crown admitted the authority of the gineer to order the work to be done, and that W. was entitled to the actual cost plus a percentage for profit.
On appeal the 'Crown:-Held, Anglin J. disthat the judgment against Ex. C.R. was not warranted; that the Crown had not admitted the authority of the engineer, but expressly denied
'pleadings and otherwise; that all W. was entitled to paid was the fair value of the work to the Crown and the amount allowed the referee substantially represented such value.
....... 4-Accident insurance-Condition policy-Notice-Tender before action- Waiver.] condition of a policy insuring against death by accident required that notice of death should be given to the company within ten days thereafter, and it was provided that the insured met his death while under the influence intoxicating liquor the company should liable only for onetenth the amount of the insurance. The insured disappeared on the 21st of November, When last seen on the evening of that day he was apparently under the influence of intoxicants, and, on 3rd April, his dead body was found in the river in -an advanced state of decomposition, death having been, all probability, caused drowning. After the finding of the body the plaintiff gave notice of death to the company and furnished proofs as required. company refused payment and, before action, tendered to the plaintiff one-tenth of the amount of the insurance payable under the policy as full settlement there- The company pleaded this tender in their defence to the action and made proof thereof at the trial.-Held, that the tender made the company was a waiver the condition requiring notice within ten days death and also admission of liability the company;
and, Anglin J. dissenting, that, as the company had failed to shew that the deceased came to his death while under the influence of intoxicating liquor, the plaintiff was entitled to recover the full amount of the insurance. Judgment appealed from Man. R.
......................
5-Fire insurance-Policy-Gonditions
-Notice of loss-Imperfect proofs-Nonpayment of premium-TVaiver-Application of statute-Remedial clause-N.-W.
Ter. Ord., (1st sess.), s.
The premium on a policy of fire insurance was not paid at the time the policy was delivered but, on request, credit was given for the amount and a draft the same the insurance company cepted the insured, remained due and unpaid at the time the property insured was destroyed fire.-Held, that, in an action to recover the amount of the insurance, the non-payment of the premium was not available as a defence.-The policy was subject to the statutory condition requiring prompt notice of loss the insured to the company;
another condition the insured was required, in making proofs of loss, to clare how the fire originated so far as knew or believed.
Upon the occurrence the loss, the company's local agent gave notice thereof to the company. and informed the insured that he had done so and that the company had acknowledged receipt of his notice. The insured gave no further notice to the
Forms were then supplied the company for making proofs of loss and they were completed an agent the company and signed and sworn to the insured, the origin of the fire being therein stated to unknown.
examination for discovery the insured stated that, at the time he signed the declaration. he entertained an opinion as to the origin of the fire, and the pany's adjuster reported a similar opinion as to its origin.
An adjustment the amount of the loss was then proceeded with the several companies carrying insurances on the property which the defendant company took part, but, after payment by the other panies of their proportionate shares cording to the adjustment, the defendants repudiated liability on the grounds want of notice as required the statutory condition and non-disclosure the opinion entertained the insured as to the origin of the fire.-Held, reversing the judgment appealed from (3 Sask. L.R. 219), that, in respect of both conditions, the default was the result mistake on the part of the insured, and, in the circumstances of the case, the provisions of section of "The Fire Insurance Policy Ordinance," N.-W. Ter. (1st should applied and the insurance held not to forfeited reason of default notice or imperfect compliance with as proofs loss. Prairie City Oil Standard Mutual Fire Ins. (44 Can. S.C.R. BROTHERS TIs. Co.........................
fused, 23rd Nov.,
6-Municipal corporation-Water service-Statutory authority-Construction of statute-Water for domestic, fire and other purposes-Mlotive power-Discretion of council.] The charter of a town Vict. [N.B.]) provides that "the town council of Town Campbellton are hereby authorized and empowered to provide for the said town a good and sufficient supply water for domestic, fire and other purposes."- Held, per Fitzpatrick C.J. and Duff J. (Idington J. contra; Davies and Anglin JJ. dubitante), that the statute empowers the municipality to furnish water for the use of the customer in working a printing-press.-The council, br-law, fixed the rates to paid water including "printing presses, one service,
1/ pipe or less, per year, proprietor of a newspaper and printing establishment, connected premises with the water mains by a twoinch pipe and received water for a year for his motor, paying said rate therefor. then continued the use of the water for some months when the council passed resolution that newspaper proprietors should notified that the supply would cut off at a certain date, which was done.
brought an action for damages to his business.-Held, per Idington J.
Council had no -authority to make the contract with C.; there was no authority in the absence of a special contract with the town, to place a two-inch service pipe for receipt water; and the municipality had power to enter into this agreement it was under no duty to exercise it.-Per Fitzpatrick and
Duff J., that the municipality having entered upon the service of the appellant's motor was bound to continue unless and until the council in the bond fide and reasonable exercise of its discretion thought it desirable to discontinue it in the interest the inhabitants as a whole.-Per Davies and Anglin JJ.
-If any contract existed it was one under which was entitled to a supply water for his motor long as the town council should, in its discretion, it advisable to continue it.
There was no evidence to warrant the jury's finding that the council was guilty and exercised its discretion mald fide.-Per Fitzpatrick C.J. and Duff
J.-The circumstances disclosed were such as to warrant a finding of unfair discrimination against but the damages awarded were excessive.-Judgment ordering a new trial Rep.
7--Fit insurance-Policy- Statutory conditions-Gaso line on premises-Illuminating oils insured-Notice of loss- Remedial clause in Act-Discretion fourt-Construction of statute-...... 40
S-Benefit association-Life insurance
-By-laws and regulations-Transfers ween lodges-Member in good standing- Regularity of affiliation-Payment dues and assessments-Evidence-Presumption-Waive................
9-Broker-Principal and agent-Commission on sale of land-Introduction purchaser-Efficient cause of sale-Completion of contract on altered terms.
................................
Petition of right-Powers of Comway-Liability of Crown-Construction of statute-3 Edw. VII. ....... 11-Timber. license-Crown lands in alty-Sale-Exchange - Consideration- Payment in joint stock shares-Vendor's lien-Evidence-Onus of proof-Pleadstatute-N.-W. seizure through bailiff-Excessive costs-Penalty - "Bank s. 91-Interest-Excessive Voluntary payment-Surcharging and COUNSEL-Evidence-Burden of proof- Admissions-Shifting of onus-Sale bank stock-Allotment to shareholders- Shares refused or relinquished-Sale to public-Authority-R.S.C. . ............................
OFFICERS-Municipal corporation-Statutory duty-Crown Attorney accommodation-Discretion. CRIMINAL LAW-Trial for murder- Improper admission of evidence-New trial-Substantial wrong or msscarriage -Criminal
Code, s.
of the "Criminal it is provided that "no conviction shall aside or any new trial dire ted, although it appears that some evidence was imsomething not according to law was done at the trial,
* *
* unless, in the opinion of the court appeal, some substantial wrong or miscarriage was thereoccasioned on the trial."-Held, re- Criminal Law-Continued.
versing the judgment appealed from (16
B.C. Rep. 9), Davies and Idington JJ.
dissenting, that where evidence has improperly admitted or something not according to law has done at the trial which may have operated prejudicially to the accused upon a material issue, although it has not been and cannot shewn that it did, in fact, so operate, and although the evidence which was properly admitted at the trial warranted the conviction, the court of appeal may order a new trial.
KING.......................
CROWN-Petition of right-Contract- Powers of Commissioners of the Transcontinental Railway-Liability of Crown of statute-3 Edw. VII.
71.]
"The National Transcontinental
Railway Act," Edw. VII.
does not confer powers upon the Coma petition remuneration for services that nature.-Judgment appealed from Ex.
C.R. affirmed, Idington J. dissent- 2-Publio work-Work dehors contract-Acceptance Crown--Payment
-Pair value....................
See Putro
ATTORNEY-Municipal corporation-Statutory duty-County officers accommodation - Mandamus.] The courts should not interfere mandamus with the reasonable exercise by a County Council of its discretion in selecting the place in the county at which an shall provided for the County Crown Attorney and Clerk of the Peace.-Judgment the Court of Appeal Ont. L.R.
....................
license - Crown lands in British Columbia-Real estate-Personalty
Exchange-Consideration - Payment in joint stock shares-Vendor's lien-Evid- Crown Lands-Continued.
ence-Onus proof-Pleading and DAMAGES-Negligence-Physical injuries-Mental shock-Severance of dam- T. was riding in a street car when it collided with a train. He was thrown violently forward on the back seat in front of him, but was able to leave the car and walk a short distance towards his place business when collapsed and was taken home in a Be was laid up for several weeks and never recovered his former state of health.
the trial of an action against the railway company one medical witness gave as his opinion that the physical shock received T. was the exciting cause his condition, while others ascribed it to a disturbed nervous system.
Negligence the part of the company was not denied, but the trial judge was asked to direct the jury to distinguish, in assessing damages, tween the physical and nervous injuries, which refused to do.-Held, affirming the judgment of the Court of Appeal Ont. L.R. 204), that the trial judge properly refused to direct the jury as requested;
the injuries to T.'s nervous system were as much the direct result of the negligence of the company as those to his physical system, and could recover compensation for both; and that in any case it was impossible for the jury to sever the damages. Victorian Railway Commissioners v. Coultas (13 Cas. distinguished. Toms............. Rivers and streams-Industrial improvements-Raising height of dam- Nuisance-Expertise and arbitration- Right of action-Measure of damages- Practice-Future damages - Pleading - New objection raised on appeal-Prescription-R.S.Q., arts. 5535, 5536 2242, 0.0.] The provisions of the statutes respecting the improvement of watercourses in the Provinne of Quebec, permit the raising of the height of dams erected proprietors of lands adjoining streams; this right is subject to the liability to make compensation all damages resulting to other persons from such works.-The mode of ascertainment such damages by the ar- Damages-Continued.
bitration of experts provided article
5536 the Revised Statutes of Quebec, not exclude the right of action to recover compensation in the courts.- In such cases the measure of damages the amount of compensation for injuries sustained up to the time of the action;
they ought not to assessed once all, en bloc, but recourse may reserved in regard to future damages arising from the same cause.-Per Anglin J.- An action, brought in for recovery respect injuries occasioned improvements executed structed many years before that time, is not subject to the prescription thirty years; nor can the prescription provided article of the Civil applied where the action has commenced within, two years from the time the injuries complained were
......
3-Extra-judicial seizure mortgagee-Sale through bailiff - Removal of mortgaged property-Negligence-Measure of loss occurs to mortgaged property consequence of want of reasonable care in its removal from the place of seizure to the place sale under the authority of a chattel mortgage, the proper measure of damages recoverable the mortgagor is the amount of depreciation value caused the negligent manner
McHucH .....
(Leave to appeal to Privy Council
Railway-Construction and operaacquired-Mandamus-Use of highway
-Crossing public lane-Nuisance.
Employer and employee-Compenman's Compensation Act"--2 Edw. VII.
2-Remedial legislation-Refusal
Damages-Continued.
damages-Right of appeal-Evidence ............................
Appeal-Nature of action-Equitable relief
"Supreme Court Act," 38c-Appeal from referee-Final judg- 7-Municipal corporation --- Building structure- Trespass - Tort-Construction of statute-Montreal 8-Municipal corporation rates-Statutory authority - Construction of statute-Water for domestic, fire and other purposes - Motive power - Discretion of council .............
.606 DAMS-Rivers and streams-Industrial Nuisance-Damages-Expertise and arbitration-Right of action-Measure damages-Practice -Future
Pleading-R.S.Q., arts. 5535, 5536.] The provisions of the statutes respecting the improvement watercourses the Province of Quebec, permit the raising of the height of dams erected proprietors of lands adjoining streams; this right is subject to the liability to make compensation for all damages resulting to other persons from such works. DEBTOR
CREDITOR - Donatio inter vivos-Ante-nuptial contract-Gift to wife-Payment at death of husband- Institution contractuelle-Onerous gift. .. .... .......... ...... ... ....
.... DEED-Deed of land-Description-Ambiguity-Admissions.] In an action trespass to land both parties claimed title from the same source and the dis- Deed-Oontinned.
pute was as to which title included the locus.
The deed under which claimed contained the following as part the description: "Then running in an easterly direction along the said highway until it comes to a crossway in the public highway and running in a southerly direction until it comes to the waters of Broad
There were two crossways in the highway and contended that the first one reached the course was indicated and R. that it was the second lying a little farther west.- Held, reversing the judgment of the Supreme Court of Nova Scotia
N.S.
Rep. 332), Idington and Duff JJ. dissenting, that to run the course to the first crossway would take it over land not owned the grantor; that there were other difficulties in the way of taking that course; that had apparently for many years treated the second crossway as the boundary; and what evidence there was favoured that view. The construction should, therefore, that the crossway mentioned in the description was the second the two.
.........................
DITCHES.
DISCRETION-Fire insurance-Policy- Statutory conditions-Gasoline on premises-Illuminating oils insured-Notice of loss-Remedial clause in Act-Discretion of court-Construction of statute.
.......................
Employer and employee-Compengence--onstruction of statute-"Workmen's Compensation Act"-2 Edto. VII.
fusal of damages-Right of appeal-Evidence ..........................
3-Municipal corporation - Statutory duty-County officers-Office accommodation ..........................
Conditions policy-Notice of loss-Imperfect proofs
Discretion-Continued.
-Non-payment of premium-Waiver- Application of statute-Remedial clause. .............. DISCRIMINATION-Municipal corporation-Water-rates-Statutory authority of statute-Water for domestic, fire and other purposes-Motive power-Discretion of council ...... DISTRESS-Construction of statute-N.
(1906), s. 91-Interest-Contract-Excessive Ieasure of damages............... DONATION-Donatio inter vivos-Antenuptial contract-Gift to woife-Payment at death of husband-Institution contractuelle
Onerous gift.]
antefuture view of the said intended marriage he, the said Edward O'Reilly, and in consideration for the love and affection and esteem which he hath and beareth to the said Miss Eliza Petrie, hath given, granted and confirmand these presents doth give, grant and confirm unto the said Miss Eliza Petrie, sum of twenty-five thousand dollars, currency of Canada, payable unto the said Miss Eliza Petrie the heirs, executors, administrators or assigns of him the said Edward O'Reilly, the payment whereof shall become due and demandable after the death of him the said Edward
O'Reilly."
The parties were married and on the death of the said O'Reilly his wife claimed the right to rank on his estate as a creditor for the said sum of $25,000 which claim was contested the general body of creditors who had all become such after said contract was made.-Held, affirming the judgment of the Court of Appeal that this clause in the contract must construed as a don- Donation-Continued.
atio inter vivos creating a present debt I in favour the future wife, payment which was deferred; that, in the absence of proof of fraud, such a contract could not attacked subsequent creditors;
and that the wife was entitled to rank on the estate for the amount of said I gift.-Held, per Girouard J., that the donation was one "a titre ondreux."
......
ELECTRIC INSTALLATIONS- Taxation of electric and gas installations on streets of statute-Words and phrases -"Terrain"-"Lot"-Immovable property-Charter of Town of Westmount-56 V. s. ........
EMPLOYER
EMPLOYEE
Negligence-Injury to employee-Disobedience
-Enforcing rules of factory-Verdict against weight of evidence-Misdirection
-New trial-Costs.] In an action compensation for injuries sustained
K. while employed in a factory, the jury found that the company was at fault for laxity in the enforcement its regulations made to secure the safety of employees and that K. contributed to the accident which occasioned his injuries disobedience to orders given to him in pursuance of those regulations.
The jury estimated K.'s damages and deducted $2,000 on account of the fault attributed to him and returned a verdict against the company for on which judgment was tered.
It was contended that the jury had been misdirected the trial judge and that the findings and verdict were against the weight evidence.
was set aside and a new trial di- ..............
Dangerous works - Defective system-Liability of incorporated company
Fault of employee.]
incorporated carrying dangerous operations is liable at common law for damages sustained by an ployee in consequence of injuries occasioned the use of a system which failed to provide a safe and proper place in which the employee could do his work; it is not relieved from this
Employer and Employee-Continued. responsibility the fact that the operations were superintended a competent foreman.
Ainslie Mining and Railway v. McDougall Can. S. C.R. 420) followed.
Judgment appealed B.C.
Co. v. EMPLOYER'S
Employer and employee-Compensation for injury -Contributory negligence-Oonstruction of statute-"Workmen's Compensation Act"-2 Edw. VII. s. 2-Remedial legislation-Refusal of Damages-Right of appeal-Evidence ..............
ESTOPPEL-Board of Railway Commissioners-Jurisdiction - Construction of statute-"Railway Act" Branch of railwcay-Res inter alios.. 2-Deed of land-Description-Ambiguity-Admissions ..............
EVIDENCE-Board of Revision - Judicial functions-Administrative powers- Minutes of proceedings.] In proceedings, certiorari, to remove a decision the Court of Revision, the evidence adduced in support the contention that the court had failed to dispose of the question in a proper manner consisted merely of a minute of its proceedings whereby it was resolved "that all charitable institutions mentioned subsection of section of "Vancouver Incorporation Act" exempted from taxation to the extent of the area pied the buildings thereon and an additional amount of land equal to per cent. of the area, and that the assessment roll for as amended, be confirmed."-Held, affirming the judgment appealed from B.C. Rep. that this minute, in the absence of further evidence, was not incompatible with the view that the Court of Revision had examined each particular case before deciding to act in the sense the minute and that it would a proper direction in each individual case. Sis- Evidence-Continued.
2-Title land-Possession scription - Interruptive acknowledgment.] The company claimed prescriptive title to a part of the bed of a small river on which the respondents' auteur, had been a riparian owner.
had leased lands on the banks of the river to the company which, it was alleged, included the property in dispute.
The only evidence as to interruption of prescription consisted of a letter the company to enclosing a cheque payment for "use of your interest
Cap Rouge River this year," with an indorsement acknowledging receipt of the funds "with the understanding that the navigation of the river is not to prevented."-Held, reversing the judgment appealed from Ex. C:R.
Girouard and Idington JJ. (dissenting)
, that the memorandum was too interruptive acknowledgment sufficient to defeat the title claimed
Benefit association-Life insurance
Transfers between lodges-Member in good standing-Regularity of affiliation-Payment
Presumption-Waiver.] Where the stitution of a benefit association vides that members shall not transferred from one lodge to another unless all dues and assessments have been paid, up to and including those for the month in which the application for affiliation is made, the fact that, upon such an application, a member was transferred from one lodge to another involves the against the that transfer regularly when the member was in good standing and in accordance with the regulations.
Evidence-Burden of proof-Sale bank stock-Allotment to shareholders-Shares refused or relinquished to public- Authority - Evidence-Continued.
[1906] s. 34.] was sued a bank on a promissory note alleged to have been given in payment for a portion of an issue of increased stock. He want the trial ence was given of a resolution the bank directors authorizing the allotment of the new issue to the then shareholders of whom M. was not one, and counsel for the bank admitted that there was no resolution allotting it to anybody else.
verdict in favour of the bank was set aside the Court of Appeal.- Held, Idington and Duff JJ. dissenting, that the onus was on to prove that the stock was issued to the public without authority and such onus was not satisfied.-Held, per Idington and Duff JJ., that such onus was originally but the evidence produced, and the said admission of counsel had shifted it to the bank, which did not furnish the requisite proof.
......... 5-Criminal law-Trial for murder- Improper admission of evidence-New trial-Substantial wrong or miscarriage -Criminal Code, s.
By section of the "Criminal Code" it is provided that "no conviction shall set aside or any new trial directed, although it appears that some evidence was imsomething not according to law was at the trial, the opinion of the Court of Appeal, some substantial miscarriage trial."-Held, reversing the judgment appealed from B.C. Rep. Davies and Idington JJ. dissenting, that where evidence has been improperly admitted or something not according to law has been done at the trial which may have operated prejudicially to the accused upon a material issue, although it has not and cannot shewn that it did, in fact, so operate, and although the evidence which was properly admitted at the trial warranted the conviction, the court appeal may order a new trial. ......................
6-Timber license-Crown lands in alty-Contract-Sale-Exchange-Consideration-Payment in joint stock shares Evidence-Contin
-Vendor's lien-Onus of proof-Plead- ....
.
7--"Workmien's Compensation Act"- Right of appeal-Evidence of misconduct.
......................
lands in British Columbia-Real estate
Personalty sideration-Payment in joint stock of proof-Pleading and practice...
COURT-Expropriation land-Transcontinental Railway-Jurisdiction ..........................
- "Land Titles Act," 6 Edw. VII. 24;
"Exemptions Ordinance," N.-W.T. Con.
Ord., 27..................
EXPERTISE - Industrial improvements streams-Raising height of dam- Nuisance-Dainages-Expertise and arbitration-Right of action-Measure damages-R.S.Q.,
...........................
EXPROPRIATION-Railiways-Const ruetion and operation-Location plans-Delaying notice to treat-Action to compel expropriation-Compensation in respect of lands not acquired-Mandamus-Use of highway-Crossing public lane-Nvisance.] The approval and registration plans, etc., of the located area of the right-of-way, under the provisions the
"Railway Act," and the subsequent struction and operation of a railway along such area, do not render the railway company liable to mandamus ordering the expropriation a portion the lands shewn upon the plans which has not been physically occupied the permanent way constructed and operated.-Judgment appealed from reversed,
Expropriation-Continued.
the Chief Justice and Davies J. dissent- & &
2-Expropriation of land-Compensation-Transcontinental Railway Commission
"Exchequer Court Act," sec. (d)-3 "The Transcontinental Railway Act," Edw. VII. does deal with compensation for land giving them "the rights, powers, remednot confer such power.-The Transcontinental Railway is a public work within the meaning section sub-section "The Exchequer Court Act," and proceedings respecting compensation land taken for the railway may taken or against the Crown in the Exchequer Court.-Judgment of the Exchequer Court
Ex. C.R.
re- 3-Board of Railway Commissioners- Jurisdiction-Private siding - Construction of statute-"Railway Act," R.S.C. ss. 317-Branch of railway-Res inter alios-Estoppel ........ FORECLOSURE-Title to land-Mortgage - Equitable jurisdiction of court-Opening up foreclosure proceedings - "Real Property Act," R.S.M.
148-5 & Edw.
s. 3, (Man.)-Equity of redemption-Gertificate of title.]
Under the provisions perty Act,"
(1902), as amended section of chapter the statute of Manitoba, & Edw. VII. forechosure proceedings in respect of issue of a certificate title, in the same manner and upon the same grounds as in the case ordinary mortgages, at all events where rights of a third party holding the status of a bond purchaser for value have not intervened. Foreclosure-Continued.
appealed from Man.
560) reversed.
BoX....
MAINS-Tamation of electric and gas installations on streets-Construction of statute-Words and phrases- "Terrain"-"Lot"
Immovable property of Town of Westimount-56 s. 100...................
Statute- Construction- Crossing bridges engines-Condition precedent-R.S.O.
c. 242-3 Edw.
VII. 7, s. 43-4 Edw. VII. s.
ch. as amended
Edw. VII. 7, and Edw.
provides as follows:-"10.
(1) Before it shall lawful to run such engine over any highway whereon no tolls are levied, it shall the duty of the person or persons proposing to run the same to strengthen, at his or their own expense, all bridges and culverts to crossed such engines, and to keep the same in repair so long as the highway is so used.-"(2) The costs of such repairs shall borne the owners different engines in proportion to the number of engines run over such bridges or culverts.
10.-"(3)
The two preceding sub-sections shall not apply to engines used for threshing purposes or for machinery in construction or roadways of less than eight tons in weight.
Provided, however, that before crossing any such bridge or culvert it shall the duty of the person or persons proposing to run any engine or machinery mentioned in any of the sub-sections this section to lay down such bridge or culvert planks of such sufficient width and thickness as may necessary to fully protect the flooring or surface such bridge or culvert from any injury that might otherwise result thereto from the contact of the wheels of such engine or machinery;
and in default thereof the person in charge and his ployer, if any, shall liable to the
Highways-Continued.
municipality for all damage resulting to the flooring or surface such bridge or culvert as aforesaid.
7, 43; Edw. VII. ch. 60."-Held, affirming the judgment the Court of Appeal Ont. L.R. Fitzpatrick C.J. and Girouard J. dissenting, that the strengthening a bridge or laying of planks over it condition precedent to the right to run an engine over the same, and any engine crossing without observing such condition is unlawfully on the bridge and liable for injury resulting therefrom. also,
C.J. Girouard J. dissenting, that planks required sub-sec. over a bridge culvert were not intended merely to protect the surface from injury contact with the wheels of the engine or macbincry passing over it, but was also to guard against the danger the flooring giving way.
..................
Irrigation works-Nuisance struction of highways-Duty to build and maintain bridges-Construction of statute-61 V. ss.
37.] "The North-West Irrigation Act, Vict. 35), it is provided, that irrigation companies should submit their scheme of works to the Commissioner of Public Works of the North-West Territories and obtain from him permission to construct and operate the works across road allowances and surveyed public highways which might affected by them; that his approval and permission for construetion across the road allowances and highways should obtained prior to the authorization of the works by the Minister the Interior the Dominion, and, that during the construction and operation of the works, they should "keep open for safe and convenient travel all public highways theretofore publicly travelled as such, when they are crossed such works" and construct and maintain bridges over the works.
missioner was the local in control of all matters affecting changes in or structions to road allowances and public vested territorial goxernment "including the crossing such allowances or public highways ditches, canals
The commissioner granted per- Highways-Continued.
mission to the appellants to construct and maintain their works across the road allowances and public shewn in their application "subject to the provisions section of the said
North-West Irrigation Act," without imposing other conditions.-Held, reversing the judgment appealed from, Alta.
L.R. the Chief Justice and Idington
J. dissenting, that the absolute statutory duty in respect of the construction and maintenance of bridges imposed section of "The North-West Irrigation Act, relates solely to highways which were publicly travelled as such prior to the construction of the irrigation works, and that, as no further duty was imposed the commissioner as a condition of the permission for the construction and maintenance of their works, the company was not obliged to erect bridges across their works at the points where they were intersected road allowances which became publicly travelled as such after the construction of the works.-Per
Davies
Duff JJ.-In construing modern statutes conferring compulsory powers, including powers to interrupt the exercise of public rights, questions as to what conditions, obligations or liabilities are attached to, or arise out the exercise of such powers, are primarily questions of the meaning of the language used or of the proper inferences respecting the legislative intention touching such conditions, obligations and liabilities to drawn from a consideration of the subject-matter, the nature of the provisions as a whole, and the character of the objects of the legislation as dis- I was granted, 20th July,
3-Railways-Construction and operaacquired-Mandamus-Use of highway
-Crossing publio lane-Nuisance...
4--Taxation of electric and gas installations on streets-Construction
Highways-Continued.
-"Lot"-Immovable property of Town of Westmount-56 V. s. ............................
- "Land Titles Act," Edw. VII. "Exemptions Ordinance," N.-W.T. Ord., 27.................. WIFE-Donatio inter Ante-nuptial contract wife-Payment at death of husband-Institution contractuelle-Onerous gift. IMMOVABLES-Taxation of electric and gas installations on streets-Construction of statute-Words and phrases- "Terrain"-"Lot" - Immovable property of Town of Westmount-56 s. 100.................... Water lots- Status of lessee-Riparian owner-Access to lot-Injunction.] is a lessee under lease from the City of St. John a water lot in the harbour, the F. K. are lessees of the next lot to the south and there are other lots to the south between that of and the foreshore the harbour. By his lease has a right of access to and from his lot on the east and west sides.-Held, that S. was not a riparian owner and had no rights in respect of the water lot other than those given him his lease. Hence, erecting a wharf on the adjoining lot the south, a right of access not provided for in his lease.-Judgment appealed from N.B. Rep. reversed, Iding- Canals and ditches Nuisance - Obstruction of highways Duty to build and maintain bridges- INSTITUTION CONTRACTUELLE-Donatio inter vivos-Ante-nuptial contract- Gift to wife-Payment at death of husband-Institution contractuelle - Onerous gift. ........................
INSURANCE, ACCIDENT-Condition policy-Notice - Tender before action- The condition a policy insuring H. against death accident required that notice of death should given to the company within ten dayi thereafter, and it was provided that the insured met his death while under the influence of intoxicating liquor the company should be liable only for onetenth of the amount of the insurance.
The insured disappeared on the 21st
November,
When last seen on the evening of that day he was apparently under the influence of intoxicants, and, on 3rd April, his dead body was found in the river in an advanced state of decomposition, death having been, in all probability, caused drown- After the finding of the body the plaintiff gave notice of death to the company and furnished proofs as required.
The company refused payment and, before action, tendered to the plaintiff one-tenth of the amount of the insurance payable under the policy as full settlement therefor. The company pleaded this tender in their defence to the action and made proof thereof at the trial.-Held, that the tender made the company was a waiver the condition requiring notice within ten days death and also an admission of liability the company; and, Anglin J.
dissenting, that, as the company had failed to shew that the deceased came to his death while under the influence intoxicating liquor, the plaintiff was entitled to recover the full amount the insurance.
FIRE-Fire insurance- Policy-Statutory conditions - Gasoline on premises-Illuminating oils insured- Notice of loss-Remedial clause in Act of court-Construction statute-R.S.M.
By the
Manitoba "Fire Insurance Policy Act"
(R.S.M.
sch.), an insurance company insuring against loss
Insurance, Fire-Continued.
fire is not liable "for loss or damage curring stored or kept in the building insured containing the property insured unless permission is given in writing the Insurance was effected stock consisting chiefly of illuminating and lubricating oils, etc., and all other goods kept them for sale."
A quantity of gasoline was in the building containing the stock when destroyed by fire. that gasoline, being an illuminating oil, was part of the stock insured and the above statutory condition could not invoked to defeat the policy.- Held, per Anglin J., that if gasoline was not insured as an illuminating oil it was within the description of "all goods kept for sale."-By section of the Act "where, reason ot necessity, accident or mistake, the conditions any contract of fire insurance on property in this province as to the proof to given to the insurance company after the occurrence a fire have not strictly where from any other reason the court or judge before whom a question relating to such insurance is tried or inquired into considers it inequitable that the insurance should deemed void or forfeited by reason of imperfect compliance with such conditions," the company shall discharged from liability.-By statutory condition (a) in the schedule to the Act every person entitled to make a claim "is forthwith after loss to give notice in writing to the company."-Held, Fitzpatrick C.J. dissenting, that the above clause applies to said condition and under it, in the circumstances of this case, the insurance should held not to forfeited reason of the failure to give such notice. appealed from Man. R. 720) reversed, Fitzpatrick C.J. dissent- --......-. 2-Policy-Conditions-Notice of loss -Imperfect proofs-Non-payment of premium-Waiver - Application of statute -Remedial clause-N.-W. Ter. Ord., (1st sess.), s. The premium on a policy of fire insurance was not paid at the time the policy was delivered but, on request, credit was given for the amount and a draft for the same the insurance company, ac- Insurance, Fire-Contin ued.
cepted the insured, remained due and unpaid at the time the property insured was destroyed fire.-Held, that, an action to recover the amount of the insurance, the non-payment of the premium was not available as a defence.- The policy was subject to the statutory condition requiring prompt notice of loss by the insured to the company;
another condition the insured was required, in making proofs of loss, to declare how the fire originated so far as he knew or believed. Upon the occurrence of the loss, the company's local agent gave notice thereof to the pany, and informed the insured that he had done and that the company had acknowledged receipt his notice. The insured gave no further notice to the the company for making -proofs of loss and they were completed an agent the company and signed and sworn to the insured, the origin of the fire being therein stated to unknown.
examination for discovery the insured stated that, at the time he signed the declaration, he entertained an opinion as to the origin the fire, and the company's adjuster reported a similar opinion as to its origin. An adjustment the amount of the loss was then proceeded with the several companies carrying insurances on the property which the defendant company took part, but, after payment the other panies of their proportionate shares according to the adjustment, the defendants repudiated liability on the grounds of want of notice as required the statutory condition and non-disclosure the opinion entertained the insured as to the origin of the fire.-Held, reversing the judgment appealed from (3
Sask. L.R. 219), that, in respect of both conditions, the default was the result mistake on the part of the insured and, in the circumstances of the case, the provisions of section "The Fire Insurance Policy Ordinance,"
N.-W. Ter.
(1st should applied and the insurance held not to forfeited reason of default of notice or imperfect compliance with as to proofs of loss.
Prairie City Oil Standard Mutual
Fire Ins. (44 Can. S.C.R.
HUDsox
Insurance, Fire-Continuted.
refused, 23rd Nov.,
INSURANCE, LIFE-Benefit association Transfers lodges-Member in good standing-Regularity of affiliation-Payment of dues and assessments-Evidence-Presumption-Waiver.]
Where the constitution of a benefit association provides that members shall not transferred from one lodge to another unless all dues and assessments have been paid, up to and including those for the month which the application for affiliation made, the fact that, upon such an application, a member was transferred from one lodge to another involves the presumption as against the association that the transfer was regularly made when the member was in good standing and accordance with regulations. TURNER................ INTEREST - N.-W.T. Con. Ord., 34-Extrajudicial seizure - Chattel mortgage Sale through bailiff-Excessive costs- Penalty-Waiver-"Bank Act," R.S.C., s. 91-Contract-Excessive interest-Settlement of account stated- JUDGE
Liquor latos-"Liquor License Ordinance," ss. 57-Cancellation license-Jurisdiction of judge-7 Edto. VII. s. (Alta.) ............
JUDGMENT-Appeal-Nature of action -Equitable relief-"Supreme Court Act." s. 38c-Appeal from referee-Final judg- JURISDICTION- Liquor laws-"Liquor License Ordinance," and 57-Cancellation of license-Jurisdiction of judge -7
Edw. VII. s. (Alta.).] The provisions of section of "The Liquor License Ordinance" Ord., ch. 89), confer upon a judge of the Supreme Court ot Alberta power to direct the cancellation of liquor licenses which have been obtained in violation of subsection section of that ordinance as amended section of "The Liquor
License Amendment Act, 7 Edw.
VII. of the Province Alberta.
2--Expropriation of land-Coipensation-Transcontinental Railway Commission-"Railway Act" "Exchequer Court
Act," sec. (d)-3 Edw. VII.
"The Transcontinental Railway Act," 3
Edw. VII. does not expressly power the commissioners to deal with compensation for land taken for the railway, and section giving them "the rights, powers. remedies and immunities conferred upon a company under the
'Railway Act'" does not confer such power.-The Transcontinental Railway is a public work within the meaning section sub-section
"The Exebequer Court Act," and proceedings respecting compensation for land taken the railway may taken by or against the Crown in the Exchequer Court.- ...........................
3-Title to land-Mortgage-Foreclosure-Equitable jurisdiction of court- Opening up foreclosure proceedings
Construction of statute-"Real Property
Act," R.S.M., 148-5 & Edw.
VII. s. (Man.)-Equity of redemption-Certificate of title.........
Board of Railway Commissioners- Private siding-Construction of statute
Act," R.S.C.
ss. 226, 317-Branch of railway- Res inter alios-Estoppel ..........
5-Appeal-Leave by judge-Jurisdiction of Railway Board-Doubt as to decision of Board...................
.JURY-Damnages-Negligence- Physical injuries- Mental shock - LANDLORD TENANT-Mechanics' lien-Construction of statute-"Alberta .Mechanics' Lien Act"-6 Edw. VII. ss. 11-Building erected lessee lots
Status lessee-Riparian owner-Access to lot- Injunction.]
lessee under lease from the City of St. John a water lot in the harbour, the F. K. are lessees of the next lot to the south and there are other lots to the south between that and the foreshore the harbour.
his lease has right access to and from his lot the east and west sides.-Held, that was riparian owner and had rights respect of the water lot other than those given him by his lease. Hence, erecting a wharf the adjoining the south, a right access not provided in his lease.-Judgment from N.B. Rep.
reversed, Idington J. (dissenting)
.
FRANcis V. 2-Mechanics' lien statute-"Alberta Mechanics' Lien Act" Edw. VII. ss. 11-Building erected lessee-Liability of "owner." ........ land
Possession scription
Interruptive acknowledgment laws-"Liquor ense Ordinance," ss. 57-Cancellation of license-Jurisdiction of judge-7Edw. II. s. (Alta.)........... LIEN-Mechanics' lien-Construction statute-Alberta Mechanics' Lien Act- Edw. VII. ss. and 11-Building erected lessee-Liability of "owner."] of the "Alberta Mechanics' Lien Act" Edw. VII. gives nishing labour or materials for a building at the request of the owner the land lien on such land for the value Lien-Continued.
of such labour or materials. Sub-section of section provides that the term
"owner" shall extend to and include a person having any estate or interest the land upon or in respect of which the work is done or materials are placed furnished at whose request and upon whose credit or on whose behalf or with whose privity or consent or for whose direct benefit any such work is done, etc."
By section
"every building the fourth tion of this Act, constructed upon any lands with the knowledge of the owner agent shall held to have been constructed at the request of such owner," unless the latter gives notice within three days after acquiring such knowledge will not responsible.-The lessee of land, as permitted his lease, had buildings thereon pulled down and proto erect others in their place, but was obliged to abandon the work before it was finished.
The owner of the land was aware of the work being done but gave no notice disclaiming responsibility therefor.
Mechanics' liens having been under the Act:-Held, that the interest of the owner in the land was subject to such liens.-Judgment appealed from, varying that at the trial Alta. L.R. in favour the lienholders, affirmed.
........................
2-Timber license-Crown lands in alty-Contract-Sale-Exchange-0bnsideration-Payment in joint stock shares lien proof-Pleading and practice.] sale rights under licenses to cut timber provincial Crown lands in British umbia is a contract for the sale of interests in real estate, and the timber berths are subject to a vendor's lien the unpaid purchase money.-The trine of vendor's lien for unpaid purchase-money is applicable to every sale of personal property over which a court of equity assumes jurisdiction.
In re
Stucley (
1 followed.- In order to protect himself against the enforcement of a vendor's lien, a fendant relying on the equitable defence of purchase for value without notice bound to allege in his pleadings and to prove that became purchaser of the
Lien-Continued.
property in question for valuable consideration and without notice of the lien.
In re Nisbett and Potts' Contract ([1905]
1 391; [1906] 1 Whitehorn Brothers v. Davison ([1911] 1 K.B. 463), distinguished. V. ...... was refused on the 29th of July, LIMITATIONS ACTIONS-Industrial Nuisance-Damages - Right of action- Prescription-Arts. 2242,
0.0.] Per Anglin J.-An action, brought for recovery of damages in respect of injuries occasioned by improvements executed in upon works constructed many years before that time, is not subject to the prescription of -thirty years; nor can the prescription provided article the Civil applied where the action has been commenced within two years from the time the injuries complained of were sustained;
LIQUOR LAWS-"Liquor License Ordinance," ss. and 57-Cancellation license-Jurisdiction of judge-7 Edw. VII. s. (Alta.).] The provisions of section of "The Liquor License confer upon a judge the Supreme Court of Alberta power to direct the cancellation of liquor licenses which have been obtained in violation of sub-section of section of that ordinance as amended section of "The Liquor License Amendment Act, Edw. VII. the Province of Alberta. and operation-Location plans-Delaying notice to treat-Action to compel expropriation-Compensation in respect of lands not acquired-Use of highway- Orossing public lane-Nuisance.] approval and registration of plans, etc., of the located area of the right-of-way, under the provisions of the "Railway Act," and the subsequent construction and operation of a railway along such area, do not render the railway company liable to mandamus ordering the expro- Mandamus-Contin ed.
priation of a portion of the lands shewn upon the plans which has not been physically occupied the permanent way so operated.-Judgment
Chief
Justice
Davies
J.
dis- &
RY. &
DONALD..........................
2-Municipal corporation - Statutory duty-County officers-ffice accommodation-Discretion.] The courts should not interfere by mandamus with the reasonable exarcise a County Council its discretion in selecting the place in the county at which an shall be provided for the County Crown Attorney and Clerk of the Peace.-Judgment of the Court of Appeal
..........................
MARRIAGE CONTRACT-Donatio inter vivos
Ante-nuptial contract iwife-Payment at death of husband-Institution contractuelle - Onerous gift.
.
.................
Equitable jurisdiction of court-Opening up foreclosure proceedings statute-"Real Property Act," R.S.M.,
148-5 & Edw. VII. s.
(Man.)-Equity of redemption-Certificate of title ......................
MUNICIPAL CORPORATION-Statutory duty-County officersaccommodation
Mandamus.]
courts should not interfere mandamus with the reasonable exercise a
County Council of its discretion in selecting the place in the county at which shall provided for the County
Crown Attorney and Clerk of the Peace.
of the Court of Appeal (19
Ont.
L.R.
2-Building by-law - Dangerous constructions-Abatement of nuisance-Condition precedent-Notice-Order to repair-Demolition of structure-Trespass
-Forcible entry-Tort-Damages-Construction of statute-Montreal city charter-37 Vict. (Que.).]
In the exercise extraordinary powers conferred legislation authorizing interference with private rights all conditions precedent to the exercise such powers must strictly complied with prior to the performance of acts which, if done without special authority so conferred, would tortious.-In virtue of authority conferred the legislature the municipal council enacted
Montreal Building By-law" making regulations respect dangerous structures and providing that if, after notice the inspector buildings, the owner of any such structure should fail, as speedily as the nature of the case might require, to comply with the requisition in such notice, the inspector might order its demolition and, upon default of demolition within the time specified in the order, he might cause the structure to be molished.
The inspector gave notices to the plaintiff with respect to his buildings, alleged to dangerous, but failed to give him definite orders with regard to the nature of the demolition required subsequently, entered plaintiff's property and demolished the buildings on his default to comply with the requisitions contained in the notices. Davies J. dissenting, that toe conditions prescribed as necessary fore the exercise of the right of forcible entry and demolition of the structure had not been fully observed, and that, consequence of omission strictly to ply with the conditions, the municipal corporation was responsible for the damages sustained the plaintiff through the unauthorized destruction of his property.
-... .. 3-Water service-Statutory authority-Construction of statute-Water for domestic, fire and other purposes-Motice pocer-Discretion of council.] [N.B.])
provides that "the town council of Town of Campbellton are hereby purposes."-Held, per Fitzpatrick C.J. contra; JJ. dubitante), that statute empowers the municipality to furnish water for the use the Municipal Corporation-Continued.
tomer in working a printing-press.-The town council, by-law, fixed the rates to paid for water including '"printing presses, one service, 1% pipe or less, per year, proprietor of a newspaper and printing establishment, connected his premises with the water mains a two-inch pipe and received water for a year for his motor, paying said rate therefor.
He then continued the use of the water for some months when the council passed a resolution that newspaper proprietors should notified that the supply would cut at a certain date, which was done. brought an action for damages to his business.
per Idington J.-The Council had no authority to make the contract with there was no authority in the absence a special contract with the town, to place a two-inch service pipe for receipt of water; and if the municipality had power to enter into this agreement it was under no duty to exercise it.-Per Fitzpatrick C.J. and Duff
J., that 'the municipality having entered upon the service the appellant's motor was bound to continue it unless and until the council in the bond and reasonable exercise of its thought it desirable to discontinue it the interest of the inhabitants as a whole.-Per Davies and Anglin JJ.- If any contract existed it was one under was entitled to a supply water for his motor so long as the town council should, in its discretion, deem advisable to continue it.
There was evidence to warrant the jury's finding that the council was guilty of negligence and exercised its discretion mald fide.
Fitzpatrick C.J. and Duff J.- The circumstances disclosed were such as to warrant a finding of unfair discrimination against but tne damages awarded were excessive. ordering a new trial N.B. Rep. 573)
........................
Exemption fron taxation-Board of Revision-Judicial functions-Administrative powers-Construction of statute-"Vancouver Incorporation Act.".
5-Construction of statute- Ontario
"Municipal Act"-Bridges-Orossing by
Municipal Corporation-Continued. precedent 242-3 Edw.
NATIONAL
See and - Damages-Physical injuries
Mental
T. was riding in a street car when it collided with a train. He was thrown violently forward on the back the seat in front of him, but was able to leave the car and walk a short distance towards his place of business when collapsed and was taken home in a cab. He was laid up for several weeks and never recovered his former state health.
On the trial an action against the railway company one medical witness gave as his opinion that the physical shock received T. was the exciting cause of his condition, while others ascribed it to a disturbed nervous system. Negligence on the part of the company was not denied, but the trial judge was asked to direct the jury to distinguish, assessing damages, between the physical and nervous injuries, which he refused to do.-Held, affirming the judgof the Court Appeal Ont. L.R. 204), that the trial judge properly refused to direct the jury as requested; that the injuries to T.'s nervous system were as much the direct result of the negligence of the company as those to his physical system, and he could recover both; case impossible jury sever Victorian Railway Commissioners Coultas App. Cas. Tors ..........................
2-Injury to employee - Disobedience rules factory-Verdict Negligence-Continued.
against weight of evidence-Misdirection
-Neo trial-Costs.] In action for compensation for injuries sustained
K. while employed in a factory, the jury found that the company was at fault for laxity in the enforcement of its regulations made to secure the safety of employees and that K. contributed to the accident which occasioned injuries disobedience to orders given to him in pursuance of those regulations.
jury estimated K.'s damages deducted $2,000 on account of the fault attributed to him and returned a verdict against the company for on which judgment was tered.
It was contended that the jury had been misdirected by the trial judge and that the findings and verdict were against the weight of evidence.
judgment appealed from (Q.R.
was set aside and a new trial directed
......
3-Employer and employee - Dangerous works-Defective system-Liability of incorporated company-Fault of emcarrying on dangerous operations is liable at common law for damages sustained an employee in consequence injuries occasioned by the use a system which failed to provide a safe and proper place in which the employee could his work; it is not relieved from this responsibility by the fact that the operations were superintended a competent foreman. Ainslie Mining and Rail- ,way McDougall Can.
420) followed.-Judgment appealed from
Co. v.
Employer and employee- Compensation for injury - Contributory neglimen's Compensation Act"-2 Edw. VII.
fusal of damages-Right of appeal- ..............
5-Construction of statute - Negligence-Continued.
Waiver-"Bank Act,"
91-I nterest-Contract-Excessive of mortgaged property-Measure of dam- .............
NEW TRIAL-Criminal law-Trial for murder-Improper admission of evidence-New trial-Substantial wrong miscarriage-Criminal Code, s. By section of the "Criminal it is provided that "no conviction shall set aside or any new trial directed, although it appears that some evidence was improperly admitted or rejected that something not according to law at trial, in the opinion of the court of appeal, some substantial wrong or miscarriage was thereby occasioned on the trial."- Davies and Idington JJ. dissenting, that where evidence has been improperly admitted something not according to law has done at the trial which may have operated prejudicially to the accused upon a material issue, although it has not been and- cannot shewn that it did, in fact, operate, and although the evidence which was properly admitted at the trial warranted the conviction, the court of appeal may order a new trial. Construction and operation
Location plans
Delaying notice to treat-Action to compel expropriation-Compensation in respect lands not acquired-Mandamus-Use highway
Crossing public lane Nuisance .......... 2-Accident insurance - -..... insurance-Conditions of pol- Non-payment of premium-Waiver-Ap- Notice-Continued.
plication of statute - Remedial clause.
.....................
and operation-Location plans
Delaying notice to treat-Action to compel expropriation-Compensation in respect lands not acquired-Mandamus-Use highway
Crossing public lane
Nuisance. ............................
2-Industrial improvements on streams
-Raising height of dam-Nuisance- Expertise and arbitration- Right of action-Measure of damages- Practice-Future damages-Prescription arts. 5536....
3-Irrigation works - Obstruction highways-Duty to build and maintain bridges-Construction of statute...
4-Municipal corporation structure-Trespass- Forcible entry - Tort-Damages-Construction of statute
-Montreal city charter ...........
PARTIES-Cross-appeal-Practice. .
PARTNERSHIP-Sale of land-Principal and agent-Secret profit by broker
-Participation in breach of trust-Implied partnership-Liability to account
-Purchaser in good faith-Disclosure of suspicious circumstances.] being aware that was an agent for the sale of certain lands, entered into an agreement with him for their purchase joint account in his own name, upon the understanding that they should each owners one-half of the lands and share profits equally upon a re-sale. transferred one-half of his interest to who gave valuable consideration therefor with knowledge, at the time, of B.'s agency for the sale of the lands. Shortly
Partnership-Continued.
after the conveyance of the lands the owner, P., to they were re-sold -to another person at a large profit, and P., having discovered the nature of the transactions, brought action against and M. to.recover the amount of the profits which they had realized upon the re-sale of the lands.-Held, affirming the judgment appealed from Sask. L.R. 417), and Anglin J. dissenting, that the agreement between and was a partnership transaction; that thereby became subject to the fiduciary relationship existing tween and P. in respect of the sale of the property; that was disqualified as a purchaser -the lands which were the subject-matter of B.'s agency, and that he was equally responsible with to account to P. for the profits realized from the re-sale tne property.- In regard to LfM. it was held, also afirming the judgment appealed from, Idington J. dissenting, that as the evidence did not shew that he was other than a bond fide purchaser for valuable consideration was under no obligation to account for profits realized upon the sale of the interest in the lands acquired him under the transfer from lands in British Columbia-Real estate -Personalty-Contract-ale-Exchange -Consideration-Payment in joint stock of proof-Pleading and practice. . . . 458 2-Construction of statute - Excessive costs
Waiver-"Bank Act," R.S.C.
s. 91-Interest-Contract-Excessive of mortgaged property - PERSONALTY-Timber license lands in British Columbia-Real estate- Personalty-Contract- Sale - Exchange Personaltyjoint shares-Vendor's lien-Evidenec proof-Pleading practice....
PETITION
RIGHT - Poicrs the
Hailiay-Liability statutc--3
CRows.
operation-Location
Delaying tireat-Action propriation-Compensation lands acquired-Mandainus-Use highiray-Crossing lane-VNuisane
2-Timber olumbia-Real lty-Contract-Salc-Exchange-Consideration-Payment joint
-Fendor's proof-Pleading practice .
.....
POSSESSION-Title land
Prescription-Interruptirc acknowledgment - Eridence .......................
TvrE 2.
PRACTICE PROCEDURE-Appeal
-Yature action-Equitable
"Supremc Court Act." s. (c)-Appeal fron referee-Final judgment.]
statement of claim discloses only a common law cause of action and the cause was dealt with at the trial the facts that the indorsement the writ indicates a claim for equitable relief and that the trial judge. in ordering reference to asse.s the damiages. reserved further directions nake a judicial proceeding the nature of a the "Supreme Court Act."
report
Practice and Procedure- -Continued. to assess the damages for the plaintilf I an action is not a final judgment from which an appeal lies to the Supreme Court of Canada.
....... Appeal-Leave judge-Jurisdiction of Railicay Board-Doubt reme Court of Canada will not grant to appeal from the decision of the Railway Commissioners a question jurisdiction if no doubt that such decision was correct. PJleading-Neiw objections raised on appeal.] Per Idington and Anglin JJ.- Objections based upon provisions abling statutes which have not been up in the pleadings nor relied upon the courts below cannot entertained upon an appeal to the Supreme Court Canada.
ipeal-Setting heariiigof laic.] The Supreme Court of Canada will not entertain an appeal under tions
"The Railway Act," ch. unless some speciquestion is stated, or otherwise the order granting leave to apmade the Board of Railway missioners for Canada its Criminal laic-Trial admission trial-Substantial the "Criminal it is provided that it appears that some evidence was iiaccording to law was trial. ......
unless, the opinion the court appeal, -ubltantial wrong or mnicarriage thereby oceaioned the trial."-Held, Davie- and Idington 69:3 Practice and Procedure-Continued.
JJ. (dissenting)
, has been improperly admitted or something not according to law has done at the trial which may have operated prejudicially to the accused upon a material issue, although has not been and cannot shewn that it did, in fact, so operate, and although the evidence which was properly admitted at the trial warranted the conviction, the court of appeal may order
6-Cross-appeal - Parties.] Quwre.- On the appeal against the judgnient declaring him liable to account for illegitimate profits on the transactions question, had the Supreme Court
Canada jurisdiction to entertain a crousappeal P. to obtain recourse against who had been exonerated in the court below and was not made a party to the appeal taken McNichol v. Malcolm
Can. S.C.R. 265)
discussed.
7-Appeal
Final judgment for conmissions-Reference-Reservation of further directions and costs.] In an action against an insurance company for agent's commissions on policies and renewals the trial judge gave judgment for the plaintiff, ordered an account to taken and reserved further directions and costs.
His judgment was affirmed the Court of Appeal.-Held, Fitzpatrick C.J. dissenting, that the decision of the Court of Appeal was not a final judgment from which an appeal would lie to the Supreme Court of Canada.
S-Enployer and employee-Compenmen's Compensation Act"-2 Edw.
fusal of damages - Right of appeal- 9-Evidence-Burden of proof mission counsel-Shifting of onus- Sale of bank stock-Allotment to shareholders-Shares refused or relinquished
Authority c. s. ...............
Practice and Procedure-Continued. 10-Damages - Negligence-Physical injuries-Mental shock
11-Timber license-Crown lands in British Columbia-Real estatesonalty-Contract-Sale
Exchange Consideration-Payment in joint stock proof-Pleading and practice PRESCRIPTION-Title to land-Possession - Interruptive acknowledgment Evidence.] The company claimed scriptive title to a part the bed a small river on which the respondents' auteur, had been a riparian owner.
had leased lands on the banks of the river to the company which it was alleged, included the property dispute.
The only evidence as to interruption of prescription consisted a letter the company to enclosing a cheque in payment for "use of your interest in Cap Rouge River this year" with an indorsement acknowledging receipt funds "with understanding that the navigation of the river is not to prevented."-Held, reversing the judgment appealed from Ex. C.R. Girouard and Idington JJ. dissenting, that the memorandum was too vague to serve as an interruptive acknowledgment sufficient to defeat the title claimed the company. PRINCIPAL - Broker - Commission on sale of land-Introduction of purchaser-Efficient cause sale-Completion of contract owner altered terms.] instructed to secure a purchaser for lands, introduced a prospective purchaser who associated himself with other persons, identity carry out thus introcarried on negotiations with the owner puraltered property Principal and Agent-Continued.
his associates alone while he retired from the transaction.
The owner refused to pay the agent any commission the sale on the ground that he had not been the efficient cause of the sale which was finally made as above stated.
reversing, in part, the judginent appealed from Sask. L.R.
that as the steps taken the agent had brought the owner into relation with the persons who finally became purchasers he was entitled to recover the customary commission upon the price at which the property in question had been sold. Burchell v. Cowrie and Blockhouse Collieries, ([1910]
applied.
of land-Secret profit broker-Participation in breach of trustimplied partnership-Liability to account-Purchaser in good faith-Disclosure of suspicious circumstances-rossaware that was an agent for the sale certain lands, entered into an agreement with him for their purchase joint account in his own name, upon the understanding that they should each owners of one-half of the lands and share profits equally upon a re-sale.
transferred one-half of his interest to
A., who gave valuable consideration therefor with knowledge, at the time,
B.'s agency for the sale of the lands.
Shortly after the conveyance the lands the owner, P., to they were resold to another person at a large profit, and P., having discovered the nature the transactions, brought action against and to recover the amount the profits which they had realized upon the re-sale of the lands.-Held, affirming the judgment appealed from
Sask.
L.R. 417), Fitzpatrick C.J. and Anglin
J. dissenting, that the agreement tween and was a partnership transaction; that thereby became subject to the fiduciary relationship existing tween and P. in respect the sale of the property; that was disqualified as a purchaser of the lands which were the subject-matter of B.'s agency, and that he was equally responsible with to account to P. for the profits realized from the re-sale of the property.-In regard to it was held, also affirming the judgment appealed from, Idington J.
dissenting, that as the evidence did not
Principal and Agent-Continued. shew that he was other than a bond fide purchaser for valuable consideration he was under no obligation to account profits realized upon the sale of the interest in the lands acquired him under the transfer from B.-Quwre-On the appeal against the judgment declaring him liable to account for illegitimate profits on the transactions question, had the Supreme Court of Canada jurisdiction to entertain a cross-appeal P. to obtain recourse against had been exonerated in the court below and was not made a party to the appeal taken McNichol Malcolm
Can. S.C.R. 265)
discussed. PUBLIC WORK-Work dehors contract -Acceptance
Crown-Payment-Fair value.]
W. was contractor with the Crown for constructing a car and locomotive repair plant at Moncton, N.B., and was subject to the orders the governument engineer.
order of the engineer and with no contract in writing therefor he constructed sewers and a water system in connection with said works, and on completion of his contract the Crown accepted the additional work and agreed to pay its fair value, but not the amount claimed, which was deemed excessive.
The Department Railways referred the claim to the Exchequer Court and, consent, it was referred to the Registrar of the court to have the damages assessed, the order of reference providing that "the amount to ascertained shall the fair value or price thereof allowed quantum merit."
Registrar fixed amount at $53,205, as the fair value the work reasonably executed on a somewhat different plan.
The judge of the Exchequer Court added $39,000 to this amount, holding that the Crown had admitted the authority of the engineer to order the work to done, and that was entitled to the actual cost plus percentage for profit.
the Crown:-Held, Anglin J. dissenting, that the judgment appealed against (13 Ex. C.R. was not warranted; that the Crown had not admitted the authority the engineer, but expressly denied it pleadings and otherwise; that all was entitled to paid was the fair value the work to the Crown and the amount allowed the referee substan- Public Work-Continued.
tially represented value.
Privy
MERUIT
Public work
Work dehors contract-Acceptance by
Crotn-Paynent-Fair value .....
Construction and operalion-Location plans-Delaying notice treat-Action to compel expropriation-Compensation in respect of lands acquired-Alandamus-Use highteay-Crossing public lane-Nuisance.]
The approval and registration of plans, etc., the located area the right-ofway, under the provisions of the "Railway Act," and the subsequent construction and operation of a railway along such area, do not render the railway company lialle to mandamus ordering the expropriation a portion of the lands shewn upon the plans which has not been physically occupied by the permanent way so constructed and operated.-Judgment appealed front reversthe Chief Justice and Davies J. dis- &
& McDoN- Board of Railway Commissioners- Jurisdiction -Private siding-Construclion of statute-"Railway Act," R.S.C.
ss. 317-Branch of railway-Estoppel-Res inter alios.]
The Board Railway Commissioners for Canada has not the power, (except on expropriation consent of the owner), to order that a private industrial spur-track or siding, constructed and operated under an agreement tween railway company and the owner the land upon which it is laid and used only in connection with the business such owner, shall also used and operatas a branch of the railwav with which it is connected.
RY.
3-Pelition of right-Contract-Pooers of Commissioners of the Transcontinental Railway-Liability of
Construction of statute- 3 Edw. VII.
National
Transcontinental
Railways-Con tin ted.
Railway Act," 3 Edw. VII. 71(D.), does not confer powers upon the inissioners of the Transcontinental Raila petition remuneration for services that natire.-Judgment appealed from Ex. affirmed, Idington J. dissent- JoitssToa ...... Expropriation of land-Compensalion- Transcontinentab. Railway Commission-Jurisdiction- "Railway -"Exchequer
Court Act," sec. 2(d)- 3 Edto. VII. "The Transcontinental Railway Act," 3 Edw. VII. does not expressly empower the commissioners to deal with compensation for land taken for the railway, and section giving them "the rights, powers, remedies and immunities conferred upon company under the 'Railway Act'" does not confer such power.-The Transcontinental Railway is a public work within the meaning of section subof "The Exchequer Court and proceedings respecting pensation for land taken for the railway may taken or against the Crown in the Exchequer Court.-Judginent of the Exchequer Court . ......
. . . . . . .. . . . . . . . . . . . .. . . .. 5 REGISTRY LAWS-Homestead lands- "Land Titles Act," Edw. VII. "Exemptions Ordinance," N.-W.T., Con. Ord., c. 27.] Homestead lands, exempt from seizure under execution the North-West Territories "Exemptions are not affected charge or incumbrance in consequence the registration of writs of execution against the homesteader under the provisions the "Land Titles Act" of the Province of Saskatchewan, Edw. VII. as amended Edw. 10; consequently the transferee of such lands under conveyance from such homesteader acquires them free and clear of any incumbrance renulting from the registration of such execution.
Registry Laws-Continued.
2-Title to land-Mortgage-Foreclosutre-Equitable jurisdiction of court- Opening up foreclosure proceedings- Construction of statute-"Real Property
Act," 148-5 & Edw.
s. 3 (Man.)-Equity of redemnption-Ccrtificate of title ......
RIPARIAN
RIGHTS lots- Status
Injunction.
.......................
RIVERS
STREAMS-Industrial
JNu isa nce-Damages-Expertise and arbitration-Right of action-Measure damages-Practice
Future damages- Pleading-New objection raised on appeal-Prescription-R.S.Q.,
5536-Arts. 2242, provisions of the statutes respecting the improvement watercourses
Province of Quebec, permit the raising the height dams erected proprietors lands adjoining streams; this right is subject to the liability to make for all damages resulting to other persons from such works.- The mode of ascertainment of such damages the arbitration experts provided article the Revised
Statutes of Quebec, does not exclude the right of action to recover pensation in the courts.-In such eases the measure of damages is the amount of compensation for injuries sustained up to the time of the action; they ought not assessed once for all, bloc, but recourse may reserved in regard to future damages arising from same cause.-Per
Idington
Anglin JJ.-Objections based upon provisions of enabling statutes which have not been set up in the pleadings nor relied upon in the courts below cannot entertained upon an appeal to the Supreme Court Canada.
Hamelin v. Bannerman Can. S.C.R. 534)
followed.-Per
Anglin J.-An brought in for recovery of dam- Rivers and Streams-Cotinued. ages in respect of injuries occasioned by improvements executed in 1904, upon many years before that time, is not subject to the prescripthirty years; article Civil Code applied where the action has been commenced within two years from the time the injuries complained of were sustained. 2-Lease-Water lots-Status of lessee-Riparian owner-Access to lot-Injunction.]
is a lessee under lease from the city of St. John of a water lot in the harbour, the F. K. are lessees of the next lot to the south and there are other lots to the south tween that of and the foreshore the harbour.
By his lease has a right access to and from his lot on the east and west sides.-Held, that was not a riparian owner and had no rights respect the water lot, other than those given him his lease. Hence, erecting wharf on the adjoining lot the south, a right of access not provided for in his lease.-Judgment appealed from N.B. Rep.
reversed, Iding- Title scription-Interruptive acknowledgment .....................
SALE-Evidence
Burden of proof Shifting of onus-Sale of bank stock- Allotiment to shareholders-Shares refused or relinquished-Sale to public- A1uthority-R.S.C.
s. ......... 2-Broker
Principal and agent Commission on sale of land-Introduction of purchaser
Efficient cause sale-Completion of contract altertcrms........................
Sec
3-Timber license-Crorn lands British Coinmbia-Real estate-Personalty-Contract-Exchange - Considera- Sale-Continued.
tion-Payment in joint stock shares- Vendor's lien-Evidence-Onus of proof
-Pleading and practice ..........
4-Construction of statute--N. W. T.
Con. Ord., 34-Extra-judicial
Excessive costs
Waiver-"Bank Act," R.S.C.
Interest
Excessive
Voluntary payment-Surcharging and of mortgaged property - .
...
.
5-Sale
-Secret profit broker-Participation to account-Purchaser in good faith-Disclosure of suspicious circumstances- Cross-appeal - ...................
SHAREHOLDER-Evidence - Burden proof-Sale of bank stock-Allotment to shareholders - Shares refused or relinquished-Sale to publi -Authority- R.S.C. [1906] s. 34.] M. was sued an bank on a promissory note alleged to have been given in payment for a portion of an issue of increased stock.
He pleaded want of consideration and non-receipt of the stock.
the trial evidence was given of a resolution the bank directors authorizing the allotment of the new issue to the then shareholders of whom was not one, and counsel for the bank admitted there was no resolution allotting it to anybody else.
A verdict in favour the bank was set aside the Court
Appeal.-Held, Idington and Duff JJ.
dissenting, that the onus was on to prove that the stock was issued to the public without authority and such onus was not satisfied.-Held, per Idington and Duff JJ., that such onus was originally on but the evidence produced, and the said admission of counsel had shifted it to the bank, which did not furnish the requisite proof.
MCINTYE....
Shareholder-Continued.
2--Joint stock company-Allotment shares-Surrender allottee - Unpaid calls
Transfer scribed for shares in a mining company, was notified allotment of the same and paid the amount due on a first call as agreed.
Later he notified the company that he withdrew his subscription and refusing to pay further calls was sued therefor.
It turned out that when subscribed for the stock all the shares had been allotted by the company and those given to him had been obtained surrender from one of the original allottees.-Held, that under the Ontario Companies Act, when stock has allotted a company, the only case which the directors can regain control of it, is that of forfeiture for non-payment of calls. As in this case there was no forfeiture, the company did not legally own the stock allotted to could not compel him to pay for it.- Held, also, that the provision in said Act that stock on which calls are unpaid cannot transferred, is imperative and cannot waived v. ...... STATUTE-Title to land-Mortgagecourt-Opening up foreclosure proceedings-Construction of statute - "Real Property Act," R.S.M. (1902), & Edw. VII. c. s. 3, (Man.)- Equity of redemption-Certificate title.] Under the provisions of section of the Manitoba
"Real Property Act," R.S.M.
ch. as amended section of chapter of the statute Manitoba, & Edw. VII., foreclosure proceedings respect issue of a certificate of title, in the same manner and upon the same grounds in the case of ordinary mortgages, at all events where rights of a third party holding the status of a bond fide purchaser for value have not intervened.- Man. R. Box... refused, 11th July,
2-Municipal corporation - Assessment and taxes-Exemption from taxation-Board of Revision-Judicial functions
Administrative powers struction of statute-"Vancouver Incorporation Act," 64 V. 54, s. 46, s.-s
The "Vancouver Incorporation Act,"
Vict. (B.C.), subsection 3 section provides that "the buildings and grounds of and attached to and seminary of learning, public hospital, any incorporated charitable institution, whether vested in trustees or otherwise, so long as such buildings and grounds are actually used and occupied such institution, or if unoccupied, but not otherwise used or occupied;
provided, that such grounds shall not exceed extent the amount actually necessary for the requirements the institution. The question as to what amount land is necessary shall decided the Court
Revision, whose decision shall be final."-Held, per Davies, Duff
Anglin JJ., that the functions in respect the limitation of exemptions front taxation so vested in the Court of Revision are quasi-judicial and must exercised in each case with respect to that case alone; it is not vested with power to lay down a general rule based solely upon general considerations.-Per
Idington J.-That the provision in question was merely a delegation of a legislative or administrative power, probably carrying with it a duty, but in no manner implying the discharge of a judicial duty subject to review or supervision.
insurance-Policy-Statutory conditions-Gasoline on premises
Illuminating oils insured-Notice of loss
-Remedial clause in Act-Discretion court-Construction of statute- R.S.M.
By the Manitoba "Fire
Insurance Policy Act" (R.S.M.
sch.), an insurance company insuring against loss fire is not liable
"for loss or damage occurring while kept in the building insured or containing the property insured unless permission is given in writing the pany." Insurance was effected "on stock consisting chiefly of illuminating and lubricating oils, etc., and all other goods kept them for sale."
quantity gasoline was in the building containing the stock when destroyed by fire.-Held, that gasoline, being an illuminating oil, was par of the stock insured and the above statutory condition could not invoked to defeat the policy.-Held, per Anglin J., that if gasoline was not insured as an illuminating oil within the description
"all goods kept for sale."-By section the Act "where, reason necessity, accident or mistake, the conditions any contract of fire insurance on property in this province as to the proof to given to the insurance company after the occurrence of a fire have not strictly with where from any other reason the court or judge before whom a question relating to such insurance is tried or inquired into considers it inequitable that the insurance should be deemed void forfeited reason imperfect compliance with such conditions," the company shall not discharged from liability.statutory condition
(a) in schedule to the Act every person entitled to make a claim "is forthwith after loss to give notice in writing to the pany."-Held, Fitzpatrick C.J. dissenting, that the above clause applies to said condition and under it, in the circumstances of this case, the insurance should held not to forfeited reason the failure to give such notice.-Judgment appealed from
Man. R. C.J.
Mechanics' lien - Alberta Mechanics' Lien Act ss. and Building erected lessee-Liability "owner."]
Section of the "Alberta Mechanies' Lien Act" Edw. VII. ch. gives to any contractor or materialman furnishing labour or materials a building at the request of the owner of the land a lien on such land for the value of such labour or materials. Subsection 4 of section provides that the term "owner'" shall extend to and include a person having any estate or interest "in the land upon or in respect which the work is done or materials are placed or furnished at whose re- Statute-Con tin tied.
quest and upon whose credit or whose behalf or with whose privity or consent or for whose direct benefit any such work is
By section 11 mentioned in the fourth of this Act, structed upon any with knowledge owner or his authorized agent
* shall to have constructed at the request such owner," unless the latter gives notice within three days after acquiring such knowledge that will not responsible.-The lessee land, as permitted lease.
had buildings thereon pulled down proceeded' to erect others their place, but was obliged to abandon the work before it was finished.
The owner the land aware the work being done but gave notice disclaiming responsibility therefor.
Mechanies liens having under the
Act:-Held, that the interest of the owner in'the was subject to such liens.-Judgient appealed from, varying that at the trial Alta. L.R.
favour of the lienholders. affirined.
..............
5-Einployer and employee-Compengence-Construction of statute-"Vork- Compensation Act," VII.
s.-s.
and sch. art.
4-Remedial legislation-Refusal of daniages-Right of appeal-Evidence.]
British
Columbia claiming
-under the "Employer's Liability Act"
and, alternatively, under the "Workmen's Compensation Act," the plaintiff, at the trial. abandoned the claim under the former Act and, thereupon, judge dealt with the case as a claim nder the
Act," found that the plaintiff's deceased
Trusband came to his death solely in sequence his own "wilful and serious misconduct," and, therefore, under subsection 2(c) section the Act, that she was precluded from obtaining compensation in consequence of death.-Per Davies, and Anglin,
JJ.-The right of appeal from a cision in the course proceedings to which article the second schedule of the Workmen's Compensation applies is available only for questioning the determination of the court or judge
'on tiinued.
some question law.
Decisions adjudicating upon a claim brought before the Supreme Court under sub-section of tion that Act are not subject to Whether or not there is any reasonable evidence to support finding wilful and serious misconduct is appealable question.-In circumstances of the case court held, Davies and Anglin JJ. dissenting, that there was not reasonable evidence to support the finding of wilful and serious misconduct.-The appeal from the judgment the Court Appeal for British Columbia B.C. Rep. was dismissed, Davies and Anglin JJ. dissent- Construction of statute-Bridges- Crossing engines-Condition precedent-R.S.O.
242-3 Edw. VII. 7, s. 43-4 Edw. VII. s. as amended Edw. VII. 7. and Edw. VIJ. provides as follows: -"10.
(1) Before it shall lawful to run such engine over any highway wheretolls are levied, it shall the duty of the person or persons proposing to run the same to strengthen, at his their own expense, all bridges and culverts to crossed such engines, and to the same in repair long the highway is so used.-"(2) The costs such repairs shall borne by the owners different engines in proportion to the number of engines run over such bridges or culverts.
10.-"(3) The two preceding sub-sections shall not apply to engines used threshing purposes machinery construction of roadways less than eight tons weight. vided, however, that before crossing any such bridge or culvert it shall the duty the person or persons proposing to run any engine or machinery mentioned any of the sub-sections this section to lay down such bridge culvert planks of such sufficient width and thickness as may necessary to fully protect the flooring or surface such bridge or culvert from any injury that might otlrwise result thereto from the contact the wheels of such engine or machinery;
and in default thereof the person in charge and his employer, IN DIX.
if any, shall liable to the municipality for all damage resulting to the flooring or surface of such bridge culvert as aforesaid.
7. 43; Edw. VII.
Held, affirming the judgment of the
Court Appeal
Fitzpatrick C.J. and Girouard J. (dissenting)
, that the strengthening of a bridge or laying of planks over it is a condition precedent to the right to run engine over the same, and any engine crossing without observing such condition is unlawfully on the bridge and liable for injury resulting therefrom.- Held, also, Fitzpatrick and Girouard J. dissenting, that planks required sub-see. over a bridge or culvert, were not intended merely to protect the surface from injury contact with the wheels of the engine or machinery passing over it, but was also to guard against the- danger of the flooring giving away.
7- Rivers and streams-Industrial improcenents-Raising height of dam- Nnisance-Da mages-Expertise and arbitration-Right of action-Measure damnages-R.S.Q., arts. 5536.]
The provisions the statutes respecting the improvement of watercourses in the
Province of Quebec, permit the raising of the height dams erected proprietors lands adjoining streams;
this right is subject to the liability to make compensation for all damages resuiting to other persons works.-The mode of ascertainment such damages the arbitration of experts provided article of the
Revised Statutes not exclude the right action to recover compensation in the courts.-In such eases the measure of damages is the amount of compensation for injuries sustained up to the time the action;
they ought not to assessed once all, bloc, but recourse may reservin regard to future damages arising from the same cause.
S-Homestead lands - "Land Titles
Act," VII. 24; S Edo. VII.
(Sask.)-Exemption from seizure- Registered incu branco -"E.ceiptions Ordinance," N.W.T., Con. exempt seizure under execution the North- West
Territories
"Exemptions Ordinance," are not affected any charge incumbrance in consequence the registration of writs execution against the homesteader under the provisions of the "Land Titles Act" of the Province of Saskatchewan, Edw. VII. as amended Edw. VII. 10; consequently, the transferee such lands under conveyance from such homesteader acquires them free clear of any incumbrance resulting from registration execution. 280) affirmed. ................... 9-Liquor laws-"Liquor License Ordinance," ss. and 57-Cancellation license-Jurisdiction of judge-7 Edio. VII. c. s. (Alta.).] The provisions of section of "The Liquor License confer upon a judge the Supreme Court Alberta power to direct the cancellation of liquor licenses which have obtained in violation sub-section :3. section of that ordinance amended section of "The Liquor License Amendment Act, 7 Edw. VII. of the Province Alberta. ...... 10-Assessment and taxes-Construction of statute-TVords and phrases-"Terrain"-"Lot"
Immovable
The words used the French version of the statute were, "toute terrain, lot de ville on portion de The by-law enacted in virtue the statute purported to impose tax upon "all real estate" within the municipality. and under the by-law the property of the company, respondents, sisting their equipment for the transmission of gas and electric currents installed upon and streets, squares, etc., -the town, was assessed as subject to taxation and described on the rolls as "gas-mains and equipment, poles, transformers, wires, etc."
In an action the municipal corporation for the recovery amount of taxes claimed in virtue the by-law and assessment:-Held, Idington
J. dissenting, that neither poles carrying electric wires nor gas-mains, and their respective equipments, placed or under the public streets, etc., of the town, can deemed taxable real estate within the meaning of the word "terrain" used in the French version, nor the word "lot" used in the English version of the provisions made section the statute, Vict.
(Que.).
K.B.
. ............
tions-Notice of loss-Imperfect proofs
-Non-payment of premium - Application of statute-Remedial clause
Ter. Ord., (1st sess.), s.
The premium on a policy fire insurance was not paid at the time the policy was delivered bit, on request, credit was given for the amount and a draft for the same the insurance company, accepted the insured, remained due and unpaid at the time the property insured was destroyed by fire.- Held, that, in an action to recover the amount of the insurance, the non-payment of the premium was not available as a defence.-The policy was subject to the statutory condition requiring prompt notice of loss the insured to the company; by another condition the insured was required, in making proofs loss, to declare how the fire originated far as he knew or believed.
Upon the occurrence of the loss, the company's local agent gave notice thereof to the company, and informed the insured that had done so and that the company had acknowledged receipt of his notice.
The insured gave no further notice to
Forms were then supplied the company for making proofs loss and they were completed agent of the company and signed and sworn to the insured, the origin the fire being therein stated to unknown.
examination for discovery the insured stated that, at the time signed the declaration, he entertained an opinion as to the origin of the fire, and the company's adjuster reported a similar opinion as to its origin. adjustment of the amount of the loss was then proceeded with the several companies carrying insurances on the property in which the defendant pany took part, but, after payment the other companies of their proportionate shares, according to the adjustment, the defendants repudiated liability on the grounds want notice as required the statutory condition and non-disclosure of the opinion entertained the insured as to the origin the fire.-Held, reversing the judgment appealed from Sask. L.R. 219), that, in respect of both conditions, the fault was the result of mistake on the part of the insured and, in the circumstances of the case, the provisions section of "The Fire Insurance Policy Ordinance," N.W. Ter. Ord., (1st should be applied and the insurance held not to forfeited reason of default of notice imperfect compliance with the condition as to proofs of loss.
Prairie City Oil v. Standard Mutual Fire Ins. refused, 23rd Nov.,
Petition of right-Contract-Powers of Commissioners of the Transcontinental Railway-Liability of
Construction of statute-3 Edw. VII. National Transcontinental Railway Act," Edw. VII. ch. not confer powers upon the Coma petition remuneration for services of that nature.-Judgment
Ex. C.R. affirmed, Idington J. dis- 13-Construction of
Ter. Con. Ord., 34-Extra-judicial seizures-Chattel mortgage through bailiff-Excessive costs-Penalty -Waiver-The
"Bank s. 1-Interest-Contract- Excessive charges-Settlement of account stated-Voluntary payment-Surcharging and falsifying-Reduction rate-Removal of mortgaged property- Negligence-Measure of damages.] The parties to a chattel mortgage may waive the provisions of the third section of the
North-West Territories Ordinance, in respect to the expenses of the seizure and sale of the mortgaged property. Robson v. Biggar ((1907)
1 KB.
Alta. L.R. reversed.-Where interest in excess of the rate of seven per cent. per annum has been voluntary paid upon the settlement of accounts stated between a bank and its debtor, the amount paid cannot recovered back from the bank by the payer.
In respect of unsettled accounts between a bank and its debtor, charges of interest in excess of the rate limited section of the "Bank Act," R.S.C., made in virtue of an agreement tween the parties, should reduced to the rate of seven per cent. per annum upon the surcharging and falsifying such accounts. Judgment appealed from affirmed, Idington
J.
dissenting.-Where loss occurs mortgaged property in consequence of want of reasonable care in its removal from the place of seizure to the place at which it is sold under the authority chattel mortgage, the proper measure of the damages recoverable by the mortgagor the amount of depreciation value caused by the negligent manner present case, the evidence being insufficient to justify the assessment made the trial judge, it was referred back to have the damages properly assessed.
varied, Duff and Anglin JJ. dis- ........................
Expropriation of land-Compensation-Transcontinental Railway Commission-.Jurisdiction-"Railway Act"- "Exchequer Court Act," sec.
Edw. VIL
"The Transcontinental
Railway Act," Edw. VII. does not expressly empower the commissioners to deal with compensation for land taken for the railway, and section 15 giving them "the rights, powers, remedies and immunities conferred upon a company under the 'Railway Act' " does not confer such power.-The Transcontinental Railway is a public work within the meaning of section sub-section of "The Exchequer Court Act," and proceedings respecting compensation land taken for the railway may taken or against the Crown in the Exchequer Court. Judgment of the Exchequer Court Ex. C.R. reversed. V. .................. 15-Irrigation works-Nuisance struction of highways-Duty to build and maintain bridges-Construction statute-61 V. ss. "The North-West Irrigation Act, Vict. 35), it is provided, l1b) that irrigation companies should submit their scheme works to the Commissioner of Public Works of the North-West Territories and obtain from him permission to construct and operate the works across road allowances and surveyed public highways which might affected them; that approval and permission for construction across the road allowances and highways should be obtained prior to the authorization of the works by the Minister of the Interior of the Dominion, and, 37), that during the construetion and operation of the works, they should "keep open for safe and convenient travel all public highways theretofore publicly travelled as such, when they are crossed such works" and construct and maintain bridges over the The commissioner was the local in control of all matters affecting changes in or obstructions to road allowances and public highways vested in the territorial government
"including crossing of such allowances or public highways irrigation ditches, canals commissioner granted permission to the appellants to construct maintain their across the road allowances and public shewn in their application "subject to the provisions of section of the said North-West Irrigation Act," imposing conditions.- Alta. L.R. the Chief Justice and Idington J. dissenting, that the absolute statutory duty in respect of the construction and maintenance of bridges imposed section of "The North- West Irrigation Act, relates solely highways which were publicly travelled as such prior to the construction the irrigation works, and that, as no further duty was imposed by the missioner as a condition of the permission for the construction and maintenance of their works, the company was not obliged to erect bridges across their works at the points where they were intersected road allowances or public highways which became publicly travelled as such after the construction the works.-Per Davies and Duff JJ.- In construing modern statutes conferring compulsory powers, including powers to interrupt the exercise public rights, questions as to what conditions, obligations or liabilities are attached to, arise out of the exercise of such powers, are primarily questions of the meaning of the language used or of the proper inferences respecting the legislative intention touching such conditions, obligations and liabilities to drawn from a consideration of the subject-matter, the nature the provisions as whole, and the character the objects the legislation as disclosed thereby.
...........................
was granted, 20th July,
16-Mun icipal corporation
Dangerous constructions atentent of nuisance-Condition precedent-Notice-Order to repair
Demolition of structure - Forcible entry-Tort-Damages-Constru eion statute-Montreal city charter-37 Vict.
(Que.).] In the exercise of extraordinary powers conferred legislation authorizing interference with private rights, all conditions precedent to the exercise such powers must strictly complied with prior to the performance acts which, if done without special authority conferred, would torti- MIunicipal corporation service-Stututory authority - Construe tion statute-Water for domestic, fire and other purposes-Motive power-Discretion of council.] The charter of a Vict. [N.B.]) provides that "the town council Town of Camnpbellton are hereby authorized and empowered to provide for the said town a good and- sufficient supply water for domestic, fire and other purposes."-Held, per Fitzpatrick C.J. and Duff J. (Idington J. contra; Davies and Anglin JJ. dubitante), that the statute empowers the municipality to furnish water for the use of the customer working a printing-press.-The council, by-law, fixed the rates to paid including
"printing presses, one service, pipe or less, year, proprietor of a newspaper printing establishment, connected his premises with the water mains a twoinch pipe and received water for a year for his motor, paying said rate therefor. then continued the use of the water for some months when the council passed resolution that newspaper proprietors should notified that the supply would cut at a certain date, which was done.
brought an action for damages his business.-Held, per Idington J.- The Council had no authority to make the contract with there was no authority in the absence of a special contract with the town, to place a two-inch serpipe for receipt of water; and the municipality had power to enter into this agreement it was under no duty to exercise it.-Per Fitzpatrick C.J. and Duff J., that the municipality having entered upon the service of the appellant's motor was bound to continue it unless and until the council in the bond fide and reasonable exercise of its discretion thought it desirable to discontinue in the interest of the inhabitants as a whole.-Per Davies and Anglin JJ.der which was entitled to a supply council should, in its discretion, deem advisable to continue it.
There was no evidence to warrant the jury's finding that the council was guilty of negligence and exercised its discretion mal fide.- Per Fitzpatrick C.J. and Duff J.-The circumstances disclosed were such as to warrant a finding of unfair discrimination against but the damages awarwere excessive.-Judgment ordering new trial affirmed.
Board of lailway Commissioners struction of statute-"Railway Act,"
ss.
Branch of railway-Res inter alios-Estoppel ............................
19-Appeal-Nature of action-Equitable relief-Supreme Court Act."
from. referee-Final judgment
-Assessment of damages .........
A ppeal-Setting down for hearing tions of law .....................
Criminal law-Trial for murder
-Improper admission of evidence-Substantial wrong or miscarriage-Criminal
Code s. .....................
STATUTES-R.S.C.
s.
[Bank Act] ......................
2-R.S.C. s. [Bank Act]
.................................
3c. ss.
[Railway Act] ...................
R.S.C. e. s. (3)
peals from Board of Railway Commissioners]
5- R.R.C. s. [Supreme
Court
6-R.S.C. [E.rcheqner Court Act] ..................
ned.
7- [Appeals in criminal cases] .......... '. ss. [Isrigation] .....................
9-(D.)
3 Edw. VII. [National Transcontinental Railway] ........ 3 Edw. VII.
[Transcontinental Railway] .............
.
Sec
R..O. [Use of Engines on Highways] ..............
12-(Ont.) 3 Edw. VII. 7, s. Engines Highways] (Ont.) Edw. VII. s. Engines Highways] R.S.Q. arts. 5536 [Improvement of Watercourses] ...... 15-(Quc.)
[Montreal 16-(Que.)
Town of Westmount] ............
17-(X.B.) s. [Water Supply at Campbellton] .......... Sec IS-R.S.Mlf.
[Fire Insur- R.S.M. c. [Real Property t] ...... ...... ...... .. .......... ,Sr
Statutes-Continued.
(Man.) & Edw.
[Real Property Act] ................
21---(B.C.) 64 s. 46 [Vancouver Incorporation Act] ..........
(B.C.)
and Sch. [Workmen's Compensation
N.-W.T.
[Executions against Lands] .......
24-N.-W.T. Con. Ord.,
[Extra-judicial seizures] ..........
N.-W.T. Con. Ord., ss.
[Liquor Licenses] .........
26-N.-W.T. Ord., (1st sess.), s. [Fire Insurance Policies] .
27-(Alta.) Edw. VII. ss.
[Mechanics' Liens] .............
28-(Alta.) 7 Edw. VII. s. 14
[Liquor Licenses] ...............
29-(Sask.) Edw. VII. s.
[Executions against Lands] .......
30-(Sask.) Edo. VII. s. 10
[Executions against Lands] .......
Burden proof- Shifting of onus-Sale of bank stock- Allotment to shareholders-Shares refused or relinquished-Sale to public- Authority-R.S.C. (1906),
.. .....
................
SURCHARGING
FALSIFYING- Construction of statute-N.-W. Ter. Ord., 34-Extra-judicial seizure- Chattel mortgage-Sale through bailiff- "Bank Act," R.S.C. (1906), s. -Settlement of account stated-Voluntary payment-Reduction of rate-Removal of mortgaged property Negligence-Measure of damages ....... .473 TENDER-Accident insurance - Condition of policy-Notice-Tender before action-Waiver ....................
TIMBER LICENSE - Timber license - Crown lands in British Columbia-Real estate-Personalty-Contract-Sale-Exchange-Consideration-Payment in joint stock shares-Vendor's lien-Evidence- Onus of proof-Pleading and practice.] sale of rights under licenses to cut timber on provincial Crown lands in British Columbia is a contract for the sale of interests in real estate, and the timber berths are subject to a vendor's lien for the unpaid purchase-money.- The doctrine of vendor's lien for unpaid purchase-money is applicable to every sale of personal property over which a court of equity assumes jurisdiction. In re Stucley (
1 followed. order to protect himself against the enforcement of a vendor's lien, a defendant relying on the equitable defence purchase for value without notice bound to allege in his pleadings and to prove that he became purchaser of the -property in question for valuable consideration and without notice of the lien.
In re Nisbett and Potts' Contract ([1905]
1 391; [1906] 1 Whitehorn Brothers Davison ([1911]
1 K.B. 463)
was refused on the 29th of July, Foreclosure - Equitable court - Opening up foreclosure proceedings - "Real Property Act," R.S.M. (1902), 148-5 & Edw. VII. s. (Man.) -Equity of redemption-Certificate Title to Land-Continued.
title.] Under the provisions of section of the Manitoba "Real
(1902), as amended by section of chapter of the statute of Manitoba, 5 & Edw. VII., proceedings in respect of issue of a certificate title, in the same manner and upon the same grounds as in the case of ordinary mortgages, at all events where rights of a third party holding the status of a bond fide purchaser for value have not intervened.- Aan. R.
560) reversed. Box .....
Possession-Prescription - Interruptive acknowledgment - The company claimed prescriptive title I to a part the bed of a small river which the respondents' auteur, had I a riparian owner.
had leased lands on the banks the river to the company which, it was alleged, included the property in dispute.
The only evidence as to interruption of prescription consisted of a letter the company to enclosing a cheque in payment for
"use your interest in Cap Rouge River this year." with an indorsement by acknowledging receipt of the funds "with the understanding that the navigation the river is not to prevented."from Ex. Girouard and
Idington JJ. (dissenting)
, that the memorandum was too vague to serve as an interruptive acknowledgment sufficient to defeat the title claimed the company.
3-Deed of land-Description-Ambignity-Admissions.]
In an action for trespass to land both parties claimed title from the same source and the dispute was as to which title included the locus.
The deed under which claimed contained the following as part of the description: "Then running in an eastwardly direction along the said highway until it comes to a crossway in the public highway and running in southerly direction until it comes to the
Title to Land-Gontinued.
waters of Broad
There were two crossways in the highway and contended that the first one reached on the course was indicated and R. that it was the second lying a little farther west. reversing the judgment of the Supreme Court of Nova Scotia (44 N.S. Rep. 332), Idington and Duff JJ. dissenting, that to run the course to the first crossway would take it over land not owned the grantor; that there were other difficulties in the way taking that course; that had apparently for many years treated the second crossway as the boundary; and what evidence there was favoured that view. The construction should, therefore, that the crossway mentioned in the scription was the second of the two. 4-Homestead lands - "Land Titles Act," Edw. VII. c. 24; Edw. VII. (Sask.)-Exemption from seizure- Registered incumbrance - "Exemptions Ordinance," N.-W.T., Con. Ord., Homestead lands, exempt from seizure under execution by the North- West
Territories
"Exemptions Ordinance," are not affected any charge incumbrance in consequence of the registration of writs execution against the homesteader under the provisions of the "Land Titles Act" of the Province Saskatchewan, Edw. VII. 24, as amended by Edw. VII. 10; consequently, the transferee such lands under conveyance from such homesteader acquires them free and clear any incumbrance resulting fron the registration of such execution. TORT-Municipal corporation-Building ient of nuisance-Condition precedent- Votice-Order to repair-Demolition structure
Damages-Construction of statute-Montreal city charter ................
Physical injuries-Mental shock-Sever- Petition right tract-Powers of Conmmissioncrs of the
'I ranscontinental Railway
(rown-Construction of statute-3 Edio.
- Municipal corporation- Building by-lato - Dangerous constructions --- Abatement of nuisance
Condilion prccedent-Notice-Order to repair
)cmolifion of structure-Forcible entry-To: sta tute-Mlontreal city charter
TRIAL-Criminal law-Trial for nurder-Improper admission of evidence- Snbstantial fwrong miscarriage- Criminal Code s. 1019.............
TRUSTS-Sale of land-Principal and agent-Secret profit broker-Participation in breach of trust-Implied partnership
Liability account
Purchaser in good faith-Disclosure of suspicious circumstances - Oross-ap peal
Parties-Practice ................
PURCHASER license-Crouon lands in British Columbia-Real estate-Personalty
-Sale-Exchange---Consideration- Paynent in joint stock shares-Vendor's lien-Evidence-Onus of proof - Plead- WAIVER-Benefit association-Life insurance - By-laws and regulations - Transfers between lodges- Member in good standing-Regnlarity of affiliation
-Payment
Eridence-Presumption ...........
Accident insurance - Notice
Tender action ............ insurance-Conditions of pol- Non-payment of premium-Waiver-Application of statnte - Remedial clause ........... Construction of statute-N.-TV.T. 34-Estra-judicial bailiff-Excessive costs-Penalty-"Bank Act," s. 91-Interest -Contract-Excessive charges - Settlement of account stated-Voluntary payment-Surcharging and falsifying-Reduction of rate-Removal of mortgaged property-Negligence-AMeasure of dam- Allotnent of joint stock shares- Snrrender allottee-Unpaid calls- Transfer ........................
WATERS.
WATERWORKS-Municipal corporation Water--ates
Statutory authority Construction of statnte-Water for domestic, fire and other pferposes Motive polcer-Discretion of council ....... PHRASES.
1- 2-"Menber in good standing"... " ....................
"Terrain" ..................
Employer and employee for injury - Contributory negligence
Construction of statute-2 Edw. VII.
s. 8s. and sch. art. 4
(B.C.)-Remedial legislation- Refusal of damages-Right of appeal-Evidence.]
British Columbia claiming damages under the "Employers' Liability Act" and, alternatively,
Compensation Act," the plaintiff, at the trial, abandoned the claim under the former Act and, thereupon, the judge dealt with the case as a claim under found that the plaintiff's deceased husband came to his death solely in consequence of his own "wilful and serious misconduct," and, therefore, under subof section of the Act, held that she was precluded from obtaining compensation in consequence of his death.-Per Davies, Duff and Anglin
JJ.-The right of appeal from a decision
Workmen's Compensation Act-Con. in the course of proceedings to which article of the second schedule of the "Workmen's Compensation Act" applies available only for questioning the determination of the court or judge upon question of law.
Decisions upon questions of fact in adjudicating upon a claim brought before the Supreme Court under sub-section of section of that Act are not subject to appeal. Whether or not there is any reasonable evidence to support a finding of wilful and serious misconduct is an appealable question.-In the circumstances of the case the court held, Davies and Anglin JJ. dissenting, that there was not reasonable evidence to support the finding wilful and serious misconduct.--the appeal from the judgment of the Court of Appeal for British
Columbia was dismissed, Davies Anglin JJ. dissenting. BainsH