Majority
CONTROVERTED ELECTION FOR THE ELECTORAL DIsRIoT OF RICHELIEU.
*Oct. 14. *Nov. 10. FRANCOIS X.
APPELLANT; PIERRE J.
ENT...............................
N T ON APPEAL FROM THE DECISION OF BRUNEAU J. Per Duff and Brodeur JJ.-Even if such rule were still in force, *PBESEXT:-Sir Charles Fitzpatrick C.J. and Davies, Idington, Duff, Anglin and Brodeur JJ.
failure on the part of the returning to comply with would not be sufficient ground for the dismissal of the election iiR petition.
Per Davies, Duff, and Anglin JJ.-Under the provisions of the "Dominion Controverted Elections Act," R.S.C., ch. sees. and 20, preliminary objections are required to be decided a summary manner; consequently, a decision by an election court judge on any of the preliminary objections disposes of all the issues raised in that stage of the proceedings. Where an election petition is disposed of the judge upon one of several objections, without consideration of the others, the Supreme Court of Canada has jurisdiction to hear and determine questions arising upon all the preliminary objections in issue before the election court judge; its jurisdiction is not confined to the objection upon which the judgment appealed from was solely based. Idington J. contra. Fitzpatrick C.J. and Brodeur J. expressing no opinion. APPEAL from the judgment of Mr. Justice Bruneau, in the Controverted Elections Court, in the matter of the controverted election of a member for the Electoral District of Richelieu in the House of Commons of Canada, rendered op the 2nd of June, 1913, maintaining one of several preliminary objections to the election petition and, on that ground alone, dismissing the petition with costs.
The circumstances of the case are stated in the judgments now reported.
The judgment of Mr. Justice Bruneau, from which the appeal was taken, is as follows:- "La cour, aprbs avoir entendu les t6moins et les avocats des parties, sur les objections pr6liminaires, lors de leur instruction et audition, aux sept moyens suivants:-- "1. L'affidavit qui accompagne la p6tition d'6lection est irr6gulier, parce que le protonotaire de cette cour qui Fa revu ne 'a pas sign( du-nom que lui donne sa -commissign;
"2. Les conclusions de la p6tition sont 6galement irr6gulibres, parce quelles demandent des choses 6trang~res an v6ritable litige entre les parties, et notamment, la dbqualification de personnes qui ne sont pas en cause;
"3. Les all6gations, de la petition ne sont pas conformes ]a 3ibme Rgle de Pratique des elections contestses qui exige que chaque paragraphe ne contienne qu'un seul chef d'accusation;
"4. Les dites allegations sont (galement trop vagues;
"5. La publication de la dite p6tition est ill~gale et nulle, parce qu'elle est incomplete et insuffisante; "6. Le ptitionnaire n'a pas tabli sa qualit6i d'6lecteur, parce qu'il n'a pas prouv6 qu'il 6tait sujet britannique;
"7. La Preuve en incombait au p6titionnaire qui all~gue sp(cialement qu'il 6tait habile. voter a la dite 6lection;
Vu Particle 85 du ch. 7 des Statuts Revis6s du Canada, 1906;
"Consid~rant que la 7ibme Rgle de Pratique de cette cour relative aux elections contest6es, decrte:- "The returning officer shall publish any petition sent to him under section 8 of the Act, and also any other document sent to him for publication, in accordance with the provisions of the Act, or of these rules, by delivering a copy of such petition or document to the registrar of the registry office in such electoral division, and if there be more than one such registry office in such electoral division, then to each such registrar, and if there he no such registry office within such electoral division, to the municipal secretarytreasurer having his office in the said electoral division, nearest to the place where the said election was held. And if there be no such registrar or secretarytreasurer in the said electoral division then to some other public officer in the said electoral division, to be selected by the said returning officer, and by causing without delay a succinct notice of such publication to be given in one number of the Quebec Official Gazette, and also in two numbers of a newspaper in the English language and two numbers of a newspaper in the French language, published in or circulating in such electoral division, if such papers there be, and it shall be the duty of each, such registrar, secretary-treasurer or other public officer, to allow all persons to take communication of any such petition or other document without exacting any fee therefor, and any such document sent to the sheriff for publication shall be published in the same manner.
"Consid6rant que la dite Rgle de Pratique n'a jaimais 6t6 r6voquCe par les juges de cette cour, qu'elle n'est pas incompatible avec I'article 16 du ch. 7 des Statuts R6vis6s du Canada, dont elle n'est qu'un compl6ment ou ajout6; qu'elle est absolument conforme A l'6conomie des r~gles 6tablies par le Code de Proc& dure de cette province, exigeant la publication dana deux journaux publi6s l'un en .frangais lautre en anglais, afin que ces avis parviennent plus stfrement aux deux 616ments qui constituent la population; "Considrant que la dite Rgle de Pratique a t6 constamment suivie dans cette province et sp6cialement dans ce district judiciaire, ce que le p6titionnaire lui-mme reconnalt par les qu'il a donn6s; "Consid6rant que pour se conformer en effet aux exigences des dispositions de la r~gle pr6cit6, Pofflicier rapporteur & la dite election, Elie Aurez Laperriore, a donn6 deux avis en frangais dans le journal 'Le Sorelois' et deux en anglais dans le journal The Sorel News;
"Consid6rant que le dit officier rapporteur admet qu'il n'a donn6 aucun avis dans la Gazette Officielle de Qubbee;
"Considtrant que le d~fendeur pr6tend, de plus, que la publication The Sorel ieies, n'est pas et ne pent tre le journal (newspaper) contempl6 par la suadite Rgle de Pratique.
"Consid6rant que la preuve, A ce sujet, dbmontre que ce pr6tendu journal n'est tir6 qu'd 20 on 25 exemplaires, qu'il n'a aucun abonn4, aucune circulation dans le public, vu qu'il n'est pas mis en vente, que les matibres en sont toujours les memes, ce qui appert A la face m~me des exemplaires produits, qu'on y change que la date de sa publication et les annonges judiciaires pour lesquelles il est sp6cialement imprimO, qu'il n'est donn6 qu'aux annonceurs qui en font la demande;
"Consid6rant qu'une semblable publication n'est pas et ne pent 6tre, au point de vue juridique, aux termes mmes de la H gle de Pratique ci-dessus cithe, le journal (newspaper) dans lequel l'avis en question doit 6tre publibe puisqu'il lui manque le caractre essentiel de circulation dans le public; (Stroud Jud. Dict.: vo. 'Newspaper,' art. 2, par. 26; ch. 146, S.R.C., 1906, Code Criminel);
"Consid6rant qu'une semblable publication ne pent non plus 6tre consid(rbe, pour le m~me motif, comme un journal purement judiciaire (legal newspaper) ; "Consid~rant que la publication de la dite ptition d'6lection n'a pas t6, en cons6quence, donn6e, ni dans un journal anglais, ni dans la Gazette Officielle de Qubbec;
"Considbrant que la Rgle de Pratique impose h 1'officier rapporteur, dans la publication de la dite p6tition d'blection un devoir imp6ratif et non discr6tionnaire, dans Flint6r~t de tous les 6lecteurs, et que le d6faut d'accomplissement des formalitbs qu'elle prescrit it cet 6gard, entraine n6cessairement la nullitk de la dite p6tition d'6lection;
"Consid~rant que le cinqui~me moyen ci-dessus invoqu6 par le d6fendeur, comme objection pr61iminaire, 6tant bien fond6, tant en fait qu'en droit, et suffisant par lui-m~me pour faire rejeter la p6tition d'6lection en cette cause, il est dis lors inutile pour cette cour, d'examiner et de decider les autres pr6tentions du dit d6fendeur;
"Consid6rant, n6anmoins, que le d6fendeur a tentk vainement de prouveur que le d6pot de $1,000 fait avec la pr6sente p6tition, avait 6t6 obtenu ill6galement, A raison de promesses et de faveurs faites h ceux qui en ont souscrit le montant, par le procureur du p6titionnaire, et qu'il y a lieu de lui faire supporter entiorement le coftt de I'enqute inutile h ce sujet;
"Pour ces motifs :-Renvoie la dite p6tition d'6lection avec frais et d6pens contre le p6titionnaire, moins ceux de la taxe et du cofit des d6positions des t6moins suivants du d6fendeur et qui demeurent entirement a sa charge, savoir:
E. A. D. Morgan for the appellant.
Belcourt K.O. for the respondent.
THE am of opinion that this appeal must be allowed. Notice of the petition was inserted in a newspaper and published in the electoral district in accordance with the provisions of section 16 of the "Controverted Elections Act" (R.S.C., 1906. ch. 7), and that is all that was required. The rule of practice relied upon by the judge below, competently made, it is quite true, by the judges of the Superior Court in Quebec under the "Controverted Elections Act, 1874," is no longer in force.
J.-To the election petition in this case several preliminary objections were presented. learned judge who heard these objections sustained the one complaining that the petition had not been published as required by the "Rules of Court" of the Province of Quebec and dismissed the election petition on that ground. These "Rules -of Court" had been passed some years ago under the then existing "Controverted Elections Act" and before the Act was remodelled and passed in its present form.
It was aditted that the publication complained of complied with the statutory requirements of the existing Act, but that they did not comply with the requirements of the "Rules of Court" which it was contended were not inconsistent with the statute, and were consequently still in force. I think, however, they clearly are so inconsistent and that to the extent that they require other and further publications than those required by the statute they are necessarily repealed by it.
It was further contended, however, that even if the the ground of want of proper publication, upon which the judge dismissed the petition, was bad, still the judgment should be sustained on the ground that the petitioner had failed to prove his status and qualification as a petitioner. I think, however, there is nothing in this objection and that the proper inference from all the evidence is that the petitioner was a qualified voter entitled to present the petition. to -the question of our jurisdiction on appeal, in my judgment, under the case as it came before us, all or any of the preliminary objections not abandoned in the court below and which counsel thought applicable could have been relied upon by the respondent to sustain the judgment dismissing the petition. He was not confined to the reasons given by the judge or to the particular objection which the judge sustained as fatal -to the petition.
The appeal to this court is from the judgment dismissing the petition, and, while that judgment is based upon one of the preliminary objections only, we have jurisdiction to deal with all of the preliminary objections which were heard before the judge and which are in the record before us, and to finally dispose of them. Any construction of -the Act limiting the jurisdiction of this court on appeal to deal with the particular. objection allowed or disallowed by the judge below would, I think, be at variance with its true construction and the result in many cases would be to delay the trial of the petition unduly, and possibly to defeat it altogether.
The duty of the judge who hears the preliminary objections is either to allow them, or some or one of them, and dismiss the petition; or to dismiss or disallow the objections so that the petition shall go to trial.
The section of the Act defining his duties is as follows: - In the case before us there were a great many preliminary objections and the issue joined upon them was that they were one and all bad in fact and in-law. That was the issue which came before the trial judge and which he had to dispose of. At the hearing below the defendant confined himself to seven of these objections and the judge rested his judgment upon one of them only, and dismissed the petition.
The section giving an appeal to this court from a decision on preliminary objections, reads as follows:- A technical reading of this section might seem to justify a conclusion limiting our jurisdiction on the appeal to the objections the judge below has expressly allowed or disallowed, as the case may be. But a careful reading of the Act satisfies me that such a limited construction of our powers is not correct and that where there are several preliminary objections to an election petition and the judgment of the judge who hears the issue joined on the objections allows one of the objections and dismisses the petition without i'eference to the others, this court, on appeal, has jurisdiction finally to dispose of all of the objections and of the issue as it came before the judge and give the 1 1 judgment which under the facts and the law the judge should have given. Whether and in what..cases such jurisdiction should be exercised depends, of course, upon the evidence in the record or case-in appeal.. In this case I think the judge was wrong in dismissing the petition for want of due publication, and I also think that Mr. Becourt failed to maintain the only other objection he thought it worth while to argue, namely, the want.of qualification.of the petitioner.
But, suppose we 'should have been of the opinion that the petitioner's status to file the petition had been disproved should we have refused to confirm the 'judgment dismissing the petition because the judge below did not refer to that want of status as one of his reasons for -his judgment ? With great respect I think such a refusal would do violence to the spirit and intention of Parliament as expressed in the statute under review.
The appeal should be allowed with costs and the preliminary objections disallowed and dismissed. J.-The requirements of section 16 of the "Controverted Elections Act," which is as follows:Lhaving been complied with, I do not think failure to comply with rules framed under the earlier Act which are iiconsistent therewith can support the dismissal of the petition herein.
. The learned trial judge having determined only this one of the several preliminary objections presented, we have no power to consider any other. Section 64 of the Act, which is as follows, so far as bearing upon our jurisdiction:seems conclusive on this point.
The appeal should be allowed, but I doubt if costs should be given of what relates to so much of the case as is thus undecided, though appellant -should be given the general costs of his appeal relative to the point in which he succeeds.
J.-This is an appeal from a judgment of the Honourable Mr. Justice Bruneau (2nd June, 1913) dismissing the petition given on the hearing on preliminary objections. The judgment was based upon the ground that the petition was not published in accordance with the seventh rule of practice made by the judges of the Superior Court of the Province of Quebec under the "Controverted Elections Act, 1874" (37 Viet. 10, sec. 44), requiring notice of the petition to be published once in the Quebec Official Gazette and also in to which the petition relates. It is not disputed that section 16 of the "Controverted Elections Act" (R.S.C. 1906, ch. 7), was complied with, that is to say, that a notice of the petition appeared in a newspaper pub- lished in the district in accordance with the provisions ,A of that section; and the two points for consideration under this head are: 1st, was the rule in question Duff J.
which, it is not disputed, was competently enacted, displaced by the legislation now embodied in the section just referred to ? And 2ndly, if, notwithstanding the language of section 16, the rule is still in force, whether non-compliance with that rule by the returning officer is a sufficient ground for dismissing the petition ? As to the first question the material statutory provisions are section 20 of -tihe "Interpretastion Act" (R.S.C. 1906, ch. 1), and sections 85 and 86 of the "Controverted Elections Act." convenience of i-eference I quote these enactments in full:- 20. Whenever any Act or enactment is repealed, and other provisions are substituted by way of amendment, revision or consolidation- (a) all regulations, orders, ordinances, rules and by-laws made under the repealed Act or enactment shall continue good and valid, in so far as they are not inconsistent with the substituted Act enactment, until they are annulled and others made in their stead; any reference in any unrepealed Act, or in any rule, order regulation made thereunder to such repealed Act or enactment, shall, as regards any subsequent transaction, matter or thing, held and construed to be a reference to the provisions of the substituted Act or enactment relating to the same subjectmatter as such repealed Act or enactment; and, if there is no provision in the substituted Act or enactment relating to the same subject-matter, the repealed Act or enactment shall stand good, and read and construed as unrepealed in so far, and in so far only, as is necessary to support, maintain or give effect to such unrepealed Act, or such rule, order or regulation made thereunder.
Chapter 7, section 85:- 85. The judges of the court or a majority of them, may from time to time, make, revoke and alter general rules and orders, for the effectual execution of this Act and of the intention and object thereof, and the regulation of the practice and procedure and costs with respect to election petitions and the trial thereof, and the certifying and reporting thereon.
Any general rules and orders made as aforesaid, and not inconsistent with this Act, shall be deemed to be within the powers conferred this Act, and shall, while unrevoked, be of the same force as if they were herein enacted; and shall be laid before the House of Duff J. Commons within three weeks after they are made, if Parliament is then sitting, and if Parliament is not then sitting, within three weeks after the beginning of the next session of Parliament.
86. Until rules of court have been made by the judges of the court in any province in pursuance of this Act, and so far as such rules do not extend, the principles, practice and rules on which election petitions touching the election of members of the House of Commons in England were on the 26th day of May, one thousand eight hundred and seventy-four, dealt with, shall be observed so far as consistently with this Act they can be observed by the court and the judges thereof.
The construction and effect of these provisions, in so far as relevant to the present point, is not open to dispute.
The argument of Mr. Belcourt, who appeared for the respondent, proceeded upon the assumption that the real point at issue must be whether the rule relied upon is "inconsistent" with section 16. With great respect for the learned judge of first instance I do not think the point is doubtful. The rule requires publication in two newspapers, a newspaper in the English language and a newspaper in the French language. The Act requires publication once in a newspaper.
If, as is contended, the effect of the rule, which, of course, has the force of statute, is that non-compliance with it nullifies the petitioner's proceedings, then it appears to me that it must be a rule beyond the authority conferred by sec. 85; for I think it cannot fairly be taken to be within the intendment of that section that, where the Act itself lays down a specific procedure in -reltion to a-given matter, the rule-making authority.can prescribe additional proceedings with such a sanction. If the rule is one which could not be made under section 85, it would appear to follow that it is rule which is not protected by the provisions of seetion 20 of the "Interpretation Act," because one cannot suppose the legislature to have contemplated that a rule made prior to the passing of section 16, which would be beyond the present powers of the rule-making authority under section 85, could remain -in force notwithstanding the enactment of section 16. It is not to be supposed that the validity of the rules in force at a given time could be affected by the accident of the day when such rules were passed.
As to the second question, I think that on this ground also the ruling of the learned judge of first instance ought to be reversed.* The publication prescribed. by the legislature is, in ny judgment, not a forensic proceeding.
The duty to publish laid upon the returning officer, doubtless, has its own sanction. Non-compliance with it, in my judgment, cannot, where the petitioner himself is entirely without fault, have the result of causing the petition to lapse. On the hearing of the appeal another point was argued.
It was urged by the respondent that the judgment dismissing the petition ought to be sustained on the ground that the petitioner had failed to prove his status, according to the rules laid down in the previous decisions of this court.
In dealing with this contention the first point to consider is whether we have jurisdiction to entertain it. That question depends upon the construction of section 64 of 'the "Controverted Elections Act." It is as follows: It is argued (and it appeared to me at first sight, that such must be the construction of this section) that an appeal is only given from a decision upon a specific preliminary objection or specific preliminary objections. ,Where the preliminary objections are disallowed there is, of course, necessarily a decision upon each one of then.
Where, on the other hand, as in this case, the petition is dismissed upon the ground that a single specific objection is well taken and ought to be given effect to and the judge has refrained from considering or passing upon any of the other objections, the question whether, in such a case, this court has jurisdiction to consider any objection other than that passed upon may become a point of importance.
I think the appeal given by section 64 is not only an appeal from any specific rule or decision, but from the "judgment rule or order" given by the judge of first instance before whom the hearing on preliminary objections is held.
It has been laid down in the judgment of this court more than once that the hearing upon preliminary objections is to be treated as one of the steps in the trial of the petition.
Sections 19 and 20 indicate to my mind that it was not within the contemplation of the Act that there should be successive hearings on preliminary objections. The judgment, therefore, dismissing the petition given on the hearing must, I think, be taken to be the judgment concluding that ,.
-stage of the trial and on appeal from that judgment I think it is not only open to us, but that it is our duty J* to consider every objection which was before the judge of first instance and which is presented by either party for consideration in this court.
On the merits, I think the objection fails. I think there is sufficient evidence and I think the proper inference from the evidence is that the petitioner was properly qualified as a petitioner under the Act. J.-At the close of the argument I entertained no doubt that rule No. 7 of the "Rules of Practice" of the Quebec Superior Court for Dominion Controverted Elections, in so far as it 'requires publication different from and in excess of that prescribed by section 16 of the "Dominion Controverted Election.g Act," was superseded and abrogated by that enactment, and that, publication in accordance with the requirements of section 16 having been shewn, the preliminary objection based on want of due publication fails.
Had this been the sole question for determination, the appeal might well have been disposed of at the hearing.
But the respondent, failing to sustain the judgiuent in his favour upon this objection, seeks to support it on another, which was presented to the judge of first instance, but was not dealt with by him, namely, that the petitioner had not sufficiently established his status in that he had not proved himself to be a British subject. This objection was heard by the learned jndge, but was not adjudicated upon by him, no doubt because he held 'the objection on the ground of insufficient publication to be well taken and fatal to the petition. The appellant questions the jurisdiction of this court to entertain the objection based on want of status on the ground that the appeal given by section 64 of the "Controverted Elections Act" is confined fto objections upon which judgment has been actually pronounced below.
The respondent asserts on the other hand that the appeal is from the judgment dismissing the petition and that.it is open to him to support that judgment in this court upon any ground taken before the judge of first instance and upon which he might have pronounced it.
The question is important because upon its determination depends the right of respondent to a further hearing before ithe judge of the Superior Court in order to obtain an adjudication by him on the other preliminary objections taken but not dealt with at the former hearing. If, as counsel for petitioner contends, the respondent cannot support the dismissal of the petition on any objection not adjudicated upon in the Superior Court, he should be entitled to such further hearing, since otherwise lie might lose the benefit of a good objection properly taken and pressed, merely because the judge of first instance failed to deal with it under the erroneous impression that it was not necessary for him to do so. On the other haiid, if the position taken at bar by his own counsel is correct, the respondent will clearly not be entitled to any such further hearing on preliminary objections.
Section 64 of the Dominion "Controverted Elections Act," which gives the right to appeal, is as follows:
SUPREME COUl}T OF CANADA. [VOL. XLVIII. At first blush it would almost appear that it was intended to confine the appeal to the particular objection which has -been allowed. But the appeal is from the judgment rendered on the objection, not from its allowance. That judgment is the dismissal of the petition. It is a well recognized principle of procedure in ordinary litigation that a party in whose favour judgment is pronounced upon one ground may support that judgment in appeal upon any other ground taken ber fore the court which pronounced it and upon which that court might properly have acted.
Unless the statute is conclusive against its application, the maxim ut sit finis litium and the undoubted policy of Parliament that there should be no undue or unnecessary delay in the bringing of election petitions to trial afford cogent arguments why the ordinary principle of curial procedure to which I have alluded should govern the present case.
Section 19 of the "Controverted Elections Act" makes it abundantly clear that preliminary objections should be speedily dealt with. It appears to contemplate that they should all be disposed of at one hearing. It would, I think, be contrary to the spirit if not to the letter of the Act, that there should be a series of hearings and of appeals on preliminary objections, as might well be the case if they may be disposed of one at a time. Though not as clearly expressed as it might have been, I find nothing in section 64 which constrains me to put upon it a construction which I should deem out of harmony with the other provisions of the statute, and probably contrary to the in- ^"^ors tention of Parliament. I, -therefore, conclude that it is open to the respondent to ask this court on the present appeal to pass upon his objection to the sufficlency of the proof of the petitioner's status.
On the merits I think that objection cannot be sustained. The evidence adduced by the petitioner that his name appeared on the voters' list furnished for use at the election and that he voted as a deputy returning officer on a certificate obtained after taking the prescribed oath, which was produced and filed, and the certificate of his baptism shewing that he was born at St. Judas, in the County of St. Hyacinthe, in the Province of Quebec, also produced and filed, established the fact that he is a British subject, at all events sufficiently to cast on the respondent the burden of proving the. contrary.
The respondent did not seek at bar to maintain the judgment in his favour by invoking any other of the preliminary objections which he took below.
I would, therefore, allow the appeal with costs and dismiss the preliminary objections with costs.
J.-II s'agit d'une contestation d'1ection qui a Wt renvoybe sur 1'objection prbliminaire que
1Pofficier-rapporteur n'avait pas publi4 la p6tition suivant les dispositions d'une r-gle de pratique de la cour sup6rieure.
Plusieurs autres objections pr6liminaires avaient
(t soulev40s par lintimbe; mais le juge n'a pris en consid6ration que celle relative a la publication de
]a p6tition et il a consid6r6 inutile, vu la conclusion 'k laquelle il en est venu sur ce joint, d'examiner et de d6cider ces autres objections.
PAADIS
La r6gle de pratique relative i la publication des p6titions d'6lections a t faite par les juges de Ia Brodeur J. cour sup6rieure de Qubbec, en 1875, et se lit comme suit:- L'Officier-Rapporteur publiera toute petition qui lui sera envoyde conformit6 de la section du dit Acte, ainsi que tout autre docuinent qui lui sera envoy pour publication en conformite des dispositions du dit Acte, on des pr6sentes regles, en delivrant copie de telle petition on de tel document an Registrateur du Bureau d'Enregistrement dans telle Division Electorale; et, s'il y a plus d'un Bureau d'Enregistrement dans telle Division Electorale, il en delivrera une copie A chaque R6gistrateur; et, s'il n'y a aucun Bureau d'Enregistrement dans Ia Division Electorale, alors copie sera transmise an Secrtaire-trdsorier Municipal, le bureau duquel se trouvant dans la dite Division Electorale, sera le plus proche du lieu dite 61ection aura en lieu. Et dans le cas on il ne se trouvera pas, dans la dite Division Electorale, tel RCgistrateur on Serftairetr~sorier, alors la copie sera transmise A quelqu'autre officier public, au choix du dit Officier-rapporteur, qui se trouvera dans la dite Division Electorale, en donnant sans ddlai un avis prbcis de telle publication dans un numCro de la Gazette Officielle de Qu6bec, ainsi que dans deux numeros d'un journal en langue anglaise, et dans deux numCros d'un journal en langue francaise, publi6s on ayant circulation dans telle Division Electorale, si tels journaux it y a, et il sera du devoir de tout tel Registrateur, Sfertaire-tresorier ou autre Officier public de permettre A toute personne de prendre communication de toute telle petition on de tout tel document sans exiger pour cela aucun honoraire, et tout document qui sera envoyg Shrif pour publication sert publie de la nianiore ei-dessus dcerite.
le statut sur lequel cette r~gle de pratique 4tait haste est la loi de 1874 (37 Vict. ch. 10, sec. 8), qui disait:- Lors la pr6sentation d'une patition, le greffier de la cour transmettra copie par la malle lofficier-rapporteur du district Clectoral auquel se rapporte la p6tition d'Clection, lequel lui donnera suite publicit6 dans district electoral.
Cette disposition de la loi de 1874 a t6 rappel6e en 1891 et remplac6e par la section suivante:- Cette section de la loi de 1891 a t6 r~p6ke verbatim dans les status refondus de 1906 h la section 16 du chapter 7.
L'appelant pr6tend que la r~gle et la nouvelle loi sont incompatibles et qu'en consequence la r~gle est par le fait m~me sans effet.
D'un 'autre ct6, lintim6 dit que le rappel d'une disposition de la loi ne met pas n6cessairement h n6ant les regles qui auraient t6 faites en vertu de cette loi si les dispositions soit semblables et ne sont pas incompatibles avec la nouvelle loi. If pr6tend que dans le cas actuel cette incompatibilit6 n'existe pas et que les dispositions de la rbgle sont, par cons6quent, en force et doivent 6tre observ6es.
Il est h remarquer que dans les statuts de 1874 on ne disait pas comment la publication d'une p6tition d'61ection devait se faire, et alors les juges de la, province de Qu6bec out cru devoir d6terminer qu'un avis de la prbsentation de la petition devrait tre publi6 une fois dans la Gazette Officielle et deux fois dans deux journaux.
Il est h pr6sumer que la pratique 6tait loin d'8tre la m~me dans toutes les provinces. Cette disposition de la loi de 1874 a dfi donner lieu it des inconv~nients et ZL des incertitudes et alors il n t6 jug6 h propos en 1891 d'amender la loi de manibre h dclarer d'une inanire precise comment la publication devait se faire. Comine nous venons de le voir, la loi pourvoit h ce qu'un avis soit publi6 dans un journal une fois seule- Brodeur J. nent.
Le droit pour les juges de faire des r~glemens concernant la procedure des. p6titions d'blections est ridig6 dans des termes bien g6n6raux. Voici, en effet, ces dispositions:- Les juges des diff6rentes cours, dans chaque province respectivement, on la majorite d'eitre eux, peuvent,-de temps a autre, faire, r6voquer et modifier les ragles et ordres g6ndraux mentionnes en la pr~sente loi comme regles de cour pour
'execution efficace de la pr6sente loi, et de son intention et de son objet, et de toites regles de pratique, procedures et frais se rattachant aux p6titions d'dWection et a leur d6cision, et aux certificates et rapports a1 faire sur ces patitions.
2. Toutes r~gies g~nerales et tous ordres gfntraux faits de Ia maniore ci-haut exprim6e, qui ne sont pas incompatibles avec la presente loi, sont consideres comme faisant partie des pouvoirs confirds par la pr6sente loi, et ont, jusqu'd ce qu'ils soient r6voques, la metme force que s'ils faisaient partie des dispositions de la presente Joi; et elles doivent 6tre soumises a la Chambre des Communes dans I'espace de trois semaines aprs qu'elles ont t6 faites, si Parlement est alors en session, et, si le Parlement n'est pas en session, dans les trois premieres semaines de la. session alors prochaine. du Parlement. S.R., c. 9, art. 62.
D'apr&s les dispositions. de cette l6gislation le rappel d'une loi ne met fin aux regles qui ont 6 faites en vertu de cette loi que si elles sont incompatibles atee la nouvelle loi. Y avait-il incompatibilit6 entre la r~gle de pra-tique de 1875 et la loi de 1891 ? Voildi. la.question que nous avons h decider.
J'en suis venu & la conclusion que I'ancienne r~gle de pratique a cess6 d'avoir force et effet.
* Elle d6terminait, comme nous venons de le voir, la .manidre dont l'officier-rapporteur devait ' faire connal1tre an public la pr6sentation- des p6titions, d'6lections. fallait qu'un avis ffit donn6 dans la Gazette
Officielle de Qubbec et dans deux journaux du district 6lectoral. Le 16gislateur, par sa loi de 1891, a entrepris lui-m~me de determiner comment et od cette publication devait se faire. II a voulu, je suppose, mettre fin it l'incertitude oii l'on devait tre avec la disposition un peu vague de la loi de 1874 et il a d6clar6 qu'd pavenir l'avis serait publi6 dans un seul journal du district.
Cette 16gislation formelle rend l'ancienne r~gle de pratique incompatible et y met fin, du moins en tant que cette publication est concern~e.
Maintenant, en supposant que la publication serait irrgulire, serait-ce une raison suffisaute pour renvoyer la, p6tition ?
Je ne le crois pas. Ce serait 1A une informalit6 qui pourrait utre purg6e sur instruction du juge. Il n'y aurait pas lieu alors de renvoyer la p6tition.
I arrive bien souvent que des p6titions demandent l'annulation de lF61ection pour irr6gularitks commises par l'officier-rapporteur.
Serait-ce h dire que son d6faut de publier cet avis devrait entrainer le renvoi de la p6tition ? Poser la question, -c'est la resoudre.
Les p&itions d'6lections doivent 6tre d'ailleurs considr6es comme toute autre action ou procedure devant les tribunaux.
Il n'y a pas de raison pour qu'on soit plus s6v~re au sujet des informalits qui s'y sont gliss6es que pour celles qui affectent les actions ordinaires.
Je suis d'opinion que le jugement a quo est -mal fond6 et qu'il doit Atre renvers6 avec d4pens.
Appeal allowed with co8ts.
Solicitor for the appellant: E. A. D. Morgan.
Solicitor for the respondent: P. J. A. Cardin.
ACTION-Foreign corporation- Conflict of laws-Incorporation by Dominion authority-Powers-B.C. "Companies Act"- Unlicensed extra-provincial companies- (B.C.) 10 Edw. VII. c. 7, s.
139, 166,
The "Companies
10 Edw. VII., ch. 7, secs. 139, 166, 168 ch. 79, has its head-office in Winnipeg,
Man., and did not become licensed under the B.C. "Companies Act."
In February, 1911, the company entered into an agreement with A., who is domiciled in
British Columbia, giving him the exclusive right to sell their goods in British
Columbia in pursuance of which he ordered goods from the company to be shipped from Winnipeg to him, f.o.b. Calgary,
Alta., assuming all risk and charges himself from that point to Elko, B.C., where the goods were to be received and sold by him.
He gave the company his promissory notes, dated at Winnipeg, for the price of these goods, some of the notes being actually signed by him at
Elko.
In an action by the company to recover the amount of these notes the trial judge held that the action was barred by the statute and could not be maintained by the company in any court in the Province of British Columbia. On an appeal, per saltum, to the
Supreme Court of Canada the judgment
Action-continued.
taken place between the company and A. did not constitute the carrying on of business by the company in the Province of British Columbia within the meaning of the B.C. "Companies Act" and, therefore, the disabilities imposed by that statute could have no effect in respect of the right of the company to recover the amount claimed in the action in the provincial court.-Per Idington J.-As the exclusive jurisdiction in respect of bills of exchange and promissory notes has been assigned to the Parliament of Canada, under item 18 of section 91 of the "British North America Act, 1867," the word "contract" as used in section 166 of the B.C. "Companies Act," 10 Edw. VII., ch. 7, cannot be considered as having any application to promissory notes; the plaintiffs' right of action in the provincial court was, therefore, not barred by the provincial statute.
Railway missioners-Appeals on questions of law- Stated case-Submission of specific question-Practice-Construction of statute- R.S.C., 1906, c. 37, s. 55 and s. 56, s.-s. An appeal, under the provisions of section 55, or section 56, sub-section 3, of the "Railway Act," R.S.C., 1906, c. 37, should not be entertained by the Supreme Court of Canada until the Board has stated the case in writing and sub- Appeal-continued.
mitted for the opinion of the court some question which, in the opinion of the board, is a question of
(Cf. "Regina Rates Case," (44 Can. S.C.R. 328), where this case was followed by Anglin
J., and 45 Can. S.C.R. at pp. 323 to 328.)
RY. CO.
OTTAWA...........................
2-Reference to master-Final judgment
Per Fitzpatrick C.J., and Idington, Anglin and Brodeur JJ.- Where the judgment sought to be reviewed has finally disposed of one of the issues, forming a distinct and separate ground of action, the Supreme
Court of Canada has jurisdiction to hear and determine the appeal.
La Ville de St. Jean v. Molleur (40 Can. S.C.R.
139), and McDonald v. Belcher ([1904] A.
C. 429), followed; Hesseltine v. Nelles
(47 Can. S.C.R. 230) referred to. DEN- CO....... 318
3-Juridiction-"Supreme Court Act,"
72, 875,
C.P.Q.] A cause, matter or judicial proceeding originating on petition to a judge in chambers, in virtue of articles
875 and 876 of the Quebec Code of Civil
Procedure, is appealable to the Supreme
Court of Canada where the subject of the controversy amounts to the sum or value of two thousand dollars.
CHARLES................
4-Jurisdiction-Reserve of further directions-" Final judgment"-Construction of statute-"Supreme Court Act " R.S.C.
1906, c. 139, s. 2 (e); 3 & 4 deo. V. c.
51, s. 1.]
Before the amendment in
1913, to sec. 2 (e) of the "Supreme Court
Act," R.S.C. 1906, ch. 139, judgments were rendered maintaining an action on a bond by which two of the defendants were ordered to pay to the plaintiffs an amount not exceeding that secured by the bond to be ascertained upon a reference to the master and further directions were reserved; as to another defendant, recovery of the same amount, to be ascertained in the same manner, was ordered, but there was no reserve of further directions.
Upon an appeal by the last mentioned defendant, Held,
Davies J. (dissenting)
, that the judgment sought to be appealed from (23 Man. R.
Appeal-continued.
159) did not finally conclude the action as proceedings still remained to be taken on the reference, consequently, it was not a final judgment within the meaning of section 2 (e) of the "Supreme Court Act," prior to the amendment by the statute 3 & 4 Geo. V., ch. 51 (assented to on the 6th of June, 1913), and it was not competent to the Supreme Court of Canada to entertain the appeal. Rural Municipality of Morris v. The London and Canadian Loan and Agency Co. Can. S.C.R. 434) followed. parte Moore
(14 Q.B.D.
627) distinguished; Clarke v. Goodall (44Can. S.C.R. 284), and The Crown Life Ins. Co. v. Skinner (44 Can. S.C.R. 616) referred to.-Per Anglin and Brodeur JJ.-The amendment of the
Court Act" by the first section of 3 & 4 Geo. V., ch. has not affected whatever right the appellant may have had at the time the judgment was rendered in respect to an appeal to the Supreme Court of Canada. Hyde v. Lindsay (29 Can. S.C. R. 99); Cowen v. Evans (22 Can. S.C.R. 331) Hurtubise v. Desmarteau (19 Can. k... 562); and Taylor v. The Queen (1 Can. S.C.R. 65)
referred to.-Per Davies J. dissenting.-The judgment in question does not reserve "further directions" and comes within the rule and principle determining what are "final judgments" laid down in the case of Ex parte Moore (14 Q.B.D. 627). MFG. CO...................
5-Findings of jury-Review by appellate court.] Where a case has been properly allowed to go to the jury and there is evidence before them from which they could reasonably draw the conclusion at which they arrived, the verdict should not be disturbed on an appeal.- Judgment appealed from B.C. Rep. 184) affirmed.
6-Controverted election-Judgment on preliminary objections-Final determination-Jurisdiction -Issue on appeal.] Per Davies, Duff and Anglin JJ.-Where an election petition is disposed of by the judge upon one of several preliminary objections, without consideration of the others, the Supreme Court of Canada has jurisdiction to hear and determine questions arising upon all the preliminary objections in issue before the elec- Appeal-continued.
tion court judge; its jurisdiction is not confined to the objection upon which the judgment appealed from was solely based.
Idington J. contra. Fitzpatrick
C.J. and Brodeur J. expressing no opinion. RICHELIEU PARADIS
Ax see ELEcTION
ARBITRATION
AWARD-Procedure-Prolonging date for award-Special circumstances-"Railway Act," R.S.C.,
1906, c. 37, s. 204.]
On an arbitration respecting compensation to be paid for lands taken under the "Railway Act,"
R.S.C., 1906, ch. 37, the arbitrators had fixed a day for their award according to the provisions of section 204.
After some proceedings before them it was arranged, for the convenience of counsel for the parties, that further proceedings should be suspended until the return of counsel who were obliged to be present at the sittings of the Judicial Committee of the Privy Council and nothing further was done until after the return of counsel from abroad at a date later than the time so fixed for the award.
The arbitrators had not prolonged the time for making the award but, upon reassembling after the day originally fixed had passed, they fixed a later date for that purpose.
The company's arbitrator and counsel then refused to take part in any subsequent proceedings and the two remaining arbitrators continued the hearing and made an award in favour of the claimant greater than that offered by the company for the lands expropriated.
In an action by the company to have the award set aside and for a declaration that the sum offered should be the compayable for the lands.-Held, itzpatrick, C.J. and Anglin J. dissenting, that, in the circumstances of the case, the company should not be permitted to object to the manner in which the arbitrators had proceeded in prolonging the time and making the award.
appeal from the judgment of the Court of King's Bench (Q.R. 22 K.B. 221), declaring the award to have been validly made, was, dismissed with costs.
NAUD..................
BOARD OF RAILWAY COMMISSION- ERS tramway-Jurisdiction of Board of Railway Commissioners-Highways--Overhead crossings-Apportionment of cost-Legislative jurisdiction-Ancillary powers- "Interested parties"-Construction of ute-"Railway Act," R.S.C., 1906, c. 37, ss. 8, 59, 237, 238-(B.C.) 8 & 9 Edw. VII., c. 32-"B.N.A. Act, 1867," s. 92, item 10.] On an application by the City of Vancouver, the Board of Railway Commissioners for Canada authorized the Corporation of the City of Vancouver to construct overhead bridges across the tracks of a Dominion railway company, which had been laid down during the years 1909 and 1910 on certain streets in the city, and ordered that a portion of the cost of construction of two of these bridges and of the depression of the tracks at the crossings thereof by the Dominion railway should be borne by a tramway company which derived its powers through provincial legislation and an agreement with the city pursuant to such legislation under which it operated its tramways upon these streets. By the agreement the tramway company became entitled to use the city streets with reciprocal obligations by the city and the company respecting their grading, repair and maintenance, and it was provided that the city should receive a share of the gross earnings of the tramway company. On appeal to the Supreme Court of Canada from the order of the Board:-Held, Duff and Brodeur JJ. dissenting, that, in virtue of sections 8 (a), 59, 237 and 238 of the "Railway Act,"
R.S.C., 1906, ch. 37, as amended by chapter 32 of 8 & 9 Edw. VII., the Board of Railway Commissioners for Canada had jurisdiction to determine the "interested parties" in respect of the proposed works and to direct what proportion of the cost thereof should be borne by each of them.
The City of Toronto v. Canadian Pacific Railway Co. ( (1908) A. C. 54); Canadian Pacific Railway Co. v. Parish of Notre Dame de Bonsecours ( (1899) A.C. 367); City of Toronto v. Grand Trunk Railway Co. (37 Can. S.C.R. 232); County of Carleton v. City of Ottawa (41 Can. S.C.R. 552), and Re Canadian Pacific Railway Co. and York (25 Ont. App. R. 65) followed.-Per Duff and Brodeur JJ., dissenting.-(1) The Parliament of Canada, when it assumes jurisdiction, under the provisions of item 10 of section 92 of the "British North America Act, 1867," in respect of a provincial railway, qud railway, must assume such jurisdiction over the work or undertaking "as an integer."
The order of the Board cannot be sustained as being made in the exercise of the Dominion power of taxation.
(3) As there is no Dominion interest concerned in the provisions of the order under appeal, and the Dominion Parliament has no power to compel the provincial company to assume the burden of the cost of the proposed works, or any portion thereof, the Board of Railway
Commissioners had no jurisdiction to assess a proportion of their cost upon the tramway company.
(4) The cases cited above must be distinguished as they do not sustain, as a valid exercise of ancillary power by Dominion authority, any enactient professing to control a provincial railway company.-(NOTE.
-cave to appeal to the Privy Council was granted on 14th July, 1913.)
Co. V. V. E.
CITY Or VANCOUVER..............
2-Railway-Location plans-Width of right-of-way-Subsequent alteration-Substituted plans-Approval of new plans- Order having ex post facto effect-Jurisdiction of Board of Railway Commissioners-Construction of statute-"Railway
The Board of Railway Commissioners for
Canada has no jurisdiction, by an order permitting a railway company to file a new location plan, to be substituted for and as of the date of a former location plan previously approved by it, to authorize the company to alter, retrospectively, the former location of its railway.
The proper method of effecting any such alteration is by proceedings under section 162 or section 167 of the "Railway
Act," R.S.C., 1906, chapter 37.
CAN. RY. Co..........
3-Construction tion-Demolition of works-Jurisdiction of
Board of Railway Commissioners-"Railway Act," R.S.C., 1906, c. 37, ss. 30 (h),
(i),230, 233.] Where a railway company, in the professed exercise of its powers as a railway company and without the approval of the route by the Minister the Board of Railway Commissioners for Canada, has constructed a solid
Board Railway Commissioners-con. filling across navigable waters, the Board, under the provisions sections 230 and 233 coupled with sub-sections (h) and (i) of section 30 of the "Railway Act," R.S.C., 1906, ch. 37 has jurisdiction to order the demolition of the works so constructed.
CO. V. ...... 238 4-Board of Railway Commissionrs- -Submission of specific question-Practice - Construction of statute 1906, c. 37, s. 55 and s. 56, 8.-s. 3.] An appeal, under the provisions of section 55, or section 56, sub-section 3, of the "Railway Act," R.S.C., 1906, ch. 37, should not be entertained by the Supreme Court of Canada until the Board has stated the case in writing and submitted for the opinion of the court some question which, in the opinion of the board, is a question of law.
(Cf. "Regina Rates Case," (44 Can. S.C.R. 328), where this case was followed by Anglin J., and 45 Can. S.C.R. at pp. 323 to 328.)
NOTES-Company law- -Foreign corporation-Conflict of laws- (B.C.) 10 Edw. VII., c. 7, ss. 139, 166, BOND-Vendor and purchaser-Sale of land-Agreement-Bond to secure payment of price-Conditions as to title.. 506 CASES-Bell v. Grand Trunk Railway Co. Ont. L.R. reversed........ 2-Brownlee v. McIntosh (3 West. W. R. 725; 23 West. L.R. 30; 9 D.L.R. 400) 3-Cairncross v. Lorimer (3, Macq. 829) applied....................... Cases-continued.
4- Canadian Northern Quebec Railway
Co. v. Naud (Q.R. 22 K.B. 221) appeal dism issed..........................
5--Canadian Pacific Railway Co. v.
Parish of Notre Dame de Bonsecours
((1899) A.
6--Canadian Pacific Railway Co. and
York, Re, (25 Ont. App. R. 65) followed
......... ...... ...................
7-Carleton, County of, v. City of Ottawa (41 Can. S.C.R. 552) followed.
8---Carr v. Can. Pac. Rway. Co. (41
N.B. Rep. 225) affirmed on merits but with equal division as to damages.. 514
9-Clarke v. Goodall (44 Can. S.C.R.
284) referred to....................
10--Colwell v. Neufield Man. R.
517) affirmed ......................
11-Cowen v. Evans (22 Can. S.C.R.
331) referred to ................
12-Crown Life Ins. Co. v. Skinner,
(44 Can. S.C.R. referred to
13-Curry v. The King (47 N.S. Rep.
176) affirmed ......................
14-Denman v. Clover Bar Coal Co.
(7 D.L.R. 96; 2 West. W.R. 986; 22
W.L.R. 128) affirmed ..............
15-Drolet v. Denis (Q.R. 20 K.B. 378)
16-Duff v. Lane (45 N.S. Rep. 338)
reversed...........................
Cases-continued.
17- Fort George Lumber Co., Re (4 West. W.R. 1271; 25 W.L.R. 92; 12 D.L. R. 807) affirmed................... 18-Gold Medal Furniture Mfg. Co. v. Stephenson (23 Man. R. 159) quashed.497 19-Graham v. Bigelow (46 N.S. Rep. 116) affirmed...................... 20- Grand Trunk Rway. Co. v. McKay (34 Can. S.C.R. 81) distinguished.. 561 21---Grand Trunk Rway. Co. v. City of Toronto (37 Can. S.C.R. 232) followed .......... 22---Gundy v. Johnstone (28 Ont. L.R. 23- Harnovis v. City of Calgary (11 D.L.R. 3; 4 West. W.R. 263)]affirmed.494 24-Hesselline v. Nelles (47 Can. S.C. R. 230) referred to................. 25-Hurtubuise v. Desmarteau (19 Can. S.C.R. 562) referred to............ 26-Hyde v. Lindsay (29 Can. S.C.R. 99) referred to..................... 27-John Deere Plow Co. v. Agnew (8 D.L.R. 65; 2 West. W.R. 1013; 22 W.L.R. 243) reversed............. Kennedy v. Quebec and Lake St. John Rway. Co. (Q.R. 21 K.B. 85) 29- Leonard & Sons v. Kremer (4 Alta. L.R.
152) varied........ 518 30- Longman v. Cottingham (18 B.C. Rep. 184) affirmed................ Cases-continued.
31-Mahomed v. Anchor Fire and Mar.
Ins. Co. B.C. Rep. 517) reversed. 546
32-Merritt v. City of Toronto (27 Ont.
L.R. 1) affirmed..................
See RIGHTS
33- Moore, Ezp. (14 Q.B.D. 627) distinguished.........................
34-Morris, Rural Municipality of, v.
London and Canadian Loan and Agency
Co. Can. S.C.R. 434) followed.. 497
35- McDonald v. Belcher
A.C.
429) followed.......................
36-Oliver v. King (8 DeG. M. & G.
applied....................
37-Ottawa Wine Vaults Co. v. McGuire
(27 Ont. L.R. 319) affirmed........ 44
38- Piggott v. Stratton (1 DeG. F. &
J. 33) applied...................
39-Russell v. Watts (10 App. Cas.
590) applied........................
40-St. Jean v. Molleur (40 Can. S.C.R.
followed.......................
41-Slater v.
Waugh-Milburn Construction Co. (4 West. W.R. 1311; 13
D.L.R. 143; 25 W.L.R. 66) affirmed. 609
42-Spicer v. Martin (14 App. Cas. 12)
Sproule, Re (12 Can. S.C.R. 140)
referred to....................235
Strong v. Insurance Companies
(29 Ont. L.R. 356) affirmed...... 577
Cases-continued.
45-Taylor v. The Queen (1 Can. S.C.R. 65) referred to .................
46- Thomson v. International Casualty Co. (7 D.L.R. 944; 2 West. W.R. 658) 47-Toronto, City of, v. Canadian Pacific Rway. Co. (1908) A.C. 54) followed Tourville v. Ritchie (21 R.L. 110) referred to......................... 49-Turgeon v. St. Charles (Q.R. 22 K.B. 58) reversed................ CODE
PROCEDURE - Arts. 71, 72 (Chamber proceedings) .. 479 Arts. 875, 876 (Curators)........... 473 COMPANY LAW-Company-Subscription for treasury stock-Contract-Principal and agent-Misrepresentation-Fraud of payments-Want of consideration.] V. entered into an agreement to purchase for re-sale the unsold treasury stock of a foreign joint stock company "subscriptions to be made from time to time as sales were made"; it was therein provided that the company should fill all orders for stock received through V. at 815 for each share; that V. should sell the stock for $20 per share; that V.. should "pay for the stock so ordered with the proceeds of sales made by him or through his agency," and that the contract should continue in force so long as the company had unsold treasury stock with which to fill such orders. The company also gave V. authority to establish agencies in Canada in connection with its casualty insurance business. and to appoint medical examiners there. At the time the company had no licence to carry on the business of insurance in Canada, nor any immediate intention of making arrangements to do so, and V. was an official of the company and was aware of these facts.
V. appointed T. the sole medical examiner of thecompany for Vancouver, B.C., assuring him that the company would commence to carry on its casualty insurance business there within a couple of months, and then obtained from him a subscription for a number of shares of the company's treasury stock which were paid for partly by T.'s cheques, payable to the company, and the balance by a series of promissory notes falling due from month to month following the date of the subscription and made payable to V.
A number of shares equal to those so subscribed for by T. were then transferred to him by V. out of the allotment made to him by the above mentioned agreement, the certificates therefor being obtained by V. in the name of T.
from the company, but the company did not formally accept T.'s subscription nor issue any treasury stock to him thereunder.
The company-did not commence business in Vancouver within the time specified by V. nor did it obtain a licence to carry on the business of insurance in Canada until many months later. In an action by T. against the company and V. to recover back the money he had paid and for the cancellation and return of the notes.-Held,
(7 D.L.R. 944; 2 West. W.R.
658),
Davies and Anglin JJ. (dissenting)
, that, in the transaction which took place, V.
was the company's agent; that the company was, consequently, responsible for the deceit practised in procuring the subscription from T.; that there had been no contract for the purchase of treasury stock completed between the pany and T.; that the object of T.'s was not satisfied by the transfer of V.'s shares to him, and that he was entitled to recover back the money he had paid and to have the notes returned for cancellation as having been paid over and delivered without consideration and in consequence of the fraudulent repre- Co. v. THoMPsox. ........ 167
2-Foreign corporation-Conflict of laws
-Pronissory notes-Right of action- Juristic disability-Construction of statute
In February, 1911, the company entered into an agreement with A., who is domiciled in British Columbia, giving him the exclusive right to sell their goods in British Columbia in pursuance of whichhe ordered goods from the company to be shipped from Winnipeg to him, f.o.b. Calgary, Alta., assuming all risk and charges himself from that point to Elko, B.C., where the goods were to be received and sold by him. He gave the company his promissory notes, dated at Winnipeg, for the price of these goods, some of the notes being actually signed by him at Elko. In an action by the company to recover the amount of these notes the trial judge held that the action was barred by the statute and could not be maintained by the company in any court in the Province of British Columbia. On an appeal, per saltum, to the Supreme Court of Canada the judgment taken place between the company and A. did not constitute the carrying on of business by the company in the Province of British Columbia within the meaning of the B.C. "Companies Act" and, therefore, the disabilities imposed by that statute could have no effect in respect of the right of the company to recover the amount claimed in the action in the provincial court.-Per Idington* J.-As the exclusive jurisdiction in respect of bills of exchange and promissory notes has been assigned to the Parliament of Canada, under item of section of the "British North
America Act, 1867," the word "contract"
as used in section 166 of the B.C. "Companies Act," 10 Edw. VII., ch. 7, cannot be considered as having any application to promissory notes; the plaintiffs' right of action in the provincial court was, therefore, not barred by the provincial statute.
AGNEW...........................
3-Agreement by directors-Onerous contract-Non-disclosure to shareholders- Breach of contract-Damages-Settlement of accounts-Appcal-Jurisdiction-Reference to master-Final Judgment.] After some subscriptions for stock had been received and the company was about to offer other stock for public subscription, a meeting of the directors was held at which the plaintiff, then one of the directors and the company's manager, resigned his office as a director and was appointed sales agent for the company's output of coal for five years from that date, at a liberal scale of remuneration, with the exclusive right to make such sales in Alberta, Saskatchewan and Manitoba. At the same time an arrangement was made by which the other directors derived advantages in regard to certain matters in dispute, respecting the affairs of the company, between them and the plaintiff. The material facts and circumstances connected with these arrangements were not disclosed to the shareholders who then held stock in the company nor to other persons who subsequently subscribed for shares of its stock.-Held,
(7 D.L.R. 96; 2 West. W.R. 986; 22
W.L.R. 128), that, as the plaintiff and his co-directors were in a fiduciary position and complete disclosure the circumstances in regard to the making of the contract had not been made to all the shareholders, present and future, the agreement was not binding upon the company.-The order in the judgment appealed from directing that, on taking the accounts between the parties, an allowance should be made to the plaintiff, on the basis of quantum meruit, for services rendered by him while in the employ of the company was not disturbed.-Per Fitzpatrick C.J., and Idington, Anglin and Brodeur JJ.-Where the judgment sought to be reviewed has finally disposed of one of the issues, forming a distinct and separate ground of action, the Supreme Court of Canada has jurisdiction to hear and determine the appeal.
La Ville de St. Jean v. Molleur (40 Can. S.C.R. 139), and McDonald v. Belcher ( [1904) A.O. 429) follbwed; Hesselline v. Nells (47 Can. S.C.R. 230)
referred to.
4- Incorporation of companies-"Provincial objects"-Limitation-Doing business beyond the province-Insurance company-"Insurance Act, 1910"; 9 & 10 Edw. VII. c. 32, s. 3, s.s. 3-Enlargement of company's powers-Federal company- Provincial licence-Trading companies.] By subsec. sec. 92, of "The British North America Act, 1867," the legislature of any Province in Canada has exclusive jurisdiction for "The Incorporation of Companies with Provincial Objects."-Held, per Fitzpatrick C.J. and Davies J., that the limitation defined in the expression
Objects" is territorial and also has regard to the character of the powers which may be conferred on companies locally incorporated.-Held, per Idington, Anglin and
Brodeur JJ., that such limitation is not territorial but has regard to the character of the powers only.-Per Duff J.-Provincial objects means "objects" which are "provincial" in reference to the incorporating province. Whether the "objects" of a particular company as defined by its constitution are or are not "provincial" in this sense is a question to be determined on the facts of each particular case substantially as a question of fact.- J. that a company incorporated by a Provincial legislature has no power or capacity to do business outside of the limits of the incorporating Province but it may contract with parties residing outside those limits as to matters ancillary to the exercise of its powers.- Per Idington and Brodeur JJ.-Such company has, inherently, unless prohibited by its charter, the capacity to carry on the business for which it was created, in any foreign state or province whose laws permit it to do so.-Per Duff J.-A provincial company may conduct its operations outside the limits of the Province creating it so long as its business as a whole remains provincial with reference to its province of origin.
-Per Anglin J.-Such a company has, inherently, unless prohibited by its charter, the capacity to accept the authorization of any foreign state or province to carry on within its territory the business for which it was created.- J., that a corporation constituted by a provincial legislature with power to carry on a fire insurance business with no express limitation as to locality has no power or capacity to make and execute contracts for insurance outside of the incorporating province or for insuring property situate outside thereof.
-Per Idington, Anglin and Brodeur JJ.
-Such a company has power to insure property situate within or without the incorporating province and to make contracts within or without the same to effect any such insurance.
In respect to all such contracts it is not material whether the owner of the property insured is, or is not, a citizen or resident incorporating
Province.-Per
Duff J.-It is not necessarily incompatible with the provincial character of the "objects" of a provincial insurance company that it should have power to enter into outside the province contracts insuring property outside the province.-Held, per Fitzpatrick C.J.
and Davies J.-A provincial fire insurance company cannot make contracts and insure property throughout Canada by availing itself of the provisions of see. 3, subsec. 3, of 9 & 10 Edw. VII.
ch. 32 ("The Insurance Act, 1910").- Per Fitzpatrick C.J. and Davies J.- That such enactment is ultra vires so far as the provincial companies are affected.-Per Brodeur J.-Such enactment is ultra vires of Parliament.-Per
Idington J.-Part of said subsection may be intra vires but the last part providing for a Dominion license to local companies is not.-Per Anglin J.-The said enactment is ultra vires except in so far as it deals with companies incorporated by or under Acts of the legislature of the late Province of Canada.- Held, that the powers of a company incorporated by a provincial legislature cannot be enlarged either as to locality or objects, by the Dominion Parliament nor by the legislature of another Province.-Held, per Fitzpatrick C.J. and
Davies J.-The legislature of a province has no power to prohibit companies incorporated by the Parliament of Canada from carrying on business within the province without obtaining a licence so to do from the provincial authorities and paying fees therefor unless such licence is imposed in exercise of the taxing power of the province.
And only in the same way can the legislature restrict a company incorporated for the purpose of trading throughout the Dominion in the exercise of its special trading powers or limit the exercise of such powers within the province. Brodeur J. contra.-Per Idington J.-A company incorporated by the Dominion Parliament in carrying out any of the enumerated powers contained in sec. 91 cannot be prohibited by a provincial legislature from carrying on business, or restricted in the exercise of its powers, within the province though subject to exercise of the exclusive jurisdiction to make laws in relation to "direct taxation within the province." But a company incorporated under the general powers of Parliament must conform to all the duly enacted laws of a province in which it seeks to do business.- Per Duff J.-A company incorporated under the residuary legislative power of the Dominion is not in any province where it carries on business subject to the legislative authority of the province in relation to matters falling within the subject "incorporation of companies"; but as regards all other matters falling within the enumerated subjects of section 92 it is subject to such legislative jurisdiction just as a natural person or an * unincorporated association would be in like circumstances.
The enactments of sections 139, 152, 167 and 168 of the British Columbia "Companies are valid.-Per Anglin J.-The provincial legislature may impose a license and exact fees from any Dominion company if the object be the raising of revenue, or obtaining of information, "for provincial, local or municipal purposes" i but not if it is to require the company to obtain provincial sanction or authority for the exercise of its corporate powers. And the legislature cannot restrict a company incorporated for the purpose of trading throughout the Dominion in the exercise of its special powers nor limit the exercise of such powers within the province, nor subject such company to legislation limiting the nature or kind of business which corporations not incorporated by it may carry on or the powers which they may exercise within the province.
IN COMPANIES..................
5- Contitutional law-Insurance-For- Dominion licence-9 & 10 Edw. VII.
6-Contract directors - Agreement-Freight rates.........
See 7.
7-Vinding-up proceedings-Company in liquidation-Sale of assets-Consent to sale of mortgaged ship-Sale by order of court-Mariners' liens-Sale free from incumbrances - Special fund-Privileged charge-Priority-Valuation of security- Release of mortgage- Marshalling ; securities-Subrogation............... 593
CONFLICT OF LAWS-Company law- Foreign corporation-Incorporation by Dominion authority-Powers-B.C. "Companies Act"-Unlicensed extra-provincial companies- "Carrying on business" - Contract-Transactions beyond limits of province-Promissory notes-Right of action-Juristic disability-Construction of statute-(B.C.) 10 Edw. VII., c. 7, ss.
139, 166, 168.......................
CONSTITUTIONAL
LAW-Railways- Powers of construction and operation- Conflict of laws-Provincial legislation- Interference with Dominion railways- Constitutional law-Jurisdiction of legislature-Construction of statute-7 Edw.
1867, ss.
,91 and 92.] It is not competent to the
Legislature of the Province of Alberta to enact legislation authorizing the construction and operation of railways in such a manner as to interfere with the physical structure or with the operation of railways subject to the jurisdiction of the Parliament of Canada.- Brodeur J. contra, was of the opinion that such legislation would be within the jurisdiction of the provincial legislature provided that in its effect there should be no unreasonable interference with federal railways.
Acr...................... Board bf Railway Commissioners-High- Overhead crossings - Apportionment of cost-Legislative jurisdiction-Ancillary powers-"Interested parties'"- Construction of statute-"Railway Act," R.S.C. 1906, c. 37, ss. 8, 59, 237, 238- (B.C.) 8 & 9 Edw. VII., c. 32-"B.N.A. Act, 1867," s 92 item 10.]
On an application by the City of Vancouver, the Board of Railway Commissioners for Canada authorized the Corporation of the City of Vancouver to construct overhead bridges across the tracks of a Dominion railway company, which had been laid down during the years 1909 and 1910 on certain streets in the city, and ordered that a portion of the cost of construction of two of these bridges and of the depression of the tracks at the crossings thereof by the Dominion railway should be borne by a tramway company which derived its powers through provincial legislation and an agreement with the city pursuant to such legislation under which it operated its tramways upon these streets. By the agreement the tramway company became entitled to use the city streets with reciprocal obligations by the city and the company respecting their grading, repair and maintenance, and it was provided that the city should receive a share of the gross earnings of the tramway company.
On appeal to the Supreme Court of Canada from the order of the Board.-Held, Duff and Brodeur JJ. dissenting, that, in virtue of sections 8 (a), 59, 237, and 238 of the "Railway Act," R.S.C., 1906, ch. 37, as amended by chapter 32 of 8 & 9 Edw. VII., the Board of Railway Commissioners for Canada had jurisdiction to determine the "interested parties" in respect of the proposed works and to direct what proportion of the cost thereof should be borne by each of them.
The City of Toronto v. Canadian Pacific Railway Co. ( (1908) A.C. 54); Canadian Pacific Railway Co. v. Parish of Notre Dame de Bonsecours ( (1899) A.C. 367); City of Toronto v. Grand Trunk Railway Co. (37 Can. S.C.R. 232); County of Carleton v. City of Ottawa (41 Can. S.C.R. 552), and Re Canadian Pacific Railway Co. and York (25 Ont. App. R. 65) followed.- Per Duff and Brodeur JJ. dissenting.- (1) The Parliament of Canada, when it assumes jurisdiction, under the provisions of item 10 of section 92 of the
"British North America Act, 1867,"
in respect of a provincial railway, qud railway, must assume such jurisdiction over the work- or undertaking "as an integer."
(2) The order of the Board cannot be sustained as being made in the exercise of the Dominion power of taxation.
(3) As there is no Dominion interest concerned in the provisions of the order under appeal, and the Dominion Parliament has no power to compel the provincial company to assume the burden of the cost of the proposed works, or any portion thereof, the
Board of Railway Commissioners had no jurisdiction to assess a proportion of their cost upon the tramway company.
(4) The cases cited above must be distinguished as they do not sustain, as a valid exercise of ancillary power by Dominion authority, any enactment professing to control a provincial railway company.-(NoTE.-Leave to appeal to the Privy Council was granted on 14th
July, 1913.)-B.C.
Co. V.V. E.
3-Insurance-Foreign company doing business in Canada-Dominion license- 9 & 10 Edw. VII. c. 32, es. 4 and 70.]
Held, per Fitzpatrick C.J. and Davies J., that sections 4 and 70 of the Act 9 & 10
Edw. VII. ch. 32 (thd "Insurance Act,
1910") are not ultra vires of the Parliament of Canada, Idington, Duff, Anglin
Brodeur JJ., contra.-Held, per
Fitzpatrick C.J., and Davies J., that section 4 of said Act operates to prohibit an insurance company incorporated by a foreign state from carrying on its business within Canada if it does-not hold a license from the Minister under the said
Act and if such carrying on of the business is confined to a single province.- Per Idington J.-Section 4 does so prohibit if, and so far as it may be possible to give any operative effect to a clause bearing upon the alien foreign companies as well as others within the terms of which is embraced so much that is clearly ultra vires.-Per Duff, Anglin and Brodeur JJ.-The section would effect such prohibition if it were intra vire8.
IN 1910,, 260 4- Incorporation of companies-"Provincial objects"-Limitation-Doing business beyond the province-Insurance company-'"Insurance Act, 1910"; 9 & 10 Edw. VII. c. 32, s. 3, s.s. 3-Enlargement of company's powers-Federal company- Provincial licence-Trading companies.] By subsec. see. 92, of "The British North America Act, 1867," the legislaturc of any Province in Canada has exclusive jurisdiction for "The Incorporation of Companies with Provincial Objects."-Held, per Fitzpatrick C.J. and Davies J., that the limitation defined in the expression
Objects" is territorial and also has regard to the character of the powers which may be conferred on companies locally incorporated.-Held, per Idington, Anglin and
Brodeur JJ., that such limitation is not territorial but has regard to the character of the powers only.-Per Duff J.-Provincial objects means "objects" which are "provincial" in reference to the incorporating province.
Whether the "objects" of a particular company as defined by its constitution are or are not "provincial" in this sense is a question to be determined on the facts of each particular case substantially as a question of fact.- J. that a company incorporated by a Provincial legislature has no power or capacity to do business outside of the limits of the incorporating Province but it may contract with parties residing outside those limits as to matters ancillary to the exercise of its powers.- Per Idington and Brodeur JJ.-Such company has, inherently, unless prohibited by its charter, the capacity to carry on the business for which it was created, in any foreign state or province whose laws permit it to do so.-Per Duff J.-A provincial company may conduct its operations outside the limits of the Province creating it so long as its business as a whole remains provincial with reference to its province of origin. -Per Anglin J.-Such a company has, inherently, unless prohibited by its charter, the capacity to accept the authorization of any foreign state or province to carry on within its territory the business for which it was created.- J., that a corporation constituted by a provincial legislature with power to carry on a fire insurance business with no express limitation as to locality has no power or capacity to make and execute contracts for insurance outside of the incorporating province or for insuring property situate outside thereof.
-Per. Idington, Anglin and Brodeur JJ.
-Such a company has power to insure property situate within or without the incorporating province and to make contracts within or without the same to effect any such insurance.
In respect to all such contracts it is not material whether the owner of the property insured is, or is not, a citizen or resident of the incorporating Province.-Per
Duff J.-It is not necessarily incompatible with the provincial character of the "objects" of a provincial insurance company that it should have power to enter into outside the province contracts insuring property outside the province.-Held, per Fitzpatrick C.J.
and Davies J.-A provincial fire insurance company cannot make contracts and insure property throughout Canada by availing itself of the provisions of see. 3, sub-sec. 3, of 9 & 10 Edw. VII.
ch. 32 ("The Insurance Act, 1910").- Per Fitzpatrick C.J. and Davies J.- That such enactment is ultra vires so far as the provincial companies are affected.-Per Brodeur J.-Such enactment is ultra vires of Parliament.-Per
Idington J.-Part of said subsection may be intra vires but the last part providing for a -Dominion license to local companies is not.-Per Anglin J.-The said enactment is ultra vires except in so far as it deals with companies incorporated by or under Acts of the legislature of the late Province of Canada.- Held, that the powers of a company incorporated by a provincial legislature cannot be enlarged either as to locality or objects, by the Dominion Parliament nor by the legislature of another Province.-Held, per Fitzpatrick C.J. and
Davies J.-The legislature of a province has no power to prohibit companies incorporated by the Parliament of Canada from carrying on business within the province without obtaining a licence so to do from the provincial authorities and paying fees therefor unless such licence is imposed in exercise of the taxing power of the province.
And only in the same way can the legislature restrict a company incorporated for the purpose of trading throughout the Dominion in the exercise of its special trading powers or limit the exercise of such powers within the province. Brodeur J. contra.-Per Idington J.-A company incorporated by the Dominion Parliament in carrying out any of the enumerated powers contkined in see. 91 cannot be prohibited by a provincial legislature from carrying on business, or restricted in the exercise of its powers, within the province though subject to exercise of the exclusive jurisdiction to make laws in relation to "direct taxation within the province." But a company incorporated under the general powers of Parliament must conform to all the duly enacted laws of a province in which it seeks to do business.- Per Duff J.-A company incorporated under the residuary legislative power of the Dominion is not in any province where it carries on business subject to the legislative authority of the province in relation to matters falling within the subject "incorporation of companies"; but as regards all other matters falling within the enumerated subjects of section 92 it is subject to such legislative jurisdiction just as a natural person or an unincorporated association would be in like circumstances.
The enactments of sections 139, 152, 167 and 168 of the British Columbia "Companies Act" are valid.-Per Anglin J.-The provincial legislature may impose a license and exact fees from any Dominion company if the object be the raising of revenue, or obtaining of information, "for provincial, local oi municipal purposes" but not if it is to require the company to obtain provincial sanction or authority for the exercise of its corporate And the legislature cannot restrict a company incorporated for the purpose of trading throughout the Dominion in the exercise of its special powers nor limit the exercise of such powers within the province, nor subject such company to legislation limiting the nature or kind of business which corporations not incorporated by it may carry on or the powers which they may exercise within the province. for treasury stock--Contract-Principal and agent - Misrepresentation- Fraudof payments-Want of consideration.]
V. entered into an agreement to purchase for re-sale the unsold treasury stock of a foreign joint stock company
"subscriptions to be made from time to time as sales were made;" it was therein provided that the company should fill all orders for stock received through
V. at $15 for each share; that V. should sell the stock for $20 per share; that V.
should "pay for the stock so ordered with the proceeds of sales made by him or through his agency," and that the contract should continue in force so long as the company had unsold treasury stock with which to fill such orders.
The company also gave V. authority to establish agencies in Canada in connection with its casualty insurance business and to appoint medical examiners there.
At the time the company had no licence to carry on the business of insurance in
Canada, nor any immediate intention of making arrangements to do so, and V.
was an official of the company and was aware of these facts.
V. appointed T.
the sole medical examiner of the company for Vancouver, B.C., assuring him that the company would commence to carry on its casualty insurance business there within a couple of months, and then obtained from him a subscription for a number of shares of the company's treasury stock which were paid for partly by T.'s cheques, payable to the company, and the balance by a series of promissory notes falling due from month to month following the date of the subscription and made payable to V.
A number of shares equal to those so subscribed for by T. were then transferred to him by V. out of the allotment made to him by the above mentioned the certificates therefor being obtained by V. in the name of T.
from the company, but the company did not formally accept T.'s subscription nor issue any treasury stock to him thereunder. The company did not commence business in Vancouver within the time specified by V. nor did it obtain a licence to carry on the business of insurance in Canada until many months later. In an action by T. against the company and V. to recover back the money he had paid and for the cancellation and return of the notes.-Held,
(7 D.L.R. 944; 2 West. W.R. 658), Davies and Anglin JJ. dissenting, that, in the transaction which took place, V. was the company's agent; that the company was, consequently, responsible for the deceit practised in procuring the subscription from T.; that there had been no contract for the purchase of treasury stock completed between the company and T.; that the object of T.'s subscription was not satisfied by the transfer of V.'s shares to him, and that he was entitled to recover back the money he had paid and to have the notes returned for cancellation as having been paid over and delivered without consideration and in consequence of the fraudulent repre- 2-Foreign corporation-Conflict of laws licensed extra-provincial
(B.C.) 10 Edw. VII. c. 7, s. 139, 166, The "Companies Act" (B.C.) 10 ch. 79, has its head-office in Winnipeg, Man., and did not become licensed under the B.C. "Companies Act." February, 1911, the company entered into an agreement with A., who is domiciled in British Columbia, giving him the exclusive right to sell their goods in British Columbia in pursuance of which he ordered goods from the company to be shipped from Winnipeg to him, f. o. b. Calgary, Alta., assuming all risk and charges himself from that point to Elko, B.C., where the goods were to be received and sold by him. He gave the company his promissory notes, dated at Winnipeg, for the price of these goods, some of the notes being actually signed to by him at Elko. In an action by the company to recover the amount of these notes the trial judge held that the action was barred by the statute and could not be maintained by the company in any court in the Province of British Columbia.
On an appeal, per sallurn, to the Supreme Court of
Canada the judgment appealed from
(8 D.L.R. 65;) 2 West. W.R. 1013; 22
W. L. R. 243) was reversed, and it was- Duff, Anglin and Brodeur JJ., that the transactions which had taken place between the company and A. did not constitute the carrying on of business by the company in the Province of British
Columbia within the meaning of the
B.C. "Companies Act" and, therefore, the disabilities imposed by that statute could have no effect in respect of the right of the company to recover the amount claimed in the action in the provincial court.-Per Idington J.-As the exclusive jurisdiction in respect of bills of exchange and promissory notes has been assigned to the Parliament of
Canada, under item 18 of section 91 of the "British North America Act,
1867," the word "contract" as used in section
166 of the B.C. "Companies
Act," 10 Edw. VII., ch. 7, cannot be considered as having any application to promissory notes; the plaintiffs' right of action in the provincial court was, therefore, not barred by the provincial
3-Company law-Agreement by directors-Onerous contract - Non-discloAure to shareholders-Breach of contract- Damages-Settlement of accounts.] After some subscriptions for stock had been received and the company was about to offer other stock for public subscription, a meeting of the directors'was held at which the plaintiff, then one of the directors and the company's manager, resigned his office as a director and was appointed sales agent for the company's output of coal for five years from that date, at a liberal scale of remuneration, with the exclusive right to make such sales in Alberta, Saskatchewan and
Manitoba. At the same time an arrangement was made by which the other directors derived advantages in regard to certain matters in dispute, respecting the affairs of the company, between them and the plaintiff. The material facts and circumstances connected with these arrangements were not disclosed to the shareholders who then held stock in the company nor to other persons who subsequently subscribed for shares of its stock.-Held, affirming the judgment appealed from (7 D.L.R. 96; 2 West. W. R. 986; 22 W.L.R. 128), that, as the plaintiff and his co-directors were in a fiduciary position and complete disclosure of the circumstances in regard to the making of the contract had not been made to all the shareholders, present and future, the agreement was not binding upon the company.-The order in the judgment appealed from directing that, on taking the accounts between the parties, an allowance should be made to the plaintiff, on the basis of quantum meruit, for services rendered by him while in the employ of the company was not disturbed-DENMAN V. 4- Liquor laws-"Quebec Licence Law," R.S.Q., 1909, arts. 924 et seq.-Property in licence-Agreement--Ownership in persons other than holder-Invalidity of contract- Public policy.] It is inconsistent with the policy of the "Quebec Licence Law" (R.S.Q., 1909), that the ownership of a licence to sell intoxicating liquors should be vested in one person while the licence is held in the name of another. An agreement having that effect is void inasmuch as it establishes conditions contrary to the policy of the statute. Judgment appealed from (Q.R. 22 K.B. 58) reversed, Brodeur J. dissenting.] CHARLES............473 &--Crown lands-Location-Public policy-Evasion of statute-B.C. "Land Act," 8 Edw. VII. c. 30, 34, 36-Sale ment surveyor, furnished information to the defendant and an associate which lands, in the names of a number of persons nominated by them and employed as "stakers."
Subsequently B.
assisted in the disposal of the lands thus secured to innocent purchasers under an arrangement with the defendant and his associate that he was to participate in any profits which should be obtained on such sales. In an action by B. to recover compensation for the services he had rendered in regard to these sales.- Held, that the circumstances disclosed a scheme concocted in opposition to the
Act" and in violation of its provisions tainted with the characteiof the scheme,
Per Idington and Anglin JJ.-The plaintiff's claim fails for want of evidence of any request by the defendant that he agreement to remunerate him for assistance in effecting the sales in question.- 400) stood affirmed.
INTOSH............................
- "Damages resulting"-Reparation-Riparian rights-Construction of statute-Arts.
7298, 7349 R.S.Q.
1909-Servitude-Injury caused by independent contractor- Liability of owner of timber...........137
7-Sale of goods-Delay in delivery- Damages-Construction of agreement- Deficiencies in machinery - Exemption clause-"Unable to deliver"-"On or about" stated date...............
8-Powers of directors-Agreement with shipper-Freight rates..............
See RAILWAYS 7.
9-endor and purchaser-Sale of landprice-Conditions as to title ......... 506
10-Fire insurance-Blank application
-General agent - Misrepresentation - Knowledge of company-Over-valuation- "Dwelling house"-"Lodging house." 546
COSTS-Solicitor and client-Retainer -Subsequent proceedings-Habeas corpus 2-Solicitor and client-Special statute ................................... COUNSEL- Solicitor and client Retainer-Subsequent proceedings-Habeas corpus-Evidence................... CRIMINAL
Habeas corpus - Common law offences-Construction of statute-"Supreme Court Act," R.S.C., 1906, c. 139, s. 62-Jurisdiction of Supreme Court judges.] The jurisdiction ada in respect of habeag corpus ad subjiciendum extends only to cases commitment on charges of offences which are criminal by virtue of statutes enacted by the Parliament of Canada; it does not extend to cases of commitment for offences at common law or under statutes enacted prior to Confederation which are still in force.
Re Sproule Can. S.C.R. 140) referred to.-The offence of housebreaking as described in the Imperial statute, 7 & 8 Geo. IV., ch. 29, see. became part of the criminal law of British Columbia on the introduction of the criminal law of England into that colony by the ordinance of 19th November, 1858, continued to be so until the Union of the province with Canada, and since then by virtue of sec. of the "Criminal Code," and it is not an offence to which sc. 62 of the "Supreme Court Act," R.S.C., 1906, ch. 139, has application.
2- Perjury-Form of oath.] A witness who testifies to what is false is guilty of perjury, although, without being asked if he had any objection to being sworn in the usual manner, but without objecting to the form used, he was directed to take the oath by raising his right hand instead of kissing the Bible.
CROWN LANDS - Act," 8 Edw. VII. c. 30, 8s. 34, 36-Sale Crown Lands-continued.
ment surveyor, furnished information to the defendant and an associate which lands, in the names of a number of persons nominated by them and employed as "stakers."
Subsequently B. assisted in the disposal of the lands thus secured to innocent purchasers under an arrangement with the defendant and his associate that he was to participate in any profits which should be obtained on such sales. In an action by B. to recover compensation for the services he had rendered in regard to these sales.- Held, that the circumstances disclosed a scheme concocted in opposition to the
Act" and in violation of its provision3 the agreement, tainted with the character of the scheme,
Per Idington
Anglin. JJ.-The plaintiff's claim fails for want of evidence of any request by the defendant that he agreement to remunerate him for assistance in effecting the sales in question.
400) stood affirmed.
V. MC- INTOsH.......................
Driving timber - "Damages resulting" -Reparation-Riparian rights-Construction of statute-Arts. 7298, 7349, R.S.Q. (1909)- Servitude-Injury caused by independent contractor-Liability of owner of timber.]
The privilege of transmitting timber down watercourses in the Province of
Quebec given by article 7298 of the Revised Statutes of Quebec, 1909, is not granted in derogation of the obligation imposed upon those making use of watercourses for such purposes to make reparation for damages resulting therefrom by article 7349 (2) of the Revised
Statutes of Quebec. The effect of the articles is that persons who avail themselves of the privilege thereby conferred are obliged to- compensate riparian owners for all damages which result from the exercise of that right except in regard to such as cannot be avoided by the exercise of reasonable care and skill and
Damages-contnued.
those in respect of which the riparian proprietor himself may have contriuted, or which have been occasioned by his own fault.
Tourville v. Ritchie (21 R.L. 110) referred to.-The judgment appealed from was reversed, Davies and Anglin JJ. dissenting.-Per Davies and Anglin JJ., dissenting.-The evidence shewed that the damages complained of were caused by the fault of a bond fide independent contractor consequently, the owner of the timber which was being driven down the watercourse in question was not responsible for them. -(NTE.-Leave to appeal to the Privy Council was ganted on 15th July, 1913.) FRASER................. 2- Company law-Agreement by directors-Onerous contract-Non-disclosure to shareholders-Breach of contract-Settlement of accounts-Appeal-Jurisdiction- Reference to master-Final judgment. 318 3-Sale of goods-Designated quality- Fraud on purchaser-Loss of market.. 512 4 - Occupation of lands-Side-tracks-Continuous trespass............
............. 514l 5- Sale of goods-Delay in delivery- Construction of agreement-Deficiencies in machinery-Exemption clause-" Unable to deliver"-"On or about" stated date.........................
way-User - Prescription-Es- DELIVERY
Sale of goods
Delay in delivery-Damages-Construction of agreement-Deficiencies in machinery-Exemption clause-"Unable to deliver"-"On or about" stated date.................. Public way - Prescription - "Law and Transfer of Property Act," R.S.O. 1897, c. 119.1 S. brought action against P. for trespass Easement-continued.
on a strip of land called "Ancroft Place"
which he claimed as his property and asked for damages and an injunction.
"Ancroft Place" was a cul-de-sac running east from Sherbourne Street, and the defence to the action was that it was a public street or, if not, that P. had a right of way over it either by grant or user. On the trial it was shewn that the original owners had conveyed the lots to the east and south of "Ancroft Place"
to different parties, each deed describing it as a street and giving a right of way over it to the grantee. The deeds to P's. predecessors in title did not give him a similar right of way, but some of these conveyances described it as a street. The deed to one of the predecessors in title of S. had a plan annexed shewing "Ancroft Place" as a street fifty feet wide and the grantee was given the right to register said plan. The evidence also established that for 22 years before the action "Ancroft Place" had been entered in the assessment rolls as a public street and had not been assessed for taxes and that the city had placed a gas lamp on the end ; also, that for over twenty years it had been used by the owners of the lots to the south and east, and from time to time by the owner on the north side, as a means of access to, and egress from, their respective properties. In 1909 the fee in the land in dispute was conveyed to S. who had become owner of the lots to the east and south.-Held, Idington J. dissenting,
Duff J. expressing no opinion, that the evidence was not sufficient to establish that the land had been dedicated to the public and accepted by the municipality as a street.-Held, further, Idington and'
Duff JJ. (dissenting)
, that the land was not a "way, easement or appurtenance"
to the lot to the north "held, used, occupied and enjoyed or taken or known, as part and parcel thereof" within the meaning of sec. of "The Law and
Transfer of Property Act,"
R.S.O.,
[1897] ch. 119.-Held, also, that P. had not acquired a right-of-way by a grant implied from the terms of the deeds of the adjoining lots, Duff J. dissenting; nor by prescription, Duff J. expressing no opnion.-Per Duff J.-The facts established justify the inference that the original owners (Mr. and Mrs. Patrick)
always entertained the design that the strip of land in question should be a street affording access to the adjoining
Easement-continued.
parts of lot 22; that, accordingly, it had been surveyed and laid out as a street, on the ground, in 1884; that the sale to Mc- Cully, in 1887, proceeded on the footing that the land purchased by him was bounded to the south by a street and this was one of the elements of value determining the price he paid; that, thereafter, in accordance with the same design, Mrs. P. permitted the successive occupants of the lot bought by McC. to use this strip of land as of right for all the purposes of a street; that these occupants, acting as she intended they should and as the situation, created by her, naturally encouraged them to act, purchased and dealt with it upon the same footing as that upon which the sale to McC. took place: Consequently, the respondent is, on the principle of Piggott v. Stratton (I DeG. F. & J. 33), as explained in Spicer v. Martin (14 App. Cas. 12), and of Cairncross v. Lorimer (a Macq. 829); Oliver v. King (8 DeG. M. & G. 110); and Russell v. Watts (10 App. Cas. 590), precluded from disputing the right of the appellant to use "Ancroft Place" as a street.-Per Duff J.- At the time of the sale to McC. the vendor was precluded from using Rachel Street for any purpose inconsistent with its character as a street and its sole value for her as a "street" or "way" was because of the means of access it afforded to the property sold. Its character as a way laid off for the accommodation, inter alia, of that property was palpable to everybody; as a way, therefore, it was as regards the vendors interest in it a "way
*
*
* known or taken to be" an adjunct of the property sold and, as such, passed to the purchaser under the provisions of the "Law and Transfer of Property Act." -(Leave to appeal to Privy Council granted, 25th July, 1913).
PETERS V. SI.ClAIR.......................... ELECTION
Preliminary objections-Rules of practice-Repeal-Inconsistency with statutory provision- Judgment on preliminary objections-Final determination of stage of cause-Objections -Irregularity by returning officer-Appeal -Jurisdiction-Issues in question-Construction of statute-(D.) 37 V. c. 10, ss. 44, 45-R.S.C., 1906, c. 7, ss. 16, 19, 20, 85-R.S.C., 1906, c. 1, s. 20.1 Under the provisions of the "Dominion Controverted Elections Act, 1874," the judges Election Law-continued.
of the Superior Court for the Province of
Quebec made general rules and orders for the regulation of the practice and procedure with respect to election petitions whereby the returning officer was required to publish notice of such petitions once in the Quebec Official
Gazette and twice in English and French newspapers published or circulating in the electoral division affected by the controversy.
By section 16 of chapter
7, R.S.C., 1906, provision is made for the publishing of a similar notice by the returning officer once in a newspaper published in the electoral district.- Held, that the rule of practice is inconsistent with the provision as to the notice required by section 16, chapter 7,
1906, and consequently, has ceased to be in force.-Per Duff and
Brodeur JJ.-Even if such rule were still in force, failure on the part of the returning officer to comply with it would not be sufficient ground for the dismissal of the election petition.-Per Davies,
Duff, and Anglin JJ.-Under the provisions of the "Dominion Controverted
Elections Act," R.S.C., 1906, ch. 7, secs.
and 20, preliminary objections are required to be decided in a summary manner; consequently, a decision by an election court judge on any of the preliminary objections disposes of all the issues raised in that stage of the proceedings. Where an election petition is disposed of by the judge upon one of several objections, without consideration of the others, the
Supreme Court of Canada has jurisdiction to hear and determine questions arising upon all the preliminary objections in issue before the election court judge; its jurisdiction is not confined to the objection upon which the judgment appealed from was solely based. Idington J. contra. Fitzpatrick C.J. and
Brodeur J. expressing no opinion.
CARDIN..
EMPLOYER AND EMPLOYEE-Negligence-Common employment-Dangerous works-Safety workmen-Defective system-Employer's liability-Jury's findings-Sufficiency of answers-Practice- Discontinuance against co-defendant-Release of joint tortfeasor.] The plaintiff's husband was a linesman employed, on piece-work, by the defendants with a gang of men setting posts in holes previously dug by the company with which they had contracted to erect the posts
Employer and Employee-continued. and prepare them to carry electric wires. A post set in one of these holes was insufficiently sunk or set in position without proper packing to hold it rigidly in the light soil of an embankment. Deceased was sent up the post to attach cross-bars which were being hoisted to him by fellow-workmen by means of a block and tackle when, owing to the strain, the post fell causing injuries which resulted in his death. The postholes, as dug by the company, had been accepted by the defendants for the purposes of their contract, but they made no inspection as to their sufficiency, nor did they. give instructions in regard to necessary precautions to ensure the safety of their employees engaged in setting up the posts and preparing them for wiring.. affirming the judgment appealed from (4 West. W.R. 1311; 13 D.L.R. 143; 25 West. L.R. 66) that the failure to sink the post-holes to sufficient depth and obtain proper filling to pack the post, and ensure the safety of the employee required to climb it, was personal negligence on the part of the defendants, the consequences of which they could not avoid by pleading that the accident occurred through the fault of a fellowservant.-Per Duff J.-In the circumstances of the case the answers by the jury that the defendants had failed to set the posts at sufficient depth and pack them with sufficiently rigid material involved a finding that there was negi ligence in these respects imputable to the defendants for which they were personally responsible in an action for SLATFR................. I 2-Negligence-Employer's liability- I Defective appliances-Warning and instruction-Injury to workman........ Public way-Dedication-User-Prescription-"Law and Transfer of Property EVIDENCE-Riparian rights-Access to waterfront-Interference-Evidence.] claiming to be a riparian owner on the shore of Ashbridge Bay (part of Toronto harbour), claimed damages from, and an injunction against, the city for inter- Evidence-contin ued.
fering with his access to the water when digging a channel along the north side of the bay.-Held, affirming the judgment of the Court of Appeal (27 Ont.
L.R. 1), by which an appeal from a
Divisional Court (23 Ont. L.R. 365)
was dismissed, that the evidence established that between M.'s land and the bay was marsh land and not land covered with water as contended and, therefore, .1. was not a riparian owner.
Fire insurance - Misrepresentation-Invoices.] Held, per
Davies, Anglin and Brodeur JJ.-That the insured having supplied on demand, duplicate copies of the invoices of goods purchased between the last stock-taking and the time of the fire as well as copies of the stock-taking itself, was not obliged to comply with a further demand for invoices of purchases prior to said stock-taking.
3-Fraudulent conveyance - Statute of
Elizabeth-Husband and wife-Voluntary settlem ent..........................
4-Solicitor and client-Retainer-Subsequent proceedings-Habeas corpus. 508
5-Onus of proof-Operation of railway speed-Negligence ......
FINAL JUDGMENT.
FOREIGN CORPORATIONS-Company law-Conflict of laws-Incorporation by
Dominion authority - Act"-Unlicensed extraprovincial companice-'"Carrying on business" - Transactions beyond limits of province-Promissory notes- Right of action-Juristic disability-Construction of statute-(B.C.) 10 Edw. VII., c. 7, s8. 139, 166, 168..............
2-Constitutional law-Insurance-For- Foreign Corporations -cont in ued. Dominion licence-9 & 10 Edw. VII., c. 32, ss. 4, 70........................ FRAUD - Company-Subscription treasury stock-Contract-Principal and agent - Misrepresentation- Transfer shares-Rescission-Return of payments- Want of consideration................167 2-Sale of goods-Designated quality- Fraud on purchaser-Damages-Loss of market....................... FRAUDULENT
CONVEYANCES - Statute of Elizabeth-Husband and wife- Voluntary settlement-Evidence.] In August, 1908, M. and his brother bought a hotel business in Ottawa for $8,000, paying $6,000 down and securing the balance by notes which were afterwards retired. In November, 1908, M. conveyed a hotel property in Madoc to his wife subject to a mortgage which she assumed. M. and his brother carried on the Ottawa business until March, 1910, when they assigned for benefit of creditors who brought suit to set aside the conveyance to M.'s wife.
On the trial it was shewn that for some time before November, 1908, M.'s wife had been urging him to transfer to her the Madoc property, which she had helped'him to acquire, as a provision for herself and their children; that she had joined in a conveyance of a property in Toronto in which they both believed she had a right of (lower, and the proceeds of the sale of which were applied in the purchase of the Ottawa business; and that all of M.'s liabilities at the time of said conveyance had been discharged. ascribed his failure in Ottawa to the action of the License Commissioners in compelling him to move his bar to the rear of the premises whereby his receipts fell off and he lost rents that he had theretofore received, and had to make expensive alterations; and to a fire on the premises early in 1910.
The trial judge set aside the conveyance to M.'s wife; his judgment was reversed by a Divisional Court (24 Ont. L.R. 591), but restored by the Court of Appeal.-Held, affirming the judgment of the Court of Appeal (27 Ont. L.R. 319), Davies J. dissenting, that the conveyance by M. to his wife was voluntary; that it de- Fraudulent Conveyances-cantinued.
nuded him of the greater part of his available assets and was made to protect the property conveyed against his future creditors and is, therefore, void as against them.
McGUIRE v.
CO..................44
HABEAS CORPUS - Habeas corpus- Common law offences-Construction of statute-"Supreme Court Act," R.S.C.,
1906, c. 139, s. 62-Jurisdiction of Supreme Court judges.-The jurisdiction of judges of the Supreme Court of Canada in respect of habeas corpus ad subjiciendum extends only to cases of commitment on charges of offences which are criminal by virtue of statutes enacted by the
Parliament of Canada; it does not extend to cases of commitment for offences at common law or under statutes enacted prior to Confederation which are still in force. Re Sproule (12 Can.
S.C.R. 140) referred to.-The offence of housebreaking as described in the Imperial statute, 7 & 8 Geo. IV., ch. 29, see.
15, became part of the criminal law of
British Columbia on the introduction of the criminal law of England into that colony by the ordinance of 19th November, 1858, continued to be so until the
Union of the province with Canada, and since then by virtue of sec. 11 of the
and it is not an offence to which sec. 62 of the "Supreme
Court Act," R.S.C., 1906, ch. 139, has
IN RE DEAN.........
2-Solicitor and client-Retainer-Subsequent proceedings-Evidence .......
See SoLicrron 1.
Public way-Dedication-User-Prescription-Estoppel-"Law and Transfer of
Property Act," R.S.O. 1897, c. 119.]
S.
brought action against P. for trespass on a strip of land called "Ancroft Place"
which he claimed as his property and asked for damages and an injunction.
"Ancroft Place" was a cul-de-sac running east from Sherbourne Street, and the defence to the action was that it was a public street or, if not, that P. had a right of way over it either by grant or
On the trial it was shewn that the original owners had conveyed the lots to the east and south of "Ancroft Place"
to different parties, each deed describing it as a street and giving a right of way over it to the grantee. The deeds
Highways-continued.
to P.'s predecessors in title did not give him a similar right of way, but some of these conveyances described it as a street. The deed to one of the predecessors in title of S. had a plan annexed shewing "Ancroft Place" as a street fifty feet wide and the grantee was given the right to register said plan. The evidence also established that for 22 years before the action "Ancroft Place" had been entered in the assessment rolls as a public street and had not been assessed for taxes and that the city had placed a gas lamp on the end; also that for over twenty years it had been used by the owners of the lots to the south and east, and from time to time by the owner on the north side, as a means of access to, and egress from, their respective properties. In 1909 the fee in the land in dispute was conveyed to S. who had become owner of the lots to the east and south.-Held, Idington J. dissenting, Duff J. expressing no opinion, that the evidence was not sufficient to establish that the land had been dedicated to the public, and accepted by the municipality as a street.-Held, further, Idmgton and Duff JJ. dissenting, that the land was not a "way, easement or appurtenance" to the lot to the north used, occupied and enjoyed, or taken or known, as part and parcel thereof" within the meaning of sec. 12 of "The Law and Transfer of Property R.S.O., [1897] ch. 119.-Held, also, that P. had not acquired a rightof-way by a grant implied from the terms of the deeds of the adjoining lots, Duff, J. dissenting; nor by prescription, Duff, J. expressing no opinion.- Per Duff J.-The facts established justify the inference that the original owners (Mr. and Mrs. Patrick) always entertained the design that the strip of land in question should be a street affording access to the adjoining parts of lot 22; that, accordingly, it had been surveyed and laid out as a street, on the ground, in 1884; that the sale to McCully in 1887, proceeded on the footing that the land purchased by him Was bounded to the south by a street and this was one of the elements of value determining the price he paid; that, thereafter, in accordance with the same design, Mrs. P. permitted the successive occupants of the lot bought by McC. to use this strip of land as of right for all the purposes of a street; that these occupants, acting as Highways--ontinued.
she intended they should and as the situation, created by her, naturally encouraged them to act, purchased and dealt with it upon the same footing as that upon which the sale to McC. took place: Consequently, the respondent is, on the principle of Piggott v. Stratton
(1 DeG. F. & J. 33), as explained in
Spicer v. Martin (14 App. Qas. 12), and of Cairncross v. Lorimer (3 Macq. 829);
Oliver v. King (8 DeG. M. & G. 110);
and Russell v. Watts (10 App. Cas. 590), precluded from disputing the right of the appellant to use "Ancroft Place" as a street.-Per Duff J.-At the time of the sale to McC. the vendor was precluded from using Rachel Street for any purpose inconsistent with its character as a street and its sole value for her as a
"street" or "way" was because of the means of access it afforded to the property sold. Its character as a way laid off for the accommodation, inter alia, of that property was palpable to everybody; as a way, therefore, it was as regards the vendor's interest in it a "wa known or taken to be and adjunct of the property sold and, as such, passed to the purchaser under the provisions of the "Law and Transfer of Property Act."-(Leave to appeal to Privy Council granted, 25th July,
2-Constitutional law-Provincial tramway-Jurisdiction of Board of Railway
c. 32-B.N.A. Act, 1867, s. 92, item 10 98
3- Negligence-Operation of tramwayconduct of motorman...............
HOUSEBREAKING - Criminal law- Habeas corpus-Common law offences- Act," R.S.C., 1906, c. 139, a. 62...... 235
HUSBAND AND WIFE.
Held, per Fitzpatrick C.J. and Davies J., that sections 4 and 70 of the Act 9 & 10 Edw. VII. ch. 32 (the "Insurance Act, 1910") are not ultra vires of the Parliament of Canada. Idington, Duff, Anglin and Brodeur JJ., contra.-Held, per Fitzpatrick C.J., and Davies J., that section 4 of said Act operates to prohibit an insurance company incorporated by a foreign state from carrying on its business within Canada if it does not hold a license from the Minister under the said Act and if such carrying on of the business is confined to a single province.-Per Idington J.-Section 4 does so prohibit if, and so far as it may be possible to give any operative effect to a clause bearing upon the alien foreign companies as well as others within the terms of which is embraced so much that is clearly ultra vire.-Per Duff, Anglin and Brodeur JJ.-The section would effect such prohibition if it were intra vires. IN RE 1910".......... 260 2 -Constitutional law-Incorporation of companies-"Provincial objects"-Limitation-Doing business beyond the province -Insurance company- 'Insurance Act, 1910," 9 & 10 Edw. VII., c. 32, s. 3, 8.8. 3-Enlargement of company's powers- Federal company-Provincial licence- Trading companies................. INSURANCE,
FIRE - Blank application-General agent-Misrepresentation- Knowledge of company-Over-valuation- "(Dwelling-house' -"Lodging house.")] F., the manager, for British Columbia, of a fire insurance company, with power to accept risks and issue policies without reference to the head-office of the company, received an application from M. for insurance for $2,100 on merchandise, furniture and fixtures. contained in a building described as a store and dwelling-house.
The application was accepted and a policy issued by him apportioning the insurance upon the three classes of property separately. A loss having occurred, payment was refused on the grounds that the stock was overvalued and the premises improperly described as a dwelling-house whereas, in fact, it was also used as a lodging-house. At the trial it appeared that a portion Insurance, Fire-continued.
of the premises was fitted up for lodgers;
the plaintiffs testified that F. inspected the prcmises before the policy was issued and that they had made no apportionment of the insurance, but left the matter altogether in the hands of F.
F. testified that he sent an agent to have the application signed and the apportionment made and that he filled in the figures upon the blanks in the application from the agent's report. The jury found that F. inserted the description of the premises and apportioned the insurance.-Held, reversing the judgment appealed from B.C. Rep. 517) that the company was affected by F.'s knowledge of the premises and of the property insured; that the question as to who had made the apportionment was properly left to the jury; that the evidence justified the jury in finding that it had been made by F. and that the insured, therefore, had made no valuation as to the stock or the apportionment thereof and could not have misrepresented its value.-Held, per
Fitzpatrick, C. J. and Davies and Duff
JJ.-That the evidence justified the jury in finding that F. had described the premises as a dwelling-house and that the company was bound by his act in doing so.-Per Davies and Duff JJ.- A dwelling-house does not lose its character as such from the fact that it is occupied by one or more lodgers.-Held, per Duff J.-As, under the conditions of the policy in question, notwithstanding an over-valuation the company would still be liable for a certain proportion of the actual value of the property insured, the policy should not be avoided.
v. FIRE MARINE
INS. Co......................
Misrepresentation - Materiality -Statutory conditions -Variation.] In an action on a policy insuring a stock of merchandise the company pleaded-That the stock on hand at the.
time of the fire was fraudulently overvalued. That tie insured in his application concealed a material fact, namely, that he had previously suffered loss by fire in his business. That the action was barred by a condition in the policy requiring it to be brought within six months from the date of the fire.
This was a variation from the statutory condition that it must be brought within twelve months.-Held, affirming the judgment
Insurance, Fire-continued.
of the Appellate Division (29 Ont. L.R. 356) that the evidence established the value of the stock at the time of the fire to be as represented by the insured; that the materiality to the risk of the non-disclosure of a former loss by fire was a question of fact for the judge at the trial who properly held it to be immaterial; and that the question whether or not the variation from the statutory conditions was just and reasonable depended on the circumstances of the case, and the courts below rightly held that it was not.-Held, per Davies, Anglin and Brodeur JJ.-That the insured having supplied on demand, duplicate copies of the invoices of goods purchased between the last stock-taking and the time of the fire as well as copies of the stocktaking itself, was not obliged to comply with a further demand for invoices of purchases prior to said stock-taking. ANGLo-AMERICAN FIRE INS. Co. v. HEN- MONTREAL FIRE INS. CO. V. H ENDRY........................... JUDGE - "Supreme Court Act," as. 36, 37, 46 - Judge in chambers-Originating petition- Arts. 71, 72, 875, 876 C.P.Q.-Liquor Laws-"Quebec Licence Law," 1909, arts. 924 et seq.-Property in licence -Agreement-Ownership in persons other than holder-Invalidity of contract-Public policy........................... See LAws.
2-Criminal law-Habeas corpus-Common law offences-Construction of statute Court Act," R.S.C., 1906, c. 139, s. 62...
................ Criminal Habeas corpus-Common law offences - Act," R.S.C., 1906, c. 139, 8. 62.... 235 JURY-Negligence - Dangerous works- Defective system-Findings of jury-Sufficiency of answers - Practice - Discontinuance against co-defendant-Release of joint tortfeasor...................... construction and operation-Conflict of laws-Provincial legislation-Interference with Dominion railways-Constitutional law-Jurisdiction of legislature-Construction of statute-7 Edw. VII., c. 8, s. 82
(Alta.)-2 Geo. V., s. 7 (Alta.)-"B.N.A.
Act, 1867," ss. 91, 92.................
2-Constitutional law-Provincial tram- Jurisdiction of Board of Railway
Overhead crossings
Apportionment of cost
Legislative jurisdiction-Ancillary powers
-Construction of statute-"Railway Act,"
1867," s. 92, item 10.................
LICENCES - Liquor laws - "Quebec
Licence Law," R.S.Q., arts. 924 et seq. - Property in licence - Ownership in persons other than holder - Invalidity of contract-Public policy.] It is inconsistent with the policy of the
"Quebec Licence Law" (R.S.Q., 1909), that the ownership of a licence to sell intoxicating liquors should be vested in one person while the licence is held in the name of another.
An agreement having that effect is void inasmuch as it establishes conditions contrary to the policy of the statute. Judgment appealed from (Q.R. 22 K.B. 58) reversed, Brodeur
J. dissenting.
2-Constitutional law-Insurance-For- Dominion licence-9 & Edw. VII., c.
3-Constitutional law-Incorporation of companies-"Provincial objects"-Limitation-Doing business beyond the province- Insurance company - "Insurance Act,
LIEN - Winding-up proceedings pany in liquidation-Sale of assets sent to sale of mortgaged ship-Sale by
Lien-continu ed.
from incumbrances-Special fund-Frivileged charge-Priority-Valuation of security - Release of mortgage - Marshalling securities-Subrogation.] A ship which. belonged to a company in liquidation was mortgaged to a bank and was also subject to maritime liens for seamen's wages due at the time of the winding-up order. The bank consented to the sale of the ship, by the liquidator, free from incumbrances at the same time as he sold the other assets of the company by direction of the court. He sold the ship security on the ship at $5,000. The purclaim to the whole of the fund realized priority out of this fund.-Held, affirming the judgment appealed from (4 West. W.R. 1271; 25 West. L.R. 92; D.L.R. 807) that, by its consent to the sale of the ship under direction of the court, free from incumbrances, bank assented to the conversion thereof released from its mortgage and that the proceeds of the sale of the ship should be apportioned amongst the creditors in provided by law; consequently it was not entitled to any special charge on the fund realized upon its sale.-Held, further, that the rights of the wageearners holding maritime liens were not affected by the loss of the ship after it had been sold by the liquidator under the order of the court and that they were entitled to recover their claims out of the fund realized upon the sale of the ship in priority to the mortgagee.- [MEMo.-The court ordered that the rights of the bank, if any, to relief, by way of subrogation or marshalling of securities, should be reserved to be dealt with on further proceedings in the winding-up of the company.]
LIMITATIONS
OF ACTIONS - Trespass-Railways-Occupation of lands- Side-tracks-Continuous trespass-Damages-R.S.C., 1906, c. 37, s.306...... 514 Winding-up proceedings-Company in liquidation-Sale of assets-Consent to sale of mortgaged ship-Sale by order of court-Mariners' liens-Sale free from incumbrances- Special fund-Privileged charge-Priority
-Valuation of security-Release of mortgage - Subrogation ..... .........................
LIQUOR LAWS - -"Supreme Court Act," ss. 36, 37, 46- Judge in Chambers-Originating petition- Arts. 72, 876, C.P.Q.-Liquor laws-"Quebec Licence Law,"
1909, arts. 924 et seq.
Property in licence in persons other than holder-Invalidity of contract-Public policy.] A cause, matter or judicial proceeding originating on petition to a judge in chambers, in virtue of articles 875 and 876 of the Quebec Code of Civil Procedure, is appealable to the
Supreme Court of Canada where the subject of the controversy amounts to the sum or value of two thousand dollars.
-It is inconsistent with the policy of the "Quebec Licence Law"
1909) that the ownership of a licence to sell intoxicating liquors should be vested in one person while the licence is held in the name of another. An agreement having that effect is void inasmuch as it establishes conditions contrary to the policy of the statute. Judgment appealed from (Q.R. 22 K.B. 58) reversed,
Brodeur J. (dissenting)
.
ST. CHARIES..................
MARRIED WOMAN - Fraudulent conveyance-Statute of Elizabeth-Husband and wife - Voluntary settlement - Evidence.] In August, 1908, M. and his brother bought a hotel business in Ottawa for $8,000, paying $6,000 down and securing the balance by notes which were afterwards retired. In November,
1908, M. conveyed a hotel property in
Madoc to his wife subject to a mortgage which she assumed.
M. and his brother carried on the Ottawa business until March, 1910, when they assigned for benefit of creditors who brought suit to set aside the conveyance to M.'s wife.
On the trial it was shewn that for some time before November, 1908,
M.'s wife had been urging him to transfer to her the Madoc property, which she had helped him to acquire, as a provision for herself and their children;
Married Woman-continued.
that she had joined in a conveyance of a property in Toronto in which they both believed she had a right of dower, and the proceeds of the sale of which were applied in the purchase of the Ottawa business; and that all of M.'s liabilities a the time of said conveyance had been discharged.
M. ascribed his failure in Ottawa to the action of the Licence Commissioners in compelling him to move his bar to the rear of the premises whereby his receipts fell off and he lost rents that he had theretofore received, and had to make expensive alterations; and to a fire on the premises early in 1910. The trial judge set aside the conveyance to M.'s wife; his judgment was reversed by a Divisional Court (24 Ont. L.R. 591), but restored by the Court of Appeal.-Held, affirming the judgment of the Court of Appeal (27 Ont. L.R. 319), Davies J. dissenting, 'that the conveyance by M. to his wife was voluntary; that it denuded him of the greater part of his available assets and was made to protect the property conveyed against his future creditors and is, therefore, void as against them. McGUIRE Co. MORTGAGE - Winding-up proceedings -Company in liquidation-Sale of assets- Consent to sale of mortgaged ship-Sale by from incumbrances-Special fund-Privileged charge-Priority-Valuation of security-Release of mortgage-Marshalling securities-Subrogation.......... 593 See LIEN.
MUNICIPAL CORPORATIONS struction of works-Riparian rights-Access to waterfront................... 2--Trespass-Easement-Public way- Es- NEGLIGENCE-Operation of tramwayconduct of motorman.] The carelessness of the plaintiffs in driving across,the tracks of a tramway was, in this case, excused by the reckless conduct of the defendant's motorman in failing to use Negligence-continued.
proper precautions to avoid the consequences of their negligence after he had become aware of it. Judgment appealed from D.L.R. 3; 4 West. W. R. 263)
vis..........................
2-Employers' liability-Defective appliances-Warning and in8truction-Injury to workman.] The husband plaintiff sustained injuries, which resulted in his death, while employed in hoisting bags of grain by means of tackle to the upper story of the appellant's warehouse.
Deceased had fastened two bags of grain to the rope, which worked over pulleys, without using a slip-knot, and the bags fell upon him causing the injuries.
Shortly before the accident he had been warned to be careful in performing the work at which he was engaged, but it did not appear that he had been instructed as to the proper method of securing the bags to the hoisting rope.
The action was dismissed at the trial on the ground that the injuries were caused by the negligence of deceased solely, without any fault on the part of his employer. This judgment was reversed by the Court of
Review and, in affirming that decision, the judgment appealed from (Q.R. 20
K.B. 378), held that the employer, by his neglect in permitting the deceased to perform his work in an unsafe manner, became responsible in damages for the injury which, as the result of want of proper instructions, was the cause of death.
The appeal to the Supreme
Court of Canada was dismissed with costs, the Chief Justice dissenting.
v. DENIs...................
- Operation speed-Trespasser-"Railway Act," R.S.
H., who had unlawfully entered upon the right-of-way through a break in the company's fences, attempted to cross the tracks in front of the train. The engine driver saw H., at a distance of about 500 feet and whistled several times. H. paid no attention to the danger signals and continued walking in an oblique direction towards the track, and, observing his apparent in- Negligence-continued.
tention to cross the track and his disregard of the signals, the engine driver then applied the emergency brakes which failed to stop the train in time to avoid the accident by which H. was killed.
In an action for damages by his widow and child.-Held, that, notwithstanding the fact that deceased was a trespasser and committing a breach of section 408 of the "Railway Act," R.S. C., 1906, ch. 37, the company was liable bcause their engine driver neglected to apply the emergency brakes at the time he became aware of the danger of accident when he first noticed deceased attempting to cross the tracks.
By 8 & 9 Edw. VII. ch. 32, sec. 13, amending section 275 of the "Railway Act" no railway train "shall pass over a highway crossing at rail level in any thickly peopled portion of any city, town or village at a greater speed than ten miles an hour" unless such crossing is constructed and protected according to special orders and regulations of the Railway Committee or Board of Railway Commissioners or permission is given by the Board. In an action against a railway company for damages on account of injuries received through a train passing over such a crossing at a greater speed than ten miles an hour.-Held, reversing the judgment of the Appellate Division (29 Ont. L.R. 247), that the onus was on the company of proving that the conditions existed which, i under the provisions of said section, exempted them from the necessity of limiting the speed of their train to ten miles an hour or that they had the permission of the Board to exceed that limit, and as they had not satisfied that onus the plaintiff's verdict should stand.-Subsection 4, of sec. 13, prohibits trains running "over any highway crossing" at more than 10 miles an hour, if at such crossing an accident has happened subsequent to 1st January, 1900, "by a moving train causing bodily injury," etc., "unless and until" it is protected to the satisfaction of the Board.-Per Duff and Brodeur JJ.-The appellant's action could also be maintained on the ground that the prohibition of sub-section 4 applies to the crossing in question Negligence-continued.
Grand Trunk Railway Co. v. Mc- Kay (34 Can. S.C.R. 81) distinguished.
5-Common employment - Dangerous works-Safety of workmen-Defective system-Employer's liability-Jury's findings
-Sufficiency of answers-Practice-Discontinuance against co-defendant-Release of joint tortfeasor.] The plaintiff's husband was a linesman employed, on piecework, by the defendants with a gang of men setting posts in holes previously dug by the company with which they had contracted to erect the posts and prepare them to carry electric wires.
A post set in one of these holes was insufficiently sunk or set in position without proper packing to hold it rigidly in the light soil of an embankment. Deceased was sent up the post to attach cross-bars which were being hoisted to him by fellow-workmen by means of a block and.
tackle when, owing to the strain, the post fell causing injuries which resulted in his death. The post-holes, as dug by the company, had been accepted by the defendants for the purposes of their contract, but they made no inspection as to their sufficiency, nor did they give instructions in regard to necessary precautions to ensure the safety of their employees engaged in setting up the posts and preparing them for wirig.- Held, affirming the judgment appealed from (4 West. W.R. 1311; 13 D.L.R. 143;
25 West. L.R. 66) that the failure to sink the postholes to sufficient depth and obtain proper filling to pack the post, and ensure the safety of the employee required to climb it, was personal negligence on the part of the defendants, the consequences of which they could not avoid by pleading that the accident occurred through the fault of a fellowservant.-Per Duff J.-In the circumstances of the case the answers by the jury that the defendants had failed to set the post at sufficient depth and pack them with sufficiently rigid material involved a finding that there was negligence in these respects imputable to the defendants for which they were personally responsible in an action for
OATH-Criminal law-Perjury-Form of oath.] A witness who testifies to what is false is guilty of perjury, although, without being asked if he had any ob- Oath-continued.
to the manner, but without objecting to the form used, he was directed to take the oath by raising his right hand instead of kissing the Bible.
PERJURY-Criminal law-Form of oath.] A witness who testifies to what is false is guilty of perjury, although, without being asked if he had any objection to being sworn in the usual manner, but without objecting to the form used, he was directed to take the oath by raising his right hand instead of kissing the Bible.
v. THE KING....... PRACTICE AND PROCEDURE-Appeal -Jurisdiction-"Supreme
Court Act," ss.36, 37, 46-Judge in Chambers-Originating petition-Arts. 72, 875, 876 C.P.Q.]
A cause, matter or judicial petition judge in chambers, in virtue of articles 875 and 876 of the Quebec Code of Civil Procedure, is appealable to the Supreme Court of Canada where the subject of the controversy amounts to the sum or value of two thousand dpllars. Tun- ST.
Before the amendment, in 1913, to sec. 2 (e) of the "Supreme Court Act," R.S.C. 1906, ch. 139, judgments were rendered maintaining an action on a bond by which two of the defendailts were ordered to pay to the plaintiffs an amount not exceeding that secured by the bond to be ascertained upon a reference to the master and further directions were reserved; as to another defendant, recovery of the same amount, to be ascertained in the same manner, was ordered, but there was no reserve of further directions.
Upon an appealby the last mentioned defendant, Davies J. dissenting, that the judgment sought to be appealed from (23 Man. R. 159) did not finally conclude the action as proceedings still remained to be taken on the reference, consequently, it was not a final judgment within the meaning of section 2 (e) of the "Supreme Court Act," prior to the amendment by the statute 3 & 4 Geo. V., Practice and Procedure-continued.
ch. 51 (assented to on the 6th of June,
1913), and it was not competent to the
Supreme Court of Canada to entertain the appeal.
The Rural Municipality of
Morris v. The London and Canadian
Loan and Agency Co. (19 Can. S.C.R.
followed.
Ex parte Moore (14
Q.B.D.
distinguished; Clarke v.
Goodall (44 Can. S.C.R. 284), and The
Crown Life Ins. Co. v. Skinner (44 Can.
S.C.R. 616) referred to.-Per Anglin and Brodeur JJ.-The amendment of the "Supreme Court Act" by the first section of 3 & 4 Geo. V. ch. 51, has not affected whatever right the appellant may have had at the time the judgment was rendered in respect to an appeal to the Supreme Court of Canada.
Hyde v. Lindsay (29 Can. S.C.R. 99); Cowen v. Evans (22 Can. S.C.R. 331); Hurtubise v. Desnarteau Can. S.C.R. 562);
and Taylor v. The Queen (1 Can. S.C.R.
65) referred to.-Per Davies J. dissenting.-The judgment in question does not reserve "further directions"
comes within the rule and principle determining what are "final judgments"
laid down in the case of Ez parte Moore
(14 Q.B.D. 627).
3-Appeal-Findings ofjury-Review by appellate court.] Where a case has been properly allowed to go to the jury and there is evidence before them from which they could reasonably draw the conclusion at which they arrived, the verdict should not be disturbed on an appeal.- Judgment appealed from (18 B.C. Rep.
4-Election law-Preliminary objections
- Rules of practice - Repeal - Inconsistency with statutory provision - Judgment on preliminary objections - Final determination of stage of cause-Objections
-Irregularity by returning officer-Appeal
20, 85-R.S.C., 1906, c. 1, s. 20.] Under the provisions of the "Dominion Controverted Elections Act,
1874,"
judges of the Superior Court for the
Province of Quebec made general rules and orders for the regulation of the practice and procedure with respect to election petitions whereby the returning officer was required to publish notice of
Practice and Procedure-con tinued. such petitions once in the Quebec Official Gazette and twice in English and French newspapers published or circulating in the electoral division affected by the controversy. By section 16 of chapter 7, R.S.C., 1906, provision is made for the publishing of a similar notice by the* returning officer once in a newspaper published in the electoral district.i Held, that the rule of practice is inconsistent with the provision as to the notice required by section chapter 7, 1906, and, consequently, has ceased to be in force.-Per Duff and Brodeur JJ.-Even if such rule were still in force, failure on the part of the returning officer to comply with it would not be sufficient ground for the dismissal of the election petition.-Per Davies, Duff, and Anglin JJ.-Under the provisions of the "Dominion Controverted Elections Act," R.S.C., 1906, ch. 7, sees. and 20, preliminary objections are required to be decided in a summary manner; consequently, a decision by an election court judge on any of the preliminary objections disposes of all the issues raised in that stage of the proceedings. Where an election petition is disposed of by the judge upon one of several objections, without consideration of the others, the Supreme Court of Canada has jurisdiction to hear and determine questions arising upon all the preliminary objections in issue before the election court judge; its jurisdiction is not confined to the objection upon which the judgment appealed from was solely based. Idington J. contra. Fitzpatrick C.J.
Brodeur J. expressing no opinion.
5-Arbitration - Award - Procedure - Prolonging date for award-Special circumstances-"Railway Act," R.S.C., 1906, c. 37, s. 204...................
.
co-defendant
Release of joint tortfeasor
...................
Easement - Public way -- Dedication - - "Law and
Transfer of Property Act," R.S.O., 1897, c. 119.]
S. brought action against P.
for trespass on a strip of land called
"Ancroft Place" which he claimed as his property and asked for damages and an injunction. "Ancroft Place" was a cul-de-sac running east from Sherbourne
Street, and the defence to the action was that it was a public street or, if not, that P. had a right of way over it either by grant or user. On the trial it was shewn that the original owners had conveyed the lots to the east and south of
"Ancroft Place" to different parties, each deed describing it as a street and giving a right of way over it to the grantee. The deeds to P.'s predecessors in title did not give him a similar right of way, but some of these conveyances described it as a street. The deed to one of the predecessors in title of S.
had a plan annexed shewing "Ancroft
Place" as a street fifty feet wide and the grantee was given the right to register said plan. The evidence also established that for 22 years before the action
"Ancroft Place" had been entered in the assessment rolls as a public street and had not been assessed for taxes and that the city had placed a gas lamp on the end; also, that for over twenty years it had been used by the owners of the lots to the south and east, and from time to time by the owner on the north side, as a means of access to, and egress from, their respective properties.
1909 the fee in the land in dispute was conveyed to S., who had become owner of the lots to the east and south.-Held,
Idington J. (dissenting)
, Duff J. expressing no opinion, that the evidence was not sufficient to establish that the land had been dedicated to the public, and accepted by the municipality as a street.- Held, further, Idington and Duff JJ. dissenting, that the land was not a "way, easement or appurtenance" to the lot to the north "held, used, occupied and enjoyed, or taken or known, as part and parcel thereof" within the meaning of see. 12 of "The Law and Transfer of
Property Act," R.S.O., ch. 119.
also, that P. had not acquired a
Prescription-continued.
right of way by a grant implied from the terms of the deeds of the adjoining lots. Duff J. dissenting; nor by prescription. Duff J. expressing no opinion. -Per
Duff J.-The facts established justify the inference that the original owners (Mr. and Mrs. Patrick) always entertained the design that the strip of land in question should be a street affording access to the adjoining parts of lot 22; that, accordingly, it had been surveyed and laid out as a street, on the ground, in 1884; that the sale to McCully, m 1887, proceeded on the footing that the land purchased by him was bounded to the south by a street and this was one of the elements of value determining the price he paid; that, thereafter, in accordance with the same design, Mrs. P. permitted the successive occupants of the lot bought by McC. to use this strip of land as of right for all the purposes of a street; that these occupants, acting as she intended they should and as the situation, created by her, naturally encouraged them to act, purchased and dealt with it upon the same footing as that upon which the sale to McC took place: consequently, the respondent is, on the principle of Piggott v. Stratton (1 DeG. F. & J. 33), as explained in Spicer v. Martin (14 App. Cas. 12), and of Cairncross v. Lorimer (3 Macq. 829); Oliver v. King (8 DeG. M. & G. 110); and Russell v. Watts (10 App. Cas. 590), precluded from disputing the right of the appellant to use "Ancroft Place" as a street.-Per Duff J.-At the time of the sale to McC. the vendor was precluded from using Rachel Street fox any purpose inconsistent with its character as a street and its sole value for her as a "street" or "way" was because of the means of access it afforded to the property sold. Its character as a way laid off for the accommodation, inter alia, of that property was palpable to everybody; as a way, therefore, it was as regards the vendor's interest in it a "way
*
*
* known or taken to be" an adjunct of the property sold and, as such, passed to the purchaser under the provisions of the "Law and Transfer of Property Act."-(Leave to appeal to Privy Council granted, 25th July, 1913).
.......
PRINCIPAL AND AGENT - -Subscription for treasury stock - Principal and Agent-continued.
tract-Principal and agent-Misrepresentation - Fraud - Transfer of shares-Rescission-Return of payments-Want of consideration.] V. entered into an agreement to purchase for re-sale the unsold treasury stock of a foreign joint stock company "subscriptions to be made from time to time as sales were made";
it was therein provided that the company should fill all orders for stock received through V. at for each share;
that V. should sell the stock for $20 per share; that V. should "pay for the stock so ordered with the proceeds of sales made by him or through his agency," and that the contract should continue in force so long as the company had unsold treasury stock with which to fill such orders. The company also gave
V. authority to establish agencies in
Canada in connection with its casualty insurance business and to appoint medical examiners there. At the time the company had no licence to carry on the business of insurance in Canada, nor any immediate intention of making arrangements to do so; and V. was an official of the company and was aware of these facts. V. appointed T. the sole medical examiner of the company for Vancouver,
B.C., assuring him that the company would commence to carry on its casualty insurance business there within a couple of months, and then obtained from him a subscription for a number of shares of the company's treasury stock which were paid for partly by T.'s cheques, payable to the company, and the balance by a series of promissory notes falling due from month to month following the date of the subscription and made payable to V. A number of shares equal to those so subscribed for by T. were then transferred to him by V. out of the allotment made to him by the above mentioned agreement, the certificates therefor being obtained by V. in the name of T. from the company, but the company did not formally accept T.'s subscription nor issue any treasury stock to him thereunder. The company did not commence business in Vancouver within the time specified by V. nor did it obtain a licence to carry on the business of insurance in Canada until many months later. In an action by T. against the company and V. to recover back the money he had paid and for the cancellation and return of the notes.-Held,
Principal and Agent-continued. (7 D.L.R. 944; 2 West. W.R. 658), Davies and Anglin JJ. dissenting, that, in the transaction which took place, V. was the company's agents that the company was, consequently, responsible for the deceit practised in procuring the subscription from T.; that there had been no contract for the purchase of treasury stock completed between the company and T.; that the object of T.'s subscription was not satisfied by the transfer of V.'s shares to him, and that he was entitled to recover back the money he had paid and to have the notes returned for cancellation as having been paid over and delivered without consideration and in consequence of the fraudulent repre- Co. v. THOMPSON........ 2-Fire insurance-Blank application- General agent-Misrepresentation-Knowledge
Over-valuation - "Dwelling-house"-"Lodging-house".. 546 Crown lands - 8 Edw. VII., c. 30, s8. 34, 36- Sale of Crown lands-Commission on sales - Quantum meruit - Tainted contract............................... PROMISSORY NOTE.
See BILs
POLICY
Subsequently B. assisted in the disposal of the lands thus secured to innocent purchasers under an arrangement with the defendant and his associate that he was to participate in any profits which should be obtained on such sales. In an action by B. to recover compensation for the services he had rendered in regard to these sales.-Held, Public Policy-continued.
that the circumstances disclosed a scheme concocted in opposition to the
Act" and in violation of its provisions tainted with the character of the scheme,
-Per Idington and Anglin JJ.-The plaintiff's claim fails for want of evidence of any request by the defendant that he agreement to remunerate him for assistance in effecting the sales in question.stood
M cINTOSH.........................
2-Appeal - Court Act,"
72, 875, 876, C.P.Q.-Liquor Laws-"Quebee Licence Law," R.S.Q., 1909, arts. 924 et seq.-Property in licence-Agreement- Ownership in persons other than holder- Invalidity of contract................
See LiouoR
PUBLIC WAY.
QUANTUM
MERUIT-Company law- Agreement by directors-Onerous contract
-Non-disclosure to shareholders-Breach of contract-Damages-Settlement of accounts - Reference to master-Final judgment....... 318
Commission on sales-Tainted contract
.................
"QUEBEC LICENCE LAW" - -Jurisdiction-"Supreme Court Act," ss.
36, 37, 46-Judge in chambers-Originating petition-Arts. 71, 72, 875, 876 C.P.Q.
- Liquor laws - Property in licence - Agreement-Ownership in persons other than holder-Invalidity of contract-Public policy.............
See Lloron LA'ws.
It is not competent to the Legislature of the Province of Alberta to enact legislation authorizing the construction and operation of railways in such a manner as to interfere with the physical structure or with the operation of railways subject to the jurisdiction of the Parliament of Canada. -Brodeur
J. contra, was of the opinion that such legislation would be within the jurisdiction of the provincial legislature provided that in its effect there should be no unreasonable interference with federal railways.
Board of Railway Commissioners-Highways-Overhead crossings-Apportionment of cost-Legislative jurisdiction-Ancillary powers-"Interested parties"-Construction of statute-"Railway Act," R.S.C., 1906, c. 37, as. 8, 59, 237, 238-(B.C.) 1867," s. 92, item 10.]
On an application by the City of Vancouver, the Board of Railway for Canada authorized the Corporation of the City of -Vancouver to construct overhead bridges across the tracks of a Dominion railway company, which had been laid down during the years 1909 and 1910 on certain streets in the city, and ordered that a portion of the cost of construction of two of these bridges and of the depression of the tracks at the crossings thereof by the Dominion railway should be borne by a tramway company which derived its powers through provincial legislation and an agreement with the city pursuant to such legislation under which it operated its tramways upon these streets. By the agreement the tramway company became entitled to use the city streets with reciprocal obligations by the city and the company respecting their grading, repair and maintenance, and it was provided that the city should receive a share of the gross earnings of the tramway company. On appeal to the Supreme Court of Canada from the order of the Board.- Held, Duff and Brodeur JJ. dissenting, that, in virtue of sections 8 (a), 59, 237 Railways-rontinued.
and 238 of the "Railway Act," R.S.C.,
1906, ch. 37, as amended by chapter 32 of 8 & 9 Edw. VII., the Board of Railway
Commissioners for Canada had jurisdiction to determine the "interested parties" in respect of the proposed works and to direct what proportion of the cost thereof should be borne by each of them. The City of Toronto v.
Canadian Pacific Railway Co. (
A.C. 54); Pacific Railway Co.
v. Parish of Notre Dame de Bonsecour
A.C. 367);
City of Toronto v.
Grand Trunk Railway Co. Can. S.C.R.
232); County of Carleton v. City of Ottawa
(41 Can. S.C.R. 552), and Re Canadian
Pacific Railway Co. and York Ont.
App. R. 65) followed.
Per Duff and
Brodeur JJ., dissenting.-(1) The Parliament of Canada, when it assumes juridiction, under the provisions of item 10 of section 92 of the "British North
America Act, 1867," in respect of a provincial railway, qud railway, must assume such jurisdiction over the work or undertaking "as an integer."
(2) The order of the Board cannot be sustained as being made in the exercise of the Dominion power of taxation.
(3) As there is no
Dominion interest concerned in the provisions of the order under appeal, and the Dominion Parliament has no power to compel the provincial company to assume the burden of the cost of the proposed works, or any portion thereof, the Board of Railway Commissioners had no jurisdiction to assess a proportion of their cost upon the tramway
(4) The cases cited above must be distinguished as they do not sustain, at a valid exercise of ancillary power by Dominion authority, any enactment professing to control a provincial railway company.-(NoTE.-Leave to appeal to the Privy Council was granted on 14th July, 1913.)
AD THE
3--Location plans-Width of right-ofiray-Subsequent alteration - Substituted plans-Approral of plans-Order having post facto effect-Juriidirtion struction of statute-"Railiway Act," R.S.
The Board has no juirisdiction, by an order permitting a railway company to file a new location plan, to be substituted for and as of the date of a former location plan previously approved by it, to authorize the company to alter, retrospectively, the former location of its railway. The proper method of effecting any such alteration is by proceedings under section 162 or section 167 of the "Railway Act," R.S.C., 1906, chapter 37. tion-Demolition of works-Jurisdiction Board of Railway Commissioners-" Railway Act," R.S.C., ss. 30 (i), 230,233.] Where a railway company, in the professed exercise of its powers as a railway company and without the approval of the route by the Minister the Board of Railway Commissioners for Canada, has constructed a solid filling across navigable waters, Board, under the provisions of sections 230 and 233 coupled with sub-sections (h) and (i) of section 30 of the "Railway Act," R.8.C., 1906, ch. 37, has jurisdiction to order the demolition of the works so constructed.
-Arbitration and award-Procedure- Prolonging date for award-Special circumstances-"Railway s. 204.] On an arbitration respeCting compensation to be paid for lands taken under the "Railway Act," R.S.C.. 1906, ch. 37, the arbitrators had fixed a day for their award according to the provisions of section 204. After some proceedings before them it was arranged, for the convenience of counsel for the parties, that further proceedings should be suspended until the return of counsel who were obliged to be present at the sittings of the Judicial Coinmittee of the Privy Council and nothing further was done until after the return of counsel from abroad at a (late later than the time so fixed for the award. The arbitrators hail not prolonged the time for making the award, but, upon reassembling after the day originally fixed had passed, they fixed a later (late for that purpose. The company's arbitrator and counsel then refused to take part in any subsequent proceedings and the two remaining arbitrators continued the hearing and made an award in favour of the claimant greater than that offered by the company for the lands expropriated.
In an action by the company to have the award set aside and for a declaration that the sum offered should be the compensation payable for the lands.-Held, Fitzpatrick
C.J. and Anglin J. dissenting, that, in the circumstances of the case, the company should not be permitted to object to the manner in which the arbitrators had proceeded in prolonging the time and making the award.
The appeal from the judgment of the Court of King's
Bench (Q.R. 22 K.B. 221), declaring the award to have been validly made was, dismissed with costs.
6- Trespass-Occupation of lands-Side tracks-Continuous trespass - Damages.]
The Woodstock Rway. Co. was, by its charter, authorized to expropriate land
99 feet in width for its right-of-way and provision was made for compensation to owners.
In 1871 it built its right-ofway 14 feet wide. In 1892 the C.P.R.
Co., having acquired the rights of the
W. Ry. Co., built side-tracks adjoining the right-of-way and within the 99 feet.
In 1911 the plaintiffs brought action for trespass by laying such side-tracks on their land.-The court below, (41 N.B.
Rep. 225,) held that there was no presumption that the W. Ry. Co. by occupying 14 feet took possession of the whole 99 feet allowed by its charter;
that the injury to plainiff's land was not "sustained by reason of the construction or operation of the railway"
and, therefore, the limitation of one year in sec.
of the "Railway
Act" (R.S.C. [1906] ch. 37) did not apply and, if it did, the damage was continuous and plaintiffs could recover damages for six years, assessed at 81,200.- Canada was dismissed, unanimously as to the merits, but with an equal division on the question of damages, three of their Lordships being of opinion that they were excessive and the case should be sent back for a re-assessment.
V. 514
7-Freight rates-Discrimination-Rebate - Construction of statute - Quebec
"Railway Act," R.S.Q., 1888, art. 5172- Company-Contract by directors-Powers
-Approval of tariffs.] An agreement by which a railway company undertakes to grant a rebate upon shipments of car lots of goods made by a manufacturer who engages to bear the cost of loading and unloading'his freight, unless shewn to be an artifice to secure unjust discrimination is not in contravention of the provisions of article 5172 of the Quebec Railway Act, R.S.Q., 1888, prohibiting undue advantage, privilege or monopoly being afforded to any person or class of persons in relation to tolls. Judgment appealed from (Q.R. 21 K.B. 85) affirmed, Idington and Anglin JJ. dissenting.- Per Brodeur J. (approving the judgment appealed from.)-The directors of a railway company may bind the company by such an agreement in relation to the business of the railway without having special sanction therefor by the shareholders.
Co. KENNEDY............ 8 -Operation
- Negligence speed-Trespasser-"Railway Act," R.S. C., 1906, c. 37, ss. 275, 408-Cause of accident.] While a train was running at the speed of about thirty miles an hour, on the company's line along the harbour front in the City of Vancouver, B.C., H., who had unlawfully entered upon the right-of-way through a break in the company's fences, attempted to cross the tracks in front of the train. The engine driver saw H., at a distance of about 500 feet and whistled several times. H. paid no attention to the danger signals and continued walking in an oblique direction towards the track and, observing his apparent intention to cross the track and his disregard of the signals, the engine driver then applied the emergency brakes which failed to stop the train in time to avoid the accident by which H. was killed. In an action for damages by his widow and child.-Held, that, notwithstanding the fact that deceased was a trespasser and committing a breach of section 408 of the "Railway Act," R.S.C., 1906, ch. 37, the company was liable because their engine driver neglected to apply the emergency brakes at the time he became aware of the danger of accident when he first noticed deceased attempting to cross the tracks.
By 8 & 9 Edw. VII. ch. 32, see. 13 amending section 275 of the "Railway Act" no railway train "shall pass over a highway crossing at rail level in any thickly peopled portion of any city, town or village at a greater speed than ten miles an hour" unless such crossing is constructed and protected according to special orders and regulations of the
Railway Committee or Board of Railway
Commissioners or permission is given by the Board. In an action against a railway company for damages on account of injuries received through a train passing over such a crossing at a greater speed than ten miles an hour.-Held, reversing the judgment of the Appellate
Division (29 Ont. L.R. 247), that the onus was on the company of proving that the conditions existed which, under the provisions of said section, exempted them from the necessity of limiting the speed of their train to ten miles an hour or that they had the permission of the
Board to exceed that limit, and as they had not satisfied that onus the plaintiff's verdict should stand.-Sub-section 4, of sec. 13, prohibits trains running "over any highway crossing" at more than 10 miles an hour, if at such crossing an accident has happened subsequent to
1st January, 1900, "by a moving train causing bodily injury," etc., "unless and until" it is protected to the satisfaction of the Board.-Per Duff and
Brodeur JJ.-The appellant's action could also be maintained on the ground that the prohibition of sub-section 4 applies to the crossing in question.- The Grand Trunk Railway Co. v. McKay
(34 Can. S.C.R. 81)
distinguished.
10-Board of Railway Commissioners- Submission of specific questions-Practice of statute-R.S.C., 1906, c. 37, s. 55, 56 s.-s. 3..............
See CoMIs- 11-Negligence-Operation of tramwayconduct of motorman................
RESCISSION for treasury stock-Contract-Principal and agent-Misrepresentation-Fraud
- Rescission-continued.
Transfer of shares-Return of payments- Want of consideration.............. RETAINER - Solicitor client- Subsequent proceedings-Habeas corpus- RIPARIAN RIGHTS -Access to waterfront
Interference - M., claiming to be a riparian owner on the shore of Ashbridge Bay (part of Toronto harbour), claimed damages from, and an injunction against, the city for interfering with his access to the water when digging a channel along the north side of the bay.-Held, affirming the judgment of the Court of Appeal (27 Ont. L.R. by which an appeal from a Divisional Court (23 Ont. L.R. 365) was dismissed, that the evidence established that between M.'s land and the bay was marsh land and not land covered with water as contended and, therefore, M. was not a riparian owner. 2-Watercourses - "Damages resulting"- Reparation-Construction of statute-Arts. 7298, 7349 R.S. Q. (1909)-Servitude-Injury caused by independent contractor-Liability of owner of timber.] The privilege of transmitting timber down watercourses in the Province of quebec given by article 7298 of the Revised Statutes of Quebec, 1909, is not granted in derogation of the obligation imposed upon those making use of watercourses for such purposes to make reparation for damages resulting therefrom by article 7349 (2) of the Revised Statutes of Quebec.
The effect of the articles is that persons who avail thcmselves of the privilege thereby conferred are obliged to compensate riparian owners for all damages which result from the exercise of that right except in regard to such as cannot be avoided by the exercise of reasonable care and skill and those in respect of which the riparian proprietor himself may have contributed, or which have been occasioned by his own fault. Tourville v. Ritchie (21 R.L. 110) referred to. judgment appealed from was reversed, Davies and Anglin JJ. dissenting.-Per Davies and Anglin JJ. dissenting.-The evidence shewed that the Riparian Rights-continued.
damages complained of were caused by the fault of a bond fide independent contractor and, consequently, the owner of the timber which was being driven down the watercourse in question was not responsible for them.-(Noi-E.-Leave to appeal to the Privy Council was granted on 15th July,
RIVERS
STREAMS - Watercourses-Driving timber-"Damages resulting"-Preparation-Riparian rights- Construction of statute-Arts. 7298, 7349
R.S.Q. (1909)-Servitude-Injury caused by independent contractor-Liability of owner of timber.] The privilege of transmitting timber down watercourses in the Province of Quebec given by article 7298 of the Revised Statutes of Quebec, 1909, is not granted in derogation of the obligation imposed upon those making use of watercourses for such purposes to make reparation for damages resulting therefrom by article 7349 (2) of the Revised Statutes of Quebec. The effect of the articles is that persons who avail themselves of the privilege thereby conferred are obliged to compensate riparian owners for all damages which result from the exercise of that right except in regard to such as cannot be avoided by the exercise of reasonable care and skill and those in respect of which the riparian proprietor himself may have contributed, or which have been occasioned by his own fault.-Tourville v. Ritchie
R.L. 110) referred to.-The judgment appealed from was reversed, Davies and Anglin JJ. dissenting.-Per Davies and Anglin JJ., dissenting.-The evidence shewed that the damages complained of were caused by the fault of a bond .fide independent contractor and, consequently, the owner of the timber which was being driven down the watercourse in question was not responsible for them.-(NoTE.-Leave to appeal to the Privy Council was granted on 15th
July, 1913.)
SALE-Sale of land-Agreement-Bond to secure payment of price-Conditions as to title.] The defendants, with other persons, entered into an agreement with the plaintiffs, appellants (except E.)
for the purchase of lands, at $2 per acre, payable on 1st November, 1905, and afterwards entered into the bond upon which the action was taken.
Differences
Sale-continued arose and plaintiffs refused to proceed with the execution of the agreement unless performance of its terms by thg other parties was guaranteed, and, on 7th Sept., 1905, the bond was executed, expressed to be as security for payment of the price of the lands and it also contained a covenant for the payment to the plaintiffs of $2,500, part of the price to and for their own use and benefit as liquidated damages for services rendered and to be rendered by the plaintiffs. This bond was assigned to E. as collateral security for advances to his coplaintiffs and, during the trial, he was added as a plaintiff. The trial judge ordered judgment in favour of plaintiffs, but this judgment was reversed by the Court of Appeal (19 Man. R. 517), on the ground that plaintiffs had failed to shew that they had acquired any title to or interest in the lands which they had agreed to sell, and it was held that, as plaintiffs could not recover under the agreement, they could not recover under the bond.-The appeal to the Supreme Court of Canada was dismissed with costs.
2-Sale of goods-Designated quality- Fraud on purchaser-Damages-Loss of market.] G. contracted for the purchase from B. of a quantity of apples for the purpose of selling them on the Christmas market in England. The apples were to be graded as Nos. 1 and 2 and delivered at Wolfville, N.S., before Dec. 1st, 1908. They were delivered accordingly to the number of 584 barrels and sent to St. John, N.B., for shipment. At St. John the fruit inspector opened some barrels, condemned the grading, and they had to be repacked at considerable expense and such delay that the intended market was lost. In the repacking some of the fruit was graded as No. 3 and some rejected as worthless culls. G. sued to recover the cost of repacking, damages for apples not up to the specified quality and loss of profit. He recovered a judgment at the trial on all three heads which the full court affirmed, (41 N.S. Rep. 116.)
B. appealed to the Supreme Court of Canada against the award of damages for loss of profit only. The appeal was dismissed with costs. BIGE- 3-Sale of goods-Delay in delivery- Damages-Construction of agreement-De- Sale-continued.
.ficiencies in machinery-Exemption clause
- " Unable to deliver" - "On or about"
stated date.] The action was for the price of a boiler and attachments and K.
counterclaimed for damages on account of delay in the shipment of part of the machinery within the time stipulated in the sale-agreement and the unsuitability of other parts for the works in which they were to be used. The trial judge dismissed the counterclaim because of an exemption clause in the agreement providing if for any reason L. & Sons were "unable to fill" K.'s order for the machinery "or deliver the goods at the time stated" that they woud not in any way be held responsible for damages, and also because the delay had been caus2'd by failure to deliver a part of the machinery which had not been included in the order. The Supreme Court of
Alberta held that as the evidence did not shew inability to deliver the machinery at the time stated the clause did not protect the sellers, and also, that the failure to deliver certain parts of the machinery in question had not been the actual cause of the delay from which the damages claimed had resulted.
An appeal to the Supreme
Court of Canada, was allowed in part, the judgment appealed from, (4 Alta.
L.R. 152,) set aside, the appellants were held entitled to recover $465.30 with interest, the defendant to recover $200 on his counterclaim, and appellants to have leave to enter judgment for the difference.
It was ordered that the costs of action and counterclaim should follow these events, and that there should be no costs upon the appeal to the Supreme Court of Canada nor on
Alberta in banco. & v.
KREMER
...................
4--Winding-up proceedings in liquidation-Sale of assets-Consent to sale of mortgaged ship-Sale by order of court-Mariners' liens-Sale free from incumbrances - Special fund - Privileged charge-Priority-Valuation of security - Release of mortgage-Marshalling securities-Subrogation.] A ship which belonged to a company in liquidation was mortgaged to a bank and was also subject to maritime liens for seamen's wages due at the time of the winding-up order. The bank consented to the sale of the ship, by the liquidator, free from
45%
*Sale--continued.
incumbrances, at the same time as he sold the other assets of the company by Idirection of the court. He sold the ship Isecurity on the ship at $5,000. The pur- Iclaim to the whole of the fund realized priority out of this fund.-Held, affirming the judgment appealed from W.R. 1271; 25 L.R. 92; 12 ID.L.R. 807) that, by its consent to the sale of the ship under direction of the court, free from incumbrances, the bank had assented to the conversion thereof released from its mortgage and that the proceeds of the sale of the ship should be apportioned amongst the creditors in provided by law; consequently it was not entitled to any special charge on *the fund realized upon its sale.-Held, further, that the rights of the wageearners holding maritime liens were not affected by the loss of the ship after it had been sold by the liquidator under the order of the court and that they were entitled to recover their claims out of the fund realized upon the sale of the ship in priority to the mortgagee. -[MsrnO.-The court ordered that the rights of the bank, if any, to relief, by way of subrogation or marshalling of securities, should' be reserved to be dealt with on further proceedings in the winding-up of the company.]
5-Crom lands-Location-Public policy-Evasion of st at ute-B .C. "Land Act," 8 Edw. VII., c. 30, 34, 36-Sale *Tainted contract .................
SERVITUDE
Wdtercourses Driving timber-' Damages resulting' -Re paration I-Riparian rights-Construction of statute 7298, 7349 R.S.Q., 1909-Injury caused by independent coat ractor-Liability o owner of timber............. Fraudulent conveyance-Statute of Elizabeth-Husband and wife-Voluntary settlement-Evidence 44
SHAREHOLDER - Company-Subscription for treasury stock-Contract-Principal and agent-Misrepresentation-Fraud of payments-Want of consideration. . 167
2-Company law-Agreement by directors-Onerous contract-Non-disclosure to shareholders-Breach of contract-Damages-Settlement of accounts-Appeal- Jurisdiction-Reference to master-Final judgment......................
SHIPS AND SHIPPING - Winding-up proceedings-Company in liquidation- Sale of assets-Consent to sale of mortgaged ship-Sale by order of court-Mariners' liens-Sale free from incumbrances- Special fund-Privileged charge-Priority
-Valuation of security-Release of mortgage - Subrogation ................................
- SOLICITOR-Solicitor and client-Retainer - Subsequent proceedings - Habeas corpus - W., master and managing owner of the "Mary A. Duff,"
retained plaintiff, a barrister, to prosecute some sailors for desertion. The sailors were convicted and imprisoned and plaintiff was also retained to oppose their application for discharge on habeas corpus which he did successfully.
W.
being about to sail gave his note to plaintiff for the amount of his charges.
About the same time he was removed from the position of managing owner and the defendant appointed in his stead.
Plaintiff's note was presented to the defendant and paid.-The sailors made a second application for a writ of habeas corpus, the order was served at the residence of W. and his daughter brought it to plaintiff, who telephoned to defendant concerning it and was told that defendant had no instructions in the matter.
Plaintiff attended on the second application for the writ and, defendant refusing to pay his bill, he brought action.
-The trial judge and two judges of the full court (45 N.S. Rep. 338) held that defendant's action in paying the former
Solicitor-continued.
account and making no objection to his acting on the second occasion estopped him from denying the plaintiff's retainer. -The Supreme Court of Canada unanimously reversed the judgment for the plaintiff, holding that his retainer was at an end when W. settled his account. 2- Solicior and client-Special statute- Plaintiffs, a firm of solicitors, were retained by defendant in litigation between him and a municipal corporation and in other matters. They succeeded in having a by-law quashed with costs whereupon a special Act was passed by the legislature validating the by-law and ordering the municipality to pay defendant's costs as between solicitor and client providing that "such costs are hereby fixed at eighteen hundred dollars."
The plaintiffs delivered to defendant a signed bill of costs containing one item of $1,800, stated to be "settled by agreement between the parties and fixed by statute" and directed to be paid by the corporation to defendant, and detailed items amounting to $84.
A month after delivery of the bill action was taken thereon and, on the trial, plaintiffs failed to prove any agreement in writing respecting the $1,800.- The trial judge dismissed the action, holding that the special Act did not relieve the plaintiffs from the necessity of complying with the terms of the "Solicitors Act" and delivering an itemized account of all services rendered. The Appellate Division (28 Ont. L.R. 121) varied this judgment by giving plaintiffs the $84, details of which were given. Canada was dismissed with costs. JOHNSTONE............... Railways-Powers of construction and operation-Conflict of laws- Provincial legislation-Interference with Dominion railways-Constitutional law- Jurisdiction of legislature-Construction of statute-7 Edw. VII. c. 8, s. 82 (Alta.) 2 Geo. V. c. s. 7 (Alta.)-"B.N.A. Act," 1867, s. 91 and 92.] It is not competent to the Legislature of the Province of Alberta to enact legislation authorizing the construction and operation of railways in such a manner as to interfere with the physical structure or with the operation of railways subject to the jurisdiction of the Parliament of Canada.
-Brodeur
J. contra, was of the opinion that such legislation would be within the jurisdiction of the provincial legislature provided that in its effect there should be no unreasonable interference with federal railways.
IN RE RAIL- Board of Railway Commissioners-High- Overhead crossings - Apportionment of cost-Legislative jurisdiction-Ancillary powers-"Interested parties"-Construction of statute-"Railway Act," R.S.
1867", s. 92, item 10.] On an application by the City of Vancouver, the Board of Railway Commissioners for Canada authorized the Corporation of the City of Vancouver to construct overhead bridges across the tracks of a Dominion railway company, which had been laid down during the years 1909 and 1910 on certain streets in the city, and ordered that a portion of the cost of construction of two of these bridges and of the depression of the tracks at the crossings thereof by the Dominion railway should be borne by a tramway company which derived its powers through provincial legislation and an agreement with the city pursuant to such legislation under which it operated its tramways upon these streets.
By the agreement the tramway company became entitled to use the city streets with reciprocal obligations by the city and the company respecting their grading, repair and maintenance, and it was provided that the city should receive a share of the gross earnings of the tramway company.
appeal to the Supreme Court of Canada from the order of the Board.-eld,
Duff and Brodeur JJ. (dissenting)
, that, in virtue of sections 8 (a), 59, 237, and 238 of the "Railway Act," R.S.C., 1906, ch. 37, as amended by chapter 32 of 8 &
9 Edw. VII., the Board of Railway Commissioners for Canada had jurisdiction to determine the "interested parties"
in respect of the proposed works and to direct what proportion of the cost thereof should be borne by each of them. The
City of Tor&nto v. Canadian Pacific Railway Co. ( (1908) A.C. 54); Canadian Pacific Railway Co. v. Parish of Notre Dame de
Bonsecours ( (1899) A.C. 367); City of
Toronto v. Grand Trunk Railway Co. (37 Can. S.C.R. 232); County of Carleton v. City of Ottawa (41 Can. S.C.R. 552), and Re Canadian Pacific Railway Co. and York (25 Ont. App. R. 65) followed.- Per Duff and Brodeur JJ. dissenting.- (1) The Parliament of Canada, when it assumes jurisdiction, under the provisions of item 10 of section 92 of the "British North America Act, 1867," in respect of a provincial railway, qud railway, must assume such jurisdiction over the work or undertaking "as an integer." (2) The order of the Board cannot be sustained as being made in the exercise of the Dominion power of taxation. As there is no Dominion interest concerned in the provisions of the order under appeal, and the Dominion Parliament has no power to compel the provincial company to assume the burden of the cost of the proposed works, or any portion thereof, the Board of Railway Commissioners had no jurisdiction to assess a proportion of their cost upon the tramway company.
(4) The cases cited above must be distinguished as they do not sustain, as a valid exercise of ancillary power by Dominion authority, any enactment professing to control a provincial railway company.- (NoTE.-Leave to appeal to the Privy Council was granted 14th July, v. V.V. E. CO. OF VANCOUVER....................... 3-Watercourses resulting" - Reparation - Riparian rights-Construction of statute -Arts.
7298,
Servitude - Injury caused by independent contractor-Liability of owner of timber.] The privilege of transmitting timber down watercourses in the Province of Quebec given by article 7298 of the Revised Statutes of Quebec, 1909, is not granted in derogation of the obligation imposed upon those making use of watercourses for such purposes to make reparation for damages resulting therefrom by article 7349 (2) of the Revised Stat- 1 utes of Quebec.
The effect the articles is that persons who avail themselves of the privilege thereby conferred are obliged to compensate riparian owners for all damages which result from the exercise of that right except in regard to such as cannot be avoided by the exercise of reasonable care and skill and those in respect of which the riparian proprietor himself may have contributed, or which have been occasioned by his own fault. Tourville v. Ritchie
R.L. 110) referred to.-The judgment appealed from was reversed, Davies and
Anglin JJ. (dissenting)
.-Per Davies and
Anglin JJ. (dissenting)
. - The evidence shewed that the damages complained of were caused by the fault of a bond fide independent contractor consequently, the owner of the timber which was being driven down the watercourse in question was not responsible them.-(NOTE.-Leave to appeal to the
Privy Council was granted on 15th July,
..........
4-Railways - Location plans - Width of right-of-way - Subsequent alteration - Substituted plans-Approval of new plans
-Order having ex post facto effect-Jurisdiction of Board of Railway Commissioners-Construction of statute-"Railway Act," R.S.C., 1906, c. 37, s. 162,
The Board of Railway Commissioners for Canada has no jurisdiction, by an order permitting a railway company to file a new location plan, to be substituted for and as of the date of a former location plan previously approved by it, to authorize the company to alter, retrospectively, the former location of its railway.
The proper method of effecting any such alteration is by proceedings under section 162 or section of the "Railway Act,"
R.S.C., 1906, chapter 37.
PAc. Ry. Co..................
5- Foreign corporation-Conflict of laws
B.C. "Companies Act" - Un- "Carrying on business" - Promissory notes-Right of action-Juristic disability-Construction of statute- (B.C.) 10 Edw. VII. c. 7, 8s. 139
166,
168.] The "Companies Act" (B.C.), 10
'[S.C.R. VOL. XLVII. province in respect of any contract made in whole or in part within the province in the course of or in connection with any business carried on contrary to the provisions of the Act. The. appellant company, incorporated under the Dominion "Companies Act," R.S.C., 1906, ch. 79, Aas its head-office in Winnipeg, Man., and did not become licensed under the B.C. "Companies Act." February, 1911, the company entered into an agreement with who is domiciled in British Columbia, giving him the exclusive right to sell their goods in British Columbia in pursuance of which he ordered goods from the company to be shipped from Winnipeg to him, f.o.b. Calgary, Alta., assuming all risk and charges himself from that point to- Elko, B.C., where the goods were to be received and sold by him. He gave the company his promissory notes, dated at Winnipeg, for the price of these goods,. some of the notes being actually signed by him at Elko. In an action by the company to recover the amount of these notes the trial judge held that the action, was barred by the statute and could not be maintained by the company in any court in the Province of British Columbia. On an appeal, per saltum, to the- Supreme Court Canada, the judgment. taken place between the company and A. did not constitute the carrying on of the business by the company in the Province of British Columbia within the meaning, of the B.C. "Companies Act" therefore, the disabilities imposed by that statute could have no effect in respect of the right of the company to recover the amount claimed in the action in the provincial court.-Per Idington J.-As the exclusive jurisdiction in respect of bills of exchange and promissory notes has been assigned to the Parliament of Canada, under item 18 of section 91 of the "British North America Act, 1867," the word "contract" as used in section 166 of the B.C. "Companies Act," 10 Edw. VII., ch. 7, cannot be considered as having any application to promissory notes; the plaintiff's right of action in the provincial court was, therefore, not barred by the provincial statute. ILOw Co. v.
N W ...............................
6-Habeas corpus-Common law offences
Act," R.S.C., 1906, c. 139, s. 62-Jurisdiction of Supreme Court judges.] The jurisdiction of judges of the Supreme
Court of Canada in respect of habeas corpus ad subjiciendum extends only to cases of commitment on charges of offences which are criminal by virtue of statutes enacted by the Parliament of
Canada; it does not extend to cases of commitment for offences at common law or under statutes enacted prior to
Confederation which are still in force.
Re Sproule (12 Can. S.C.R. 140) referred to.-The offence of housebreaking as described in the Imperial statute, 7 & 8
Geo. IV., ch. 29, sec. became part of the criminal law of British Columbia on the introduction of the criminal law of England into that colony by the ordinance of 19th
November,
1858, continued to be so until the Union of the province with Canada, and since then by virtue of see. of the "Criminal Code,"
and it is not an offence to which sec. 62 of the "Supreme Court Act," R.S.C.,
1906, ch. 139, has application.
7-Construction tion-Demolition of works-Jurisdiction of Board of Railway Commissioners- "Railway Act," R.S.C., 1906, c. 37, ss.
30 (h), (i), 230, 233.1
Where a railway company, in the professed exercise of its powers as a railway company and without the approval of the route by the Minister the Board of Railway Commissioners for
Canada, has constructed a solid filling across navigable waters, the Board, under the provisions of sections 230 and
233 coupled with sub-sections (h) and (i)
of section 30 of the "Railway Act,"
R.S.C., 1906, ch. 37 has jurisdiction to order the demolition of the works so constructed.
Ry.
Co. v. RoCHESTER..................
8-Arbitration and award-Prolonging date for award-Special circumstances- "Railway Act," R.S.C., 1906, c. 37, s.
204.] On an arbitration respecting compensation to be paid for lands taken under the "Railway Act," R.S.C., 1906, ch. 37, the arbitrators had fixed a day for their award according to the provisions section 204.
After some proceedings before them it was arranged, for the convenience of counsel for the parties that further proceedings should be suspended until the return of counsel who were obliged to be present at the sittings of the Judicial Committee of the Privy Council and nothing further was done until after the return of counsel from abroad at a date later than the time so fixed for the award. The arbitrators had not prolonged the time for making the award but, upon reassembling after the day originally fixed had passed, they fixed a later date for that purpose. The company's arbitrator and counsel then refused to take part in any subsequent proceedings and the two remaining arbitrators continued the hearing and made an award in favour of the claimant greater than that offered by the company for the lands expropriated. In an action by the company to have the award set aside and for a declaration that the sum offered should be the compensation payable for the lands.-Held, Fitzpatrick C.J. and Anglin J. dissenting, that, in the circumstances of the case, the company should not be permitted to object to the manner in which the arbitrators had proceeded in prolonging the time and making the award. The appeal from the judgment of the Court of King's Bench (Q.R. 22 K.B. 221), declaring the award to have been validly made, was, consequently, dismissed with costs. RWAY. Co. v. 9-Board of Railway Commissioners- Submission of specific question-Practice of statute-R.S.C., 1906, c. 37, a. 55 and s. 56, s.-s. 3.] An appeal, under the provisions of section 55, or section 56, sub-section 3, of the "Railway Act," R.S.C., 1906, ch. 37, should not be entertained by the Supreme Court of Canada until the Board of Railway Commissioners for Canada has stated the case in writing and submitted for the opinion of the court some question which, in the opinion of the board, is a question of law.
(Cf. "Regina Rates Case," (44 Can. S.C.R. 328,) where this case was followed by Anglin J., and 45 Can. S.C.R. at pp. 323 to 328.)
RWAY. 257 10-Constitutional law - Insurance - Foreign company doing business in Canada
Dominion licence - 9 & 10 Edw. VII.
C.J. and Davies J., that sections 4 and
70 of the Act 9 & 10 Edw. VII. ch. 32
(the "Insurance Act, 1910") are not ultra vires of the Parliament of Canada.
Idington, Duff, Anglin and Brodeur JJ., contra.-Held, per Fitzpatrick C.J., and
Davies J., that section 4 of said Act operates to prohibit an insurance company incorporated by a foreign state from carrying on its business within
Canada if it does not hold a licence from the Minister under the said Act and if such carrying on of the business is confined to a single province.-Per
Idington J.-Section 4 does so prohibit if, and so far as it may be possible to give any 6perative effect to a clause bearing upon the alien foreign companies as well as others within the terms of which is embraced so much that is clearly ultra vire.-Per Duff, Anglin and
Brodeur JJ.-The section would effect such prohibition if it were intra vires.
1910"......
11-Appeal - Reserve of further directions-"Final judgment"- Act," R.S.C., 1906, c. 139, s. 2 (e); 3 & 4
Geo. V. c. 51, 8. 1.] Before the amendment, in 1913, to sec. 2 (e) of the "Supreme Court Act," R.S.C. 1906, ch. 139, judgments were rendered maintaining an action on a bond by which two of the defendants were ordered to pay to the plaintiffs an amount not exceeding that secured by the bond to be ascertained upon a reference to the master and further directions were reserved; as. to another defendant, recovery of the same amount, to be ascertained in the same manner, was ordered, but there was no reserve of further directions.
Upon an appeal by the last mentioned defendant-Held, Davies J. dissenting, that the judgment sought to be appealed from (23 Man. R. 159) did not finally conclude the action as proceedings still remained to be taken on the reference, consequently, it was not a final judgment within the meaning of section
2 (e) of the "Supreme Court Act," prior to the amendment by the statute 3 & 4
Geo. V., ch. 51 (assented to on the 6th of
June, 1913), and it was not competent to the Supreme Court of Canada to entertain the appeal. The Rural Municipality of Morris v. The London and Canadian Loan and Agency Co. (19 Can. S.C.R. 434) followed.
Ex parte Moore (14 Q.B.D.
627) distinguished;
Clarke v. Goodall (44 Can. S.C.R. 284), and The Crown Life Ins. Co. v. Skinner (44 Can. S.C.R. 616) referred to.-Per Anglin and Brodeur JJ.-The amendment of the "Supreme Court Act" by the first section of 3 & 4 Geo. V. ch. 51, has not affected whatever right the appellant may have had at the time the judgment was rendered in respect to an appeal to the Supreme Court of Canada. Hyde v. Lindsay (29 Can. S.C.R. 99); Cowen v. Evans (22 Can. S.C.R. 331); Hurtubise v. Desmarteau Can. S.C.R. 562); and Taylor v. The Queen (1 Can. S.C.R. 65) referred to.-Per Davies J. dissenting. -The judgment in question does not reserve "further directions" and comes within the rule and principle determining what are "final judgments" laid down in the case of Ex parte Moore (14 Q.B.D.
12-Railways - Freight rates - Discrimination - Rebate - Quebec Railway Act, R.S.Q., 1888, art. 5172-Company-Contract by directors - Approval of tariffs.] An agreement by which a railway company undertakes to grant a rebate upon shipments of car lots of goods made by a manufacturer who engages to bear the cost of loading and unloading his freight, unless shewn to be an artifice to secure unjust discrimination, is not in contravention of the provisions of article 5172 of the "Quebec Railway Act," R.S.Q., 1888, prohibiting undue advantage, privilege or monopoly being afforded to any person or class or persons in relation to tolls. Judgment appealed from Q.R. 21 K.B. 85)
affirmed, Idington and Anglin JJ. (dissenting)
.-Per Brodeur J. (approving the judgment appealed from). directors of a railway company may bind the company by such an agreement in relation to the business of the railway without having special sanction therefor by the shareholders. LAKE ST. RwAY. Co. v. 13-Evidence - Railway company - Negligence - Excessive speed - "Railway Act," s. 275-8 & 9 Edw. VII. c. 32, 13.] By 8 & 9 Edw. VII. ch. 32, see. 13, amending section 275 of the
"Railway Act," no railway train "shall pass over a highway crossing at rail level in any thickly peopled portion of any city, town or village at a greater speed than ten miles an hour" unless such crossing is constructed and protected according to special orders and regulations of the Railway Committee or Board of Railway Commissioners or permission is given by the Board. In an action against a railway company for damages on account of injuries received through a train passing over such a crossing at a greater speed than ten miles an hour.-Held, reversing the judgment of the Appellate Division (29 Ont. L.R.
247), that the onus was on the company of proving that the conditions existed which, under the provisions of said section, exempted them from the necessity of limiting the speed of their train to ten miles an hour or that they had the permission of the Board to exceed that limit, and as they had not satisfied that onus the plaintiff's verdict should stand.
-Sub-section
4, of sec. prohibits trains running "over any highway crossing" at more than ten miles an hour, if at such crossing an accident has happened subsequent to 1st January, 1900,
"by a moving train causing bodily injury," etc., "unless and until" it is protected to the satisfaction of the Board.
-Per Duff and Brodeur JJ.-The appellant's action could also be maintained on the ground that the prohibition of sub-section 4 applies-to the crossing in question.-The Grand Trunk Railway Co.
v. McKay (34 Can. S.C.R. 81)
distinguished.
14-Fire Insurance-Application-Misrepresentation-Materiality-Statutory conditions-Variation.-In an action on a policy insuring a stock of merchandise the company pleaded-That the stock on hand at the time of the fire was fraudulently over-valued. That the insured in his application concealed a material fact, namely, that he had previously suffered loss by fire in his business.
That the action was barred by a condition in the policy requiring it to be brought within six months from the date of the fire. This was a variation from the statutory condition that it must be brought within twelve months.-Held, affirming the judgment of the Appellate Division (29 Ont. L.R. 356) that the evidence established the value of the stock at the time of the fire to be as represented by the insured; that the materiality to the risk of the non-disclosure of a former loss by fire was a question of fact for the judge at the trial who properly held it to be immaterial; and that the question whether or not the variation from the statutory conditions was just and reasonable depended on the circumstances of the case, and the courts below rightly held that it was not. FiRE
INS. FIRE Co. v. HENDRY..................... 15-Election law-Preliminary objections -Rules of practice-Repeal-Inconsistency with statutory provision-Judgment on preliminary objections-Final determination of stage of cause-Objections-Irregularity by returning officer
Issues in question struction of statute-(D.) 37 V. c. 10, 44, 45--R.S.C., 1906, c. 7, ss. 16, 20, 85-R.S.C., 1906, c. 1, s. 20.] Under the provisions of the "Dominion Controverted Elections Act, 1874," the judges of the Superior Court for the Province of Quebec made general rules and orders for the regulation of the practice and procedure with respect to election petitions whereby the returning officer was required to publish notice of such petitions once in the Quebec Official Gazette and twice in English and French newspapers published or circulating in the electoral divisions affected by the controversy. By section 16 of chapter 7, R.S.C., 1906, provision is made for the publishing of a similar notice by the returning officer once in a newspaper published in the electoral district.-Held, that the rule of practice is inconsistent with the provision as to the notice required by section 16, chapter 7, R.S.C., 1906, and, consequently, has ceased to be in force.- Per Duff and Brodeur JJ.-Even if such rule were still in force, failure on the part of the returning officer to comply with it would not be sufficient ground for .the dismissal of the election petition. -Per Davies, Duff, and Anglin JJ.- Under the provisions of the "Dominion Controverted Elections Act," 1906, ch. 7, sees. 19 and 20, preliminary objections are required to be decided in a summary manner; consequently, a decision by an election court judge on any of the preliminary objections disposes of all the issues raised in that stage of the proceedings.
Where an election petition is disposed of by the judge upon one of several objections, without consideration of the others, the Supreme
Court of Canada has jurisdiction to hear and determine questions arising upon all the preliminary objections in issue before the election court judge; its jurisdiction is not confined to the objection upon which the judgment appealed from was solely based. Idington J. contra.
Fitzpatrick C.J. and Brodeur J. expressing no opinion.
V. CARDIN.................
- -Estoppel-"Law and Transfer of Property Act," R.S.I., 1897, c. 119 ......
Occupation of lands-Side-tracks-Continuous trespass
-Damages-R.S.C., 1906, c. 37, s.306. 514
18-Solicitor and client-Special statute
...................................
See 8.
20-Crown lands-Location-Public policy-Evasion of statute-B.C. "Land Act,"
OF ELIZABETH- Fraudulent conveyance-Husband and wife-Voluntary settlement-Evidence.] In August,
1908, M. and his brother bought a hotel business in Ottawa for $8,000, paying
$6,000 down and securing the balance by notes which were afterwards retired.
In November, 1908, 1. conveyed a hotel property in Madoc to his wife subject to a mortgage which she assumed.
M. and his brother carried on the Ottawa busi- Statute of Elizabeth-continued. , ness until March, 1910, when they assigned for benefit of creditors who brought suit to set aside the conveyance to M.'s wife.
On the trial it was shewn that for some time before November, 1908, M.'s wife had been urging him to transfer to her the Madoc property, which she had helped him to acquire, as a provision for herself and their children; that she had joined in a conveyance of a property in Toronto in which they both believed she had a right of dower, and the proceeds of the sale of which were applied in the purchase of the Ottawa bisiness; and that all of M.'s liabilities at the time of said conveyance had been discharged. M. ascribed his failure in Ottawa to the action of the License Commissioners in compelling him to move his bar to the rear of the premises whereby his receipts fell off and he lost rents that he had theretofore received, and had to make expensive alterations; and to a fire on the premises early in 1910.
The trial judge set aside the conveyance to M.'s wife; his judgment was reversed by a Divisional Court (24 Ont. L.R. 591), but restored by the Court of Appeal.-Held, affirming the judgment of the Court of Appeal (27 Ont. L.R. 319), Davies J. dissenting, that the conveyance by M. to his wife was voluntary; that it denuded him of the greater part of his available assets and was made to protect the property conveyed against his future creditors and is, therefore, void as against them.
(Controverted Elections) ............ 625
7-R.S.C., s. 8,
238 (Railways).....................
8-R.S.C., 1906, c. 37, s8. 30, 230, 233
("Railway Act")....................
See 8.
14- R.S.C., 1906, c. 37, s. 306 ("Railway Act")....................
15-R.S.C., 1906, c. 139, s. 2 (c) ("Supreme Court Act")...................
("Supreme Court Act").............
17-R.S.C., 1906, c. 139, s. 62 (Supreme Court)........................
19-(D.) 8 & 9 Edw. VII., c. 32, (Rail- 20-(D.)-8 & 9 Edw. VII., c. 32, s. 13
21-(D.) 9 & 10 Edw. VII., c. 32, ss.
4, 70 (Business of Insurance)........ 260
Statutes-continued.
24- R.S.O., 1897, c. 119 ("Law and Transfer of Property Act") .......... 25-(Onl.) 2 Geo. V., c. 28, s. 34 ("Solicitors' Act")....................... See SoucrroR 2.
26-R.S.Q.,
1888, art. 5172 (Railway tolls) .............................. See 7.
27-R.S.Q.,
1909, arts. 924 et seq. ("Quebec Licence Law") ............ 28--R.S.Q.,
32-(B.C.) 10 Edw. VII., c. 7, as. 139, 166, 168 (Foreign corporations) ...... 33-(Alta.) 7 Edw. VII., c. 8, s. 82 34-Alta.) 2 Geo. V., c. 15, s. 7 (Rail- SUBROGATION-Winding-up proceedings-Company in liquidation-Sale of assets-Consent to sale of mortgaged ship- ,Sale by order of court-Mariners' liens- Sale free from incumbrances-Special fund-Privileged charge-Priority-faliation of security-Release of mortgage- Legislative jurisdiction
Ancillary powers...................
TIMBERtimber-"Damages resulting"-Reparation- Riparian rights-Construction of statute- Arts. 7349 R.S.Q., 1909-Servitude
-Injury caused by independent contractor
-Liability of owner of timber........
TITLE TO LAND-Trespass-Easement way-Dedication--User-Prescription-Estoppel-'"Law and Transfer of Property Act," R.S.O., 1897, c. 119
2-Vendor and purchaser-Sale of landprice-Conditions as to title .........
. See PURCHASER.
TRAMWAYS - Negligence-Operation of tramway-Carelessness of person injured- Reckless conduct of motorman.] The
-carelessness of the plaintiffs in driving across the tracks of a tramway was, in this case, excused by the reckless conduct of the defendant's motorman in failing to use proper precautions to avoid the consequences of their negligence after he had become aware of it.
Judgment appealed from D.L.R. 3 4
West. W.R. 263) affirmed.
v. HARNOVIS................
.2-Contitutional law-Board of Railway
Overhead
-crossings-Apportionment of cost-Legislative jurisdiction-"Railway Act," R.S.
C., 1906, 8, 59, 237, 238-B.C. 8 & 9
Edw. VII., c. 32-"B.M.A. Act, 1867,"
s. 92, item 10.......................
While a train was running at the speed of about thirty miles an hour, on the company's line along the harbour front in the City of Vancouver, B.C., H., who had unlawfully entered upon the rightof-way through a break in the company's fences, attempted to cross the tracks in
.front of the train. The engine driver
Trespass--continued.
saw H., at a distance of about 500 feet and whistled several times. H. paid no attention to the danger signals and continued walking in an oblique direction towards the track, and, observing his apparent intention to cross the track and his disregard of the signals, the engine driver then applied the emergency brakes which failed to stop the train in time to avoid the accident by which H. was killed. In an action for damages by his widow and child.-Held, that, notwithstanding the fact that deceased was a trespasser and committing a breach of section 408 of the "Railway Act," R.S.C., 1906, ch. 37, the company was liable because their engine driver neglected to apply the emergency brakes at the time he became aware of the danger of accident when he first noticed deceased attempting to cross the tracks. Co. 557 2-Railways--Occupation of lands-Side tracks-Continuous trespass-Damages. 514 Es- VENDOR AND PURCHASER-Sale of land-Agreement-Bond to secure payment of price-Conditions as to title.] The defendants, with other persons, entered into an agreement with the plaintiffs, appellants (except E.) for the purchase of certain lands, at $2 per acre, payable on 1st November, 1905, and afterwards entered into the bond upon which the action was taken. Differences arose and plaintiffs refused to proceed with the execution of the agreement unless performance of its terms by the other parties was guaranteed, and, on 7th Sept., 1905, the bond was executed, expressed to be as security for payment of the price of the lands and it also contained a covenant for the payment to the plaintiffs of $2,500, part of the price, to and for their own use and benefit as liquidated damages for services rendered and to be rendered by the plaintiffs. This bond was assigned to E. as collateral security for advances to his co-plaintiffs and, during the trial, he was added as a plaintiff. The trial judge ordered Vendor and Purchaser-continued.
judgment in favour of plaintiffs, but this judgment was reversed by the Court of
Appeal (19 .Man. R. 517,) on the ground that plaintiffs had failed to shew that they had acquired any title to or interest in the lands which they had agreed to sell, and it was held that, as plaintiffs could not recover under the agreement, they could not recover under the bond.
The appeal to the
Supreme Court of Canada was dismissed with costs.
VERDICT.
WARRANTY-Sale of goods-Designated quality-Fraud on purchaser-Damages- Loss of market......................
WINDING-UP-Vinding-up proceedings
-Company in liquidation-Sale of
Consent to sale of mortgaged ship-Sale by from incumbrances-Special fund-Privileged charge-Priority-Valuation of security-Release of mortgage-4Marshalling
8ecurities-Subrogation.] A ship which belonged to a company in liquidation was mortgaged to a bank and was also subject to maritime liens for seamen's wages due at the time of the wind-up order.
The bank consented to the sale of the ship, by the liquidator, free from incumbrances at the same time as he sold the other assets of the company by direction of the court. He sold the ship security on the ship at $5,000.
The purclaim to the whole of the fund realized priority out of this fund.-Held, affirming the judgment appealed from (4 West.
W.R. 1271; 25 West. L.R. 92; 12 D.L.R.
807) that, by its consent to the sale of.
the ship under direction of the court, free from incumbrances, the bank had assented to the conversion thereof released from its mortgage and that the proceeds of the sale of the ship should be
Winding-up-continued.
apportioned amongst the creditors in provided by law; consequently it was not entitled to any special charge on the fund realized upon its sale-Held, further, that the rights of the wage-earners holding maritime liens were not affected by the loss of the ship after it had been sold by the liquidator under the order of the court and that they were entitled to recover their claims out of the fund realized upon the sale of the ship in priority to the mortgagee.-(N1EMO.- The court ordered that the rights of the bank, if any, to relief, by way of subrogation or marshalling of securities, should be reserved to be dealt with on further proceedings in the win'ding-up of the company.]
WORDS AND PHRASES.
1- "Carrying on business" 2- "Damages resulting"........... 137 3- "Delling house".............. 546 See FIRE 1.
4- "Finaljudgment".............. 497 5- "Interested parties"........... 6- "Lodging house"............... See INBunw-cE, 1. 7- "On or about"................. 8- "Provincial objects" ............ 9-"Sustained by reason of the construction or operation of the railway" ..... 514 10--"nable to deliver"............518
Cases cited
- City of Toronto v. Canadian Pacific Railway Co. ( A.C. 54
- Canadian Pacific Railway Co. v. Parish of Notre Dame de Bonsecours ( A.C. 367
- Canadian Pacific Railway Co Canadian Pacific Railway Co
Statutes and regulations cited
-
Unresolved citations
- section 8
- section 16
- Section 64
- section 20
- sections 85
- 86
- section 85
- section 4 of said Act