Majority
April
*May 6
THE CANADIAN PACIFIC RAIL-)
.WAY COMPANY (DEFENDANTS)
...
RESPONDENTS. APPEAL FROM THE COURT OF APPEAL FOR ONTARIO. [1906] s. 264, ss. 1(c).
The provisions of section 264, subsection 1(c) The Railway which require every railway company "to provide and cause to used on all trains modern and efficient apparatus" for coupling and uncoupling cars without the necessity of going between them is contravened the use of a foreign car not provided with such "modern and efficient apparatus" -in a train operated a Canadian company, and the company using such car responsible for any injury caused the want of such equipment.
A lever for opening and closing the knuckle the coupler which is too short to operated from the side ladder with safety is not "modern and efficient apparatus" under the above provision.
Where a brakeman on a car approaching another with which it was to be coupled saw that the knuckle the coupler of the car was on had to be opened and had only fifteen seconds in which to do it, being unable to signal the engineer to stop, took the only course open to him, which was a common one, and was injured he was not guilty of contributory negligence.
Fitzpatrick C.J. dissented on the ground that the plaintiff's negligence was the sole cause of the accident.
Judgment of the 'Court of Appeal Ont. L.R. reversed, Fitz- -patrick C.J. dissenting.
Charles Fitzpatrick Duff, Anglin and Brodeur JJ.
Ontario(1) setting aside the verdict at the trial in favour of the plaintiff and dismissing his action. The material facts in relation to the matter which are not in dispute may be shortly stated as follows:- The plaintiff, a young man about 22 years of age, entered the employment of the defendants as brakesman in August, 1910, after being with the Canadian Express Company for five or six years and with the Grand Trunk Railway as brakesman.
On the day the accident, 18th March, 1911, he was engaged as brakesman on a freight train running between Toronto and Fraxa Junction, a short distance north of Orangeville, on the respondents' line and among the cars which made up this train was a foreign box or freight car belonging to the Wabash Railroad which was being returned empty to that company.
This car was equipped with automatic couplers, it had the usual side ladders near the ends, but it had no ladders at either end. When the train arrived 'at Bolton Junction a car from near the centre of the train and attached to the Wabash car had to be uncoupled and left there. This was done and it was while the rest of the train was being coupled up again that the accident happened. The appellant went on the top of the Wabash car to signal the engineer and while there he noticed that the knuckle, i.e., a portion of the automatic coupler attached to the Wabash car, was closed. For the purpose of opening the knuckle and while the car was travelling at a speed of about 7 miles an hour, he went down the side ladder in order to get hold the lever or coupling rod by which the knuckle was opened. According to his own testimony the appellant went to the bottom of the ladder. His left foot was resting on the step below the ladder and he was holding on with his left hand to the lowest rung of\ the ladder, there 'being a space of about only 20 inches between them. While his right foot was in the air, he tried to reach round the end of the car with his right hand and attempted to raise the lever or coupling rod. While he was in this cramped or doubled up position the car passed over a crossover between the two tracks, the jar caused his foot to slip from the bottom step and he fell with his right arm beneath the wheels. The arm was badly crushed and had to be amputated at the shoulder.
The allegations in the Statement of Claim were that the side ladder from which the plaintiff fell was improperly placed and was insecure, that the car was not equipped with end ladders as required by the "Railway Act" and was not properly equipped with automatic couplers, in that the lever or coupling rod was too short, and to these defects the appellant attributes his accident.
The jury assessed the damages at $6,000 and the learned trial judge on their answers to questions submitted by him, entered judgment for that amount against the respondents, but this judgment was reversed by the Court 'of Appeal for Ontario, and the appellant's action dismissed on the ground that the accident was not caused by the short lever or want end ladders, but was due to the plaintiff's own negligence.
Creswicke K.O. and C. Robinson for -the appellant. Sub-sections 1(c) and 5 of section 264 of the "Railway Act," were passed for the protection of railway employees and should not be strictly construed if so doing would defeat that object.
See Johnson v. Houtherin Pacific Co.(1), at page 18; Atcheson v. Grand Trunk Railway Co.(2).
Interpreting the words "of the company" in sub-section 5 as meaning "owned by the company" would defeat it.
The duty is imposed on the company of providing reasonably safe appliances for their employees. Ainslic Mininq and Riray. Co. v. McDougall(3) ; MArney v. Hcott (4); and the jury have found that such duty was not observed in this case.
Hellmuth K.C. and Macdlurchy K.C. for the respondents referred to Barnes v. Nunnery Colliery Co. (5) ; Plumb v. Cobden Flour Mills Co.(6).
(dissenting) .- I agree entirely with Mr. Justice Meredith.
The -appellant lost his balance and fell from the car after deliberately getting himself into an impossible position, and his own negligence in that regard was, in my opinion, the determining cause of the accident.
The appeal should be dismissed with costs.
J.-In the final analysis of the evidence as to the facts and conditions under which the accident occurred, the question whether the appeal should be allowed seems to resolve itself into two, first, whether the plaintiff was guilty of contributory negligence in his attempt to work the lever attached to the coupler of the Wabash car so as to enable the couplers to connect, and, secondly, whether the findings of the jury negative this contributory negligence on the one hand, and can be fairly construed as imputing negligence to the defendants which caused the accident, on the other.
To find the plaintiff guilty of contributory negli- J. gence under the circumstances, it is not sufficient to find that he erred in judgment at the supreme moment when action was promptly required from him. He may have acted unwisely and imprudently in attempting to hang on to the ladder with one hand, clinging to the rung of the ladder immediately above the lower step on which one only of his feet was placed, and with crouching, bent -body, reaching round the end of the car to get hold of and work the lever. The result places it beyond doubt that his judgment was faulty and his action dangerous. But I take it the question is not whether his judgment in the moment calling for instant action was prudent or otherwise, but whether it constituted gross carelessness.
It seems beyond reasonable doubt that if the lever had been long enough to reach the side of the car nearly so, the method he adopted of going down the side ladder and operating the lever from it would have been quite safe. It was the shortness of the lever which compelled him to crouch and bend himself so as to give his arm a long reach and thus make up for the shortness of the lever.
He had 15 -seconds within which to stop the car. If the lever had been of the same length as those on the ordinary C.P.R. cars, it does not seem doubtful that he would have safely worked it.
The extra reach to get hold of the short handle made his position perilous and the jar of the car in passing over the crossing of two tracks caused his foot to slip from the lower rung of the ladder and he fell with his arm under the car wheels.
The plaintiff's evidence is that the lever was only about 16 inches long, bringing its length to about 2J feet from the side of the car.
The defendants' witdid nt mesure nesses, who inspected the car, but did not measure the lever, say it was about 24 feet long, which would bring its end to about 16 inches from the side of the J. car.
No witness on either side suggested it came within 15 inches of the side of the car. The jury, in answer to questions 5 and say the plaintiff was injured in consequence of defects in the make up of the car, and that the car lacked the ladder on the end and the long lever equipment used by the defendants on theiik cars. They do not find specifically the actual length of the lever, but they find its shortness, or want of normal length, was one of the defects which caused plaintiff's injuries. I do not attach importance to the absence of the end ladder because under the circumstances with the rapidly approaching cars it seems obvious that it would have been dangerous and against good practice for him to have used an end ladder and so placed his body between the approaching cars.
It does seem to me that it was at least open to the jury to accept plaintiff's evidence on the length of this lever, and that at any rate they could find it was not the long lever equipment used on the Canadian Pacific Railway cars, and which doubtless experience had shewn was necessary in order to comply with the re- (quirements of the statute.
They further find in answer to question 3, that as plaintiff had not received circular No. 4, he acted as he did to the best of his knowledge, and in answer to question that he could not, under .the circumstances, by the exercise of. reasonable care, have provided for the coupling of the cars with safety to himself.
is true that they do not give any answer to the specific question No. 8, whether they found negligence as to the matters in dispute, (a) in the Canadian Pacific Railway Co., or (b) in the plaintiff. But finding generally that the car and its fittings were not reason- Davies ably safe in the respects they mention for the employees in the usual operations of the road; that the plaintiff acted, not having received circular No. to the best of his knowledge; that he was injured in consequence of defects in the make up of the car, and that what they found to be wrong was the absence of end ladder and "the long lever equipment used by the Canadian Pacific Railway," and that plaintiff could not, by the exercise of reasonable care, have provided for the coupling of the cars with safety to himself; they may have concluded that further specification of negligence in either party was unnecessary, and would only involve repetition of their previous answers.
It seems to me that these findings, read in connection with the charge of the Chancellor, negative contributory negligence of the plaintiff on the one hand, and find negligence in the defendants which caused the accident on the other.
I may remark that the alternative course which was open to the plaintiff when he discovered that the knuckle of the coupler of the Wabash car was closed, was, from his place on the top of the car, to signal the engineer to stop the train. He says he did not do so because the engineer was not looking. The engineer was not examined, and there is no conflict of evidence on that point. The course he took in going down the side ladder and attempting to operate the lever from it was a perfectly safe one had the lever been the ordinary length of those in use on the Canadian Pacific
Railway cars, that is, a length which would enable the brakesman to operate it without being under the necessity of placing at least a part of his body hetween the cars.
The statutory requirement as to trains is found in section 264 of the "Railway Act," which reads:- This sub-section evidently requires such apparatus and appliances as will enable the couplers to be efliciently operated without the necessity of men going between the cars.
It was argued that this lever of the Wabash car was sufficiently long to enable such purpose to be accomplished when the cars were not moving, in other words, that the brakesman could have opened the knuckle of the coupler which was closed, and so enabled the cars automatically to be coupled without going between the ends of the cars, and that no doubt is so. But the question comes back to the one I started with: Was the plaintiff, when he found he could not convey to the engineer a signal to stop the train because that officer was not looking, guilty of gross negligence or "inviting disaster," as one of the judges in the Court of Appeal pointedly puts it, by attempting to reach the lever in the manner and at the time and under the circumstances he did ? Was he guilty of gross negligence in his attempt or only of an error of judgment at a moment requiring prompt and instant decision and action ?
The answers of the jury taken as a whole placed the blame for the accident on the inefficiency of the lever on account of its shortness, and must be taken to Davies J. have absolved the plaintiff from contributory negligence.
I have not reached my conclusions without much doubt, founded in part on the absence of specific answers to question 8, and in part on the reasonings of the learned judges of the Court of Appeal which were ably supported at bar.
But I feel myself bound by the construction I place upon the findings of the jury as I interpret them, and upon the conclusion I have reached that sub-section (c), of section 264, is applicable to the Wabash car which formed part of the defendants' train and which was found inefficiently equipped in not having the long lever equipment used by the Canadian Pacific Railway Co. on its own cars. I, therefore, concur in allowing the appeal and restoring the judgment of the trial court, with costs. J.-The appellant was a brakesman one of the respondents' trains engaged in shunting cars atsone of their stations. He was on top of a selfcoupling car being moved backward to be connected with another car standing on the track.
He, descended the side ladder of the car on which he was, in order to reach the lever by which the knuckle might be opened or pin raised of the coupler or part thereof attached to his car so as to prepare it to receive and connect with the part of the coupler on the other car towards which his train was moving at a rate of about seven miles an hour.
He put his left foot in the step which projected below the bottom of the car, seized a rung of the ladder with his left hand and attempted with his right hand to reach the lever which was unusually short, but failed to reach it, and whilst in -this attitude the car crossed a part of the crossing of the tracks which gave a jolt or jar and he fell and then his arm was run over. J. The arm had to be amputated near the shoulder. This action was brought for the resultant damages. It was tried before the Chancellor, who refused to nonsuit and submitted to the jury a number of questions; and upon their answers thereto he entered judgment for appellant.
The Court of Appeal dismissed the action. Some difficulty is experienced in trying to harmonize the several reasons assigned therefor, and I shall not attempt to analyze same.
J3roadly speaking they may, I think, be properly described as attributing the accident to the alleged unjustifiable conduct of appellant in attempting to do what he did.
Incidentally to the determination thus reached the interpretation and construction of sections 264 and 317 of the "Railway Act" are dealt with in such a way as to render it more easy to reach a conclusion that the appellant is solely blameworthy for the accident. It is important for that reason to settle, if possible, the questions thus raised.
Under the caption in said Act of "Operation- Equipment and Appliances for Cars and Locomotives," appears, first, section 264, intended to be chief part of an efficient code for the purposes indicated.
This section enacts:to securely couple and connect the cars composing the train, and to attach the engine to such -train, with couplers which couple automatically impact, and which can uncoupled without the necessity men going in between the ends of the cars.
And then, after sub-sections 2, 3, and 4, follows sub-section 5, as follows:- Idington J.
box freight cars of the company shall, for the security railway employees, equipped with:- (a) outside ladders, two the diagonally opposite ends and sides of each car, projecting below the frame the car, with step or rung of each ladder below the frame, the ladders being placed close to the ends and sides to which they are attached; and (b) hand grips placed anglewise over the ladders of each car and arranged as to assist -persons in climbing on the roof means of the ladders;
Provided that, if there is at any time any other improved side attachment which, in the opinion of the Board, is better calculated to promote the safety the train hands, the Board may require any of such cars not already fitted with the side attachments this section required, to be fitted with the said improved attachment. Sub-section 6 enables the Board to deal with drawbars, and sub-section 7 provides as follows
7. The Board may upon good cause shewn, general regulation, or in any particular case, from time to time, grant delay for complying with the provisions of this section.
It is attempted to distinguish the effect of subsection 5 from the rest of the section by reason of the use of the expression therein "of the company." It is pointed out that the word "trains" is used in some of the earlier sub-sections and that, therefore, this expression "of the company" must mean something else, though the entire sub-section is, as if to emphasize the very contrary, being enacted expressly "for the security of railway employees."
I can hardly appreciate how "the security of railway employees" is to be obtained in relation to cars that do not form part of a train and that in motion. When cars stand still there would not seem to be much need for securing employees or any one else against their defects.
It does not appear in the reasons given exactly how such security is to be attained anywhere else than where the cars are in motion and forming part of a train.
It is said, however, that cars are exchanged with foreign roads which may not be so equipped, and we are referred to section 317 providing for a foreign traffic.
- There is not a word therein or elsewhere in the Act shewing any discrimination is to be made between such foreign and the domestic cars in relation to the security of the employees in this regard. Indeed, section 317 is entirely devoted to another object and purpose.
The sub-section 7. of section 264, may or may not enable such discrimination, but if it does not there is none possible. And there is no pretence made that the said power has ever been exercised in the premises. There is no possibility of pretending that by section 317 or otherwise than by said sub-section 7 has the Board or any one else authority to suspend in favour of such foreign cars or use thereof, the provisions of this statute for the security of the employees.
The more the extent of the use of foreign cars is magnified, as it is impliedly in the argument put forward, the less justification is there for importing such an invasion of this security the statute was designed to provide.
If exception had been attempted in the case other Canadian railways whose cars had failed to obey the statute, then it might have been argued with a degree of plausibility that the penalties of the Act imposed by section 386 must be held to be the only mode of relief, inasmuch as interchange -of cars and traffic are made obligatory. I do not think that would be tenable, and no one has been bold enough to so argue.
But why exemption should be made in favour J. foreign cars of which the owners could not be subjected to such penalties, is something I cannot understand if employees are needing and are to get protection.
The distinction, I respectively submit, is quite unwarranted.
When one reflects upon the rapidity judgment needed to be exercised by these employees in a variety of ways their situation so often calls for in discharge of their duties, it is not to be supposed in face of 'such legislation that it was ever intended that judgment was to *be needlessly confused by considerations of the different rules to be applied to the nationality or kind of cars in relation to which it has to be exercised.
I think the statute applies and must be held to apply to all cars in all trains, including such combinations of locomotives and cars as the statute constitutes a train in a yard or elsewhere.
Now, what did this statute require, which, according to the interpretation I have given it, related to the cars and train in question ?
It required modern appliances and these must, it is conceded, be progressively so modern as to keep pace with modern invention and known utility. This Wabash car in question herein had the semblance of an automatic coupler, but it failed so lamentably in placing the lever which was to open or close it that it did not come up to the standard which the respondent and -others had adopted before this accident.
On any view one may take of the matter the antiquated appearance of the appliances on this Wabash car as compared with those in use by their own company, before the eyes of the inspectors of respondent, ought to have arrested their attention.
Instead of their inspection being, as the reasons J. assigned by the Court of Appeal suggest, a means of shielding the respondent, the neglect of these inspectors and of those who permitted them to act, on their own responsibility in such matter, instead of directing their attention to the statute and its requirements furnishes the condemnation of the respondent in this regard so far as it bears on the issues raised herein.
Then it is said that the provision of the section relative to the coupling or uncoupling of cars had only a bearing upon an operation to take place by the hands of -some employee standing upon the ground, and not on the car or a ladder or platform of any kind attached to a car.
No one has been able to say so as a witness. Some of them seemed adroit in way of answering carefully framed questions to indicate that in certain emergencies this or that mode of doing something in relation to such a proceeding as coupling or uncoupling of cars, might be bad practice. But no one pretends that the raising of the lever in itself by a man standing on a ladder of a moving car, would in every case and of itself be bad practice.
These couplers may, it seems, so get out of order or be so misplaced as to require adjustment, and that the employees are warned against (though this man was not) doing when the cars are in motion.
But what the appellant attempted is nothing of that kind. It might be that the coupler in question needed such adjustment, but no -one pretends such ever was discovered to be the fact. If it had been, no doubt, it would have been proven herein as giving some semblance of excuse or means of blaming the appellant.
Idington J.
Having read the entire evidence in the case I agree with the following extract from the judgment of Mr. Justice Magee in the Court of Appeal:- It is, I think, clear from the evidence, that it was customary brakesmen to operate the levers from the ladders while the cars were moving.
It had been done only a few moments before the other brakesman opening the coupler of the adjoining car to make a flying shunt.
The conductor says it was quite customary, and would not think reporting a brakesman for doing it, and had never told any one not to it. The general yard-master, called for the defendants, states that the lever can operated from the. sideladder.
It is sought to draw distinction between operating the lever on a moving car in order to uncouple, and doing so in order to couple.
But the plaintiff states, and he is not contradicted, but indeed borne out other evidence, that had plenty of time to do what was going to do and get around to the side out of the way before the cars would couple.
Really all be proposed doing was operating the lever a moving car. Nowhere do I find that to forbidden.
It was argued that this was contrary to the defendants' circular No. of 15th February, which, however, the jury find the plaintiff not to have notice
That circular forbids "all acts familiarly known as taking chances," and it calls attention to accidents which had occurred "solely carelessness on the part some employee, such as," inter alia, "adjusting coupler * * * when cars are in motion."
But Mr. Hawkes, the defendants' yardmaster, expressly states, as one might expect, that opening the knuckle the operating lever is not "adjusting the coupler." That circular naturally enough puts "adjusting coupler"
in the same category with "turning angle-cock or uncoupling hosebags"-all which would have to done by going between the cars on the ground.
But the circular is luminous in respect of several operations. Thus it refers to "accidents from holding side car," but only "when passing platform, building or other obstruction, known to close to track;" "kicking cars into sidings," but only where other cars are standing; and "detaching moving cars" without first seeing to the brakes being in order.
This last instance impliedly recognises the practice of detaching moving cars if only The appellant was attempting to do just what this practice so referred to justifies.
In hopes of averting a mishap likely by reason of both parts of the coupler, J. that on the Wabash car and that on the car to be connected with it, being closed, he tried to reach and raise the lever to open the one on the Wabash car which he was. He swears that this, if done, would have enabled successful connection, and he is not contradicted in regard thereto, or the possibility of its accomplishment by the means he tried.
What Mr. Justice Magee condemns, and the sole reason for his judgment being adverse to appellant, is that appellant took such a position in his attempt that the overbalancing of his body, which he thinks was the direct result thereof, disentitled him to succeed. It seems he, standing with one foot on the stirrup part (if I may so call it) of the ladder, holding on by a rung of the ladder twenty inches or more above that, had to bend down and thus be placed in an insecure position and be liable to be jerked off, as he was. There was nothing impossible in such a feat. It was necessary to so bend down to reach the lever, or try to reach it.
And if he failed, whose fault was it ? The utmost that is said is that his doing so was bad judgment. That is the evidence of the respondent's own man called to testify as an expert. I respectfully submit he and appellant, as well as some of the jury, evidently knew a great deal more of the nature of the feat attempted, than some others possessed of higher gifts of another sort.
When was error of judgment converted in law into either recklessness or negligence ?
Who invited him to so act ? Who imposed upon him the duty of exercising a judgment determining how far he should venture ? Who placed before him the necessity fQr his attempting such a thing and made for him the trap into which his misjudgment led him ?
If the practice of the men and the masters placed in charge by respondent did not shev that they felt it was no more than a question of judgment, then surely the use by respondent of such a defective and illegal lever as this one in question did invite him, and as result of its use impose upon him the duty of determining how far he ought to venture to avert the damage likely to happen to respondent's property. The respondent violated the statute in carrying such a car so equipped that the lever could not be reached without this undue straining of appellant to serve his master. There is not a word in the statute requiring the operation, needed to work such couplers, to be done when standing on the ground, or to indicate the protection was solely intended for such cases. Invention might well reach the point of making it with greater safety on a car than on the ground.
If the longer kind of lever used on other cars built and run by respondent had been placed on this Wabash car then there would have -been no necessity for appellant running any risk. If even one of a shorter description than those of this latest pattern had been on said car, there would have been little risk.
And if there had been a ladder on its end as required by said sub-section 5, of section 264, the operation needed could have been executed with the short lever. Of course, the operator in such case would have had to act with such promptness that the act of drawing it would be over and the operator straightened up or back to the top before the two cars being connected had met.
The respondent had equally violated the statute J. in carrying as part of its equipment on this train a car which had no ladder properly placed on the end of the car as required by the statute. That violation is perhaps not so clearly as the other a possible basis for this action. If there had been, however, no such violation of the law, the means of averting the consequence of the other violation of law would have had to be considered if the facts had presented such a case.
The appellant, or any one so situated as he, would be bound to use that ladder so far as practicable as a means of mitigating the risks to be run in handling a car so defectively equipped in regard to the lever.
The point made by Mr. Robinson in his brief argument so admirable for its precision and direct bearing on the issue raised by a consideration of these subsections in their relation to each other, was well taken, and the authority of -the case of The "Arklow'"(1), at page 139, which he cited, is as undoubted as the principle of law involved therein. The violating of a statute bearing on the duty of a railway company may well have prima facie the like results as attendant upon the violation of a statutory rule of navigation though the consequences as to measurement or apportionment of damages may not apply.
The reasonableness or unreasonableness of the effort made by appellant to operate with such defects has been passed upon by the jury, and I hold the Chancellor was quite right in submitting that question to the jury, and the Court of Appeal wrong in overruling such submission and direction.
Much might be said of the failure to instruct by means of the circular No. 4. If it aimed at anything such as appellant is said to have mistakenly done, which I do not think it did, then that clearly had been brought to the notice of the respondent's authorities a month before, and the need for directing regarding it and to stop what had become recognized practice by its employees.
It was the duty of the company to have seen to it, under such circumstances, in such a case that such practices as it describes should cease, and that a copy of the circular was duly delivered, especially in the case of men comparatively new to its service. The appeal should be allowed with costs here and in the Court of Appeal, and the judgment of the trial judge be restored.
J.-The jury found in effect that the coupling equipment did not conform to the statutory requirements and that the accident was due to this deficiency. I think there was albundant evidence to support this finding. As to contributory negligence:- I think the jury may not unreasonably have thoughtassuming the appellant in the circumstances in which lie found himself on descending the ladder to be chargeable with an error of judgment-that he was not fairly chargeable with the graver fault of recklessly -or thoughtlessly exposing himself to unnecessary risk.
J.-The plaintiff appeals against the judgment of the Court of Appeal for Ontario setting aside the judgment in his favour entered by the learned Chancellor of Ontario on the following findings of 1. Was the car in question owned by the C.P.R. or another company?
Owned another company.
Anglin J. Was the car and its fittings reasonably safe for the employees of the C.P.R. in the usual operations of the road?
We think not.
Was the plaintiff, having regard to all the circumstances, in his method of arranging the gear for coupling the cars, acting accordlig to and proper practice ?
Not having received circular No. think he acted to the best his knowledge.
If not, wherein did he err?
Was the plaintiff injured in consequence of any defect in the make-up of the car?
Yes, in our opinion we think he was.
If he was injured state everything which you find to wrong.
The car in question lacked the ladder end of car and long lever equipment used C.P.R., in which company he was employed.
Could the plaintiff by the exercise reasonable care have provided for the coupling of the cars with safety to himself? In our opinion, not under the circumstances.
S. Do you find negligence as to the matters in dispute: (a) In the C.P.R.
(b) In the plaintiff.
Or, in both of them?
If state briefly what was the negligence in each case. If the plaintiff is entitled to damages, state how much. jury have agreed on for damages for plaintiff. The Court of Appeal held that the evidence did not establish any negligence or breach of statutory duty on the part of the defendants, but did clearly establish that the plaintiff's injury was attributable solely to his own fault.
I concur in the opinion of the Court of Appeal that, on its proper construction, sub-section 5 of section 264, of the "Railway Act," does not apply to foreign cars being hauled on Canadian railways in the ordinary course of, or as a result of, interchange of through traffic with foreign railways. But, I think, the provisions of clause of sub-section 1 of that section apply to foreign cars equally with domestic cars when J. they form part of a railway train subject to the jurisdiction of the Parliament of Canada.
That clause reads as follows:- Although the words "without the necessity of men going in between the ends of the cars" grammatically qualify only the verb "can be uncoupled," the same requirement is introduced with regard to the operation of coupling by the qualifying phrase "automatically by impact." Having regard to the means provided for preparing the coupler to operate automatically, viz., a lever extending from it towards the side the car-and to the fact that it is necessary to use this lever to open the knuckle of the coupleron one of the cars to be coupled whenever both knuckles are closed, in order to permit of their automatic operation, the statute, on its proper construction, requires that the lever shall be of sufficient length to permit of its being effectively used-whether in coupling or uncouplingwithout the necessity of men going in between the ends of the cars. The jury has found that the "make-up" of the car in question was defective in that it "lacked the *
*
* long lever equipment used by the Canadian Pacific Rway. Co., in which company he (the plaintiff) was employed."
The jury further found that the plaintiff was injured in consequence of that defect. According to the evidence of the plaintiff, the lever was about 16 inches in length, so that he had to reach 32 inches in from the side of the car to touch it. According to the evidence of the defendants' witnesses J. the lever was about 32 inches in length and came to within about 16 inches of the side of the car. Harry Bogardus, Grand Trunk Car Inspector at Allandale, said that the lever "should run from the coupler out to the side of the car." John Hood, C.P.R. Inspector at West Toronto, said, "I guess if it came to the edge of the car it would be better. * * * Yes, it should come to the edge of the car."
Wm. Lillew, leading Hand-car Inspector at Toronto Junction, in answer to Mr. Creswicke's question, "And you agree with Mr. Hood that the lever should really come out to the side of the car for better safety, you agree with his evidence ? " said, "I agree with his evidence all right enough."
Modern Canadian Pacific Railway cars are constructed with the lever coming out to the side.
On some of the older cars the posiof the buffers prevents this, but according to the evidence of John Hood, "taking the Grand Trunk and the C.P.R. and the ordinary trunk lines from the other side," the usual distance of the lever from the side of the car would be 7 or 8 inches. On the Wabash car in question, according to the evidence of Wm. Lillew, the lever could have been brought without difficulty to within S inches of the side i.e., S inches farther out than it was brought according to the evidence of the defence witnesses, and 24 inches farther out than it was brought, according to the evidence of the plaintiff.
All the witnesses who were questioned on the point admitted that "the shorter the lever -the greater the danger."
John Hood stated that if the lever were as short as the plaintiff said it was it would be so improper that the company would have to change it. It is not surprising, in view of this evi- J. dence, that the jury found that the equipment of the car with such a short lever was a defect; and by that finding, having regard to the facts that it is coupled with the finding as to the lack of end ladders, and that negligence proper was covered by the eighth question which the jury did not answer, I have little doubt 'that they meant that the lever on the car was not in conformity with the requirements of the statute, in that it did not obviate the necessity of men going between the cars for the purpose of operating the socalled automatic coupler. A finding of negligence on the part of the defendants is probably involved in the finding of -such a defect; but a finding of negligence is not requisite where a breach of statutory duty causing the injury complained of has been established. Such a breach of statutory duty has been found in the present case, as I understand the answers of the jury and, I think, upon 'sufficient evidence. Unless, therefore, the evidence makes it so clear that the plaintiff was himself guilty of some negligence timproper act which was the sole or a contributing cause -of his injury that a finding to the contrary would be perverse, the verdict in his favour should not have been disturbed.
The defendants charge that it was improper to have attempted to work the coupling lever from the side ladder of a moving car; and that, if this were permissible under any circumstances, the crouching position which the plaintiff assumed to perform the operawith his left hand he clutched the bottom rung of the ladder; his left foot rested on a step some 16 inches to 18 inches lower; his right foot hung in the air, and his body was strained forward and swung around the end of the car to permit of his right hand reaching the short lever to open the knuckle of the J. coupler entailed very great and unnecessary danger. On these issues the jury found in the plaintiff's favour. While the terms in which they couched their finding that the plaintiff could not under the circumstances, by the exercise of reasonable care have provided for the coupling of the cars with safety to himself have been made the subject of criticism because of the use of the somewhat equivocal words "under the circumstances," I incline to think that the jury made sufficiently clear its intention to acquit the plaintiff of the charge of contributory fault or negligence and, of course, to negative the view that his injury was ascribable solely to his own fault. Notwithstanding this finding, the learned judges of the Court of Appeal have held that the plaintiff's own carelessness was the main, if not the sole, cause of his injury, and have reversed the judgment in his favour and dismissed the action. With great respect, I am of the opinion that the evidence did not warrant the appellate court in taking that course.
The faults attributed to the plaintiff are (a) that he attempted to make the coupling without stopping the train; (b) that in endeavouring to make it he assumed an unnecessarily dangerous posture. (a) According to the evidence, to effect a coupling between cars equipped with automatic couplers, the knuckle in the coupler of one car should be open and that in the coupler of the other closed. With bpth knuckles closed the coupling cannot be made, and if the cars come together with the knuckles in this posialthough with a momentum which might not be too great with the couplers in proper position, it was stated by counsel for the appellant that there is a pro- J. bability of the couplers being broken. There is no evidence, however, on this latter point.
With ;both knuckles open the attempt to make a coupling is only occasionally successful.
While the plaintiff admittedly knew, before lie gave the engineer the signal to back the train from the freight sheds for the purpose of making the coupling, that the knuckle on the Wabash car was closed, his evidence, though not as explicit as might be desired, is open to the construction that 'he did not then know that the knuckle on the stationary car, with which the Walbash car was to be coupled, was also closed. It is not suggested in the evidence that he should have known or ascertained how this was before he signalled to the engineer to back up in order to make the coupling.
He says he discovered the fact after he had reached the top of the Wabash car which was moving at about 7 miles per hour and was then about four car lengths from the stationary car a distance which would be covered in about 15 seconds. Asked why he did not then give a signal to the engineer to stop, his reply was "he was not looking that is why he did not get one."
While there is no charge of negligence against the engineer, there is no contradiction of this evidence. There is evidence in the recTord from defence witnesses as well as from witnesses for the plaintiff, that it is usual and customary for brakesmen to open the knuckles of automatic couplers for coupling as well as for uncoupling, by operating the levers from the ladders when cars are in motion, and that a lever coming out to the side of the car can be operated from the side ladder "without any trouble."
The defendants proved the issue of a circular warning their employees against the "adjusting" of couplers while cars are in motion.
Some witnesses deposed that it was the previous "unwritten law" that this should not be done. But the plaintiff, who was not a regular brakesman, had not received this circular; and the witnesses for the defendants prove that opening the knuckle of a coupler by using the lever is not "adjusting" the coupler within the meaning of that term as used in the circular. That process is resorted to only when the lever fails to work. It involves going between the cars and handling the coupler itself. Hence the prohibition.
This adjusting or handling of the coupler is what two of the defence witnesses pronounced dangerous; and, when pressed on crossexamination, the defendants' witnesses constantly revert to "adjusting" as the dangerous and forbidden thing. There is no suggestion in the evidence of any specific rule-of the defendant company relating to the operation which the plaintiff was performing other than that contained in circular No. 4, and the socalled "unwritten law" which preceded it, forbidding the "adjusting" of couplers on moving cars. What -the plaintiff was doing was not "adjusting." general rule against taking chances is referred to. But the evidence is that it is customary, and necessary, for certain purposes, for brakesmen to ride on the side ladders of moving cars, and that it is usual to operate the levers of automatic couplers from them. The conductor, Harcourt, called by the defendants, says he would not report a brakesman under* his orders for doing so.
There is no evidence that the plaintiff knew of the shortness of the lever until he attempted to reach it from the side ladder with his right hand.
whole evidence, in 'my opinion, it is not possible to say that the plaintiff's attempting to open the knuckle of the coupler while the train was in motion was so clearly a wrong or improper thing that it is fatal to his right to recover notwithstanding that the jury has found in his favour on the charge of negligence against him. On this branch of that charge there was evidence to support the finding, and it should not have been disturbed.
(b). Then as to the plaintiff's position when he endeavoured to operate the lever: On reaching the foot of the ladder and realizing that the lever was short he was confronted with a situation of some difficulty. Had the lever been of normal length, the defendants' witnesses say that he could easily have accomplished what he intended to do. The car on which he was was moving at the rate of 7 miles an hour. He scarcely had time to get down and open the knuckle from the ground even if he could descend with safety, or, having got down, could reach and -operate the lever while the car was moving as rapidly as it was.
The defence witnesses do not say that he could not, as a result of crouching as he did, swing his free right arm farther around the end of the car. That may have been, for aught that the testimony discloses to the contrary, if not the only, the most effective means of reaching the short lever. There is no evidence that'the fireman was then on the locomotive or that the plaintiff could have signalled him to zstop.
He was on the wrong side of the train to signal the engineer. When he had left the top of the car the engineer was not looking in his direction.
Should he have acted on the chance that if he again mounted the ladder he might find the engineer looking and might successfully signal him in time to have the train stopped before the cars wouldRACHAY come together ?
Should he have attempted that, or allowed the cars to meet at whatever risk there might J. be of breaking the couplers because both were closed ? Was it clearly wrong for him under the circumstances to have attempted to operate the lever of the coupler with his right hand by swinging it around the end the car ? In the effort to reach that lever he assumed a position which railway men condemn. But there is no evidence that lie could have reached it had he held himself more erect. The objection which the defence witnesses take to 'the position which he assumed is that it was so strained that it could be held "only for a short distance."
But the moving of the lever would require the plaintiff to remain in that position only for a moment. He was an athlete, 22 years of age. Whether he should have realized that he was incurring risk and to what degree was eminently a question for the jury who had the advantage of seeing him. If he did err in the judgment which he formed on the spur of the moment as to what his duty required him to do, it was again for the jury to say whether that error under the circumstances amounted to negligence fault on his part.
They found that it did not. I have failed to discover in the record sufficient to justify an appellate court in setting aside that finding and holding that the evidence clearly establishes that the plaintiff was so negligent that he should be held to have been the author of his own injury notwithstanding the contrary opinion of the jury.
o With great respect for the distinguished judges of the Ontario Court of Appeal, I would for these reasons allow this appeal with costs and would restore the judgment entered by the learned Chancellor upon the verdict of the jury.
J.-I concur with Mr. Justice Anglin. Appeal allowed with costs. Solicitors for the appellant: Oreswicke &
Solicitors for the respondents: MacMurchy & Spence. ABSTRACT-Vendor and purchaser-Sale of land--Condition dependent-Deferred payment-Disclosure of title-Refusal to conplete-Lapse of time-Defeasance- Specific performance ..............
ACCRETION-Construction of will-Substitution-Trust-Death of grevb-Partition-Apportionment in aliquot shares- Distribution of estate-Partial intestacy
-Devolution .....................
ACTION-Appeal--Final judgment -Reference.]
In an action claiming rescission of a contract for the sale of timber lands and other equitable relief and, the alternative, damages for deceit, the trial judge held that it was case for damages only and gave judgment accordingly and referred to a referee matters aris-ing out of a counterclaim, ordering him also to take an -account of moneys paid, an inquiry as to liens and incumbrances and as to the quantity of standing timber on the lands and other proper accounts.
Further consideration of the cause was reserved.
This judgment was affirmed the full court N.S. Rep.
and the defendants sought to appeal to the Supreme Court of Canada.- Held, that the action tried and determined was the common law action for deceit only; that the judgment given therein was not a final judgment within the meaning of that term in the "Supreme
Court Act"; and that the court had no to entertain
Clarke Goodall (44 Can. S.C.R. 284), and Crown Life Ins.
Can. S..R. 616)
.........................
Public officer-Notice--Notary public-Principal and agent
Mandate - Pleadings objections on appeal-Case on appeal-Notes of reasons judges-Findings of fact-Art.
C.P.Q.]
If a defendant has not, in the
Action-Continued.
courts below, taken exception to want of notice of action, as required article of the of Civil Procedure it is doubtful whether the objection can urged on an appeal to the Supreme Court of Canada.
Devine Holloway PiC. referred to. -Where the defendant has not been sued in an action for damages reason of act done in the exercise a public function or duty, the provision of article as to notice of action against a public has no application.-The Supreme Court of Canada ought not, ordinary cases, to take into consideration the notes of reasons for judgments in the courts below which have not been livered before the settling the case the appeal: Mayhew Stone Can. S.C.R. followed.
In proper case, however, when the non-delivery such notes is satisfactorily accounted for, the court may permit them to and made use of as part the record on the appeal: Canadian Fire Insurance Robinson (Cout. Dig. referred to. court refused to reverse the concurrent findings of fact the courts 3-Action against minor-Exception ninority-Practice-Irregularity in procedure-Waiver after majority-Ratifcation-Prejudice-Nullity-Review by appellate court .....................
Rale of land-Deceit-Misrepresentation-Honest belief-Pleading-Amendment-Adding new cause of action. . APPEAL-Jurisdiction
Final judgment -Reference.]
scission of a contract for the sale of timber lands and other equitable relief and, in the alternative, damages for deceit, the trial judge held that it was a case for damages only and gave judgment accordingly and referred to a referee matters arising out of a counterclaim, ordering him also to take an account moneys paid, an inquiry as to liens and incunbrances and as to the quantity standing timber the lands and other proper accounts.
Further consideration the cause was reserved.
This judgment was affirmed the full court
Rep. and the defendants sought to appeal to the Supreme Court Canada.-Held, that the action tried and determined was the common law action deceit only; that the judgment given therein was not a final judgment within the meaning of that term in the "Supreme Court Act"; .and that the court bad no jurisdiction to entertain the ap- Clarke v. Goodall (44 'Can. S.C.R.
284), and Crown Life Ins. Skinner
Can. S.C.R. followed.
2-Election law objections-Interlocutory motions
Construction of statute-"Dominion Controverted
Elections Act," R.S.C., s.
Several the preliminary objections to a petition against the election of a member of the House -Commons of 'Canada having remained undisposed of, on the day the expiration of the six months limited for the commencement of the trial section of the "Dominion 'Controverted Elections Act," R.S.C, 7, the petitioner applied to a judge, by tion, (a) to obtain an enlargement the time for the commencement of the trial, and, (b) to have a day fixed for the hearing on such preliminary objections.
On appeal from the judgment dismissing the motions.-Held, that the judgment question was not appealable to the Supreme Court of 'Canada under the provisions section of the "Dominion troverted Elections Act."
L'Assomption
Election Case iCan.
S.C.R. 429);
King's County Election Case
S.C.R. ; Gloucester Election Case (8
Can. S.C.R. 204), and Halifax Election
Case iCan. S.C.R.
2-Final judgment-Further directions
-Master's report.] the trial before the Chancellor of Ontario of an action claiming damages for breach of contract judgment was given for the plaintiffs with reference -to the master to ascertain the amount of damages, further directions being reserved.
This judgment was affirmed the 'Court Appeal. master then made his report which, appeal to the Chief Justice of the mon Pleas, was varied by reduction of the amount awarded.
The Chancellor then pronounced a formal judgment further directions in favour the plaintiff for the damages as reduced. fendants appealed from the judgments the Chief Justice and the 'Chancellor and the two appeals were, by order, heard together, 'but not formally consolidated. Both judgments were affirmed the Appeal and the defendants sought to appeal from the judgment affirming them and also from the original judgment sustaining the decision at the trial, having applied without success to the court below for an extension of time to appeal from the latter judgment. Nelles v. Hesseltine Ont. L.R..97).- Held, Brodeur J. dissenting, that the only judgment from which an appeal would lie was that affirming the judgment the Chancellor on further directions; that the Chancellor could not review the original judgment of the 'Court of Appeal nor that varying the master's report and the Court of Appeal was equally unable to review them on the appeal from the Chancellor's decision, and the Supreme Court being required 'statute to give the judgment that the 'Court should have given was likewise debarred from reviewing these earlier decisions. ............ 4-Habeas corpus - Act," s. 39(c)-Criminal charge-Prosecution under provincial Act-Application for writ
Judge's order.]
(c), the "Supreme Court Act," an apcase proceedings for or upon writ corpus arising a criminal charge.-Held, per Fitzpatrick C.J. and Davies and Anglin JJ., that trial and conviction for keeping liquor for sale contrary to the provisions of the "Nova Scotia Temperance Act" are proceedings on a criminal charge .and no appeal lies to the Supreme Court
Canada from the refusal of writ habeas corpus to discharge the accused from imprisonment on such conviction.
Brodeur J. hesitante.- By the "Liberty of the Subject Act"
Nova Scotia on an application to the court or judge for a writ of habeas corpus an order may made calling on the keeper of the gaol or prison to return to the court or judge whether or not the person named is detained therein with the day and cause of his detention.
the return of an order so made, an application for the discharge of the prisoner was refused, and an appeal from this refusal was dismissed the full court.
-Held, per Idington and Brodeur JJ.
that such order is not proceeding or upon a writ of habeas corpus from which an appeal lies under said
(c).-Per Duff J.-That the judgment the full court was given in a case proceedings for a writ of habeas corpus within the meaning of sec. 39(c), that the proceedings did not arise out of a "criminal charge" within the meaning that provision; but that, on the merits, the appeal ought to dismissed.
......................
5-Action-Public officer-Notice-Notary public-Principal and agent-Mandate
Pleadings jections on appeal
Case on appeal - Notes of reasons judges-Findings fact-Art.
If a defendant has not, in the courts below, taken exception to want of notice of action, as required article of the of Civil Procedure Quebec, it is doubtful whether the objection can urged on an appeal to the Supreme Court of Canada. Devine
Holloway
Moo. P.C. 290)
ferred to.-The Supreme 'Court of Canada ought not, in ordinary cases, to take into consideration the notes of reasons for judgments in the courts below which have not been delivered before the settling of the ease on the appeal: Mayhew v.
Stone Can. S.C.R. followed.
a proper case, however, when the nondelivery of such notes is- satisfactorily accounted for, the court may permit them to and made use of as part of the record on the appeal: Canadian Fire Insurance v. Robinson (Cout. Dig.
referred to.-The court refused to reverse the concurrent findings fact the courts below.
6--Jurisdiction - Provincial election- "Alberta Controverted Elections Act"- Preliminary objections -"Judicial proceeding"-"Final judgment."] Held, per Davies, Idington and Anglin JJ., that under the provisions of the "Alberta troverted Elections Act" the judgment the Supreme Court of the province proceedings to set aside an election to the legislature is final and no appeal lies therefrom to the Supreme Court of Canada.-Held, per Davies, Anglin and Brodeur JJ., that the judgment of the Supreme 'Court of Alberta on appeal from the decision of a judge on preliminary objections filed under the "Contrpverted Elections Act" is not a "final judgment" from which an appeal lies to the Supreme Court of Canada.-Held, per Duff J., that a proceeding under said Act to question the validity of an election not a "judicial proceeding" within the templation of section of the "Supreme Court Act" in respect which an appeal lies to the Supreme Court 7---Jurisdiction - Interim injunction -Interlocutory order.]
motion to quash an appeal from the judgment (Q.R. K.B. 411), dismissing an appeal from the judgment of the Superior Court, District Montreal, granting application by the plaintiff, respondent, for an interim injunction, counsel the appellant admitted that the judgment appealed from was not a final judgment. The appeal was, therefore, quashed with costs, for want of jurisdiction. 8-TVill-Extension of powers of executors-Universal legatee-Special legacy -Jurisdiction-Amount in controversy- Order to take accounts -Interlocutory judgment-Costs.]
judgment of the Court of King's Bench, appeal side K.B. 507), which, Archambeault and Carroll JJ. dissenting, the judgment of Charbonneau J., in the Superior Court, District of Montreal, was varied.-On a motion to quash the appeal from want of jurisdiction on the grounds:-that the judgment appealed from merely ordered that there should a taking of accounts; that there was controversy simply a sum of money which could not shewn to amount to or exthe sum being merely a dispute in regard to collection of the rents buildings by the testamentary executors (respondents)
which, at the time of the action, were less than that no title to lands or future rights could be affected, and that the judgment appealed from was interlocutory only:the hearing of the motion was ordered to stand over until the hearing of the appeal upon the merits, and, on the appeal ing on for hearing, during the following session the Supreme Court of Oanada, the motion was renewyed.-After hearing counsel behalf both parties, the court decided that it had no jurisdiction to hear the appeal and an order was made quashing the appeal with costs to taxed as if the appeal had been dis- 9-Practice-Findings trial judge.]
appeal from the judgment of the Supreme*Court of Alberta Alta. L.R.
affirming the judgment of Harvey J., at the trial, maintaining the plaintiff's action with costs, Beck J. dissenting, it was ordered that a new trial should had, all costs up to date to abide the result.
...............
10-O riminal law-Indictment for murder-Trial-Evidence-Criminal intent- Provocation-"Heat of passion"-Charge to jury-Misdirection-Reducing charge to manslaughter-Yew trial-"ubstantial wrong"
Criminal Code, ss.
1019-Questions to be reviewed on ap- 11-Action against minor - Exception of minority - Irregularity in procedure-WaIver after majority-Rati.
fication-Prejudice-Nullity-Revieto by
Bills and notes-Mortgage-Collateral security-Recovery on mortgage- New evidence-Lapse of time....... 13-Construction of statute-"Quebec Public Health Act," R.S.C.,
3913-Inspection of food-Effect of action health officers-Controlling power courts-Evidence--Injunction - TAXES-Exemption Special assessment improvement ............................
Banking
Security advances
Chose action
Priority claim Estoppel-Construction of statute-R. S. s. (e), "King's Bench R.S.C., s. "Bank Act."]
An assignment of a future chose in action, to arise out a contract, operates az an agreement hinding on the conscience and, when the subject-matter of the assignment comes into existence, creates a trust. Tailby v. The Official Receiver Cas. followed.-Where a bank, in order to secure present or future advances to customer, has taken from him an assignment vesting in it the legal title to a chose action arising out of a contract and, subsequently, receives notice of another assignment thereof for valuable consideration the customer to a third person, before moneys have been advanced upon the security held by the bank, the claim the bank for advances made after notice is postponed to that of the other incumbrancer.
Dearle v. Hall (3 Russ. 1); Hopkinson v. Rolt H.L. Cas. 514); Bradford Banking v. Briggs Cas. 29), and West Williams ( applied.-Where an assignee of a chose in action with knowledge that the same chose in action has also been assigned to another person for valuable consideration permits the other assignee to rely upon his security by acting on the faith of his assignment, without giv- Assignment-Continued.
ing him notice of the former charge, the claim of the latter is entitled to priority over that of the assignee by whose conduct has thus misled. Russell v.
Watts App. Cas. 590), and Stronge
Hawkes DeG. & applied.-Per Fitzpatrick C.J. dissenting.- The circumstances of the case do not justify the finding that there was an equitable assignment of the chose in action to the appellant and there is no sufficient evidence of notice to the bank that there was any assignment to him; consequently, the assignment to the bank, which was duly notified to the debtor, gave the claim of the bank priority in respect of the advances made it that security. Mutual Life Assurance
Langley 460)
judgment appealed from Man.
R. was reversed, Fitzpatrick C.J. dis- Quere.
quence of the provisions of section of "The King's Bench Act,' the rule in Dearle v. Hall (3
Russ. 1) governs the rights of parties under an assignment taking effect virtue the statute ?-Quere.-As to the of section "The Bank Act,"
R.S.C., on the assignment moneys not yet earned under a construction contract as security for present future advances ?-Reporter's Note.-Cf.
Deeley Lloyds Bank (
Preference
-Statute of Frauds.]-On the appeal by the plaintiff from the judgment of the
Supreme Court of the Province of berta Alta. L.R. reversing the judgment of Beck J., at the trial Alta.
L.R. 442), and dismissing the action, the
Supreme Court of Canada, after hearing counsel on behalf of both parties, reserved judgment and. on a subsequent day, the appeal was allowed and the judgment the trial judge was restored.
3-Contract - Right to assign- Contracting firm becoming incorporated company-Novation-Breach of contract - BALLOTS-Election latvoting-Municipal by-laic-8crutiny-Pow-ers of judge
Ballots-Continued.
-Inquiry into qualification of voter- Disposition of rejected ballots-"Ontario Mlunicipal Act," ss. 369 et seq.- "Voters' Lists Act," s. 24..... 451 BANKING-Insurance on lumber-Condition of policy-Security to bank-Chattel mortgage.] condition of the policy was that "if the subject of insurance personal property, and be or become encumbered a chattel mortgage" should void.-Held, per Duff J.-A curity receipt under the "Bank Act" given to a bank for advances is not a chattel mortgage within the meaning this
INs. Co.............. 2-Security for advances-Assignment -Chose in action-Moneys to arise out contract-Unearned funds-Equitable assignment to third party-Notice-Evidence-Priority of claim-Estoppel-Construction of statute-R.S.M., c. s. 39(e), "King's Bench Act"-R.S.C., s. "Bank Act."] An assignment of future chose in action, to arise out of a contract, operates as an agreement binding on the conscience and, when the subject-matter of the assignment comes into existence, creates a trust. Tailby v. The Official Receiver App. Cas. 523)
followed.-Where a bank, order to secure present or future advances to a customer, has taken from him an assignment vesting it the legal title to a chose in action arising out of a contract and, subsequently, receives notice of another assignment thereof for valuable consideration the customer to a third person, before moneys have advanced upon the security held by the bank, the claim of the bank for advances made after notice is postponed to that of the other incumbrancer.
Dearle v. Hall Russ. 1) ; Hopkinson v. Rolt (9 H.L. Gas. ; Bradford Banking Co. Briggs Cas. and West Williams (
-1here an assignee a chose in action with knowledge that the same chose in action has also been assigned to another person for valuable consideration permits the other assignee to rely upon his Banking-Continued.
security acting on the faith of his assignment, without giving him notice of the former charge, the claim of the latter is entitled to priority over that of the assignee whose conduct has been thus misled. Russell v. Watts App.
Cas. 590), and Stronge Hawkes (4
DeG. & applied.-Per Fitzpatrick C.J. dissenting. - The circumstances of the case not justify the finding that there was an equitable assignment of the chose in action to the appellant there is no sufficient evidence of notice to the bank that there was any assignment to him; consequently, the assignment to the bank, which was duly notified to the debtor, gave the claim the bank priority in respect of the advances made it on that security.
Mutual Life Assurance v. Langley (32
460) referred to.-The judgment appealed from Man. R. was re- C.J. dissenting.- Quecre.-Whether, in consequence of the provisions of section 39(e)
King's Bench Act," R.S.M., ch.
the rule in Dearle v. Hall Russ. 1)
governs the rights of parties under an assignment, taking effect by virtue the statute?-Qucere.-As to the effect section of "The Bank Act," R.S.C.,
29, on the assignment of moneys not yet carne] under a construction tract as security for present or future advances ?-Reporter's Note.-Cf. Deeley
Lloyds Bank ( 756).
BILLS NOTES-Mortgage-Collateral security-Recovery on mortgage- Neto evidence-Lapse of time-Appeal.
......................
RAILWAY COMMISSIONERS
-Joint tariff-Power to supersede-Declaratory decree-Jurisdiction.] In January, certain railway companies the United States, in connection with the appellant companies, filed through freight tariffs ("joint tariffs") with the
Canada fixing the rates of carriage for shipments of goods from the United
States into Canada. The tariffs so filed for the first time established a fixed rate for the carriage of petroleum and its
Board of Railway Commissioners-Con. products.
In October, and in May, supplementary tariffs were filed the foreign companies and concurred in the 'Canadian carriers, but they were not sanctioned the Board. These substituted for the fixed rate on petroleum variable rate made up of the sum the local rates each side the border. The respondent companies, in applied to the Canadian Board for an order declaring that the appellants had overcharged them by exacting the variable rate for carriage of petroleum, and an order was made 'by the Board declaring that the rates chargeable were thoie the "joint tariff" of January, The Canadian carriers appealed from this order to the Supreme Court Canada leave the Board on the question law whether or not this order was right and, leave of a judge, on a question of jurisdiction claiming that the Board could not make a declaratory order and grant no consequential relief, and that it could not declare in force a tariff which had ceased to exist.-Held, that sections and of the "Railway Act" authorized the Board to make an order merely declaratory.-Held, also, that the tariff January, had not ceased to exist, but was still in -force, never having superseded.-Held, per Davies and Duff JJ., that if the initiating company, or the companies jointly, had 'power to supersede a joint tariff duly filed they bad not this case taken the proper steps to that purpose.-Per Idington and Anglin JJ., that such a tariff could only superseded the action, or with the sanction, of the Board.-The order appealed from was, therefore, affirmed.
(Leave to appeal to the Privy Council was granted, 13th December,
Cos. ...... BY-LAW-Election law-Voting-Municipal by-lat-Scrutiny-Powers of judge -Inquiry into qualification of voter-Disposition of rejected ballots - Municipal Act," ss. et seq.- "Voters' Lists Act," s. 24..... CARRIERS-Railways-Carriage of passenger-Special contract-Notice to passenger of conditions-Negligence-Exemp- 668S
Carriers-Continued.
tion from liability.]
P., at Milverton,
Ont., purchased a horse for a man another town who sent R. to take charge it.
P. signed the way-bill in the form approved the Board of Railway missioners, which contained a clause providing that if the consignee or his nominee should allowed to travel at less than the regular fare to take care of the property the company should not liable for any injury to him whether caused negligence or otherwise.
R.
was not asked to sign the way-bill, though a form indorsed provided for his signature and required the agent to obtain it.
The way-bill was given to who placed it in his pocket without examining it:
On the passage he was injured negligence of the company's servants.- Held, that R. was not aware that the waybill contained conditions. - Held, also,
Fitzpatrick C.J. (dissenting)
, that the pany had not done all that was incumbent on them to bring notice of the special condition to his attention.-Judgment the Court of Appeal Ont. L.R.
reversed and that of the trial judge
Ont. L.R. restored.
RonInsoN V.
CASES-Assomption Election.
Beck V. Canadian Northern Rway.
Alta. L.R. 549) reversed and new trial ordered .....................
3-Bonanza Creek Hydraulic Concession v. The King (40 Can.
4-Bradford Banking Co. v. Briggs
Cas. applied ........
5-Brook Booker Can. S.C.R.
Bruneau Gtndreua K.B.
appeal quashed for want of jurisdiction .........................
Cases-Continucd.
7-Bucyrus Canada Foundry Ex. C.R. affirmed ......... .484 8- Campbell Fleming (1 & E. distinguished .....................
9-Canadian Fire Ins. Robinson (Cout. Dig. referred to...... 10-China Mutual Ins. v. Pickles (46 N.S. Rep. 7) affirmed.......... 11-Clarke Gooddall (44 Can. S.C.R. 12-Crown Life Ins. Skinner (44 Can. S.C.R. followed ........ 13-Cushing Knight (46 Can. dstinguished
...............
14-Davis Burt Sask. L.R. 446) Dearle Hall Russ. 1) applied ............................
Deeley v. Lloyds Bank ((1912) noted .................
17-Devine Holloway P.C. 18-Dynes v. B.C. Electric Rway. (14 B.C. Rep. 429) affirmed ........ 19-Eaton Dunn N.S. Rep. Cases-Continued.
20-Edmonton Provyincial Election;
Cross v. Carstairs West. L.R.
appeal quashed for want of jurisdiction
.....................
21-Fairbanks v. Howley P.
R. referred to ................
22- Fisher v. Jukes Man. R.
23-Fleming V. Toronto Railway
Ont. L.R. affirmed.......
24-Foss
Lumber v. The King
Ex. reversed ........
25-Fraser v. Canadian Pacific Rway.
Man. R. reversed .....
26-Gloucester Election
Halifax Election Can. S.C.R.
28-Halifax, City of, v. Nova Scotia
Car Works
N.S.
Rep.
29-Hopkinson v. Rolt
H.L. Cas.
Kalmet V. Keiser Alta. L.R.
set aside and new trial ordered. 402
31-King, The, Eberts (2 West.
W.R.
32-King's County Election
Oan.
S.C.R. referred to ............
Cases-Continued.
33-Kline Bros. v. Dominion Fire Ins. Co. Ont. L.R. 534) affirmed .........................
34- Langan Newberry B.C. Rep. 35-Larue v. Poulin
Que. P.R. L'Assomption Election 37-Layton & v. City of Montreal (Q.R. (S.C. 520; 1 D.L.R. af- 38-Masson Masson (Q.R. K.B. 1) reversed ......................
39-Mayhew Stone 'Can. S.C.R. McNutt, In re (46 N.S. Rep. 41-utual
Life Assce. v. Lang- 42-Nelles v. Hesseltine Ont. L.R. 43-Paterson Timber Canadian Pacific Lumber B.C. Rep. 44-Periard v. Bergeron D.L.R. 1 West W.R. reversed.. 45-Renton Gallagher Man. R. 478) affirmed ....................
Cases-Continued.
Riopelle City of Montreal (44
Can. S.C.R. 579) referred to .......
47-Robinson v. Grand Trunk Rway.
(27 Ont. L.R. 290; Ont. L.R.
Judgment of Court of Appeal reat trial
Stored ...........................
48-Robert Dufresne (7 Que. PR.
49- Russell v. Watts App. Cas.
590) applied ....................
50- Schwartz v.
Halifax&
South
Western Railway N.S. Rep. 20) affirmed .........................
51-Smith v. Sugarman Alta. L.R.
Stone Canadian Pacific Rway.
Co. Ont. L.R. reversed....
53---Stronge v. Hawkes (4 DeG. M. &
54-Stuart v. Rhiaume (Q.R. 20 K.
B. 411).
Appeal quashed for want of
55-Tailby
Official Receiver (13
Cas. 523) followed ..........
56-Two Mountains Election (Q.R. 42
57-West Williams (
Cases-Continued.
West Lorne Scrutiny (26 Out. L. R. affirmed ..................
59-Wood v. Canadian Pacific Rway. Co. (20 Man. R. reversed ...... MORTGAGE-Fire insurance -Insurance on lumber - Conditions - Warranty-Railway on lot-Security to bank ............................
IN ACTION-Banking-Security for advances-Assignment - Moneys to Notice-Evidence - Priority of claim- Estoppel - Manitoba "King's Bench Act"-"Bank CIVIL-Arts. 246, 250, 304, 320, 324, (Minority) .......... CIVIL PROCEDURE-Arts. (Exceptions; Minority) ..........................
COMPANY-Contract-Contracting firm becoming incorporated company-Right to assign-Novation - Breach of contract-Damages ..................
2-Marine insurance - Mutual company-Foreign corporation - Cancellation of policy-Return of unearned premium-Cancellation operation of law ........ CONDITION-Vendor and purchaser- Sale of land-Condition dependent-Deferred payment-Disclosure of title - Abstract-Refusal to complete Lapse of time-Defeasance---pecifio performance ...........................
Condition-Continued.
2-Railways-Carriage of passenger- Special contract-Notice - -Exemption from liability ........
CONFLICT LAWS
Marine insurance-Mutual company-Foreign corporation-Cancellation of policy-Return unearned premium-Cancellation by operation of law....................
CONSTITUTIONAL LAW-Sea-coast and inland fisheries - Canadian waters - Tidal waters-Navigable waters-Open sea-B.C. "Railway Belt"-Foreshores
Farce Naturce - Legislative jurisdiction
-Construction of statute--47 V.
ss.
In respect of waters within the "Railway Belt" of British
Columbia which are tidal it is not competent to the Legislature of British umbia to authorize the Government of the province to grant by way of lease, license or otherwise the exclusive right of taking fish which, as ferm nature, are the property of nobody until caught.
The public right to take such fish being subject to the exclusive control of the
Dominion Parliament it is immaterial whether the beds of tidal waters passed or did not pass to the Dominion in virtue of the transfer the "Railway
Belt."-As to waters within the "Railway Belt" which although non-tidal are in fact navigable, the Legislature of
British Columbia is likewise incompetent to make such grants. It is not competent to the Legislature of British umbia to authorize the Government of the province to grant, in the open within a marine league of the coast of that province, by way lease, license or otherwise the exclusive right of taking such fish (fare nature). In so far as concerns the authority of the Legislature of British Columbia to authorize the Government of the province to grant way lease, license or otherwise the exclusive right to take such fish, (fere naturce), in tidal waters, there is no difference between the open sea within a marine league of the coast of the province and the gulfs, bays, channels, arms of the sea and estuaries of the rivers within the province or lying between the province and the United States of Amer- Constitutional Law-Continued. ica.-Per Fitzpatrick, C.J., and Davies, Idington, Duff and Brodeur, JJ. (Anglin J.
expressing no opinion point).
The beneficial ownership of the beds of navigable non-tidal waters within the "Railway Belt" in British umbia, which were vested in the Crown, in the right of that province, at the time of the transfer of the "Railway Belt lands" to the Dominion of Canada, passed to the Dominion in virtue of the transfer.
COLUMBIA ......................
CONTRACT-Rescission--Sale of land- Misrepresentations - Affirmance.] advertised for sale his farm in Ontario, stating the contents and describing it as in first-class condition.
He also stated the number of trees, old and new, the orchard then on it.
then in British Columbia, was shewn the advertisement and, after some correspondence which reiterated the statements therein, came to Ontario and spent some time in inspecting the farm, which he finally purchased on B.'s terms and entered into possession.
Shortly after he leased the orchard for ten years, and within a day or two discovered that the farm contained over forty acres less than, and the contents of the orchard were only half of, what had been represented; also that the farm was not in the condition stated, but badly overrun with noxious weeds.
He, therefore, procured the cancellation of the lease of the orchard and brought action to have the sale rescinded.-Held, that the lease of the orchard was not, nder the circumstances, affirmance of the contract for sale which would disentitle to rescission; that it were an affirmance as to the orchard the subsequent discovery of the other misrepresentations would entitle him to a decree.
Campbell v. Fleming (1 & E.
distinguished.
.........................
2-Railways-Carriage of passenger- Special contract-Notice to passenger conditions-Negligence-Exemption from liability.]
P., at SMilverton, Ont., purchased a horse for a man in another town who sent R. to takie charge of it. P. signed the way-bill in the form approved the Board of Railway Commissioners, Contract-Continued.
which contained a clause providing that if the consignee or his nominee should allowed to travel at less than the regular fare to take care the property the company should not liable for any injury to him whether caused by negligence or otherwise.
R. was not asked to sign the wayabill though a form indorsed provided for his signature and required the agent to obtain it.
The way-bill was given to who placed it in his pocket without examining it. On the passage he was injured negligence of the company's servants.-Held, that R. was not aware that the way-bill contained conditions.-Held, also, Fitzpatrick C.J. dissenting, that the company had not done all that was incumbent on them to bring notice of the special condition to his attention.-Judgment of the *Court
Appeal Ont. L.R. reversed and that the trial judge Ont. L.R. 437)
.....................
Right to assign-Contracting firm becoming incorporated company - Novation-Breach of contract-Damages.] On appeal from a judgment of the Court
Appeal for British Columbia,
Rep. dismissing an appeal, Irving
J. dissenting, from the judgment
Clement J., at the trial, which the plaintiffs' (respondents') action for damages for breach of contract was maintained with costs and the counterclaim of the defendants (appellants) was dismissed with costs.
The appeal was diset al...........................
Vendor and purchaser land-Condition dependent payment-Disclosure of title-Abstract
-Refusal to complete-Lapse of time- Defeasance-Specific performance..
5-Fire insurance-Insurance on lumber-Conditions
Railway on lot-Security to bank-Chattel
Sale of goods - Condition as to prsces-Lost invoices-Secondary evid- Contract-Continued.
ence-Waiver insurance
Mutual pany-Foreign corporation - Cancellation of policy-Return of unearned pre- Cancellation operation CRIMINAL LAW-Indictment for murder-Trial tent-Provocation to jury-Misdirection ducing charge to manslaughter New "Substantial wrong"-Criminal Code, ss. 1019-Appeal - Questions to be reviewed.] On a trial for the murthat out their home, during the night when the deceased was killed, with the intention of committing theft; J. and his wife testithat, on returning home, E. had told them that a man, whom he supposed to a secret-police constable, had pointed a pistol at him and told him to "go to and that he had shot him. defence was rested entirely upon alibi and the accused testified on his own half stating that had been at home during the whole the night in question, but making no mention of any facts concerning the shooting.
In his charge the trial judge reviewed the evidence, in a general way, and told the jury that, upon the evidence adduced, they must either convict or acquit of the crime murder, that they could not return a verdict manslaughter, that if they believed J.'s account of what happened to substantially true they should convict of murder; and did not instruct the jury as to what, in law, constituted manslaughter nor as to circumstances which the verdict might reduced to manslaughter.
E. was convicted of murder.-Held, Duff J. dissenting, that, the evidence, the charge of the trial judge was right, and that the omission to instruct the jury in respect to manslaughter did not occasion any substantial wrong or miscarriage which could justify the setting aside of the conviction nor a direction for a new trial.-Per Fitzpatrick C.J. and Idington J.-In a Criminal Law-Continued.
criminal appeal, it is doubtful whether any question except that upon which there was a dissent in the court below could reviewed on an appeal to the
Supreme Court of 'Canada.-Per Duff J., dissenting.-In the circumstances of the case, the effect of the charge was to withdraw from the jury some evidence which ought to have been considered and which, if considered them, might have influenced them favourably towards the accused in arriving at their verdict; consequently, some substantial wrong was thereby occasioned trial and the conviction should not permitted to stand.
2-Habeas Corpus - Act," (c)-riminal charge-Prosecution under provincial Act-Application for writ-Judge's order.] By the "Supreme 'Court Act" an appeal is given from the judgment in any case of proceedings for or upon a writ arising a criminal charge.-Held, per Fitzpatrick C.J. and Davies and Anglin JJ., that a trial and conviction for keeping liquor for sale contrary to the provisions of the "Nova Scotia Temperance are proceedings on a criminal charge and no lies to the Supreme Court of Canada from the refusal of writ of habeas corpus to discharge the accused from imprisonment on such conviction.
Brodeur J.
hesitante.-By the "Liberty of the Subject Act" Nova Scotia on an application to the court or a judge for a writ of habeas corpus an order may made calling on the keeper of the gaol prison to return to the court or judge whether or not the person named detained therein with the day and cause of his detention.
On the return an order made, an application for the discharge of the prisoner was refused, and an appeal from this refusal was dismissed the full court.-Held, per
Idington and Brodeur JJ., that such order is not a proceeding for or upon a writ habeas corpus from which an appeal lies under said sec. (c.)-Per
Duff J.-That the judgment the full court was given in a case of proceedings for a writ of habeas corpus within the
Criminal Law-Continued.
meaning of and that the proceedings did not arise out of a "criminal charge" within the meaning of that provision; but that, on the merits, the appeal ought to dismissed. .........................
3-Indictment for murder - Charge to jury-Misdirection--Const ructive murder-Natural consequence act-New trial.] the trial of an indictment for murder of one Kenneth Lea it was proved that the prisoners, who had been drinking, came on the deceased's lawn and commenced to shout and sing and use profane and insulting language towards him.
He twice warned them away, and finally appeared with a loaded gun threatening to shoot. A rush was made towards the verandah where he stood, when he took hold the barrel of the gun and struck one the prisoners with the stock.
The gun was disenarged into his body and there was evidence that the prisoners then maltreated 'him and his wife. He was taken to a hospital in Halifax where died shortly after. The trial judge in charging the jury instructed them that the prisoners were doing an unlawful act in trespassing on the property of ceased and that if they were actuated malice it would murder, if not it was manslaughter, drawing their attention especially to sections 256 and (b)
of the Criminal prisoners were found guilty of murder. On appeal from the decision of the Supreme iCourt of Nova Scotia a reserved ease.-Held, that the above direction to the jury ignored the requirements of the formulated in sub-section section to which the judge should also have drawn their attention directing them to find whether or not the prisoners knew, or ought to have known, that their -acts were likely to cause death, and his failure to so left his charge open to objection and constituted misdirection for which the prisoners were entitled to a new trial.
...........................
COSTS-TVill-Extension of powers executors - Universal legatee-Special legacy - Appeal--Jurisdiction--Amount in controversy - Order to take ac- Costs-Continued.
Election Law-Continued.
counts-Interlocutory judgment
Costs
..........................
.......
Customs duty
Canadian
Tariff, items 503-506-Importation of lumber-"Sawn planks"
"Dressed on one side only"-"%ot further manufactured"-Sizing saw-Free entry.]
Under item 504 of the "Customs Tariff, the importation into Canada is permitted free of duty of lumber scribed as "planks, boards and other lumber sawn, split or cut, and dressed on one side only, but not further manufactured."-Held, reversing the-judgment appealed from Ex.
R. 53), Duff and Anglin JJ. dissenting, that sawn boards or planks which have been "dressed on one side only" by a machine which not only dresses them one side but, at the time such operation, reduces them to uniform widths, by means of another process whioh has the effect of "sizing" the lumber, have not thereby been subjected to such "further manufacture"
as would
,bring them within the exception from free entry under item 504. Foss Lum- ..............
DAMAGES-Sale of goods-Condition to prices-Lost invoices-Secondary evidence-W'aiver - .
......................
DECEIT-Sale of land - Misrepresentation-Honest belief - Pleading-Amendment-Adding new cause of action.
DEVOLUTION ESTATE-Construction of will-Substitution-Trust-Death grevd-Accretion
Apportionment in aliquot shares-Distribution of estate-Partial intestacy....
ELECTION LAW-Nomination-Irregularities-Omission of additions-Identification of candidate-Technical objections
-Receipt for deposit-Validating
-Evidence-Construction of statute - R.R.C., c. "Dominion Elections
Act"-R.S.C., 7, "Dominion Controverted Elections Act."] Per Fitzpatrick C.J. and Davies, Anglin and Brodeur JJ.-Technical objections to the form nomination papers filed with the returning officer at an election of a member the House Commons, under the provisions of the "Dominion Elections Act," R.S.C., should not permitted to defeat the manifest purpose the The omission in nomination papers to mention the residence, addition or description of the candidate pro: posed in such a manner as sufficiently to identify him constitutes a patent and subtantial failure to comply with the essential requirements section 94 the Act; on the objection in this respect taken by the only opposing candidate the duty of the returning to reject a nomination so irregularly made and to declare such opposing candidate elected acclamation.
Such rejection and declaration of election acclamation may properly made by the returning after the expiration the time limited for the nomination candidates by section the Act.- Per Fitzpatrick 'C.J., and Davies, Anglin and Brodeur JJ. (Jdington and Duff JJ. contra).-The receipt for the required deposit of $200, accompanying the nomination papers, given the returning under the provisions of section the "Dominion Elections Act," is evidence merely of the production the papers and payment the deposit and not of the validity of the nomination.- Per Idington and Duff JJ. (dissenting). receipt so given for the required deposit constitutes a legal assurance that the candidate has duly and propernominated; it cannot revoked nor the nomination papers rejected the returning after the expiration the time limited section of the Act for the nomination candidates; when that time has passed all questions touching the statutory sufficiency of the papers are concluded in far as it is within the province of the returning to deal with such mitters.-Per Duff J.
(dissenting).-Where the returning has received papers professing to nominate a proposed candidate with the consent of the candidate to such nomination and' given his receipt the required deposit pursuant to section Election Law-Continued.
of the Act, and the time limited the nomination of candidates at the election has expired, the status of such candidate becomes finally determined quoad proceedings under the control of the returning and it is then the duty of that official to grant a poll taking the votes of the electors.-Per
Duff, J. (dissenting)-In view of the limited conferred upon judges in respect to election trials unthe "Dominion Controverted Elections Act," R.S.C., 7, where the returning has exceeded his legal powers improperly returning a candidate as having been elected acelaiation the judgment should declarethat the election was not according to law.
The judgment appealed from
(Q.R.
was affirmed, Idington and
Duff JJ. (dissenting)
.
Two
........................
2-Appeal - Preliminary objection- Interlocutory motions statute-"Dominion Controverted Elections Act," R.S.C., s. 64.]
Several of the preliminary objections to a petition against the election of a member of the House of Commons Canada having remained undisposed of, on the day before the expiration of the six months limited for the commencement the trial by section of the "Dominion Controverted Elections Act," R.S.C.
the petitioner applied to a judge, by motions (a) to obtain an largement of the time for the commencement of the trial, and, (b) to have a day fixed for the hearing on such pielininary objections.
appeal from the judgment dismissing the motions-Held, that the judgment in question was not appealable
Canada under the provisions of section the "Dominion Controverted Elections Act." L'Assomption Election Case
429); King's County
Election Case
Can. S.C.R.
Gloucester Election Case Can. S.C.R.
and Halifax Election Case
3-Vote on Municipal by-law-S crytiny-Powers of judge-Inquiry into qualification of voter-Disposition of re- Election Law-Continued.
jected ballots-"Ontario Municipal Act," s. 369 et seq.-"Voters' Lists Act," s. 24.] County Court judge ing a scrutiny of the ballot papers posited in vote on a municipal by-law may go behind the voters' list and inquire if a tenant whose name is placed thereon has the residential qualification entitling him to vote. Davies and Brodeur JJ. dissenting.-The judge has no power to inquire whether rejected ballots were cast for or against the by-law. -Held, per Fitzpatrick C.J. and Duff J.-Ballots rejected on a scrutiny must deducted from the total number votes cast in favour of the by-law. Davies and Brodeur JJ. contra.-The Supreme Court affirmed the decision of the Court of Appeal Ont. L.R. re- Court Ont. L.R. which reversed the decision at the hearing Ont. L. 4-Appeal-Jurisdiction - Provincial election - "Alberta Controverted Elections Act" - Preliminary objections - "Judicial proceeding" - "Final judgment."] Held, per Davies, Idington and Anglin JJ., that under the provisions "Alberta
Controverted the judgment of the
Supreme Court the province in proceedings to set aside an election to the legislature is final and no appeal lies therefrom to the Supreme Court Canada.-Held, per Davies, Anglin and Brodeur JJ., that the judgment the Supreme Court Alberta on appeal from the decisioirof a judge on preliminary objections under the "Controverted Elections Act" is not a "final judgment" from which an appeal lies to the Supreme Court Canada.-Held, per Duff J., that a proceeding under said Act to question the validity an election is not a "judicial proceeding" within the contemplation of section (e) of the "Supreme Court Act" in respect of which an appeal lies to the Supreme Court of Can- ESTOPPEL-Banking - Security for advances
Assignment
Chose tion-Moneys to arise out of contract- Estoppel-Continued.
Unearned funds-Equitable assignment to third party-Notice - Evidence-Priority of claim-Construction of statute- Manitoba "King's Bench Act"-"Bank
EVIDENCE-Election law - Nomination
-Irregularities - Omission of additions
-Identification of candidate-Technical objections-Receipt for deposit-Validating effect-Construction of statute- R.S.C., c. "Dominion Elections
Act"-R.S.C., 7, "Dominion Controverted Elections Act."] Per Fitzpatrick
C.J., and Davies, Anglin and Brodeur JJ.
(Jdington and Duff JJ. contra).-The receipt for the required deposit of accompanying the nomination papers, given by the returning under the provisions section of the "Dominion Elections Act," is evidence merely the production the papers and payment of the deposit and not of the validity of the nomination.-Per Idington and Duff JJ.
(dissenting).-The receipt so given for the required deposit constitutes legal assurance that the candidate has duly and properly nominated; it cannot revoked nor the nomination papers rejected the returning after the expiration of the time limited section of the Act for the nomination of candidates; when that time has passed all questions touching the statutory sufficiency of the papers are concluded in so far as it is within the province of the returning to deal with such matters.-Per Duff J.
(dissenting).-Where the returning has received papers professing to nominate a proposed candidate with the consent of the candidate to such nomination and given his receipt for the required deposit pursuant to section the Act, and the time limited for the nomination of candidates at the tion has expired, the status of such candidate becomes finally determined quoad proceedings under the control of the returning and it is then the duty of that to grant a poll for taking the votes of the electors.-The judgment appealed from (Q.R.
was affirmed, Idington and Duff JJ. dissent- Evidence-Continued.
2-Sale of goods - Condition as to prices-Lost invoices - Secondary evidence-Waiver - Damages.] The defendants agreed purchase the plaintiff's stock- in-trade at a valuation to based upon an advance of per cent. on the invoice prices the goods when taken into stock. stock being taken by the parties the plaintiff was unable to produce invoices for a large portion of the goods, but insisted that their prices could be ascertained from private markings on the packages which, she alleged, represented the prices taken from the missing invoices.
Differences arose between the parties respecting the prices of these goods, but the inventory was closed with the prices, as they had been marked the packages, carried into the valuation columns.
The defendants refused to complete the purchase account failure to produce the invoices in question and the action was brought to recover damages for 'breach of the contract.-Held, reversing the judgment appealed from D.L.R. 293; 1 West. W. R.
Duff J. (dissenting)
, that the consent of the defendants to the closing of the inventory with the prices in question stated according to the information obtained from the private markings constituted satisfactory proof of the fulfilment the original agreement and, consequently, damages could recovered for breach the contract to purchase.- Per Duff J. dissenting.-There could be no contract capable of enforcement until the prices of the whole of the stock had been ascertained in the manner contemplated the agreement, and the closing of the inventory with prices supplied from the unverified statements the plaintiff did not constitute a new contract varying the condition in the agreement as to the fixing of the prices to paid.
Therefore, no action could lie to recover damages for breach the contract
3-Criminal laic-Indictment for murder-Trial-Criminal intent - Provoca- "Heat passion"
Misdirection
Reducing charge manslaughter
"Substantial wrong" - Criminal Code ss. Evidence-Continued.
1019-Appeal - Questions to reviewed ...........................
Banking-Security for advances- Assignment-Chose in action-Moneys to
Priority of claim-Estoppel-- Construction of
Manitoba
"King's Bench Act"-"Bank Act"..
5-Malicious prosecution cause-Onus of proof-Honest belief- Questions for jury .....
6-Negligence-Operation of tramway
-Passenger riding on platform-Dangerous arrangement of car .............
7-Negligence-Operation of railway- Protection of passenger
Mere conjecture ............................
Operation of railway-Condition yard-"Lay-out" of concourse-Switching
-"Workmen's
Compensation for Injuries Act," R.S.M., 178-Contributory negligence-Volenti non fit injuria- Nonsuit-New trial ...............
9-Bills and notes-Mortgage-Collateral security-Recovery on mortgage- New evidence-Lapse of time-Appeal.
......................
10-Construction of statute-"Quebec
Public Health Act," R.S.Q., art.
1913-Inspection of food-Duty of Health
-Seizure-Notice-Effect of action by health officers
Controlling power courts-Injusnotion
11-Negligence
Inspec- Evidence-Continued.
FERAE NATURE-Sea-coast and inland fisheries-Canadian waters-Tidal waters-Navigable waters-Open sea- B.C. "Railway Belt"-Foreshores-Legislative jurisdiction - FINAL
FISHERIES-Sea-coast and inland fisheries-Canadian waters-Tidal waters- Navigable woaters-Open sea-B.C. "Railway Belt"-Foreshores-Ferw nature- Legislative jurisdiction-Construction statute-47 ss. (B.C.).] In respect of waters within the "Railway Belt" of British Columbia which are tidal it is not competent to the Legislature British 'Columbia to authorize the Government of the province to grant way lease, license, or otherwise the exclusive right of taking fish which, as ferw naturw, are the property nobody until caught.
The public right to take such fish being subject to the exclusive control of the Dominion Parliament it is immaterial whether the beds of tidal waters passed or did not pass to the Dominion in virtue of the transfer of the "Railway Belt."-As to waters within the "Railway Belt" which although non-tidal are in fact navigable, the Legislature of British Columbia is likewise incompetent to make such grants.-It is not competent to the Legislature of British Columia to authorize the Government of the province to grant, in the open sea within a marine league of the coast of that province, way of lease, license or otherwise the exclusive right taking such (ferw naturw).-In so far as concerns the authority of the Legislature of British'Columbia to authorize the Government the province to grant way of lease, license or otherwise the exclusive right to take such (ferw nature), in tidal waters, there is no difference tween the open sea within a marine league of the coast of the province and the gulfs, bays, channels, arms of the sea and estuaries of the rivers within the province or lying between the province and the United States of America.-Per and Davies, Idington, Duff and Brodeur JJ. (Anglin J. express- Fisheries-Continued.
ing no opinion on the point).
The beneficial ownership the beds navigable non-tidal waters within the "Railway
Belt" in British Columbia, which were vested in the Crown, in the right of that province, at the time the transfer the "Railway Belt lands" to the Dominion Canada, passed to the Dominion virtue of the transfer.
.............
FOOD-Construction of statute-"Quebec
Public Health Act,"
-Seizure-Notice-Effect of action by health officers
Controlling power courts
Injunction
Question troversy .........................
FORESHORES-Sea-coast and inland waters
Ferx naturw-Legislative jurisdiction - - "Supreme
Act," s. 39(c)-Criminal charge-Prosecution under provincial Act-Application for writ-Judge's order ...........
HEALTH LAWS-Construction of statute
-"Quebec
Public Health Act," R.S.Q., art. 3913-Inspection of food-Duty of health officers-Quality of food-Condennation of action health officers-Controlling power of courts-Evidence-Injunction- Appeal-Jurisdiction-Question in controversy ........................
INJUNCTION-Appeal - Interim injunction-Interlocutory order.
....... ...........
....... .. ......
2- Construction of statute-"Quebec
Public Health Act"-Inspection of food- Dtty of health officers-Quality of food- Condemnation
Injunction-Contin ued.
Effect of action health officers-Controlling power of courts-Evidence-Appeat-Jurisdiction-Question in controversy ............................
INSOLVENCY-Assi gunent - Prefe -Trust-Statute of Frauds ........ INSURANCE, FIRE-Insurance on Conditions
Railway on lot-Security to bank-Chattel policy insuring against loss fire a quantity sawn lumber a specified location contained a warranty the assured "that no railway passes through the lot on which said lumber piled, or within feet."-Held, that a railway partly constructed and hauling freight through the said lot, though not authorized to run passenger cars and general business, is "railway" within the meaning the warranty.-A condition the policy was that "if the subject of insurance personal property, and or become encumbered by a chattel mortgage" it should void.-Held, per Duff J.-A security receipt under the "Bank Act" given to a 'bank for advances is not a chattel mortgage within the this
2-Removal of goods-Consent-Binder -Authority of agent.] K. Bros. & through the agents in New York the respondent company obtained insurance a stock tobacco in a certain building in Quincy, Fla., and afterwards obtained the consent of the company to its removal to another building. Later, again, they wished to return it to the original location and an insurance firm in New York was instructed to procure the necessary consent.
This firm, January 14th, prepared a "binder." a temporary document intended to license the removal until formally authorized the company, and took it to the firm which had been agents of respondents when the policy issued, but had then ceased to such, where it was initialed one their clerks his responsirbility entirely.
March 19th. the stock was destroyed in the criginal location and shortly after a Insurance, Fire-Continued.
formal consent to its removal -back was indorsed on the policy, the respondents then not knowing of the loss.
In an action to recover the insurance:-Held, affirming the judgment the Court
Appeal Ont. L.R. that the 'binder" was issued without authority; that even if the insurance firm whose clerk it was initialed had been respondents' agents, at the time, they had, under the terms of the policy, no authority to execute it and authority would not presumed in favour of the insured as might in case of an original application for a policy; and that it was not ratified the indorsement on the policy as the company could not ratify after the loss.
DomIIoN
MARINE - Mutual company-Cancellation of policy-Return unearned premium - Cancellation operation of law.]
A mutual insurance company incorporated under the laws of the State of Massachusetts issued marine policies in favour of parties in Nova
Scotia who gave notes for the premiums.
The policies provided for a return of premiums "for every thirty days of unexpired time if this policy cancelled."
Before any of the premium notes matured the policyholders were notified that the company had been put into liquidation at the instance the Insurance Commissioner, the notice stating that the legal effect was "to cancel all outstanding policies."
In an action by the receiver the company's name to enforce payment the notes:-Held, affirming the judgment appealed against N.S. Rep. 7)
that the decision the case must governed by the law Massachusetts;
that the holder of a policy in a mutual company being both insurer and insured the notes sued on were assets for distribution among the creditors; and the receiver was, therefore, entitled to recover the full amount.-Held, also, that cancellation resulting from the action the
State was not a cancellation within the meaning of the above clause providing return
................
INVOICE-Sale of goods-Condition as to
Lost
Secondary
Invoice-Continued.
dence-Waiver - JUDICIAL
JURY-Criminal law
Indictment for murder intent
Provocation
"Heat pasion" - Charge to jury-Misdirection - Reducing charge to manslaughter-New "'Substantial
Code, ss. 1019-Appeal--Questions to reviewed 2-Malicious prosecution cause-Evidence-Onus-Honest belief- Practice-Questions for jury ...... 3-Negligence-Operation of tramway -Passenger riding on platform-Dangercus arrangement of car-Evidence ... 4-Trial-Charge to jury
Misdirection-Constructive murder-Natural consequence of act-New trial ......... 5-Negligence sion
........ LEGACY-Will-Extension of powers executors
Universal legatee Special legacy - Appeal-Jurisdiction-Amount in controversy-Order to take accounts- Interlocutory judgment-Costs MAXIMS-"Volenti non fit injuria" .
.
.. ... - Sea-coast and inland -Navigable waters-Open sea-B.C. Legislation-Continued.
Fero naturw jurisdiction- Con- LIMITATIONS ACTIONS-Negligence
Prescription
Damage injury reason of construction"-Contractor-Transcontinental Railway Commissioners - "Railway Act," s.
Section the "National Transcontinental Railway Act" provides that "The
Commissioners shall have, in respect to
Eastern all the rights, powers, remedies and immunities.
conferred upon a railway company under the 'Railway Act.' "-Held, Fitzpatrick
C.J. and Idington J. dissenting, that the provision in the "Railway Act"
that "all actions or suits for indemnity for any damage or injury sustained reason of the construction or operation the railway shall be commenced within one year, etc.," applies to such an action against the Transcontinental
Commissioners, and also against a contractor for construction of any portion of the Eastern division.-Held, per Anglin
J., that it applies also to an action against a contractor for constructing a railway for a private railway company incorporated by Act of Parliament.
......................
LIQUOR LAWS-Habeas corpus-"Supreme Court Act," s. 39(c)-Criminal charge-Prosecution under provincial Act
-Application for writ-Judge's order
.......................
MALICIOUS PROSECUTION - Honest
Questions for jury.]
from the judgment of the
Court Appeal for Manitoba Man.
R. 478), ordering that the judgment for the plaintiff, appellant, entered Cameron J.. at the trial, upon the verdict the jury, should be set aside and that a nonsuit should entered, the Supreme
Court of Canada, after hearing counsel on behalf of both parties, dismissed the appeal. Idington J. dissenting. [NoTE.the 15th of May. the Judicial
Committee of the Privy Council refused leave for an appeal in formd pauperis;
Can. S.C.R. ix.]
.........................
MINORITY-Action against minor-Exception of minority-Practice-Irregularity in procedure-Waiver after majority Prejudice
Nullity Review appellate court - Arts. 246, 304, 987 C.C.-Arts. An action for damages ex delicto was instituted against a minor without impleading a tutor to assist him, and the exception of minority was set up. Proceedings taken by the plaintiff to have a tutor appointed had not been concluded when the defendant became of age and an order, which was disregarded the defendant, was then obtained requiring him to plead to the action.
a summons for his examination sur faits et articles, defendant appeared and certain objections to questions were made by counsel on his behalf. an inscription for judgment ex parte, subsequently filed, judgment was entered against him.-Held, per Idington, Duff and Brodeur JJ., that irregularities procedure in a court of first instance are matters to dealt with the judges of that court and, unless some prejudice has resulted therefrom, the discretion ercised such judges in respect thereto ought not to be disturbed by an appellate court.-Per Idington, Duff and Brodeur JJ., Fitzpatrick C.J.
and Anglin J. contra.
In the circumstances the fendant suffered no prejudice within the meaning article 174 of the Code Civil Procedure.
The exception resulting from minority is relative merely and may waived a defendant, sued during his minority without the necessary assistance required law, appearing after attaining majority and taking objections to subsequent proceedings in the action. He cannot, thereafter complain of being treated as a defendant properly cited fore the court nor a judgment ex parte entered against him therein.-Per Idington, Duff and Brodeur JJ.-Irregularity in inscription for judgment ex parte not a reason for the dismissal of an action.-Per Fitzpatrick C.J. and Anglin J., dissenting.-The fact that the defendant was a minou at the time of the institution and service of the action and that no tutor or curator was made a party to the suit for the purpose of assisting him therein constitutes an abso- Minority-Continued.
lute bar to the action which could not validated in consequence of further proceedings therein after the defendant attained the age of majority.
The action was a nullity ab initio and, consequently, the defendant suffered prejudice within the meaning art. Larue v.
Poulin Que. P.R. 157); Fairbanks v.
Howley Que. P.R. 72), and Robert v. Dufresne (7 P.R. 226) referred
MORTGAGE-Bills and notes-Collateral scurity
New evidence discovered after reference to take accounts
Appeal to Supreme Court
Lapse of time.]
The action was to recover on a covenant in a mortgage the payment of money and interest alleged to be due to the plaintiff under the mortgage which purported to secure with interest. As to the mortgage the question involved was whether or not the plaintiff could claim re-payment of paid, some time after the mortgage was executed, to retire a promissory note, made the defendant and indorsed the plaintiff, and which was in part renewal of a similar note which had been made and indorsed prior to the mort- The defence was -that the note was given for the purpose of raising funds for the use a partnership which the trial judge found existed between the plaintiff and the defendant.
fendant contended that not only was the mortgage given -to secure the note, but also that he was not personally liable to re-pay the to the plaintiff. By the plaintiff it was contended that the mortgage was given, amongst other things, to secure him against liability on the note in question.-The trial judge held that the note had been indorsed by the plaintiff for the accommodation of the defendant and that the mortgage had been given to secure the plaintiff in respect the note, and he directed a reference to the master to take accounts. This decision was affirmed by the Court of Appeal,
Perdue J. (dissenting)
.-During -the taking of accounts the defendant discovered a statutory declaration by the plaintiff to the effect, amongst other things, that the full amount of the mortgage bad advanced him to the defendant and that it had been taken for the purpose of securing the advance made and
Mortgage-Continued.
not as collateral security. In these circumstances the court appealed from, pursuance of section of the "Supreme Court Act," granted special leave for the present appeal, although it had not brought within the time prescribed by the Act. - After hearing counsel on behalf the appellant, and without calling upon counsel for the respondent for any argument, the appeal was dismissed with costs, the court not being satisfied that the judgment appealed from was so clearly wrong that it should reversed. .................
MUNICIPAL
CORPORATION - Exemption of industry from taxation-Special assessment - Local improvement.] agreement with the city of Halifax, sanctioned by an Act of the legislature, a company doing business in the city was granted, for a certain period, "a total exemption from taxation" except for water rates.-Held, reversing the judgment of the Supreme Court of Nova Scotia
N.S. Rep. 552) Fitzpatrick C.J. dissenting, that a special assessment for a proportionate part of the cost of a public sewer, claimed to be chargeable against the lands of the company was "taxation" within 'the meaning of said agreement and the company was exempt from liability -therefor. (Leave to appeal to Privy Council granted, 13th June,
HALrAx............... 2--lection law - Vote on by-law - Scrutiny-Powers of judge-Inquiry into qualification of voter-Disposition of rejected ballots-"Ontario Municipal Act," et seq.-"Voters' Lists Act," s. 24.]
A County,0ourt judge holding a scrutiny of the ballot papers posited in a vote on a municipal by-law may behind the voters' list and inquire if a tenant whose name is placed thereon has the residential qualification entitling him to vote.
Davies and Brodeur JJ. (dissenting)
.-The judge has no power to inquire whether rejected (ballots were cast for or against the by-law.-Held, per Fitzpatrick and Duff J.-Ballots rejected on a scrutiny must be deducted from the total number of votes cast favour of the by-law.
Davies and Brodeur JJ. contra.-The Supreme Court Municipal Corporation-Continued.
affirmed the decision of the Court of peal Ont. L.R. reversing the judgment of a Divisional Court Ont.
L.R.
which reversed the decision at the hearing (23 Ont. L.R. 598).
NEGLIGENCE-Railay-Prescription- Damage or injury reason of construc- Railway Commissioners-"Railway Act,"
s. 306.]
Section of the "National
Transcontinental Railway Act" provides that "The Commissioners shall have, in
Eastern all the rights, powers, remedies and immunities conferred upon a railway pany under the 'Railway Act.' "-Held,
Fitzpatrick C.J. and Idington J. (dissenting)
, that the provision in see.
the "Railway Act" that "all actions suits for indemnity for any damage injury sustained reason of the construction or operation of the railway shall commenced within one year, etc.," applies to such an action against the Transcontinental Railway Commissioners, and also against a contractor for construction of any portion the Eastern division.-Held, per Anglin J., that it applies also to an action against a contractor for constructing a railway a private railway company incorporated by Act Parliament.
......................
2-Street railway-Explosion
Defective controller-Inspection.] was riding on the end of the seat of an open street car in Toronto when an explosion occurred.
The car was still in motion when other passengers in the same seat, apparently in a panic, cried to to get and when he did not do so, endeavoured to get past him whereby he was pushed and injured.
In an action for damages it appeared that the explosion was caused a defective controller, and that the motorman at once cut the current but did not apply the brakes;
and the jury found the company negligent in using a rebuilt controller in a defective condition and not properly inspected, and the motorman negligent not applying the brakes.-Held, affirming the judgment of the Court of Appeal
Ont. L.R. 332), that the evidence justi- Negligence-Continued.
the jury in finding that the controller had not been properly inspected and that a 'proper inspection might have avoided the accident.-Held, per Idington and Brodeur JJ., Anglin and Davies JJ. contra, that the motorman was guilty negligence in not applying the brakes. 3-Operation of tramway-Passenger riding on platform-Dangerous arrangement of car-Evidence.] The action was brought by the widow of a person who lost his life in consequence of an accident which occurred while he was a passenger on one of the defendant company's tramcars.
The evidence shewed that deceased was riding on the front platform of the car which was, at the time of the accident, running at the rate of three or four miles an hour; that, approaching a switch, the car jolted and deceased was thrown the platform underneath the wheels; that the doors of the car were open and were not protected by bars or other devices to secure the protection of passengers. The jury returned a verdict in favour of the plaintiff and for damages.-This verdict was set aside on the ground that no actionable negligence on the part of the company had proved, and the action was dismissed. By the judgment appealed from B.C. Rep. 429) this judgment was reversed the ground that there was some evidence before the jury to support their finding of negligence against the company and also their finding against contributory negligence. The Supreme 'Court of Canada dismissed the appeal with costs. v. ........ 4-Operation of railway-Protection of passenger-Evidence - Mere conjecture.] On appeal from the judgment of the Supreme Court of Alberta Alta. L.R. 549), affirming the judgment of Harvey at trial, action with costs, the Supreme Court of Canada made an order that a new trial should be had, the Chief Justice and ...... 5-Operation of railway-Condition yard-"Lay-out" of concourse-Stoitching -"Workmen's
Compensation for Injuries Act," R.S.3I., c. 178-Contribu- Negligence-Continued.
tory negligence-Evidence-Volenti non fit injuria-Nonsuit-New trial
6-Operation of railway-Combustible materials on right-of-way.........
7-Shipment railway-Carriage passenger-Special contract-Notice condition-Exemption from liability 622
S-Operation of railway-Contravention of statute-Protection of employees
-Foreign car-Defective equipment.
NEW TRIAL-Criminal law-Indictment for nwrder-Trial-Evidence C-riminal intent-Provocation,--"Heat of passion"
to jury-Misdirection--Reduing charge to manslaughter-"Substantial wrong"-Criminal Code, ss.
Appeal-Questions to be reviewed.]
a trial for the murder of a police there was evidence that E. and J. had out from their home, during the night when the deceased was killed, with the intention of committing theft; J. and his 'wife testified that, on returning home,
E. had told them that a man, whom he supposed to a secret-police constable, had pointed pistol at him and told him to to hell" and that had shot him.
The defence was rested entirely upon alibi and the accused testified his own behalf stating that he had at home during the whole the night question, but making no mention of any facts concerning the shooting.
In his charge the trial judge reviewed the evidence in a general way, and told the jury that, upon the evidence adduced, they must either convict or acquit of the crime murder, that they could not return a verdict of manslaughter, that if they lieved J.'s account of what happened to substantially true they should convict of murder; and did not instruct the jury as to what, in law, constituted manslaughter nor as to circumstances which the verdict might be reduced to manslaughter. He was convicted of murder.-Held, Duff J. dissenting, that, the evidence, the charge of the trial
New Trial-Continued.
judge was right, and that the omission to instruct the jury in respect to manslaughter did not occasion any substantial wrong or miscarriage which could justify the setting aside the conviction nor a direction for a new trial.-Per Fitzpatrick C.J. and Idington J.-In a criminal appeal, it is doubtful whether any question except that upon which there was a dissent in the court below could be reviewed on an appeal to the Supreme Court of Canada.-Per Duff J. dissenting.-'-In the circumstances of the case, the effect of the charge was to withdraw from the jury some evidence which ought to have been considered 'by them and which if considered by them might have influenced them favourably towards the accused in arriving at their verdict; consequently some substantial wrong was thereby occasioned on the trial and the conviction should not be permitted to stand.
v. ...... .. 2-Criminal law-Indictment for murder-Trial-Charge to jury-Misdirection-Constructive murder-Natural consequence of act.] the trial of an indictment for murder of one Kenneth Lea it was proved that the prisoners, who had been dhinking, came on the deceased's lawn and commenced to shout and sing and use profane and insulting language towards him.
He twice warned them away, and finally appeared with a loaded gun threatening to shoot.
rush made towards the verandah, where stood. he took hold of the barrel the gun and struck one of the prisoners with the stock. The gun was diseharved into his body and there was evidence that the prisoners then maltreated him and his wife.
He was taken to a hospital in Halifax where died shortly after. The trial judge in charging the jury instructthem that the prisoners were doing an unlawful act in trespassing the property of deceased and that if they were actuated by malice it would murder, if not it was manslaughter, drawina their attention especially to section and (b) of the Criminal The prisoners were found guilty of murder. soners were found guality of murder. appeal from the decision of the Supreme Court of Nova Scotia on a reserved case: -Held, that the above direction to the [S.C.R. VOL. XLVIL, Trial-Continued.
to which the judge should also have drawn their attention directing them to find whether or not the prisoners knew, or ought to have known, that their acts were likely to cause death, and his failure to do so left his charge open to objection and constituted misdirection which the prisoners were entitled to a
PUBLIC-Action-Public
-otice-Principal and agent-Mandate
-Pleading-Practice-Yew objections appeal-Case on appeal-Notes of reasons judges-Findings of fact-Art.
C.P.Q...........................
Banking
Security for rances-Assignment-Chose in actionto arise out of contract-Unfunds-Equitable assignment to third parly-Evidence-Priority of claim
Estoppel
Construction statute
11anitoba "King's Bench Act" - "Bank
2-Action-Public officer-Notary public-Principal and agent - Mandate - Pleading-Practice- objections appeal-Case appeal-Notes of reasons judges-Findings of fact-Art.
C.P.Q...........................
Public Health Act,"
action health officers-Controlling power of courts- E ridence-In junction-A ppeal-Jurisdic- Shipment by railway-Carriage passenger- Special contract- Notice
Exemption from liability ........................
Contract-Right to assign
-Contracting firm becoming incorporated
Novation-Continued.
company-Breach of contract-Damages ........... NULLITY-Action against minor Exception of mn inority-Practice-Irregularity in procedure-Waiver after majority Prejudice
PARTITION-Construction of will-Substitution-Trust-Death of greve-Accretion-Apportionment in aliquot shares -Distribution of estate-Partial intestacy-Devolution .................
PLEADING-Action against minor-Exception.of minority-Practice--Irregularity in procedure-Taiver after majority Prejudice
Nullity Action -Public officer- Notary public-Principal and agent- .Mlandate
New objections appeal-Case on appeul-Notes of reasons judges-Findings of fact-Art. C.P.Q...............
............
Salc of land-Deceit-Alisrepresentation-Honest belief-Amendment-Adding cause of action ...........
PRACTICE-Action against minor-Exception minority-Irregularity in procedure-Waiver after miajority-Ratifica- Prejudice
Nullity appellate court-Art. C.C.-Arts. An action for damages ex delicto instituted against a minor without impleading tutor to assist and the exception of minority was set up.
Proceedings taken by the plaintiff to have a tutor appointed had not been concluded when the defendant became of age and an order, which was disregarded the defendant. was then obtained requiring him to plead to the acsummons for examination sur faits et articles, defendant appeared Practice-Continued.
certain objections questions inscription for judgment parte, quently against him.-lcld, Idington, Duff
Brodeur that irregularities
IrcdurIe in a court of first are matters to dealt with the that court prejudice resulted therefrom, discretion judges in thereto ought not disturbed appellate court.-Per Idington. Duff
JJ., Fitzpatrick C.J. Anglin J.
In the circumstances the prejudice within the of article of of 'Civil dure.
exception resulting from minority is relative merely waived a during his minority without the assistrequired law. appearing after attaining majority taking objections to in the action.
thereafter, complain of treated a defendant properly cited the court nor of judgment ex parfe against him therein.-Per
Idington, Duff Brodeur JJ.-Irregularity in inscription for judgment ex parte a for dismissal of an action.-Per Fitzpatrick C.J.
Anglin J. (dissenting)
.-The fact that the defendant minor at time of the institution of the action that tutor or curator a party to the suit for the of sisting him therein constitutes lute 'bar to action which could not validated in of further protherein after the defendant attained of majority.
The action nullity initio consequently, the defendant prejudice within of art.
Larve
Poulin P.R. ; Fairbanks
Howley P.R. Robert
Dufresne (7 P.R. 226)
...............
Appeal-Final jndgnent-Further directions - Master's report].
.an action claiming for of contract judgment given for the plaintiffs with to master to ascertain amount of fur- Practice-Con tin ther directions This judgment aflirined iby the Court master his report which, to -Chief Justice Common Pleas, varied duction of the amount Chancellor tpronounced formal judgment further directions in favour of the plaintiff for judgments of iChief Justice Chancellor two were. order, together, but not formally consolidated.
Both judgments the Court of Appeal and the sought to from judgment affirming from original judgment sustaining cision at trial, having applied without to court for extension of time to from latter Yelles Hesseltine (27 Ont. L.R. 97).-Held, Brodeur J. dissenting, that the only judgment from which would lie that affirming the judgment of Chancellor further directions; that Chancellor could not review the original judgment of the Court of Appeal nor that varying the report Court of equally unable review the from Chancellor's the Court being required statute to give the judgment that the Court of Appeal should given likewise from reviewing 3-Action--Publie officer-Notice-Notary public-Principal and agent-Mandate-Pleadings-Newo objections on appeal-Case on appeal-Notes of reasons judges-Findings of fact-Art. S8 If defendant not, in the courts Ibelow, taken exception to of of action, required article of of Civil Procedure of it doubtful whether objection urged to Court of
Holloway referred to.-Where the defendant not in an action for of in the of public function or duty. provision of article to notice of action against public has no application.-The Supreme
Court Canada ought not, ordinary rto take into consideration notes reasons for judgments in the courts below which have not livered before the settling the case the appeal: layher V. Slone Can.
S.C.R. followed.
In proper case, however. when the non-delivery such satisfactorily use as part the record the appeal: Canadian Fire Insurance
Robinson (Cout. Dig. referred to.
court refused to reverse the current findings of fact the courts below. ....
4-rimninal laic-Indictment for
(ler-Trial-E cidence-Crimuinal intent- Prorocation-Heat of passion"--Charge to jury-Ilisdirection-edwing charge to iianslaughter-Vew trial-"Substantial wrong"-Crininal Code ss.
-Appeal-Questions to be revieced. .
Action
Daniages
Rescission coiti-act- Reference-F1'inal judgment
*.....................
6- Controerted election-Preliminary objections-Interlocutory notions..
7-Appeal- Findings by trial judge
. ... .......................
......
8--Malicious prosecution - Ecidence lief-Questions for jury ...........
.393
PRESCRIPTION.
PRINCIPAL AGENT-Fire insurance-Remoral of goods-Consent-Binder-Authority of agent.]
K. Bros. & through the agents in New York the respondent company obtained insurance on stoek tobacco in a certain building Quincy. Fla. and afterwards obtained the conseit of the company to
Principal and Agent- tinued. its removal to another -building. Later, again, they wished to return it to the original location and an insurance firm New York was instructed to procure the necessarv
This firm, January 14th, -prepared a "binder," temporary document intended to license the removal until formally authorized the company. and took it to the firm which had been agents of respondents when the policy issued, but had then -eased to such, where it -was initialed one of their clerks on his own responsibility entirely.
March 19th, the stock was destroyed fire the original location and shortly after a formal consent to its removal back was indorsed the policy, the respondents then not knowing the loss. action to recover the insurance:-Held, affirming the judgment the Court of Ont. L.R. 534)
that the "binder" was issued without authority; that even if the insurance firm whose clerk it was initialed had been respondnts' agents, -at the time, they had, under the terms of the policy, no authority to execute it and authority would not he presumed in favotir of the insured as might in case of an original application for a policy; and that it was not ratified by the indorsement on the policy as the company could not ratify after the & 2-Acion-Public officer-Yotice-Yotary public-Maidate-Pleading- Praclice-Yeio objections on appeal-Case appeal-Notes of reasons judges Findings of fact-Art. PUBLIC HEALTH-Construction of statute-"Quebec Public Health Act"-R.S. art. 3913-Inspection of food- Duty of health officers-Quality of food- Condennation
Seizure-Yotice-Effect of action health officers - Controlling poirer of courts-Evidence--Injunction- .4ppeal-.Irisdiction-Question in controversy.] Per Fitzpatrick C.J.-In the Province of in order to contitute a valid seizure of movable property there must something done competent authority which has the effect disposse;sing the person proceeded against Public Kealth-Contin ued.
of the property; notice thereof must given; an inventory made and a guard-ian appointed.
Where these formalities have not 'been observed there can no valid seizure. Brook Booker Can.
S.':R. referred to.-Per Fitzpatrick
C.J. Extraordinary powers, conferred statute, authorzing interference with private property must be exercised in such a manner that the rights the owners may not disregarded.
Bonanza Greek
Hydraulic Concession v. The King
Can. S.C.R. 281), and Riopelle City
Montreal Can. 579) referred to.-Per Fitzpatrick C.J. and Davies and
Idington JJ.
The authority conferred upon -health the "Quebec Public Health Act" respecting the condemnation, seizure and disposal of as being deleterious to the public health, not final and conclusive in its effect, but it is to exercised subject to the superintending power, orders and control the Superior Court and the judges thereof.-Per Anglin and Brodeur JJ.
protection afforded by the Quebec "Public Health Act" to an executive local board health cannot invoked when the has apparently not acted under its provisions, but has condenned not as the result of his independent judgment upon its quality, but in carrying out instructions given him by municipal officials purporting to act under other statutory provisions.- In the result the finding of the trial judge that the food in question was for human consumption
(Q.R.
being supported by evidence, was not disturbed, and the effect of the judgment appealed from (1 D:L.R. was affirmed with a variation of the order making absolute the injunction against defendant interfering therewith.
&
PUBLIC OFFICER - Notary public - Principal and aget-otice of action- Where the defendant has not been sued in an action for damreason an act done in the exerof- a public function or duty the provision article as to notice action against public oicer, has application.
......................
"RAILWAY BELT"-Sea-coast and inland fisherics-Canadian waters-Tidal waters-Navigable waters-Open sea- B.C. -"Railtay Belt"-Foreshores-Ferw naturw - Legislative jurisdiction - RAILWAYS-Joint tariff-Power to supersede
In January, certain railway companies in the United States, in connection with the appellant companies, filed through freight tariffs ("joint tariffs") with the Board of Railway missioners for Canada fixing the rates carriage for shipments of goods from the United States into Canada.
The tariffs so filed for the first time estaiblished a rate for the carriage of petroleum and its products.
In October, and in May, supplementary tariffs were by the foreign companies and concurred in by the iCanadian carriers, but they were not sanctioned by the Board. These substituted for the fixed rate petroleum 'a variable rate made up of the of the local rates on each side of the border.
The respondent companies, applied to the Canadian Board an order declaring that the appellants had overcharged them exacting the varialble rate for carriage petroleum, and an order was made by the Board claring that the rates chargeable were those fixed the "joint tariff" January,
The 'Canadian carriers appealed from this order to the Supreme Court Canada 'by leave of the Board on the question law whether or not this order was right and leave of a judge question jurisdiction claiming that the Board could not make a declaratory order and grant no consequential relief, and that it could not declare in force a tariff which had ceased to exist.-Held, that sections and the "Railway Act" authorized the Board to make an order merely declaratory.- Held, also, that the tariff of January, had not ceased to exist, but was still in force, never having been superseded.-Held, per Davies and JJ., that if the initiating company, or the companies jointly. had power to supersede a joint tariff duly filed they had not in this case taken the proper steps to effect that purpose.-Per Idington and Anglin JJ., that such a tariff could Railways-Continued.
only superseded the action, or with the sanction, the Board.-The order appealed from was, therefore, affirmed.
(Leave to appeal to the Privv Council was granted,
13th
December,
Cos.. ...................
2-Statute-Construction - Operation of railway-Right-of-way
Combustible inaterials-R.S.N.S. [1900] s.
Chapter section 9, of the Revised Statutes of Nova Scotia, provides that
"when railways pass through woods the railway company shall clean from the sides of the roadway the combustible material time or otherwise.-Held. that this provision is imperative and obliges the pany at all times to keep its right-of-way so clear combustible material that it will not a source danger from fire.
Clearing it at certain periods only is not a compliance vith such provision.
-Duff
J. dissented on the ground that it was not proved that the fire this case originated the right-of-way.- Judgment appealed from (16 Rep.
SCHWARTZ.......
3-egligence-Prescription - Damage or injury reason of construc- Commissioners - "Railiway
Act," 306.]
Section of the "National Transcontinental
Railway Act"
provides that "The Commissioners shall have, in respect to the Eastern Division rights, munities conferred upon railway pany under the 'Railway Act.'"-Held,
Fitzpatrick C.J. and Idington J. (dissenting)
, that the provision in the "Railway Act" that "all actions or suits for indemnity for any damage or injury sustained reason of the construction or operation the railway shall commenced within one year.
etc.," applies to such an action against the Transcontinental Railway Commissioners, and also against contractor construction of any portion of the Eastern division.-Held, per Anglin J.. that it applies also to an action against a contractor for constructing for private railway company incor- Railways- Contin ied.
Parliament. Carriage of passenger-Special contract-Notice to passenger of conditions - Exemption from liability.]
P., at Milverton, Ont., purchased a horse for a man in another town sent R. to take charge it.
P. signed the way-bill in the form approved the Board Railway Commissioners, which contained a clause providing that if the consignee or his nominee should be allowed to travel at less than the regular fare to take care of the property the company should not liable for any injury to him whether caused by negligence or otherwise.
R. was asked to sign the way-bill though a form indorsed provided for his signature and required the agent to obtain it. The way-bill was given to who placed it in his pocket without examining it. the passage was injured negligence the company's servants.-Held, that R. was not aware that the way-bill contained conditions.-Held, also, Fitzpatrick C.J. dissenting, that the pany had not done all that was incumbent on them to 'bring notice of the special condition his attention.- Judgment the Court Appeal (27 Ont. L.R.
reversed and that the trial judge Ont. L.R. Contracention of stat ite- Protection of ployees-Foeign car-Defective equipment-R.S.C. [1906]
The provisions of section sub-section 1 of "The Railway Act" which requires every railway company "to provide and cause to used all trains modern and efficient apparatus" for coupling and uncoupling cars without the necessity going between them contravened the use foreign ear not provided with such "modern and efficient apparatus" in a train operated Canadian company, and the pany using such car is responsible any injury caused the want of such equipment.
lever for opening and closing the knuckle of the coupler which too short to operated from the side ladder with safety is not "modern and Railways-Con tinued.
efficient apparatus,"
under the above provision.-Where a brakesman car approaching another with which it was to coupled saw that the knuckle the coupler the car he was on had to opened and had only fifteen seconds in which to do it, being unable to signal the engineer to stop, took the only course open to him, which was conmon one, and was injured, be was guilty of contri'butory negligence.-Fitzpatrick C.J. dissented the ground that the plaintiff's negligence was the cause of the accident.-Judgment the Court Appeal Ont. L.R.
C.J.
............................
Operation of railway-Condition yard-"Lay-out" of concourse-Switching-"Vorkmien's Compensation for Injuries Act,"
178-Contributory negligence
1olenti non fit injuria-Non-suit
Newo trial.] At the trial, an order of nonsuit was refused the plaintiff and, thereupon, the jury were directed to a verdict the defendants, which done and judgment entered accordingly.
an appeal the plaintiff this judgment was set aside, Man. R. 92), on the ground that there was some evidwhich should have left to the jury, and a new trial was ordered. The
Supreme Cour.t of Canada allowed the appeal with costs, Idington and Duff JJ.
dissenting, and the judgment entered the trial was restored.
[NOTE.-The
Judicial Committee of the Privy Council refused leave for an appeal in form 4 pauperis, 20th March, 1912; Can.
vii.]
.....................
7-Fire insurance-Insurance on luntber-Conditions-Warranty lot-Security to bank-Chattel egligence-Operation of tram
-Passenger riding on platforn-Dangerous arrangement of car-Evidence.
...........
9-Negligence-Operation of railiway -Protection passeeger-Evidence- Mere conjecture .................
10-Negligence sion-Defective controller - .......... RIVERS STREAMS-Sea-coast and inland fisheries-Canadian waters-Tidal wvaters-Xavigable icaters-Open sea- "Railicay Belt"
Ferw naturw-Legislative jurisdiction- SALE-Sale of goods-Condition as to prices-Lost invoices - Secondary evidence-1Vaiver - Danages.] The defendants agreed to pyrclhase the plaintiff's stock-in-trade valuation to based upon an advance of per cent. on the invoice prices the goods when taken into stock. stock being taken the parties the plaintiff was unable to produce invoices for large -portion the goods, but insisted that their -prices could ascertained from private markings on the packages which, she alleged, represented the prices taken from the missing voices.
Differences arose between the parties respecting the prices of these goods, but the inventory was closed with the prices, as they had been marked the packages, carried into the valuation columns.
defendants refused to complete the purchase on account failure to produce the invoices question and the action was brought to recover damages for breach the tract.-Held, reversing the judgient appealed from D.L.R. 293; 1 West. W. R.
Duff J. dissenti that the consent of the defendants to the closing the inventory with the prices in question stated according to the information obtained from the private markings constituted satisfactory proof of the fulfilment of the original agreement and, consequently, damages could recovered for breach of the contract to purchase.-Per Duff J., dissenting.-There could contract capable [S.C.R. VOL. XLVII. Sale-Continued.
stock had been ascertained in the manner contemplated the agreement, and the closing the inventory with prices supplied from the unverified statements the plaintiff did not constitute a new contract varying the condition in the agreement as to the fixing the prices to paid.
Therefore, action could lie to recover damages for breach the contract to purchase.
2-Contract
Rescission land-Misrepresentations - Affirmance.]
advertised for sale -his farm in Ontario. stating the contents and describing it as in first-class condition.
He also stated the number trees, old and new, in the orchard then it. then
British Columbia, was shewn the advertisement and, after some correspondence in which reiterated the statements therein, came to Ontario and spent some time in inspecting the farm, which finally purchased B.'s terms and tered into possession.
Shortly -after leased the orchard for ten years, and within day or two discovered that the farm contained over forty acres less than, and the contents the orchard were only half of, what had represented; also that the farm was not the condition -stated, but badly overrun with noxious weeds.-He, therefore, procured the cancellation of the lease the orchard and brought action to have the 'sale rescinded.-Held, that the lease of the orehard was not, under the circunstances, an affirmance the tract for sale which would disentitle to rescission; that if it were an affirmance as to the orchard the subsequent discovery the other misrepresentations would entitle him to a decree. Campbell
Fleming (1 & E. distinguished.
Sale -of land-Deceit-Misrepresentation-Honest belief-Pleading - Amendment-Adding new cause of action.]
On the appeal Macf.irlane, one of the defendants, to the Supreme Court
Canada. from the judgment of the Supreme Court of Saskatchewan, Sask. L.
4462) after hearing counsel on behalf of both parties, the court reserved judgment, and, on subsequent day, the ap- Sale-Contin ued.
ldington ............. 4-endor and purchaser land-Condition dependent payment-Disclosure of title-Abstract -Refusal to complete-Lapse of time- Defeasance-Specific performance . . SCRUTINY-Election
Municipal by-latw-Powers of judge - Inquiry into qualification of voter-Disposition of rejected ballots - Municipal Act," ss. 369 et seq. "Voters' Lists Act," s. 24..... SEA-COASTS-Sea-coast and inland fisheries-Canadian waters - Tidal waters -Navigable icaters-Open sea Fers naturce - Legislative jurisdiction-Con- "Quebec Public Health Act," art. 3913-Inspection of food - Duty of health officers-Quality of food -Condemnation
Effect of action health officers-Controlling power of courts-Ecidence-Injunction
Question in controcersy............ SPECIFIC PERFORMANCE-endor and purchaser-Sale of land-Condition dependent-Deferred payment - Disclosure of title-Abstract - Refusal to complete - Lapse of time-Defeasance.] In an agreement for the sale of an interest in land. for a price payable deferred ins-talments at spetified dates, there was condition for defeasance, the option the vendor, for default punctual payments, time was of the sence of the contract. and receipt a deposit account of the price was knowledged.
Some time before the date fixed for payment of the first deferre I instalment the purchasers made requisitions for the production for inspection of the vendor's evidence title to the interests he selling and the vendor Specific Performance-Continued.
refused to comply with the requisitions.
The payment was not made on the apliointed date and the vendor declared the agreement cancelled in consequence such default. In a suit for specific perform ance, brought the purchasers:- Held, affirming the judgment appealed
B.C. Rep. that the vendor was bound, upon requisition made within a reasonable time by the purchacers, to produce for their inspection the documents under which he claimed the interests was selling the lands;
until had complied with such demand the purchasers were not obliged to make payment deferred instalments of the price and, in the circumstances, their failure to make the payment in question was not an answer to the suit for speci- Cushing v. Knight
SC.R.
distinguished.-Per
Duff, J.-In the absence of any express or implied stipulation to the contrary in an agreement respecting the sale land in British Columbia, which not held under a certificate of indefeasible title, the purchaser entitled, according to the rule introduced into that province with the general body the law
England, to the production of a solicitor's abstract of the vendor's title to the interest the land which has agreed to sell.
..
..
.
STATUTE-Election laow---Voiniat ion- Irregularities - Omission of additions- Identification of candidate - Technical objections - Receipt for deposit-Validating effect-Evidence of statute-R.S.C., "Dominion
Elections Act"-R.S.C., "Doninion Controverted Elections Act."] Per
Fitzpatrick C.J. and Davies, Anglin and
Brodeur JJ.-Technical objections to the form of nomination papers filed with the returning at an election member of the House Commons, der the provisions of the "Dominion
R.S.C., should not permitted to defeat the manifest purpose of the statute.
omission in nomination papers to mention the residence, addition or description of 'the candidate proposed in such a manner as sufficiently to identify him con-titutes a patent and substantial failure to comply with the essential requirements of section 94 the Act; on the objection in this respect taken the only opposing candidate it the duty of the returning to reject nomination irregularly made and to clare such opposing candidate elected acclamation.
Such rejection and claration of election acclamation may properly made by the returning cer after the expiration of the time linited for the nomination of candidatesrby section 'the Act.-Per Fitzpatrick and Davies, Anglin and Brodeur JJ.
(Idington and Duff JJ. contra). The receipt for the required deposit accompanying nomination papers, given the returning under the provisions of section of the "Dominion Elections Act," is evidence merely the production of the papers and payment of 'the deposit and not the validity of the nomination.-Per Idington and Duff JJ. (dissenting). receipt so given for the required posit constitutes a legal assurance candidate has duly properly nominated;
it cannot revoked nor the nomination papers rejected the returning after the expiration of the time limited tion of the Act *for the nomination candidates; when that time has passed all questions touching the statutory sufficiency of the papers are concluded so far as it is within the province of the returning to deal with such natters.-Per Duff J.
Where the returning has received papers professing to nominate a proposed candidate with the consent of the candidate to such nomination and given his receipt for the .required deposit pursuant to section of the Act, and the. time limited for the nomination of candidates at the election has expired, the status such candidate becomes finally determined quoad -proceedings under the control of the returning and it is then the duty of that official to grant poll for taking the votes the electors.-Per
Duff
J.
(dissenting).-In view the limited jurisdiction conferred upon judges in respect to election trials under the "Dominion Controverted R.S.C., where the returning has exceeded Statutc-Con tin ued.
his legal powers improperly returning a candidate as having been elected acclamation the judgment should clare that the election was not according to law.-The judgment appealed from was affirmed, Idington and Duff JJ. dissenting. Two Mous- .................
Election laiw-Appeal - Preliminary objections-Interlocutory motions- Construction of statyte-"Dominion Controverted Elections Act," R.S.C.,
7, s.
Several the preliminary jections to a petition against the tion member of the House of mons Canada having remained undisposed of, on the day before the piration of the six months limited for the commencement the trial by tion of the "Dominion Controverted
Elections Act," R.S.C., 7, the petitioner applied to a judge, motions
(a) to obtain an enlargement the time for the commencement the trial, and
(b) to have a day fixed for the hearing on such preliminary objections.
appeal from the judgment dismissing the motions:-Held, that the judgment question was not appealable to the Supreme Court Canada under the provisions of section of the "Dominion
Controverted Elections Act." L'Assomption Election Case Can. S.C.R.
King's County Election Case
S.CR. ; Gloucester Election Case
Can. S.C.R. 204), and Halifax Election Case Can. S.C.R. referred
Habeas corpus - "Suprene Court
Act," s. (c)-Criminal harge-Prosecution under provincial Act-Application for writ-Judge's order.] By of the "Supreme Court Act" an appeal is given from the judgment any case of proceedings for or upon a writ habeas corpus arising out of a criminal charge.-Held, per
Fitzpatrick C.J. and Davies and Anglin that a trial and conviction keeping liquor for sale contrary to the provisions of the "Nova Scotia Temperance Act" are proceedings a criminal charge and no appeal lies to the Supreme Court Canada from the refusal of a writ of habeas corpus to discharge the accused from imprisonment on such conviction.
Brodeur J. hesitante.-By the "Liberty of the Subject Act" of Nova Scotia on an application to the court or a judge for a writ of habeas corpus an order may made calling on the keeper of the gaol or prison to return to the court or judge whether or not the person named is detained therein with the day and cause of his detention.
the return of an order so made, -an application for the discharge of the prisoner was refused, and an appeal from this refusal was dismissed the full court.-Held, per Idington and Brodeur JJ., that such order is not proceeding for or upon writ of habeas corpus from which an appeal lies under said (c).--Per Duff J. the judgment of the full court was given in a case of proceedings for a writ habeas corpus within the meaning and that the proceedings did not arise out of a "criminal charge" within the meaning of that provision; but that, on the merits, the appeal ought to dismissed.
4-Construction of statute- "Quebec Public Health Act"-R.S.Q., art. -Seizure-Notice - Effect of action health officers-Controlling courts-Evidence - Injunction-Appeal Question in controversy.]
Per Fitzpatrick C.J.-In the Province of Quebec, in order to constitute a valid seizure moveable property there must something done competent authority which has the dispossessing the person proceeded against of the property; notice thereof must given; an inventory made and a guardian appointed.
Where these formalities have not been observed there can no valid seizure. Brook Booker Can. S.C.R.
referred to.-Per Fitzpatrick C.J.
Extraordinary powers, conferred by statute, authorizing interference with private property must exercised in such a manner that the rights of the owners may not disregarded. Bonanza Creek Hydraulic Concession v. The King (40 Can. S.C.R. 281), and Riopelle City of Montreal (44 Can.
referred to.-Per
Fitzpatrick C.J. and Davies and Idington JJ. The authority conferred upon health the "Quebec
Public
Health Act" respecting the condemnation, seizure and disposal of food, as ing deleterious to the public health, is not final and conclusive in its effect, but it is to exercised subject to the superintending power, orders and control the Superior Court and the judges thereof.-Per Anglin and Brodeur JJ. The protection afforded the Quebec "Public Health Act" to an executive of local board health cannot -be invoked when the has apparently not acted under its provisions, but has condemned not as the result of his own independent judgment upon its quality, but in carrying out instructions given him municipal officials purporting to act under other statutory provisions.-In the result the finding the trial judge that the food in question was fit for human consumption
520), being supported evidence, was not disturbed, and the effect the judgment appealed from D.L.R. was affirmed with a variation of the order making absolute the injunction against the defendant interfering therewith.
v. CO.................
tion of railway-Right-of-way
Combustible naterials-R.S.N.S. [1900]
s.
Ohapter section the
Revised Statutes Nova Scotia, provides
"when railways pass through woods the railway company shall clean from the sides of the roadway the combustible material careful burning at safe time or otherwise.-Hfeld, that this provision is imperative and obliges the company at times to keep its right-of-way so clear of combustible material that it will not a source danger from fire.
Clearing it at certain iperiods only is not a pliance with such provision.-Duff
J.
dissented on the ground that it was not proved that the fire in this case originated the right-of-way.-Judgment appealed from N.S. Rep. affirmed.
....
..-.-....- ... .
Prescripor injury reason Transcontinental Railway Comissioners-"Railway Act," s. 306.]
Section of the "National
Act" provides that "The Conunissioners shall have, in respect to the Eastern Diall rights, remedies and immunities conferred upon a railiway company under the 'Railway Act.' "-Held, Fitzpatrick C.J. and Idington J. dissenting, that the provision in of the "Railway Act" that "all actions or suits for indemnity any damage or injury sustained reason of the construction or operation the railway shall commenced within year, etc.," applies to such an action against the Transcontinental Commissioners, and also against tractor for construction any portion the Eastern division.-Held, per Anglin J., that it applies also to an action against a contractor for constructing a railway for private railway company incorporated by Act of Parliament. .....................
Contravention of statute-Protection Foreign car
The provisions of section 264, sub-section 1 of the "Railway Act" which require every railway pany "to provide and cause to used on all trains modern and efficient apparatus" for coupling and uncoupling cars without the necessity of going tween them is contravened the use of a foreign car not provided with such "modern and efficient apparatus" in a train operated a Canadian company, and the company using such car is responsible for any injury caused the want of such equipment.
lever opening and closing the knuckle the coupler which is too short to operated from the side ladder with saifetv is not "modern and eflicient apparatus" under the above provision.-Where a brakesman on car approaching another with which it was to coupled saw that the knuckle of the coupler of the car was on had to opened and had only fifteen seconds in which to do it, being unable to signal the engineer to stop, took the only course open to him, which was a mon he guilty of contributory negligence.-Fitz- ,patrick dissented the ground that the plaintiff's negligence was the sole cause of the accident.-Judgment of the Court Appeal
Out. L.R.
reversed, Fitzpatrick C.J. dissent- S-Criminal late-Indictment for murder-Trial tent-Provocation to jury-Misdirection ducing charge to mnslaughiter-Now trial-"Substantial wrong" - Code ss. 1019-Appeal - Questions to reviewed....................
9-Construction of statute-"Railway
Act," R.S.C., ss.
Joint freight tariff-Porcer to supersede
10-Banking
Security for advances
Assignment action
Moneys to arise out of contract-Unearned funds-Equitable assignment to third party-Notice - Evidence-Priority of claim-Estoppel-Construction statute-Manitoba "King's Bench Act"
Sec
11S-ea-coast and inland fisheries - Canadian wcaters-Tidal ivaters-Naviguble iwaters-Open sea-B.C. "Railway
Belt"-Foreshores-Ferw naturw-Legislative jurisdiction-Construction of statute .............................
- Assignment - Preference
STATUTES-R.S.C.,
(Dominion elections) ....................
2-R.R.C., e. 7 (Controverted
R.S.C., 7, s. (Controverted elections) .................
7--H.S.C., (Railway Act)
.......................
R.S.C., ss. (Criminal Code) .................
11-R.S.C., ss 259(b), (Criminal Code) .................
Edic.
s. (National
Transcontinental Railray (Ont.) Edit. TI., ss. et seq. (Municipal Act) .......... (Ont.) 7 Edit. TH.. s. (Voters' Lists) ..................
(Public health)
........................
R.S.N.S., s. (Roilways)
......... 17- .S.N.S., 1900, e. (Liberty of the Subject Act)................. Statutes-Continued.
18-R.S.3I.,
40, s.
(King's Bench Act) ..............
10--R.S.M., (IWorkmen's
Compensation Act) ..............
20-(B.C.) (Railway Belt Lands) ................
21-(AIta.) 7 Edw. VII., (Controverted elections) .................
SUBSTITUTION-Construction of will- Death greyb-Accretion
Apportionment in aliguot shares-Distribution of estate-Partial intestacy - Devolution.] By his devised his estate to trustees charging them with its administration in a manner intended to secure the joyment of the revenues his surviving children and their descendants vided for the division his estate into as many equal parts as he should leave parts ou portions biens representer biens imobiliers et immotbiliers dont chacun mes dits fants aura seuleient la revenus sa vie durante, ainsi que ci-apris pourvu, et pour les revenus de chacune parts ou portions Ines biens tre reversibles apros de chacun dits enfants aux enfants nes
16gitiies imariages d'eux, dits fants, re-spectiveient, et substitu6 descendants en descendants, et dflninent, on autant que permis par la observant que veux et tends que lors chaque succession transmission mes biens il soit fait partage, autant que possible, entre chacun de ines descendants manibre a pouvoir connaitre et distinguer la part on des biens dont chacun d'eux aura les revenus sa vie durante."-At the time his death, in eight his children survived the testator and his estate was, accordingly, apportioned so far as then possible. the residue, not then conveniently divisible, being held in suspense as a niath share to be subseqiently
Substitution-Continued.
became possible to so.
the eight shares, that attributable to L. one to the time his in intestate as to the share in question and without issue.-Held, Brodeur J. dissenting-That, as the will did not give the children and grandchildren of the substitution created by its provisions.-Held, also, Davies and Brodeur JJ. dissenting.- That, death of L. without issue, the share allotted to him remained vested in the trustees subject to distriaiong testator and their descendants in the same if -1. had pre-deceased the testator and the estate had been originally apportioned into seven instead of into eight parts.-Per Davies J.-As there was pIrovision in the will in respect to children dying -without issue, and as there was collateral substitution, there was intestacy resulting, on the death L. AT.
without issue, in regard to the share allotted to him; consequently, it remained vested in the trustees for the -benefit of and to distributed amongst the heirs the testator living at that date. -Per Brodeur J. (dissenting).-The will had the effect creating a direct and collateral substitution.
At the death of brothers and sisters became substitutes and their descendants are appel6s.-Judgment appealed
R. K.B. 1) reversed. Customs duty
Canadian Tariff, items 503-506-Importation lumber-"Saon planks"-"Dressed one side only"-"Not further manufactured"-Sizing saw-Free entry.] Under item 504 the ".Custons Tariff, the importation into Canada permitted free of duty of lumber scribed as "planks, boards and other lumsplit or but further ianufactured."-Held, reversing the judgment appealed from
Ex. 53), Duff and Anglin JJ. dissenting, that sawn boards or planks which have [S.C.R. VOL. XLVII. Tariff-Continued.
but, at the time of such operation, reduces them to uniform widths, by means another sawing process which has the effect of "sizing" the lumber, have not thereby been subjected to such "further manufacture" as would bring them within the exception from free entry under item
Foss
Construction of statute-"Railway
Act," R.S.C., ss.
Joint freight tariff-Power to supersede
TAXATION.
TITLE LAND-Vendor and purchaser of land-Gondition dependent- Deferred payment-Disclosure of title- Abstract - Refusal to complete-Lapse of time-Defeasance
Speciftc performance.] In an agreement for the sale of an interest in land, for a price payable instalments at specified dates, there was a condition for defeasance, at the option the vendor, for fault in punctual payments, time was the essence the contract, and receipt deposit on account of the price was acknowledged.
Some time before the date fixed for payment of the first ferred instalment the purchasers made requisitions for the production for inspection of the vendor's evidence of title to the interests was selling and the vendor refused to comply with the requisitions.
The payment was not made the appointed date and the vendor clared the agreement cancelled in consequence of such default. In a suit for speciperformance, brought the purchasers:-Held, affirming the judgment appealed from B.C. Rep. that the vendor was bound, upon requisition made within reasonable time the purchasers, to produce for their inspection the documents under which he claimed the interests he was selling in the lands; until he had complied with such demand the purchasers were not obliged to make payment of deferred instalments of the price and, in the circumstances, their failure to make the payment in question
Title to Land-Continued.
Cushing Knight distinguished.-Por Duff J.-In the absence of any express or implied stipulation to the contrary an agreement respecting the sale of land in British Colunvbia, which is not held under certificate of indefeasible title, the purchaser entitled, according to the rule introduced into that province with the general body of the law England, to the production of a solicitor's abstract of the vendor's title to the interest in the land which he has agreed to sell. ...... TRADE-MARK - Geographical name - Right to register-Interference.] A manufacturing company in the United States adopted the word "Bucyrus," the name a town in Ohio. as a trade name to signate their goods, but did not register it as a trade-mark nor protect their msnufactures patent.
They sold their goods in the United States and Canada for many years, and they became wellknown as "Bucrus" manfactures.- Held, affirming the judgment of the Exohequer Court Ex. C.R. 35), that the company was entitled to register the word "Bucyrus" in Canada as trademark for use in connection with such manufactures.-A Canadian company some years manufactured sold "Bucyrus" goods as agent for the makers thereof and built up a good business the same in Canada.
When their agency terminated they sold similar goods their own manufacture under the name of "Canadian Bucyrus," which they registered as their tride-mark for such goods.-Held, afrming the judgment low, that such trade-mark should punged the register.
. ...... Street railscay
Explosion was riding on the end the seat an open street car in Toronto when an exploion occurred. car was still in motion when other passengers in the same seit, apparently a panic, cried to to get and when he did not do so. endeavoured to get past him whereby be was pushed and jured.
In an action for damages it appeared that the explosion was caused Tramways-Continued.
defective controller that the at cut the current
,but did not apply the brakes, and the ing rebuilt controller in a defective condition not properly inspected, and the motorman negligent not applying the brakes.-Ield, affirming the judgment of the 'Court Appeal Ont. L.
332). that the evidence justified the jury finding that the controller had not properlY inspected and that a proper inspection might have avoided the accident.-Held, per Idington and Brodeur Anglin and Davies JJ. contra, that the motorinan was guilty of negliin applying the brakes.
........
Tegligence - Opei ation of tramiray riding platformcar-Evid- TRUST-Construction cill-Substitution-Death of grevd - Accretion-Partition - Apportionient in aliquot
-Distribution estate-Partial intest- - Decolution.................
Banking-Security for
Assigninent funds-Notice- Priority ........................
3-Assignment ence - Statute of frauds.......... 392
PURCHASER land-Condition paynent - Disclosure of title-Abstract
-Refusal complete-Lapse of time- Defeasance-Specific an agreement for the sale an interest in land, for price payable by deferred instalments at specified dates, there was condition for defeasance. at the option of the vendor, for default in punctual payments, time was the essence the contract, and receipt deposit account the price was acknowledged.
time before the date fixed payment of the first deferred instalment
Vendor and Purchaser-Continued. the purchasers made requisitions for the production for inspection the vendor's evidence title to the interests was selling and the vendor refused to comply with the requisition..
The payment was not made on the appointed date and the vendor declared the agreement cancelled in consequence such default. In a suit for specific performance, brought the purchasers.-Held, aflirming the judgmeat appealed from Rep. that the vendor was bound, upon requisition made within reasonable time the purchasers, to produce for their inspection the documents under which claimed the interests he was selling the lands; until had complied with such demand the purchasers were not liged to make payment deferred instalments of the price and, in the circumstances, their failure to make the payment in question was not an answer to the suit for specific
Cushing v. Knight S.C.R. distinguished.-Per Duff J.-In the absence of any express or implied stipulation to the contrary in an agreement respecting the sale land in British umbia, which is not held under a certificate of indefeasible title, the purchaser entitled, according to the rule introduced into that province with the general body the law of England, to the oroduction of a solicitor's abstract of the vendor's title to the interest in the land which he has agreed to sell.
LISTS-Election law-Voting -Municipal by-lao-Scrutiny - Powers of judge-Inquiry into qualification voter - Disposition of rejected ballots Municipal Act," se.-"Voters' Lists Act," ........... WAIVER-Action against minor-Exception of minority-Practice - Irregularity in procedure-Waiver after majority
Prejudice-YAllity -Review
2-Sale of - Condition prices - Lost invoices - Waiver-Coii tinned.
dence - Breach of contract-Damages
. . .. .. .. .. .. .. .. .. . . .. .. . . .....
..
WARRANTY-Fire insuirance - Insur-Coiditionslot.]
policy insuring against loss a quantity sawn lumber in a specified location contained warranty the assured "that no railway passe. through lot which said lumber is piled, or within feet."
-Held, that railway partly constructand hauling freight through the said lot, though not authorized to run passenger cars and do general business, is a within the meaning of the
INs. Co.....................
WATERCOURSES-Sea-coast and inland
-avigable waters-Open sea
"Railiway Belt" - Foreshores
Ferau natura-Legislatire jurisdiction
Constructioi of statute ..............
WAY-BILL-Shipment railway-Carriage of passeiger-Special contract - Notice of coiidition-egligence-Exemiption froin liability ................
WILL-Construction of wvill-Substitu- Death
Apportionmen aliquiot shares-Distribution of estate- Partial intesta cy-Devolution.]
his will, in 31. devised his estate to trustees charging fhem with its adininistration in manner intended to secure the enjoyment of 'the revenues his surviving children and their descendants long as the would permit; he provided for the division cf his estate into many equal parts as should leave children him surviving: "pour chacune parts on portions mes biens representer les biens mobiliers et immobiliers dont chacun mes dits enfants aura saulement la moiti6 des revenus vie durante, ainsi que ci-nprhs pourvu, et pour les revenus de chacune parts portions biens rtre rrversibles apr6s d6es chacun
Will-Continiied.
mes dits enfant, aux enfants dits descendants en descendants. et dcfiniteinent, autant permis par observant que je veux et entends que lors chaque succession transmission mes biens en soit fait partage, autant possible. entre mes t pouvoir connaltre et distinguer la part portion biens dont chacun d'eux aura les revenus sa vie durante."-At the time his death, in eight his children survived the testator and his estate was, accordingly, apportioned far then possible, the residue, not then convenientlv divisible. being held in suspense as a ninth share to subsequently possible to do the eight shares, that attributable to L. one of the children, was enjoyed by him up to the time of his death, intestate to the share in question and without issue.-Held, Brodeur,
J.
That, as the will did not give the children and grandchildren of the testator any rights as proprietors in his estate, there was no substitution created its provisions.-Held. also, Davies and Brodeur JJ. dissenting:-That, the death of 31. without issue, the share allotted to remained vested in the trustees sutbject to distribution among the children of the testator and their descendants in the same manner and upon the same conditions as if L. had pre-deceased the testator and the estate had been originally apportioned into seven instead of into eight parts.-Per Davies J.-As there was no provision in the will in repect to children dying without issue, and as there was no collateral substitution, there was intestacy resulting, on the death of L. M1. without issue, in regard to the share allotted to him; consequently, it remained vested in the trustees for the benefit and to distributed amongst the heirs of the testator living at that date.-Per Brodeur J. dissenting).-The will had the effect of creating direct and collateral substitution. At the death of L. If. his brothers and sisters became substitutes and their cendants are appelds.-Judgment appealfrom 20 K.B. 1) reversed. Will-Continued.
2-Vill-Extension of powers of executors-Universal legatee-Special legacy-Appeal
Jurisdiction-Amount in controversy
Order to take accounts- Interlocutory judgment - Costs... 400
PHRASES.
1reason of construction".
"Criminal charge" ..........
3-'Dressed on one side only". . . .
4-"Encumbered a chattel mort- "Final judgment" .. .. 230,
7- "Judicial proceeding" ........
Werds and Phrases-Continued. S-"Modern and efficient apparatus" ..................................
"Not further manufactured". . "Raicay" .................
"Sezure" ..................
"Sizing" ...................
"Sawn planks" . .............
"Substantial wrong " ........ "Taxation" .................
"That no railway passes through the lot" .........................
"Total exemption from taxation" .. ................
............
..
Statutes and regulations cited
-
- ss. 1019
- sections 256
- section 94
- s. 64
- s. 264
- section 264
-
Unresolved citations
- s. 264
- ss. 1(c)
- section 264
- sections 1(c)
- section 5
- sections 264
- 317
- sections 2
- 3
- section 6
- section 7
- section 317
- section 386
- section 1