MacLaren v. Attorney General of Quebec

Bench, appeal side(1), reversing the judgment of the Superior Court, District of Ottawa, which maintained the plaintiffs' (appellants') action with costs. The plaintiffs alleged that they were proprietors of certain lots of land in the Townships of Low and Denholm, in the County of Wright, -one lot being bounded on the west side -and the other on the east side by the Gatineau River and lying directly opposite to each other. They contended that, as the River Gatineau was not navigable nor floatable, but merely flotable biches perdues, they were, as riparian proprietors, owners of the bed of the river between the lots in question, each title carrying with it ownership ad medium filum aquw. The lots were granted in fee simple by the Crown in the years 1860 and 1891, respectively, and the grants contained no special reservations in regard to the bed of the river. At the locus in dispute the course of the river is interrupted by "Paugan Falls," a natural water-power capable of development for commercial purposes. The Township of Low was erected, by proclamation, in 1859, out of the wild lands of the Crown, and its eastern limit was bounded by the waters of the river; in a similar manner the Township of Denholm was erected, in 1860, with its western limit bounded by the waters of the river; the description of the lots stated they were, respectively, situated within

Low and Denholm.

In 1899, the defendants, Hanson Brothers, purchased from the Government of Quebec that part of the bed of the river lying between the lots in question, and received a Crown grant therefor. Upon the institution of the action against them, the Attorney- General for Quebec intervened to protect the rights of the defendants in virtue of the grant to them, alleging that the river was navigable and floatable;

that its bed was a portion of the Crown domain, and that it had never become the property of the plaintiffs.

It was also contended by the defendants that, as the lots were described in the plaintiffs' title as bounded by the river and situate within the area of the respective townships, no property in the bed passed to them in any event.

The trial judge, in maintaining the plaintiffs' action, held that the river was not a navigable river, and that, by the ruling of the Supreme Court of Canada in non-floatable. As to the other point he held that a grant giving a non-navigable and non-floatable river as the boundary of the land sold could not be read as implying a reservation of its bed or as excluding rights in it from the grant. The Court of King's Bench reversed this judgment on both grounds, holding the river to be floatable and that the plaintiffs' grant conveyed no title to the bed of the river.

On appeal by the plaintiffs to the Supreme Court of Canada, after hearing counsel on behalf of both parties, judgment was reserved, and, on a subsequent day, the judges being equally divided in opinion, the appeal stood dismissed without costs.

ACTION-Mining Act-Grant of mining land-Reservation of pine timber-Right of grantee to cut for special purposes- Right tion.] The "Ontario Mining Act,"

[1897] as amended Vict.

provides in sub- 1, that "the patents for all Crown lands sold or granted as mining lands shall contain a reservation of all pine trees standing or being on the lands, which pine trees shall continue to be the property of Her Majesty, and any person holding a license to cut timber or sawlogs on such lands may at all times, during the continuance of the license, enter upon the lands and cut and remove such trees and make all necessary roads for that purpose."

By the other provisions of the section, the patentee may cut and use pine required for necessary building, fencing and fuel and other mining purposes and remove and dispose what is required to clear the land cultivation, but for any cut except for such building, fencing and other mining purposes he shall pay Crown dues.- Held, Idington and Duff JJ. dissenting, that a patentee and a lessee of mining lands who had taken possession thereof, but were not at the time of the trespass complained of in actual physical possession, have, notwithstanding such reservation, or exception, such possession the pine trees, or such an interest therein, as would entitle them to maintain actions against a trespasser cutting and removing them from the land. Glenwood

Lumber Co.

405) followed; Casselman v. Hersey discussed.-In this case the defendants cut and removed the pine from plaintiffs' mining without license from the Crown, but claimed that they subsequently acquired the Crown's title to it and should regarded as licensees from the beginning.

-Held, Idington and Duff JJ. dissenting, that assuming that the Crown could after the trees had been cut and removed, take away its act the plaintiffs' vested right action the evidence shewed that defendants were cutting on adjoining

Action-Continued.

Crown land as well as on plaintiffs' locations and did not clearly establish that any title acquired defendants cluded what was cut on the latter. (Leave to appeal to Privy Council was granted,

July,

2- Builders and contractors-Breach contract-Action for quantum meruit -Rescission-Gross-action for damages -Appropriate relief-Waiver. RocHoN ...............

3-Repair of municipal highway - Statutory duty-"Unfenced trap" in sidewalk

Misfeasance

Notice-Knowledge-Liability of corporation-"Res ipsa loquitur" .......... Broker

Principal and agent-Disclosing material informaand purchaser-Agent's right to sell or purchase -Specific performance ............

Life insurance-Endowment policy Cash value-Rescission- Representation agent-Inducement to insure ...........................

APPEAL-Findings of fact-Reversal by Appellate Court.]

Per Anglin J. Where error in the findings of the trial judge can demonstrated wholly argument it is the duty of an appellate court to review questions of fact even where those findings have been against fraud, and upon oral testimony. Coghlan Cumberland ([1898] 1 704); The "Gairloch" ([1899]

Ir. R. 1); and Appeal-Continued.

Khoo Sit Hoh

Lim Thean Tong

([1912] 323, followed.

Leave to appeal-Municipal by-law

High district

Public importance-Controversy.]

3-Matter in controversy-Company- Purchase of directors' property-Secret profit.]

......................

4---Judgment on appeal-Equal diviopinion-Costs.]

ASSIGNMENT-Assignments and preferences-Chattel mortgage-Hindering and delaying creditors-Assignment of.

debts-Surety.]

The Ontario Seed a bank some for which J.

was surety bond and indorsement notes for all but $500.

The bank also held as further security an assignment the company's book debts. The company gave to a brother J., a chattel mortgage of all its personal property and agreed to assign to him the book debts.

then gave to the company an amount sufficient to pay the bank's claim, J.

having supplied him with funds for the purpose, and the company gave its cheque to the bank with a direction to assign the book debts to which was done.-Held, that the evidence justified the finding at the trial that the chattel mortgage was given for the benefit of J., was aware at the time it was given that the company was insolvent, and that it was void under provisions of the "Assignments and Preferences Act" and should set aside.- After the assignment of the book debts to the company was allowed to go on lecting them.-Held, that such assignment was valid, but that the assignee could not retain the value of what had collected out of the proceeds of the property covered the chattel mortgage.

-Judgment of the Court of Appeal

Ont. L.R. reversed and that of the

Divisional Court (22 Ont. L.R. re- Assignment-Continued.

Construction of statute-"Creditors' Relief Act," Edw. VII. s.-s. 4 (Ont.) -Contesting creditors' lien-"Assignments and Preferences Act," Edw. VII. s. (Ont.) ........... AUCTION-Mortgage-Sale under power False bidding

Withdrawal bid.] BANKING-Promissory note-Special indorsement

Holder in due course - Payment and satisfaction - Liability on current account.] bank having refused further loans to a trading company until its current liability to the bank was reduced, a note the company in favour of its directors was specially indorsed to the bank them and handed to the company's manager, who had charge of its financial affairs, with instructions -to have the note discounted, but -without authority pledge it.

Without informing the bank his restricted power to deal with this note, the manager deposited it with the bank as collateral security for the pany's current liability and, in consideration the deposit, obtained fresh advances from the bank discounts of the company's trade paper. At maturity the note the trade paper had been retired and an overdraft on the company's account had been covered, but the general indebtedness of the company for former loans still subsisted.

In a suit the directors for the return of the note the bank counterclaimed for the amount thereof.-Held, affirming the judgment appealed from Man. R. that, far as the bank was aware, the company's manager had ostensible authority pledge the note as collateral security for the general indebtedness of the company on its current account, that re-payment the fresh advances retirement of the trade paper discounted was not satisfaction of the debt for which the note was pledged, and that the bank was entitled to enforce payment of the note holder in due course for valuable consideration within the meaning of the "Bills of Exchange Act," and to recover thereon the amount of the company's general indebtedness remaining unsatisfied. Cox v. BILLS NOTES-Banking-Promissory note-Special indorsement-Condi- Holder in due course-Payment and satisfaction-Liability on current account.]

bank having refused further loans to a trading company until its current liability to the bank was reduced, a note the company in favour of its directors was specially indorsed to the bank them and handed to the company's manager, who had charge of its financial affairs, with instructions to have the note discounted, but without authority to pledge it.

Without informing the bank of his restricted power to deal with this note, the manager deposited it with the bank as collateral security for the pany's current liability and, in consideration of the deposit, obtained fresh advances from the bank by discounts of the company's trade paper.

At maturity the note the trade paper had been retired and an overdraft on the company's account had been covered, but the general indebtedness of the company for former loans still subsisted.

In suit by the directors for the return of the note the bank counterelaimed for the amount thereof. - Held, affirming the judgment appealed from Man. R. that far as the bank was aware, the company's manager had ostensible authority pledge the note as collateral security the general indebtedness of the company on its current account, that re-payment the fresh advances retirement the trade paper so discounted was satisfaction of the debt for which the note was pledged, and that the bank was entitled to enforce payment of the note as holder in due course for valuable consideration within the meaning of the

"Bills of Exchange Act," and to recover thereon the amount of the company's general indebtedness remaining unsatis- BROKER-Sale of land-Principal and agent-Disclosing material information- Vendor and purchaser - Agent's right to sell or purchase-Specific performance.] broker being informed the owners that they would sell certain lands entered description of the property in his list lands for sale through his agency. The lands being still unsold about three months. later, the

Broker-Continued.

broker, in consideration of a payment obtained an exclusive option from the owners for the sale or purchase himself, within days, of the lands at a price named, which was to include his commission in the event of his effecting sale, but without disclosing information of which he was then possessed that there was a probability the lands selling within a short time at an increased price.

Within a few days after the date of the option he effected a sale, in his own name, of the lands for double the price named therein, notified the owners that exercised his option to purchase and demanded a conveyance.

In an action for specific performance, brought the broker on refusal of such conveyance, Held, per Fitzpatrick C.J.-That the terms of the written agreement broker became an agent for the sale the lands with the option purchasing them for himself; that he could not come purchaser until he had divested himself his character as agent; that was, as agent, bound to disclose to his principals the knowledge had acquired respecting the improved prospects of a sale at enhanced value, and his exercise the option to purchase did not relieve him of this obligation.

He was, therefore, not entitled to a decree for specific Per Davies, Idington, Anglin and Brodeur JJ.-That the broker was an agent for the sale of the lands at the time he procured the option and, having failed in his duty to disclose to his principals all material information he had as to the probability the lands selling at a higher price than that mentioned, specific performance the agreement to sell to him should refused.- The judgment appealed from B.C. Rep.

was reversed

BUILDERS

2- Attorney-General of Quebec v. Maclaren (Q.R. K.B. stood affirmed equal division .................

3-Bennett Havelock Electric Light

Ont. L.R. affirmed...

4-Brulott V. Grand Trunk Pacific Ry.

Ont. L.R. affirmed.. 629

5-Canadian Gas, Power and Launches

Orr Bros. Ont. L.R. affirmed.

.......................

6-Casselman Hersey discussed ....................

7-Coghlan V. Ow-mberland (

Coventry Annable (1 West. W.R.

9-Cox

Canadian Bank of Commeece Man. R. 1) affirmed ....

10-Cumniings v. City of Vancouver

(1 West. W.R. 31;

W.L.R.

Dominion Bridge Jodoin

12-Dominion Linen v. Langley

Ont. W.R. affirmed ......

Cases-Continued.

13-Favreau Rochon K.B. 14-"Gairloch," The ((1899) Ir. R. 15-Glenwood Lumber Co. v. Phillips ((1904) a.C. followed .. 4S 16-Gowganda Queen Mines Boeckh Ont. L.R. 293) affirmed....... Henderson Rolling Bearings Ltd., Re (24 Ont. L.R. affirmed.... Henderson and Township of West Nissouri, Re (24 Ont. L.R. affirm

..........................

Hill Winnipeg Electric Ry. Man. R. affirmed ........ 20--Johnston v. Desaulniers Man. Kaiserhof Hotel Zuber 22-Khoo Sit Hoh V. Lim Thean Tong ((1912)

23-Knight v. Cushing D.L.R. 1 West. W.R. reversed ........ 24-McClelland v. Manchester Corporation (

1 K.B.

referred Cases-Continued.

Mersey Docks and Harbour Trustees v. Gibbs (L.R. 1 H.L. applied

........

MUNICIPAL

3organ v. Avenue Realty

R. K.B. reversed .........

27-Morton Anglo-American Fire

Ins. Ont. W.R. 870) affirmed

28-Yasmith v. Bentley B.C. Rep.

reversed ...................

29-Ouinet v. Bazin

(Q.R. K.B.

30- Poirier v. The King Ex. C.R.

31-Rispin, Re (25 Ont. L.R.

..........

32-Rowlands v. Langley B.C. Rep.

33-Sawyer & Massey v. Bennett

Sask. L.R. affirmed.......

Shato v. Mutual Life Ins. Co.

Ont. L.R. 559) affirmed ..........

35-Shearer Forman (Q.R. 40

36-Shragge v. Weidman

R.

reversed .....................

Cases-Continued.

37-iven

Temiskaming Mining Ont. L.R. affirmed ........ 38-Stecher Lithographic Co. Ontario Seed Co. Ont. L.R. versed; Ont. L.R. restored. 540 Toronto Construction v. Strati 40- Vancouver, City of, McPhalen Can. referred to... 457 Warren, Gzowski & v. Forst & Ont. L.R. affirmed.. . - Assignments and preferences - Hindering and delaying creditors-Assignment of book debts -Surety.]

The Ontario Seed a bank some for which J. was surety bond and indorsement of notes for all but

The bank also held as further security an assignment the company's book debts. The company gave to a brother of J., a chattel mortgage of all its personal property and agreed to assign to him the book debts. then gave to the company an amount sufficient to pay the bank's claim, J. having supplied him with funds for the its cheque to the bank with a direction to assign the book debts to which was done.-Held, that the evidence justified the finding at the trial that the chattel mortgage was given for the benefit J., who was aware at the time it was given that the company was insolvent, and that it was void under the provisions the "Assignments and Preferenees Act" and should be set aside.- After the assignment of the book debts to the company was allowed to go collecting them.-Held, that such assignment was valid, but that the assignee could not retain the value what had been collected out of the proceeds of the Chattel Mortgage-Continued.

property covered by the chattel mortgage.-Judgment of the Court of

Ont. L.R.

reversed and that of the Divisional Court Ont.

L.R.

restored.

CIVIL CODE-Arts. et seq. (Marriage)

............................

2-Arts.

et seq. (Division Walls)

... . ... .. . .. . .. . . .. .. . . .. . . .. . .. . 5 89

CIVIL PROCEDURE - Arts.

(Experts, etc.) ..........

COMPANY-Insolvent company-Sale assets liquidator-Sale "free from inouabrances"-Conversion

Breach

.......................

2-Purchase of director's property -- . ..............

3-Subscription for shares-Misrepresentation

Charge to jury-Misdirection

Objection

Vendor and purchaser

Sale mortgaged lands - Agreement

Objection title pudiation - Specific performance.]

agreement for the sale of land provided that the purchase-money was to paid instalments "$10,000 cash on the this which is hereby acknowledged," the remaining instalments paid two and four years, with interest the date of the agreement, and there was a proviso making time of the essence of the contract and, on default performance of conditions and payment instalments, for the cancellation the agreement the vendors giving written notice to the purchaser.

The land in question formed part of a

Condition-Continued.

larger area and there was an undischarged mortgage upon the whole property which both parties had knowledge at the time of the agreement. The cash payment was not made, the purchaser refusing to pay this amount until the mortgage was severed and apportioned so that the land mentioned the agreement should bear only a determinate share thereof, and the agreement amended to this effect.

The vendors then withdrew from the agreement a letter addressed to the purchaser's solicitor. In an action against the vendors Davies, and Anglin, JJ.-The execution the agreement constituting the relationship of vendors and purchaser was the consideration for the cash payment then to made and, in default of such payment, the obligation to sell and convey the lands with good title did not become binding upon the vendors.-Per Duff, and Brodeur, JJ.-Payment of the ten thousand dollars in cash was a condition precedent to the constitution of any obligation the vendors to sell convey the lands and, consequently, to shew good title.-Per Idington, J.-In the circumstances the purchaser's fusal to make the cash payment was a repudiation of the agreement which prived him of the right to a decree specific performance. - Judgment appealed from

(1 D.L.R. 331; 1 West. W.R.

reversed.

(Leave to appeal to Privy Council was refused, 9th Dec., 2-Promissory note-Special indorsement-Banking - "Bills of Exchange Act"-Pledge - Holder in due course - Payment and satisfaction - Liability on current account ...........................

CONSPIRACY-Contract-Public policy Restraint trade

Words and "Marriage and divorce" - "Solemnization of marriage"

Jurisdiction of Parliament

Jurisdiction of legislature - Federal validating Act - Religious belief-Canonical

Civil rights

Act"

(1867), ss. and 92-Arts.

et seq. 0.0.]

The parliament

Canada has no authority to enact a bill in the following form:-1. The "Marriage Act," chapter of the Revised

Statutes, is amended adding thereto following section: - Every ceremony or form of marriage heretofore or hereafter performed by any person authorized to perform any ceremony of marriage the laws of the place where it is performed, and duly performed according to such laws, shall everywhere within Canada deemed to a marriage, notwithstanding any differences in the religious faith the persons so married and without regard to the religion the person performing the ceremony.-"2. The rights and duties, as married people, of the respective persons married as aforesaid, and the children such marriage, shall absolute and complete, and law or canonical decree or custom of in any province of Canada shall have any force or effect to invalidate or qualify any such marriage or any of the rights of the said persons or their children in any manner whatsoever."

firmed by Privy Council. 29th July,

Idington J.-The retrospective part would good as part of a scheme for concurrent legislation Parliament and legislatures confirming past marriages which, probably, neither effectively can

The prospective part, so as possible to make it an effective prohibition of religious tests, may good, but doubtful, and the probable purpose can reached a better bill.-Per

Davies, Idington and Duff JJ.-The law of the Province of Quebec does not render null and void, unless contracted fore a Roman Catholic priest, a riage in such province between two

Roman Catholics that would otherwise binding. Anglin J. contra. Fitzpatrick C.J. expressing no opinion.-The law Quebec does not render void, unless contracted before a Roman Catholic priest, a marriage otherwise valid where one party only is a Roman Catholic.- The Parliament of Canada has no authority to enact that a marriage between

Constitutional Law-Continued. Roman Catholics, or a "mixed marriage," not contracted before a Roman Catholic priest and whether heretofore ncreafter solemnized shall valid and binding.

(Affirmed Privy Council, 29th, July, 1912.)-Per Idington J.-Parliament has power to declare valid such a marriage heretofore solemnized to concurred in the legislature of the province concerned, and the like power as marriage hereafter to solemnized if and when the province fails to provide adequate means of solemniza- (See [1912] IN RE .................

2-Construction of statute Qusbec "Sunday Act" - Edw, VII. amended by Edw. VII. c. 51-Prohibition of theatrical performances-Local, municipal and police regulations-Criminal law - Legislative jurisdiction - Validation federal legislation - "Lord's Day Act," R.S.C. In the "Act respecting the observance of Sunday,"

7 Edw. VII. ch. as amended Edw. VII. the provisions prohibiting theatrical performances on Sunday are not of the character of local, municipal, or police regulations. the proper construction the legislation, treated as a whole, they purport to create offences against criminal law and, consequently, are within the legislative competence a provisional legislature under the "British North America Act, The Attorney-General v. The Hamilton Street Railway ([1903] 524) followed. The legislation in question derives validity from the provisions "Lord's Day Act," R.S.C. Judgment appealed from (Q.R. 20 K.B. 416) reversed, Idington and Brodeur J.7. dissenting.-Per Idington J., dissenting. provisions of section the statute Edw. VII. ch. (Que.), are severable from one another as well from the other provisions of the statute, and, consequently, although other provisions may ultra vires, the prohibition in respect of theatrical performances Sunday is a police regulation which is within the competence the provincial legislature.-Per Brodeur J., dissenting.-The legislation in question deals merely with local matters affecting police regulations and civil rights Constitutional Law-Continued.

within the province and, consequently, is intra vires of the Legislature

CONTRACT-Public policy-Restraint trade

"Oriminal

Code," s. - Words and phrases - "Unduly" preventing competition, etc.- Monopoly.] contract between dealers fixing prices to be paid them specified articles or commodities which may the subject trade and merce with the object of restricting competition and establishing a monopoly therein, constitutes an agreement unduly to prevent or lessen competition within the meaning of section the Criminal R.S.C.

and is not enforceable between the parties. Judgment appealed from Man.

R. reversed, Davies J., dissenting.

-Per Davies J. dissenting.-As the agreement was not, in the circumstances, void at common law as being unreasonably in restraint of trade it did not statute.

U.

.........................

2-Insolvent company - Sale of assets liquidator - Sale "free from in- Breachof hay

Rejection version

Damages

Counterclaim

4-Builders and contractors-Breach of contract-Action for quantum meruit

Cross-action for

Appropriate relief

5-Lease

Covenant to pay for improvements

Foundations ........

6-Vendor and purchaser mortgaged lands-Condition precedent.form ance .......................

7-Life insurance - Endowment polvalue tzon for rescission

Representation by agent - Inducement to insure .... CONVERSION-Gift - Money received- Proceeds of prostitution - 2-Insolvent company - Sale of assets liquidator - Sale "free from inoumbrances"

Breach of contract.] Damages

Counterclaim- COSTS-Will-Trust for benefit of son- Discretion of executor - Death of bencficiary - Funds not disposed of.] In re 2-.Judgment on

Equal division opinion

RELIEF ACT"-Construction of statute, Edto. VII. s. 6, s-s. (Ont.) -Contesting creditor's lien -"Assignments and Preferences Act," Edw. VII. s. (Ont.) ... Construction of statute - Quebec "Sunday Act"-Prohibition of theatrical performances-Local, municipal and police regulations-Legislative jurisdiction - Validation federal legis!ation - Lord's Day Act" 502 CROWN-Contract-Sale of hay-Rejec- Damages--Counterclaim

LANDS-Title to land Rivers and streams - Navigable or floatable toaters grant

Riparian rights

Title river Crown ianas-Continued.

tion of townships - Description of area included

......

Grant of mining lands-Reservation

-Pine trees-Ontario Mining Act. .

DAMAGES-Contract-Sale of hay-Re- Counterclaim- EDUCATION-Leave to appeal-Municipal by-law - High School district - Public importance.] In re

EMPLOYER EMPLOYEE

Negli- Injury workman

Liability employer-Common fault.]

EVIDENCE-Municipal corporation-Repair of highways - "Unfenced trap" in sidewalk - Misfeas- Liability of corporation jwry

"Res ipsa loquitur."] Where municipal corporation is liable for damages sustained reason negligent nonfeasance of the statutory duty imposed upon it to maintain its highways in good repair, the questions notice against rebuttal;

cient that the defects were not known the corporation officials.

Mersey Docks and bour Trustees Gibbs (L.R. 1 H.L.

applied; City of Vancouver v. McPhalen

Can. S.C.R. and McClelland v.

Manchester Corporation (

1 K.B.

referred to.

Davies and Anglin

JJ., contra.-An unprotected opening the sidewalk of one of the principal streets laying without proper repair during most the day, and, at about four o'clock in plaintiff's injuries were sustained stepping into the

Evidence- Continued.

while making use of the sidewalk.- Held, affirming the judgment appealed from (1 West. Weekly Rep. 31; W. L.R. 322), Davies and Anglin JJ. dissenting, that evidence of these facts made out a proper case for submission to the jury, and upon which they could return findiugs of breach of statutory duty and misfeasance on the part the Pleading

Proceeds stitution

3-Yegligence - Explosion of dyna- Inferences.] Express or plied warranty.]

Damages terolaim.] 6-Telephone conversation - Corroboration.] & ....................

Fire insurance

Change of risk - Use of gasoline.] EXPERTISE-Practice and procedure- Expertise - Appointment of single pert - Submission of irrelevant questions-Arts. 392-409

FRAUD-"Land Titles Act"-Cancellaton of certificate of title .......... 2-Vendor and purchaser land

Approval assignments - Equitable estate or interest - Priority between transferees - Fraudulent and criminal practices - Notice of previous transfer - GIFT-Money received - Pleading-Evi- Proceeds prostitution

Conversion

HIGHWAYS - Repair of highways - "Unfenced trap" in sidewalk - Misfeas- Actionabe

Liability of corporation - Findings of jury-"Res ipsa loquitur."

......................

INSOLVENCY-Insolvent company-Sale of assets liquidator - Sale "free from incumbrances" - Conversion - Breach contract.]

INSURANCE-Life insurance - Endowpolicy

Cash value

Action for rescission

Representation agent-Inducement to insure.]

The life of was insured a twenty year endowment policy which provided that at the end of the term he exercise one of three options including that of surrender of the policy receipt of a sum to ascertained in a specified manner.

About ten months fore the policy expired wrote to the company asking for the amount payable on surrender which was promptly furnished, and more than a year later brought action for a larger cash payment and in the alternative for rescission of the contract for insurance and return the premium.paid with interest alleging that when applied the insurance was informed by the agent of the company that the cash value the policies surrendered would be the larger amount claimed.

The trial

Judge directed rescission and return the premiums as prayed. This judgment was reversed the Court Appeal- Held, aflirming the judgment of

Court of Appeal

Ont. L.R.

thi.t as did not swear nor the evidadduced establish that he was induced to enter into the contract the representations of the agent as to the sum payable on surrender, and might fairly inferred that had been the true figures he would still have taken the policy, his action must fail.

INS. .............................

Fire insurance - Change of risk- Use of gasoline.] JURISDICTION-Construction of statute "Sunday

Prohibition of theatrical performances-Local, municipal and police regulations-Oriminal law - - Legislative jurisdiction - Validation federal legislatiom-"Lord's Day Act"-........................ Railway Findings jury

Misdirection-Ob- Gow- 3-Municipal corporation highways

"Unfenced trap" in sidewalk-Misfeasance negligence - Liability of corporation-Evidence - Findings of jury-"Res ipsa loquitur". . 457 LEASE-Covenant to pay for improvements - Buildings and erections-Foundation

Piling and filling Intention lessee.] The city of St. John leased certain mud flats, the lease taining covenant that if the should "put up any buildings and erections for manufacturing purposes" therethe same, at the expiration the term, should appraised in the manner provided and the city should have the option paying the appraised value renewing the lease. On expiration a term the city elected to pay.-Held, that value piling and filling-in said lots to form a foundation for buildings orceted-and in existence at the expiration the lease, but not for such piling and filling-in at a place where buildings existed, but upon which buildings were Lease-Continued.

intended to erected for manufacturing purposes.

.................................

LIEN-Gift-Money received of prostitution

Conversion.] JoiiN- 2-Construction of statute - "Creditors' Relief Act," Edw. VII.

s-s. (Ont.)-Contesting creditor's

"Assignments and Preferences

Act," Edw.

. . .. . . . . . . . . . . . . . . . .. . . . . . . . . . . . .

1 19

MARRIAGE LAWS-Constitutional law

"Marriage and

"Solemnization of marriage" - Jurisdiction -f

Parliament - Jurisdiction of legislature

Federal validating

Religious belief - Canonical decrees-Civil rights

-"B.N.A.

Act" (1867), ss. and

Arts. et seq. The Parliament

Canada has no authority to enact a bill in the following form:-1. The

"Marriage Act," chapter of the vised Statutes, is amended adding thereto the following section:-"3.

Every ceremony or form of marriage heretofore or hereafter performed any person authorized to perform any ceremony of marriage the laws the place where it is performed, and duly performed according to such laws, shall everywhere within Canada deemed

Marriage Laws-Continued.

a valid marriage, notwithstanding any differences in the religious faith the persons married and without regard to the religion of the person performing the ceremony.-(2) The rights and duties, as married people, the respective persons married as aforesaid, and of the children of such marriage, shall absolute and complete, and no law or canonical decree or custom of or in any province of Canada shall have any force or effect to invalidate or qualify any such marriage or any of the rights of the said persons or their children in any manner whatsoever."

Privy Council,

29th July, 1912.)-Per Idington

J.-The retrospective pai t good as part of a scheme concurrent legislation Parliament and legislatures confirming past marriages which, probably, neither effectively do. The prospective part, as far as possible to make it an effective prohibition of religious tests, may good, but doubtful, and the probable purpose reached a better bill.-Per Davies, Idington and Duff JJ.-The law of the Province Quebec does not render null and void, unless contracted before a Roman Catholic priest, a marriage such province between two Roman Catholics that would otherwise binding. Anglin J. contra.

Fitzpatrick C.J. pressing no opinion.-The law of does not render void, unless contracted before a Roman Catholic priest, a marriage otherwise valid where one party only is a Roman Catholic.-The Parliament of Canada has no authority to enact that a marriage between Roman Catholics, or a "mixed marriage," contracted before a

Roman Catholic priest and whether heretofore or hereafter solemnized shall valid and binding.

(Affirmed Privy Council, July, 1912.)-Per Idington J.-Parliament has power to declare valid such a marriage heretofore solemnized to concurred in the legislature of the province concerned, and the like as to marriage hereafter to solennized if and when the province fails to provide adequate means of solemniza- LAws ..................

SERVANT-Negligence- Fall Master and Servant-Continued.

ering of shaft - Fellow-servant.]

SIVEN.... 843

MINING LAWS-Mining Act-Grant mining land-Rescission of pine timber

Rigat of action.] The Ontario Mining

Act, R.S.O., [1897] as amended

Vict. provides in see. sub-sec. 1, that "the patents all Crown lands sold or granted as mining lands shall contain a reservation all pine trees standing or being the lands, which pine trees shall continue to the property of Her Majesty, and any person holding a license to cut timber or saw logs on such lands may at all times, during the continuance the license, enter upon the lands and cut and remove such trees and make all necessary roads for that purpose."

the other provisions the section, ihe patentee may cut and use pine required for necessary building, fencing, and fuel and other mining purposes and remive and dispose of what is required to clear the land for cultivation, but for any except for such building, fencing and other mining purposes shall

Crown dues.-Held, Idington and

, that a patentee and' a lessee of mining lands who had taken possession thereof, but were not at the time the trespass complained actual physical possession, have, notwithstanding such reservation, or ception, such possession of the nine trees, or such an interest therein, as would entitle them to maintain actions against a trespasser cutting and removing them from the land. Glenwood Lumber v. Phillips ([1904]

followed; Casselman v. Hersey discussed.-In this case the defendants cut and removed the pine from plaintiffs' mining without license from the Crown, claimed that they subsequently acquired the Crown's title to it and should regarded as licensees from the beginning.

-Held,

, that assuming that the

Crown could, after the trees had been cut and removed, take away by its act the plaintiffs' vested right of action the evidence shewed that defendants were cutting adjoining Crown land as well as

Mining Laws-Continued.

plaintiffs' locations and did not clearly establish that any title acquired fendants included what was cut the latter. (Leave to appeal to Privy Council was granted, 25th July,

TausT V. 2-Negligence - Accident in mine- Fall of rock - Covering of shaft-Follow-servant.] .........................

Misdirection Gow- ...................

MITOYENNETt.

MONOPOLY-Contract-Public policy- Restraint of trade - "Criminal Code" s. 498-Words and contract between specified articles or commodities which may the subject trade and merce with the object of restricting petition and establishing a monopo.y therein, constitutes an agreement unwithin the meaning section the Criminal R.S.C. and is not enforceable between the parties. Judgment appealed from Man. R. reversed, Davies J. dissenting. -Per Davies J. dissenting.-As the ag- -cement was not, in the circumstancas, void at common law as being unreasonably in restraint of trade it did not violate the statute. 1 Sale under False bidding-Withdrawal of bid.1 2-Vendor and purchaser mortgaged lands-Agreement-Condition precedent-Cash payment-Default-Objection to title - MUNICIPAL CORPORATION-Repair highways-Statutory duty - "Unfenced trap" in sidewalk-Misfeasance-Actionable

-Personal injuries-Liability of corporation

Findings jury

"Res ipsa loquitur."] Where a municipal corporation is liable for damages, sustained reason negligent nonfeasance of the statutory duty imposed upon it to maintain its highways in good repair, the questions notice or knowledge of the defects do not arise. There is a presumption, in such cases, against the municipal corporation and upon lies the onus of adducing positive evidence in rebuttal; it is not sufficient to shew that the existence of the defects was not known the corporation cials.

Mersey Docks and Harbour Trustees v. Gibbs (L.R. 1 H.L. applied;

City of Vancouver v. McPhalen Can.

S.C.R.

and McClelland Manchester Corporation ( 1 K.B.

referred

Davies and Anglin JJ.

contra.-An unprotected opening in the sidewalk one of the principal streets of the city, having the appearance being recently made for some purposes connection with the laying gas-pipes, was permitted to remain without proper repair during most of the day, and, about four o'clock in the afternoon, the plaintiff's injuries were sustained stepping into the hole while making use the sidewalk.-Held, affirming the judgment appealed from West. Week- Rep. 31; W.L.R. 322), Davies and

, that evidence these facts made out a proper case submission to the jury, and upon which they could return findings of breach statutory duty and misfeasance on the part of the municipal corporation.

NEGLIGENCE-Municipal corporation- Repair of highways-Statutory duty - "Unfenced trap" in sidewalk-Misfeasance - Actionable negligence -Notice- Liability of corporation - Findings of jury-"Res ipsa loquitur."]

Where a municipal corporation is liable for damages sustained reason negligent nonfeasance of the statutory duty imposed upon it to maintain its highways in good repair, the questions of notice or knowledge of the defects not arise.

There is a presumption, in such

Negligence-Continued.

cases, against the municipal coiporation and upon it lies the onus of adducing positive evidence in rebuttal; it is not sufficient to shew that the existence the defects was not known the corporation officials.

Mersey Docks and Harbour Trustees Gibbs (L.R. 1 H.L. applied; City of Vancoucer Phelan Can. S.C.R. and Clelland

Manchester

Corporation (

1 K.B. referred to. Davies and Anglin JJ. contra.-An unprotected opening in the sidewalk of one of the principal streets of the city, having the appearance of being recently made for some purposes in connection with the lay- .ng of gas-pipes, was permitted to remain without proper repair during most of the day, and, at about four o'clock the afternoon, the plaintiff's injuries were sustained stepping into the ho'e while making use of the sidewalk.-Held. affirming the judgment appealed from (1 West. Weekly Rep. 31; W.L.R. Davies and Ang~n JJ. dissenting, that evidence of these facts made out proper case for submission to the jury. and upon which they could return findings breach of statutory duty and misfeasance on the part of the municipal corporation.

2- Injury to workman employer-Common fault.]

3-Railway-Findings of jury-Volens Ry. 4-Eplosion of dynanite-Evidence 3-Accident in mine - Fall of rock - Covering of shaft - Fellow-servant.] 6-Electric railway - Breach of company's rules.] NOTICE-Vendor and purchaser-Sale land-Condition - Approval of assignments-Equitable estate or interest-Priority between transferees-Principal and Notice-Continued.

agent-Fraudulent and criminal practices of previous transfer-Implied

2-Municipal corporationi highways-Statutory duty - "Unfenced trap" in sidewalk-Misfeasance-Actionable negligence-Knowledge - Personal injuries-Liability of corporation - Evidence-Findings of jury - "Res ipsa loquitur" . ........................

PARTY WALL-Servitude-Obligation mitoyennet-Exercise of party-rights- Contribution towards party-wall-Arts.

510 et seq.

The defendants erected their building against the plaintiffs' wall that it served them in the -way of exterior protection for the side of the new building; they connected the metal roofflashing with the wall by nails, etc., but constructed the new works in such a manner as to avoid depending upon the plaintiffs' wall for support and without piercing recesses in it to receive joists, etc.-Held, reversing the judgment appealed from (Q.R. 20 K.B. 524), Fitzpatrick, C.J. dissenting, that the defendants had exercised party-rights in the plaintiffs' wall and utilized it as an external wall for their building, and that they were, consequently, obliged to treat it as a common wall and to pay half the value the portion thereof so utilized

............................

Banking

"Bills Exchange Act"-Promissory note-Special indorsement - Condition-Pledge -Collateral security - Holder in due course

-Payment and satisfaction on current account ......

........

PRACTICE - Practice and procedure

Expertise

Appointment of single expert-Submission of irrelevant questions-Arts. 392-409

2-Gift-Money received-Evidence - Proceeds of prostitution

Pleading and Practice-Continued. Conversion

3-Negligence - Railway- Anding jury

Company - Subscription for shares -Misrepresentation-Action for calls - Misdirection PLEDGE-Banking - Prom'issory note - Special indorsement-Condition-Pledge -Collateral security-Holder in due course-Payment and satisfaction-Liability on current account.]

The bank having refused further loans to a trading company until its current liability to the bank was reduced, a note by the company in favour of its directors was specially indorsed to the bank by them and handed to the company's manager, who had charge of its financial affairs, with instructions to have the note discounted, but without authority to pledge it. Without informing the bank of restricted power to deal with this note, the manager deposited it with the bank as collateral security for the company's current liability and, in consideration the deposit, obtained fresh advances from the bank by discounts of the company's trade paper.

At maturity of the note the trade paper had been retired and an overdraft on the company's account had been covered, but the general indebtedness of the company for former loans still subsisted. In a suit by the directors for the return of the note the bank counterelaimed for the amount hereof.-Held, affirming the judgment appealed from Man. R. that, so far as the bank was aware, the company's manager had ostensible authority to pledge the note as collateral security for the general indebtedness of the company on its current account, that re-payment of the fresh advances by retirement of the trade paper so discounted was not satisfaction the debt for which the note was pledged, and that the bank was entitled to enforce payment of the note as holder in due course for valuable consideration within the meaning of the "Bills of Exchange Act," and to recover thereon the amount of the company's general indebtedness remaining unsatisfied. - Construction 1

Quebec "Sunday Act"-Prohibition of theatrical performances - Local, municipal and police regulations

Criminal law

Legisla-tive jurisdic- Validation by federal legislation

PRACTICE - Expertise

Appointment of single expert

Submission of irrelevant questions - Arts.

ET

PREFERENCES-Construction of statute

"Creditors' Relief Act," Edw. VII.

48, s. s-s. (Ont.)-Contesting creditor's lien-"Assignments and Preferences Act," Edw.

...........

. .... ......... ......

PRINCIPAL AGENT-Broker-Sale of land-Principal and agent-Disclosing material information-Secret proft

-Vendor and purchaser-Agent's right to sell or purchase-Specific performance.]

broker being informed the owners that they would sell certain lands entered a description of the property his list of lands for sale through agency.

The lands being still unsold about three months later, the broker, consideration of a payment of $50 tained an exclusive option from the owners for the sale or purchase by himself, within 30 days, of the lands at a price named, which was to include commission in the event of his effecting a sale, but without disclosing information of which he was then possessed that there was a probability of the lands selling within a short time at an increased price. Within a few days after the date of the option he effected a sale, in his own name, the lands for double the price named therein, notified the owners that he exercised his option to purchase and demanded a conveyance.

In an action for specific performance, brought by the broker on refusal of such conveyance, Held, per Fitzpatrick C.J.- That by the terms of the written agreement the broker became an agent for the

Principal and Agent-Continued. sale of the lands with the option of purchasing them for himself; that he could not become purchaser until he had divested himself of his character as agent; that he was, as agent, bound to disclose to his principals the knowledge he had acquired respecting the improved prospects of a sale at enhanced value, and his exercise of the option to purchase did not relieve him of this obligation. He was, therefore, not entitled to a decree for performance.-Per Davies, Idington, Anglin and Brodeur JJ.-That the broker was an agent for the sale the lands at the time procured the option and, having failed in his duty to disclose to his principals all material information he had as to the probability the lands selling at a higher price than that mentioned, specific performance the agreement to sell to him should be refused.-The judgment appealed from B.C. Rep. was reversed. Life insurance-Endowment policy value

Representation by agent - Inducement to insure.]

The life of was insured by a twenty year endowment policy which provided that at the end of the term he could exercise one three options including that of surrender of the policy on receipt of a sum to be ascertained in a specified manner. About ten months before the policy expired he wrote to the company asking for the amount payable on surrender which was promptly furnished, and, more than a year later, brought action for a larger cash payment and in the alternative for rescission of the contract for insurance and return of the premium paid with interest alleging that when he applied for the insurance he was informed by the agent of the company that the cash value of the policies surrendered would be the larger amount claimed.

The trial judge directed rescission and return of the premiums as prayed.

His judgment was reversed the Court of Appeal.-Held, affirming the judgment of the Court Appeal Ont. L.R. 559), that as did not swear nor the evidence he adduced establish that he was induced to enter into the contract by the representations of the agent as to the sum payable on surrender, and it might fairly be in- Principal and Agent-Continued.

ferred that had he been given the true figures would still have taken the policy, his action must fail.

3-Vendor and purchaser land

Approval assignments - Equitable estate or interest- Piiority between transferees - Fraudulent and criminal practices - V evious transfer - 4-Sale land

Commission.]

PROMISSORY

DOMAIN-Title to land-Rivers and streams - Navigable or floatable waters

Crown giant

Riparian rights

Title river

Erection of townships - Description of area

PUBLIC POLICY-Contract - Restraint of tiade - Construction of statute - Code" s. 49 - Words and phrases, "nduly" p.eventing competition, etc..... 1

MERUIT-Builders and cont; actors

Breach contract for qutantuin ieruit-1lescission-Crossaction for damages - Appropriate relirf

Rocuo.x .........................

RLILWA7YS-Negligence jury-Vrlens-Pleading.]

..............

2-, g'i',eice-Electric railway-Breach of tules.1

HILL.............

RIVE77 tND STREAMS-Title to land

Yavigable or floatable waters-Crown giant

Riparian rights of river - Ei ection of townships-De- Rivers and Streams-Continued. scription of area included - SALE-Vendor and purchaser-Sale land

Approval assignments - Equitable estate or interest - Priority between transferees - Principal and agent - Fraudulent and criminal practices - Notice of previous transfer

........... Principal and agent-Sale of land Conmission.] v. Insolvent company - Sale of assets liquidator - Sale "free from incumbrances"

Breach 4-Sale of goods - Express or implied wvarranty

Damages-ounterclaim

6--Mortgage - Sale under power - False bidding - Withdrawal of bid.] i-Broker

Principal and agent - Disclosing material information and purchaser - Agent's right to sell purchase

S-Vendor and purchaser - Mortgag- Agreement

Condition precedent

Default-Objection title

SCHOOLS-Leave to appeal - Municipal by-law - High school district - Public importance.)

SERVITUDE-Obligation of mitoyenneid

Eweecise of party-rights

Contribution towards party-wall - Arts. 510 seq. The defendants erected their building against the plaintiff's wall that it served them in the way of exterior protection for the side of the new building; they connected the metal roof-flashing with the wall nails, etc., but constructed the new works in such a manner as to avoid depending upon the plaintiffs' wall for support and without piercing recesses in it to receive joists, etc.-Held, reversing the judgment appealed from (Q.R. K.B.

Fitzpatrick

C.J.

dissenting, that the defendants had exercised party-rights in the plaintiffs' wall and utilized it as an external wall for their building, and that they were, consequently, obliged to treat it as a common wall and to pay half the value of the portion thereof utilized them.]

.....................

SHAREHOLDER-Company - Purchase of director's piopeity - .............................

jury

Misdirection-Ob- SPECIFIC PERFORMANCE-Vendor and purchaser - Sale of mortgaged lands - Agiecnent

Objection

Repudiation.] An agreement the sale of land provided that the purchase-money was to paid instalments "$10,000 cash on the signing of this agreement, the receipt of which hereby acknowledged," the remaining instalments to paid in two and four years, with interest from the date the agreement, and there was a proviso making time of the essence of the contract and, on default in performance of conditions and piyment of instalments, for the cancellation the agreenient the vendors on giving written notice to the purchaser.

The land question formed part of larger area and there was an undischarged mortgige upon the whole property which both parties had knowledge at the time

Performance-Continued. not made, the purchaser refusing to pay this amount until the mortgage was ered and apportioned so that the land mentioned in the agreement should bear only a determinate share thereof, and the agreement amended to this effect. The vendors then withdrew from the agreement letter addressed to the purchaser's solicitor.

an against the vendors for specific performance, Held, per Davies and Anglin JJ. execution the agreement constituting the relationship of vendors and purchaser was the consideration for the cash payment then to made and, in fault such payment, the obligation to sell and convey the lands with a title did not become binding upon the vendors.-Per Duff and Brodeur JJ.- Payment of the ten thousand dollars cash was a condition precedent to the "onstitution of any obligation the vendors to sell or convey the lands and, consequently, to shew good title.-Per Idington J.-In the circumstances the purchaser's refusal to make the cash payment was a repudiation of the agreement which deprived him of the right to a decree for specific performance.- Judgment appealed from (1 D.L.R. 1 West. W.R. reversed.

(Leave to appeal to Privy Council was refused, 9th Broker

Principal and agent

Disclosing material information purchaser - Agent's right to sell or purchase

.......... - "Creditors' Relief Act" - Eaw. VII. 48, s. ss. (Ont.) -Contesting creditor's lien - "Assignments and Preferences Act" - Edw. VII. s. 14 (Ont.).]

Section sub-sec. the "Creditors' Relief Act" of Ontario provides that "where proceedings are taken by a sheriff for relief under any provisions relating to interpleader, those creditors only who are parties thereto and who agree to contribute pro rata in proportion to the amount of their executions or certificates to the expense contesting any adverse claim shall Statute-Continued.

entitled to share in any benefit which may derived from the contestation of such claim so far as may necessary to satisfy their executions or certificates." Section of the "Assignments and Preferences Act" is as follows:- An assignment for the general benefit of creditors under this Act shall take precedence attachments, garnishee orders, judgments, executions not completely executed by payment and orders appointing receivers by way of equitable execution subject to the lien, if any, an execution creditor for his costs, where there is but one execution in the sheriff's hands, or to the lien, if any, for his costs of the creditor who has the first execution in the sheriff's hands."-Held, affirming the judgment of the Court of

Ont. L.R. sub nom. Re

Henderson Roller Bearings, Ltd.), which affirmed that of the Divisional Court

Ont. L.R. 306), that the preferential lien given the former Act to the contesting creditor is not taken away by said of the "Assignments and

Preferences Act."]

.......................

2-Constitutional law - Construction

Quebec "Sunday Act"-7

Edw. VII. amended Edw. VII.

51-Prohibition of theatrical performances - Local, municipal and police regulations

Legislative jurisdiction - Validation by federal legislation - "Lord's Day Act,"

In the "Act respecting the observance Sunday," 7 Edw. VII.

(Que.), as amended by Edw. VII

(Que.), the provisions prohibiting theatrical performances on Sunday are not of the character of local, municipal or police regulations.

On the proconstruction legislation, treated as a whole, they purport create offences against criminal law and, consequently, are not within the legislative competence of a provincial legislature under the "British North America

Act,

The Attorney-General for

Ontario The Hamilton Street Railway legislation in question derives no validity from the provisions of the "Lord's

Day Act," R.S.C.

Judgment appealed from (Q.R. 20 K.B. 416)

reversed, Idington and Brodeur JJ. dis- Statute-Continued.

senting.-Per Idington J. dissenting.- The provisions of section 2 of the statute Edw. VII. ch. (Que.), are severable from one another as well as from the other provisions of the statute, and, consequently, although other provisipns may ultra vires, the prohibition in respect of theatrical performances on Suncay is a police regulation which within the competence of the provincial legislature.-Per Brodeur J. dissenting. legislation in-question deals merewith local matters affecting police regulations and civil rights within the province, and, consequently, is ultra vires of the Legislature of Quebec.] .................

Public policy straint of trade - Combination-Conspiracy - Words and highways fenced trap" in sidewalk

Misfeasance Personal injuries-Liability corporation

Findings jury ipsa loquitur Banking-"Bills of Exchange Act" -Promissory note-Special indorsement Collateral urity

Holder course Payment and satisfaction current account................... 564 - R.S.C.

s. 498 ("Criminal Code" - Trade bination) .........................

R.S.C.

c. ("Lord's Day A ct")

...........................

See 2. Statutes-Continued.

3-R.S.O.

36, s.

tario Mining Act") ...............

See 1.

(Ont.) Vict.

ing Act amended.) .................

See 1.

5-(Ont.)

Edw. VII. c. 6

(Creditors' relief) ................

6-(Ont.)

Edw. VII. c. 4

(High Schools)...................

7-(Ont.)

Edw. VII. c. 14

7 Edw. VII. c. ("Sunday Act")

......................

9-(Que.) Edw. VII. c. ("Sunday Act" amended)

..............

10-R.S. Sask.

c. (Land titles) ..........................

SUBSTITUTION-Will-Universal legacy

Powers vested legatee of residue undisposed of at her death

Words and phrases disposed of" his will, gave all his property absolutely to his wife with a direction that their children should suitably maintained and educated by her.

will then provided "that should said wife die leaving any of my said property or rights, in her possession or not disposed of," upon her said decease the same should divided "among our said children" in the manner specified.

-Held, affirming the judgment of the

Court of Review (Q.R. sub nom. Shearer Forman), that this pro- Substitution-Continued.

vision did not empower the wife to dispose of the residue at the time of death by will but had the effect of creating substitution de residuo in favour of the children.] conversation

Corroboration.] v. 642 THEATRES - Quebec "Sunday Act" - Prohibition theatrical performance - Local, municipal and police regulations - Legislative jurisdiction Validation by federal legislation - "Lord's Day Act" .......................

TIMBER LICENSE-Mining Act-Grant of mining land - Reservation of pine Right of grantee to cut for special purposes

Cutting pine - Right of action ............. "Land Titles Act," R.S. Sask. 41-Fraud - Cancellation of certificate of title-Appeal- Findings of fact-Review by appellate Court.] The appellant obtained a transfer of lands which had been executed the registered owner to him through some mistake or inadvertence, and, although he was aware that these lands had been previously transferred by the beneficial owner to the respondent, he registered the transfer and thereby ured a certificate of title therefor in his own name as the owner.-Held, affirming the judgment appealed from West. W.R. 148), that the certificate title issued to the appellant should cancelled, under the provisions of the "Land Titles Act" (RS. Sask. ch. 41), as having been fraudulently tained.-Per Anglin J.-Where error the findings of the trial Judge can be demonstrated wholly argument it the duty an appellate court to review questions of fact even where those findings have been against fraud, and upon Title to Land-Continued.

oral testimony. Coghlan V. Cumberland

([1898]

1 704) ; The "Gairloch"

([1899] Ir. R. 1); and Khoo Sit Hoh

Lim Thean Tong ([1912]

2-Rivers and streams-Navigable floatable waters

Crown grant

Riparian rights - Title to bed of river - Erection of townships - Description area included

3-Mining Act-Grant of mining land

Reservation pine timber

Right of grantee to cut for special purposd-- Right

TORRENS - Title to land - "Land Titles Act," R.S. Sask.

Fraud

Cancellation certififact - Review by appellate Court.]

The appellant obtained a transfer lands which had been executed by the registered owner to him through some mistake or inadvertence, and, although he was aware that these lands had previously transferred the beneficial owner to the respondent, he registered the transfer and thereby secured a certificate title therefor in his own name as the owner.-Held, affirming the judgment appealed from West. W.R.

that the certificate of title issued to the appellant should cancelled, under the provisions of the "Land Titles Act" (R.

Sask. ch. 41), as having fraudulently obtained.]

......

TRADE COBINATION-Contract-Pub- Restraint trade bination

Construction

Words and phrases, "unduly" preventing competition, etc.

.

.

.- ...

.. 1

TRAMWAY--Negligence - Electric railway - Breach of company's rules.]

H

............

TRESPASS-Mining Act-Grant of mining land - Reservation of pine timber - Right of grantee to cut for special purposes

Right ....... TRUSTS-Will-Trust for benefit of son Discretion executor

Death beneficiary - Funds not disposed of.] In re

.............

VENDOR PWRCHASER-Broker- Sale of land - Disclosing material information -- Secret profit - Agent's right to sell or. purchase - Specific performance.] broker being informed the owners that they would sell certain lands entered a description of the property in his list lands for sale through his agency. The lands being still unsold about three months later, the broker, in consideration a payment of $50, obtained an exclusive option from the owners for the sale or purchase himself, within days, the lands at a price named, which was to include his commission in the event of his effecting a sale, but without disclosing information of which he was then possessed that there was a probability the lands selling within a short- time at an increased price.

Within a days after the date of the option he effected a sale, in his own name, of the lands for double the .price named therein, notified the owners that he exercised his option to purchase and demanded a conveyance.

In an action for specific performance, brought the broker on refusal of such conveyance, Held, per Fitzpatrick *C.J.-That the terms the written agreement the broker became an agent for the sale of the lands with the option of purchasing them for himself; that he could not become purchaser until had divested himself of his character as agent;

that he was, agent, bound to disclose to his principals the knowledge had acquired respecting the improved prospects a sale enhanced value, and his exercise of the option to purchase did not relieve him of this obligation

He was, therefore, not entitled to a decree for specific performance.-Per Davies, Idington, Anglin and Brodeur JJ.-That the broker was Vendor and Purchaser-Continued.

an agent for the sale of the lands at the time procured the option and, having failed in his duty to disclose to his principals all material information had as to the probability the lands selling at a higher price than that mentioned, specific performance of the agreement to sell to him should refused.

judgment appealed from B.C.

Rep.

was reversed.

2-Sale of mortgaged lands

Agreement

Objection title

An agreement for the sale of land provided that the purchase-money was to be paid instalments "$10,000 cash on the signing of this agreement, the receipt of which is hereby acknowledged,"

the remaining instalments to paid two and four years, with interest from the date of the agreement, and there was a proviso making time of the essence of the contract and, on default in performance of conditions and payment of instalments, for the cancellation of the agreement the vendors on giving written notice to the purchaser. The land in question formed part of a larger area and there was an undischarged mortgage upon the whole property which both parties had knowledge at the time the agreement. The cash payment was not made, the purchaser refusing to pay this amount until the mortgage was severed and apportioned that the land mentioned in the agreement should bear only a determinate share thereof, and the agreement amendto this effect.

The vendors then withdrew from the agreement a letter addressed to the purchaser's solicitor.

In an action against the vendors for performance, Held, per Davies and Anglin JJ.-The execution the agreement constituting the relationship vendors and purchaser was the consideration for the cash payment then to made and, in default of such payment, the obligation to sell and convey the lands with a good title did not become binding upon the vendors.-Per Duff and

Brodeur JJ.-Payment the ten thousand dollars in cash was a condition precedent to the constitution of any obli- Vendor and Purchaser-Continued. gation the vendors to sell or convey the lands and, consequently, to shew title.-Per Idington J.-In the circumstances the purchaser's refusal to make the cash payment was a repudiation the agreement which deprived him the right to a decree for specific performance.-Judgment appealed from (1 D.L.R. 331; 1 West. W.R. reversed. (Leave to appeal to Privy Council was refused, 9th Dec., prival of assignments - Equitable estate or intetest-Priority between transferees - Fraudulent and criminal practices previous transfer - Builders and contractors - Breach of contract - Action for quantum meruit

Cross-action for damages

Appropriate relief.] RocHoN

WARRANTY-Sale of goods-Express implied warranty - ........................

WILL-Universal legacy-Powers vested in legatee - Devise legatee of residue undisposed of at her death-Substitution l'ords phase not disposed of" his will, gave all his property absolutely to his wife with a direction that their children should suitably maintained and educated her. will then provided "that should my said wife die leaving any my said property or rights, in her possession or not disposed of," upon her sdld decease the same should divided among our said children" in the manner specified.-Held, affirming the judgment the Court Review sub nom. Shearer v. Forman), that this provision did not empower the wife to dispose the residue at the time her death will but had the effect creating a substitution. de ?esiduo in favour the children.]

HOGG....... Will-Continued.

2-Trust for benefit of son - Discretion of executor - Death of beneficiary

Funds not

PHRASES.

1. "Free from incumbrances........

3. "Marriage and Divorce...........

Words and Phrases-Continued. "Or not disposed of............ "Solemnization Marriage". . . . "Unduly" preventing competition. . 7. "Unfenced trap" ................