Majority
THE W.
March
(DEFENDANTS)
...................
APPELLANTS; ELLEN S. BRIDGER,
WIDOw
JOSEPH TUNLEY, FOR HER- RESPONDENT. SELF flS-QTJALITt, (PLAINTIFF) .
APPEAL FROM THE SUPERIOR SITTING IN REVIEW, MONTREAL.
Construction contract - Sub-contract - Dangercus pre- The contractors for plumbing and heating in a building under construction, sub-let part of their contract to the R. who manufactured the necessary material at Amherst, and at one time shipped a boiler-plate for use in executing their subcontract consigned to the at Montreal. The sent the advice note of the shipment to the R. Co.'s local representative, who employed carters to get the plate from the railway company and carry it to the place where the works were being carried
It was, under directions of the Co.'s foreman, leaned up against a pillar of the building and remained there for about one day in position where it projected over part of the eartway used for bringing materials into the building. applied for employment as labourer on the works and was told to return next day which he did and, while waiting to employed, stood near the plate.
When a vehicle entered the cartway the plate fell upon causing injuries from which he died. In an action by his dependents to recover damages from the R. and the
Held, Anglin J. (dissenting)
, that, in the circumstances, the were responsible for damages; that the fault from which the injury resulted was that of their foreman who, acting as their servant or agent, supervised the placing the plate in a dangerous position, and that the plate itself was a thing which was, at the time, in the care the Lucy Bawden ([1914] K.B. 318), referred to.
*PaESENT:-Sir Charles Fitzpatrick C.J. and Idington, Duff, Anglin and Brodeur JJ.
sitting in review, at Montreal, affirming the judgment of Greenshields J., in the Superior Court for the District of Montreal, whereby, upon a verdict in favour of the plaintiff, judgment was entered for the plaintiff for $5,000 damages, apportioned between the plaintiff and her minor children, with costs.
The action was brought by the respondent, plaintiff on her own behalf and as tutrix for her minor children, against the present appellants and the Robb Engineering Company, claiming from them, jointly and severally, damages sustained in consequence of the death of Joseph Tunley, deceased husband of the respondent and father of her minor children, his death having been caused, as alleged, on account of the negligence of both defendants in the circumstances stated in the head-note.
The trial took place before Justice Greenshields and a special jury, to which questions were submitted and answered, as follows:- "Question.-1. 'Was Joseph Tunley, the plaintiff's husband, the victim of an accident, on or about the 9th November, 1909, while within or upon the premises known as the Jacobs Building, on St. Catherine Street in Montreal?
"Answer.-Yes.
"Question.-2. Was the plaintiff's husband lawfully in the place where he was injured at the time of the said accident?
"Answer.-Yes.
"Question.-3. Did the said Joseph Tunley die, the 18th December, 1911, as a result of the said acci- "Answer.-Yes.
"Question.-4. Was the accident due to the sole fault, negligence and want of care of the said Joseph Tunley, and if so, in what did such fault and negligence consist ?
"Answer.-No.
"Question.-5. Was the accident due to the sole fault and negligence of:- "(a) The Robb Engineering Company, Limited ? "Answer.-No.
"(b) Meldrum Bros., Limited ?
"Answer.-No.
"(c) W.
"(d) Emile Gellin ?
"Answer.-No.
"(e)
One or more of them, and, if so, in what did their respective fault and negligence consist ? "Answer.-Due to the neglect, fault, want of care and lack of supervision of The Robb Engineering Company, Limited, and W.
"(b) Meldrum Bros., Limited ?
"Answer.-No.
"(c) W.
"(d) Emile Gellin ?
"Answer.-No.
"And if so, in what did their respective fault and I' negligence consist ?
"Answer.-No.
"Question.-7. Has the plaintiff, as well personally as in her quality of tutrix to her two minor children suffered damage by reason of the said accident, and if so, in what amount ?
"Answer.-Yes, $5,000 (five thousand dollars). "Question.-S. If you have answered question in the affirmative, that the accident was due to the combined fault and negligence of the late Joseph Tunley and any of the four defendants, in what amount do you fix the contribution of the said Joseph Tunley in the damage assessed by you in answer to question No. 7 and to what amount do you fix the contribution of the defendants or of any of them ?
"Answer.-All unanimous."
Upon the answers so given by the jury, His Lordship Mr. Justice Greenshields ordered judgment to be entered in favour of the plaintiff, for the damages assessed, apportioned, as follows: $2,500 to the plaintiff personally, and $1,250 to each of her minor children, and condemned the defendants the Robb Engineering Company and the W. J. McGuire Company to pay the said sums jointly and severally, with interest and costs.
This judgment was affirmed by the judgment now appealed from.
Mann K.C. for the appellants.
Atwater K.C. for the respondent.
agreed with Duff
J.-There are two questions raised by w.
this appeal.
The first is as to the right of the deceased to be where he was when the metal fell upon him. This is hardly arguable upon the facts shewing an invitation to be there. The jury has passed upon it as they were entitled to upon such facts.
The other question is as to the scope of the authority which one Finlay had from appellants when he directed the placing of the metal where it was placed. The appellant had a contract from the proprietor to do the work upon the building, and it was in the doing of such work that this accident was caused whereby the deceased was injured.
Part of the work undertaken by appellant had been sub-let by it to the Robb Engineering Company. If nothing more had transpired for consideration possibly appellant might have relied upon this sub-contract to exonerate it.
The case is, however, by no means so simple in its character as that.
The appellant contracted with the proprietor:- As between the proprietor and deceased it might well be said that the invitation by which deceased came there was in last analysis what the proprietor authorized. Whether in law the proprietor could have been held liable need not be passed upon. He desired appellant should take all that risk and it did so. It was thus, as well as by implication of law in executing its contract with the proprietor, bound to take due care that the execution thereof should not lead to injury to others.
becane the duty of its foreman in charge to do all that his iaster and his master's interest in the premises might call for in order to avert any possibility of risk to the master by reason of anything happening within the scope of the master's plenary authority as to the execution of the contract with the proprietor.
If the sub-contractor had attempted to do anything in execution of its share of the work which might have tended in any way not merely to render the appellant liable to an action upon its undertaking with the proprietor, but tended to involve it in the risk thereof, I think appellant would in such event have been entitled to insist upon desistinent from such attempts so far as could reasonably be required.
Suppose the appellant instead of being a corporation had been a person then in the building under such circumstances at the time the metal in question was brought by the carters he would have had a perfect right to have insisted upon the metal being placed back out of the way of doing any damage to any one. And even if there was no legal obligation resting upon such a man to interfere actively, regarding which I say nothing, his right, nevertheless, to interfere as against a sub-contractor insisting upon running such risks, would be undoubted unless, of course, lie had contracted specifically not to do so; and in some classes of cases he might find he had rendered himself liable for the acts of his sub-contractor. What I wish to make clear is that though there is a line yet it is by no means a well-defined line, in law, which r-enders it safe for any man sub-letting his work to overlook the delinquencies of his sub-contractor in w. i.
this regard.
Then in view of all this and the reasonable expec- V* tations of a contracting employer to have his foreman look after his interests, how can I say that one who did so under such circumstances as existed here could be disavowed as acting without authority and beyond the -scope thereof ? And when we find that this foreman exercised his authority on more than one occasion by taking the gang under his charge, or four or five of them, to do the very thing now complained of, to help the sub-contractor, is it not drawing it rather fine to say he had authority on several occasions to do this, but yet none to direct how these men of the appellant should assist in such work ? Is it not asking too much when appealing here to ask us to say he had authority to spend his master's money in this way, but none to direct the proper use of such service ? To say he had authority to take the appellant's men to do the work, but none to insist upon its being done in a proper manner, seems illogical.
Now there was one of these occasions on which the appellant's foreman induced the carter's men to place the goods in a proper place, but on this latter occasion the foreman neglected this duty or part of his duty. As to this later occasion he denies interfering in any way but by helping with his men acting in obedience to his orders. The carter's man says not only did he interfere, but actually directed where the gang, including his own, were to put the metal in question. - It was for the jury to say which of these men they believed, and I assume they believed the carter's man. And when we are asked to accept such denial of authority as the foreman did make I must assume on the facts that this jury had to act upon they had a right to discredit this part of his story and did so. Moreover, no one over this foreman has ventured to appear in the witness box and add to the force of his denial or give more definite meaning to the limits of his authority than what we may gather from the course of conduct he manifests an( the definition he gives in his evidence quoted hereafter.
The jury were then face to face with such narrow line of authority as is implied in the substantial leading facts relative to appellant's relation to the whole matter in ways I have set forth and in addition thereto as appears in the following evidence of the foreman:- Q. In the month of November, you were foreman for the W. J. McGuire Company, Limited, were you not?
Yes.
In the Jacobs Building St. Catherine Street?
A. Yes.
You had been foreman for a long time before that?
Witness: Foreman for the McGuire Company?
Counsel: Yes, in that building?
Since the building started.
When would that
About May,
No, I think it started in the fall.
Were you present in the month of November, when a delivery was made of a part the end of a boiler?
Yes.
What time of the day was that?
That was just about ten minutes to twelve, or so.
Did the lorry that brought this piece of iron in stop near this column?
A little bit from it.
Pretty near it, but a little bit away. When it came in was it lying flat on the lorry?
Yes.
Then your men with the Meldrum men canted it up and slid it down off the lorry?
Yes.
You did not lift it clear?
We had to slide it the rig.
Q. There was only one passage for cart to come in from Alexandra Street into the building?
One passage, yes.
BIDGER.
Q. You were McGuire's principal foreman the building, were Idington J. you not?
Q. You and your men were present during the whole time this boiler front was being put into the position described you? Yes.
Q. Did you not advise them at all in any way as to the manner in which this boiler plate should placed against the pillar? A. Yes.
It was placed against the column, and I suggested that they had better move it a little farther back from the position that had placed it.
thought it might make it a little safer. You suggested, I think, that they should give it a little more cant?
little more cant.
And speaking of the part taken in the unloading of the piece of metal which later fell on deceased, he says:had it taken
Yes.
Q. Did you have some your men there to help you?
Yes.
Q. How many?
Well, I cannot say exactly how many.
Did you have ten of them ?
no.
There were three or four us, anyhow.
You and the men of the J. McGuire Company, Ltd., helped the Meldrum people to take that piece of boiler out the wagon? And, altogether you placed it where?
Witness: The second piece?
Counsel: Yes, that big piece iron?
We placed it against the column.
I think this evidence, together with the circumstances I have adverted to shewing the relation of appellant to the work in question, form such evidence as could not be withdrawn from the jury.
Upon their verdict so submitted the judgment rests and must be upheld.
I, therefore, think the appeal should be dismissed lcGemo with costs.
r. IUFF J.-The question of agencY is a question of fact and the point to be considered in this connection is whether there was evidence upon which the jury could reasonably find that in taking charge of the boiler ends Finlay acted as servant or agent for the appellants.
Consider the facts:-Jacobs, the owner, who was constructing the building, had let various contracts; one was a contract for doing the concrete work, that is, for putting up the frame of the building; another was a contract with the appellants for the plumbing.
Under the latter contract the appellants were obliged to have certain boilers in operation according to a certain specification on a named date. The appellants let to the Robb Engineering Co. a sub-contract for the erection and completion of these boilers which the Robb Company agreed to finish the 30th of November, 1909.
There (-an be no doubt, of course, that McGuire & Co. were entitled to sub-let part of their contract with Jacobs, their relation to Jacobs being that of contractors merely who had undertaken to produce a certain result. The contract with Jacobs. which is in the evidence, obviously contemplated the letting of sub-contracts.
On the other hand, McGuire & Company specifically covenant to of these sub-contractors.
The Robb Engineering Company had their factory at Amherst, N.S., where the parts required for the execution of their contracts were made.
These they shipped to Montreal, and they appear to have been in the habit of sending these parts to the building without making any express provision for their reception. Of this the appellants appear to have been complain- Duf.
ing. It was obviously in the interest of McGuire & Co. to see that these parts were received and properly taken care of. In the first place they were under a contract to complete their work by a given time. In the next place, they were bound by the covenant to which I have already referred, and pieces of heavy machinery, carelessly placed by carters without proper directions may cause damage. In the third place, it might cause inconvenience to other contractors working in the same building and all the contractors so situated would be naturally interested in mutually accommodating one another in order to avoid unnecessary delays in executing the work; while Robb & Co. were sub-contractors, for whose actions they would not be directly responsible in a legal sense, still these sub-contractors had been engaged by McGuire & Co. to perform a part of their contract, and it was altogether natural that they and their workmen should take an interest in seeing that the sub-contract was not carried out in such a way as to give unnecessary trouble to others. All these points lend weight to the probability that McGuire & Co. would expect their foreman in their interest to exercise some supervision in the absence from the premises of anybody having authority from Robb & Co. in the placing of these pieces.
Coming now to the particular circumstances:-the boiler ends in question were shipped by Robb & Co. to McGuire & Co. It is not explained why this was done in this particular case unless it was in accordance with the usual practice.
At the request of Robb & w. Co.'s manager in Montreal, the McGuire Company gave to a carter furnished by Robb & Co., the shipping documents shewing the articles directed to McGuire Dff J. & Co. with instructions to obtain them from the railway company and deliver them at the premises in question. In the circumstances the carter naturally treated these goods as goods deliverable to McGuire & Co., and I think the jury would be entitled to find that they were so treated with the concurrence of McGuire When they reached the premises, there being nobody there representing Robb & Co., Finlay, Mc- Guire & Co.'s foreman, assumed control of them, and it is upon Finlay's negligence, assuming there was negligence, that McGuire & Co. are charged.
Taking all the circumstances I have mentioned together, it appears to me that the jury would be entitled to find and I must say that I do not think that it would be a conclusion in the least unreasonable - that Finlay was acting in the interest of and for McGuire & Co. with their authority, and not either giving his services to the Robb Co. or simply acting gratuitously in general interest.
I have only one more word to add on this point, and that is with the object of emphasizing this:-That the question as to whether Finlay was acting within the scope of some authority he had from the McGuires, is simply a question of fact, and for the purpose of determining this question I do not think that judicial decisions upon other states of fact can be of much value.
The point upon which the jury had to pass was whether in view of all the circumstances Finlay was doing something which he and his employers understood lie was there to do.
That question was, I think, put to the jury with entire fairness and in such way that I believe they could not fail to understand the nature of the question they were called upon to decide and being, indeed, far from certain that I should not have taken the samue view as the jury did upon this question, I think there is here no good g),round for setting aside their verdict.
Then comes the question as to whether there was evidence of negligence.
Now I think the test to be applied is this. The owner of the building as ocenpier owed a certain duty to persons invited to come upon the premises in the ordinary course of business. I think that, as regards positive acts, the responsibility of the concrete contractors would be the same as that of the owner, and I think, also, that any other person engaged in the work of construction, as the appellants were, would be under precisely the responsibility as to his own positive acts in relation to such persons as the owner would be. To put the point little more concretely :-McGuire & Co., were, in my judgment, bound, as regards such acts, to use the same care, that is to saf', they were under the same duty to persons properly on the premises in the course of their business with any of the contractors engaged in the construction of the building as the owner would be obliged to use with regard to persons invited by him or as any particular contractor would be obliged to use with regard to the safety of persons invited by that contractor himself. I am now speaking, let me repeat, of positive acts only. What then, is the measure of that The nature of the situation with which we are dealing must not be left out of sight. Here is a building in course of erection.
Different contractors are engaged at one and the same time in carrying on A j different operations. In the very nature of things the possibilities of injury are numerous. It would be most r. inreasonable that amyhody going into such a place, in the ordinary way of business, should expect to find himself at point protected against these possibilities as if he were a person incapable of taking care of himself. A person going into such a place assumes a certain amount of risk.
le himself assmnes the respomsibilitv vigilance person ordinary faculties and judgment in order to avoid the reasonably probable dangers of such place, and the responsibility of the occupier must be considered in relation to this responsibility of the invitee. The result, I think, has been sumnmed up by Mr. Justice Atkin
Lu y v. Baieden (1), in the proposition that the duty is to avoid setting traps.
Coining to the particular case before us, Bridger, so long as he kept to the way provided for persons coming on the premises, or apparently provided, was entitled to assume that there were no traps. I have had a great deal of dilieultv in satisfying' myself whether there was evidence iii this case to conviet Finlay doing what could be fairly called setting a trap. I think the point is a very doubtful one, and I do not feel justified in going further than saying that I am not satisfied that there was not sufficient evidence to support the finding of the jury.
(dissenting).-I am, with very great respect, of the opinion that this appeal should be al- The deceased Tunley was, no doubt, upon the prew.
mises where he was injured as an invitee. Persons employed on the premises or lawfully there might reasonably be expected to be where he was when the boiler end fell upon him. If the placing of this boiler end where was had been attributable to the appellants, I should not have been prepared to disturb the verdict and judgment against them.
But I find nothing in the evidence to justify fixing them with responsibility either for placing or leaving the boiler end in the dangerous position in which it was.
The appellants were contractors with the owner of the premises for the installation of a system of plumbing and steam-heating.
Their contract, however, contemplated that they might sublet any part of the work. They undertook with the owner Jacobs The appellants in fact sublet to their co-defendants, the Robb Engineeing Co., the contract for supplying and installing the boilers for the heatingsystem. Over that part of the work the appellants had no control or supervision. The Robb Engineering Co. were independent contractors.
The boilers were shipped in parts by the Robb Engineering Co. from their factory at Amherst, N.S. Through some unexplained mistake the end of the boiler which fell on the deceased Tunley was consigned to the defendants, The W. J. McGuire Co., instead of to the Robb Engineering Co. Immediately upon their being notified of its arrival at Montreal, the McGuire Company advised the Robb Engineering Company, and the latter company employed their codefendants, Meldrum Bros., Ltd., to deliver it at the Jacobs' building, as they bad delivered other material. It is admitted that this boiler end was the property of the Robb Engineering Company, and it is clear that it was for them that the delivery was made by Meldrum Bros., Ltd.
There is nothing in the record to warrant an inference that there was any agreement or understanding whereby the appellants had undertaken to receive or to look after the Robb Company's material when it should be delivered at the Jacobs' building.
When the lorry carrying the boiler end reached the building it was driven along a passage on the ground floor, to the third pillar, which, as Davidson O.J., says, was as far as its size would permit. There was nobody on the premises representing the Robb Engineering Company.
The Meldrums' foreman, Little, went to the basement and informed one Finlay, foreman for the McGuire Company, who was engaged in installing the plumbing, of the arrival of the load.
To quote the learned Chief Justice:- In passing the third pillar, Gellin turned to the right to avoid an outgoing cart, and his own cart probably struck the projecting boiler end which fell top of Tunley and pinned him to the ground, causing injuries from which he died, some twenty-two months afterwards.
Upon the evidence it is clear that in whatever Finlay may have done in the way of assisting to unload the boiler end even if he directed where it should placed he was not engaged "in the performance of the work for which he was employed" by the appellants. Art. 1054, C.C. It was not part of their work to bring the material required for the boilers into the premises or to look after it when it had been brought Whatever Finlay did he did on his own responsibility and it was probably nothing more than rendering the friendly aid which one workman usually gives to another when help is required. If he suggested where the boiler plate should be placed if he even undertook to direct that it should be put where it was doing be was not acting as the servant or agent of the W. J. McGuire Co. If he made a mistake, if he did something which was negligent, there is, in my opinion, nothing to warrant a finding that the appellants were responsible for it. He was not dischargi ng any duty which lie owed to them. He was not acting for their benefit or within the scope of his employment.
He was not "under the appellants' control" within the meaning of article 1054 C.C.; nor was the boiler end a thing under their care. If he was acting for anybody other than himself it would be for the Robb Engineering Co. in whose interest lie assisted the Meldruni employees. For collateral negligence of the Robb Company the appellants are not responsible, apart from the special provision in their contract above quoted. That clause of their contract might render the appellants liable to indemnify \. the owner, Jacobs, if he had been held responsible for the injuries sustained by Tunley.
But it does not establish privity between Tunley and his representatives and the appellants.
The appellants should have their costs in this court and in the Court of Review and the action should be dismissed as against them with costs.
J.-It is stated by the appellant company that the respondent's husband was a trespasser in the Jacobs building. The evidence shews, on the contrary, that the deceased had an implied invitation to go into that building to get employment. le was waiting for that purpose when be was struck by the end of the boiler in question. The jury were justified in finding that the respondent's husband was lawfully in the place where lie was injured.
As to the question of negligence charged against the appellant company, the jury found that the accident was
The appellant, the W. J. 'McGuire Co., had the contract for the whole heating system in the Jacobs building. They could not sublet their contract without the written consent of the proprietor.
They assumied also by their contract with Jacobs
The appellant made a sub-contract with the Robb Eng(ileeringY CompanlY, of Amherst, N.S., to supply and install the boilers that formed part of the heating system. One of the clauses of that sub-contract was to the effect that the appellant was
The boilers were sent from Amherst to Montreal and consigned to the appellant company. It was, however, on the instruction of the local agent of the Robb Engineering Co. that the boilers were carted from the railway station to the Jacobs building. But there was nobody else representing the Robb Engineering Co. to receive the goods on the premises; and, as they were consigned to the McGuire Company, the carter applied to the McGuire Co.'s foreman to get the place where those goods should be placed and the employees of the McGuire Co. also helped in unloading the goods and in negligently placing them in a part of the building where carts were constantly passing by.
The jury seems to have been properly charged by the judge presiding at the trial, since the counsel representing the appellants stated in answer to the judge's inquiry:- The jury, with all those facts and circumstances in evidence have found that the appellants were guilty of negligence. That verdict has been upheld by the unanimous judgment of the Court of Review.
The jury could find the verdict they have rendered; and, in view of articles 498 and 503 of the Code of Civil Procedure, the appellants would not be entitled to have the plaintiffs' action dismissed or a new trial granted.
I would refer to the case of Harold v. City of Montreal (1).
Appeal dismissed with costs. Solicitors for the appellants: Foster, Martin, Mann & Mackinnon.
Solicitors for the respondent: Davidson & Ritchie. SATISFACTION-Right action-"Lord Campbell's Act"-Death accident-Action by widow .....
' Timber on prelands-Rights of pre-emptorss. et seq. and pre-emptor
Crown lands, under the provisions the British Columbia "Land Act," R.S.B.
has not forfeited rights, is entitled to maintain an action for such damages as he has sustained consequence the destruction of timber growing upon his pre-empted
.....
commission-Named price-Introduction retainer lower price-Right of action-Alberta statute, Edw. VII., s.
Alberta statute, Edw. VII. respecting sales of real estate, denies recovery action, for services rendered in connection with such sales way commission or otherwise, unless upon a memorandum in writing signed or behalf of the person to charged. In letter to the plaintiff, signed the fendant, the latter agreed to sell a hotel for $40,000 and added, "I will pay you commission on purchase price."
fendant subsequently sold the property to purchaser introduced the plaintiff for $34,000.-Held, affirming the judgment appealed from D.L.R. 498; 4
West. W.R. 83), that "purchase price."
as used in the letter, had reference to any price for which a sale might made, and that, construed in connection with the conduct of the parties, the memorandum was sufficient, under the statute. to entitle the plaintiff to recover a commission at the rate mentioned
ACTION-Continued.
his services in regard to the sale made at the reduced price to the purchaser introduced him. Toulimin Millar L.T. 96), and Burchell and Blockhouse Collieries ([1910] 614), "Militia Act"-R.S.C. [1896] -Riot-Military district-Right of action--etrospective legislation-4 Edw. 11. s. 86.]-By sub-sec. the "Militia Act," the manding troops called out in aid of the civil power may, in his own name, take action against the municipality in which the riot occurred to recover the amount of the expenses incurred which are to paid to His Majesty when recovered. Edw. VII. this right action was vested in His Majesty.-Held, that the latter being a procedure Act is retrospective and an action was properly brought in the name of the Attorney-General Canada to recover the expenses of calling out the troops on the occasion an industrial strike in the City of Sydney, part of which expenses appealed
X.R. Rep.
Brodeur J. dis- Money received ider prohibited contract-Recovery of funds-Right action.] Held that, in the circumstancts this case
"Municipal Corporation" the plaintiff's right of tion was not affected the illicit nature of the agreement in question and was entitled to rccover the amount retained from him in an tion for money had and received to use the defendant, or under the provisions of section of the Quebec statute, Vict. 42.-Judgment appealed from reversed.
Consumers' Cordage v. Connolly Can. S.C.R. 244) fol- ACTION-Continued.
(Leave to appeal to Privy Council granted, 7th July,
Right of action-"Lord Campbell's
Death accident widow-Accord and satisfaction.] Where the death of a person is caused the wrongful act, neglect or default another an action for damages does not lie under "Lord Campbell's Act" unless the deceased could have maintained an action if death had not ensued.-C. was a temporary employee on the Intercolonial
Railway and, as such, a member of the
"Employees Relief and Insurance Association."
By the rules the Association the object the Temporary Employees
Accident Fund was to provide for members suffering from bodily injury and the family or relatives deceased members. Each member had to contribute to the fund and the Railway Department gave the annual sum $8,000 in consideration of which it was to "relieved of all claims for compensation for injury or death of any member."
killed a railway train and his widow was paid $250 out of this fund.
She then brought an action under "Lord
Campbell's Act." -Held, affirming the judgment the Exchequer Court (14
Ex. C.R. 472), that as his contract with the Association could not have maintained an action had he lived the widow's right action was barred.
6-Payment insolvent-Preference curator
Gaming transaction-Illegal contract-Right action-Arts.
-Arts. et seq., C.P.Q...........
7-Rivers and streams-Industrial immanent all-Right of action-Practice-Statute
-R.S.Q., arts. 7295, 7296....
ACTION-Continued.
8-Practice-Action dependents- "Families Compensation Act"-Release deceased-Defence to action- Setting aside release-Personal representative - Right of action-Return of money paid-Limitation of actions-General statutory provision
Private Act "Consolidated Railway Company's Act"- Statute-RS.B.C.,
82-"Lord Campbell's Act"-(B.C.) V. s. .............................
Lease of. Act, 125-(Sask.) Edw. VII., (Sask.) 7 Edw. VII., "Supplementary Revenue Act"-Recovery of taxes- 10-Statute
"Colonial Courts Admiralty Act, (Imp.), & V. 27-"Public Authorities Protection Act, (Imp.), d V. Limitation of actions-Effect of statutes and procedure-Jurisdiction -...... ADMIRALTY LAW-Statute-"Colonial Courts of Admiralty Act, (Imp.), &G V. 27-"Public Authorities Protection Act, (Imp.), & V. 61-Limitation of actions-Effect statutes-Practice and procedure-Jurisdiction ..........................
AFFIDAVIT-Bill of sale-Mortgage- Registration-Verification-B.C. "Bills of Sale Act," Edw. VII., s. . 541 appeal-Practice- Yegligence-Fire set by railway locomo- APPEAL-Continued.
live-Assessment of damages-Findings of trial judge.]
As to the quantum trial judge, following
Schmidt v. Miller (46 Can. S.C.R.
held that the respondent was entitled to recover the full value of the standing timber destroyed.
All evidence bearing upon the question of respondent's interest was omitted in printing the case appeal and the point was not taken the Court of Appeal or in the appellant's factum on the present appeal. The decision of the Supreme Court of Canada in Schmidt v. Miller was, subsequently, reversed on appeal to the Privy Council ([1914]
and the point raised hearing present appeal spondent's damages should reduced consequence of his limited interest in the timber destroyed.-Held, that, in these circumstances, the contention in respect to the pre-emptor's limited interest the property destroyed
(the evidence bearing upon it having been omitted from the appeal case) was not open for consideration in the Supreme Court
Canada.-The court refused to disturb findings of the trial judge, based upon sufficient evidence, or the assessment damages made him as limited section of the "Railway Act," R.S.C., ch.
The judgment appealed
D.L.R. 425)
.........
2-eto right of appeal - Application to pending actions.] An of Parliament enlarging the right of apto the Supreme Court of Canada does not apply to a case in which the action was instituted before the Act came into force. Williams Irvine Can.
S.C.R. 108); Hyde v. Lindsay Can.
S.C.R. 99), and Colonial Sugar Refining
Co. Irving ( [1905]
followed. [See now Stat. (Dom.)
& 5
3-Jurisdiction- "Matter in controrersy"
Annuity
"Workmen's
Compensation Act,"
et seq.-9 Edw. FII..
"Supreme Court Act," R.C..
s. 46(c) - APPEAL-Continued.
Plaintiff's under
Quebec "Workmen's Compensation Act," claimed $450 for loss of earnings, for six months, during incapacity occasioned personal injuries, and also an annuity of per annum.
The plaintiff recovered judgment for the specific amount claimed and he was also awarded an annuity $247.50, which might subject to revision, under the statute. The capitalized value of the annuity would, probably, amount to a sum exceeding $2,000, the appealable limitation fixed by section 46 (c) the "Supreme Court Act," R.S.C., 139.-Held, Davies J. dissenting, that, in the circumstances of the case, it did not appear that the demande amounted to the sum or value of two thousand dollars, within the meaning section 46(c)
of the "Supreme Court Act," and, consequently, the court had jurisdiction to entertain the appeal. Talbot v. Guilmartin Can. S.C.R. ; La Cie. d'Aquedvc la Jeune Lorette v. Terrett Can. S.C.R. Lapointe The Montreal Police Benevolent and Pension Society Can. S.C.R. and Macdonald v. Galivan (28 Can. S.C.R. 258), referred to.
(Leave to appeal to Privy Council granted, 15th July,
Co. v. ................
4-Criminal law-Stated case-Extension of time-Notice of appeal-Criminal Code, ss. Where, on an application under section of the Criminal the court, in the exercise judicial discretion, has refused to allow a postponement of the trial of the person indicted, there can be review the decision by an appellate court and the question presented does not constitute a question of law upon which there may be a reserved case under the provisions section the Criminal Code.
from West. W.R. 26 West. L.R. The Queen v. Charlesworth (1 B. & 460); Winsor The Queen (L.R. 1 390); Rex v. Lewis L.J.K.B. 722): Rex v. Blythe (19 Ont. L.R. 386); Reg. v. Johnson & K. 354); and Reg. v. Slavin Kis
...........................
APPEAL-Continued.
5-Findings of fact-Inference jury
-Determining cause of accident-Evi- Rivers and streams-Industrial improvements- Penning back waters-Permanent works
-Damages-Measure of damages-Expertise
Loss woaterpower-Future damages-Compensation once for all-Right of action-Practice- Statute-R.S.Q., arts.
......................
TAXATION-Lease of Crown lands-Interest of occupier- Exemption from taxation - "B.N.A. Act, s. 125-(Sask.) 6
Edw. VII., "Local Improvements
Act"-(Sask.) 7 Edw. TII., 3, "Supplementary Revenue Act"
taxes-Non-resident-Action for debt
Jurisdiction of provincial courts.I
Saskatchewan statutes, Edw. VII.,
Local Improvements and 7 Edw. VII., ("The Supplementary Revenue Act") and their amendments, authorizing the taxation of interests in Dominion lands held persons occupying them under grazing leases, licences from the Minister of the Interior, are not in contravention of the provision section of the "British
North America Act, exempting from taxation all lands or property longing to the Dominion of Canada;
sequently, these enactments are intra vires of the provincial legislature.
Calgary and Edmonton Land The
Attorney-General of Alberta (45 Can.
followed.-For the purposes the collection of taxes levied the provincial authorize their recovery personal action, as for debt, against persons occupying such lands, in the civil courts of the province.
notwithstanding that the residences such persons may outside the limits the province.-The judgment appealed
West. L.R. 903; West. W.R.
BANKING-Loans-Security-Wholesale purchaser-"Products the forest"-"Bank Act." s. 88.] of the "Bank Act" a bank "may lend money to any wholesale puragriculture, the forest, etc.; or to any stock or dead stock and the products thereof, upon the security of such products. or of such live stock or dead stock and the products thereof."-Held, affirming the judgment of the Appellate Division Ont. L.R. which affirmed the decision of Divisional Court Out. L.R. which the judgment of the trial Judge Ont. L.R. was maintained, that a person who purchases lumber the carload having hand at times 200,000 or 300,000 feet and sells it retail or uses it in his business is a "wholesale purchaser" with- Held, also, that sawn lumber is a "product the forest" on which money can lent under said provisions.
Molson& Bank Beaudry (Q.R.
overruled.-Held, per Duff and Anglin JJ.-The words "and the products thereof" at the end of the above sub-section mean the products of live or dead stock and not of the other articles mentioned. . SOCIETY-Life insurance -Contract-Payment of assessments- Extension of time-Rules and regulations-Place of paymdnt-Demand-Default-Suspesion,---Authority to waive conditions-Conduct of officials-Estoppel-Company law
......-..... BILLS SALE-Mortgage tion-Affidavit-Verification-B.C. "Bills of Sale Act," Edw. VII., s. 7.] The defendants rendered financial aid to F. & enabling them to purchase the BILLS SALE-Continued.
quantity of goods ordered him, but not then delivered, a payment on account being made in cash advanced the fendants and the balance four promissory notes, in which the defendants indorsed.
At the same time new stock to the amount
$2,700 was purchased F. & N. from defendants which afterwards delivered to them.
bill of sale way of chattel mortgage was then given F. & to the defendants for the advances so made and to secure them against liability on the indorsements, the proviso for redemption being on payment of the amounts mentioned and also for all goods thereafter supplied the defendants to F. & during the continuance of the security.
The bill sale was registered with an affidavit the actingmanager of the defendants, at Vancouver, who therein described himself as "secretary" of the company, which was also held him.
The affidavit stated that the bill of sale was made bond fide for valuable consideration, namely, the amounts therein mentioned, and other considerations therein set forth, but did not state that the grantors were justly and truly indebted to the grantees in such sums.
About two years later, F. & made an assignment for the benefit of creditors to the plaintiff and, on the same day, after the execution the assignment, but before the assignee had taken possession, the appellants tered into possession of F. & N.'s stockin-trade virtue of the bill of sale and refused delivery to the assignee.
In an action the assignee for declaration that the bill of sale was void as against him and the creditors and to recover possession of the stock-in-trade,-Held, that the registration of the bill of sale was not effective against the assignee the creditors as it had not been verified in conformity with the provisions of the
British Columbia "Bills of Sale Act," 5
In regard to the goods supplied after the execution the bill of sale, the onus was upon the defendants to shew that there were such goods in the possession of the mortgagors at the time of the assignment the benefit of creditors.-Judgment appealed from Rep. affirmed.
-Per Duff J.
(Idington J. dubitante).
The affidavit of bona fides required
BILLS OF SALE-Continued.
section of the British Columbia "Bills Sale Act," Edw. VII., may be made the secretary of a company who, at the time makes such affidavit, is also facto manager of the company's BROKER-Sale of land-Commissionagent-Introduction of purchaser-Interference principal-Quantum meruit- Fariation of written contract-Evidence Edw. VII., 27.] The berta statute of Edw. VIL, provides that no action shall lie to recover any commission for services connection with the sale of land except a contract therefor in writing signed the person sought to charged or his agent thereunto authorized writing.
duly signed memorandum authorized H. to sell a section and half of land, containing 960 acres, at the named price of per acre, and to pay him a commission on the sale at the rate of %.
In attempting to make a sale H. introduced T. to and, after they three had inspected the land together, T. made an offer to to purchase the section alone at per acre provided certain other property should taken in exchange as part payment. This proposition was accepted and sold the section alone to T. on those terms.-Held, that the sale effected was an entirely new contract which was in no manner referable to the written agreement respecting commission on a sale price in money and, as there had no written contract respecting remuneration to the broker in respect of the transaction which took place he could not recover compensation for the services rendered him either way commission or as quantum meruit.- The judgment appealed from D.L.R. 381: West. W.R. 923) was reversed, Duff and Brodeur JJ. dissenting.-Per Duff J.
The broker should held strictly to the terms of the written agreement which was drafted himself; it did not constitute a general authority to sell the lands therein described; he could not, therefore, recover remuneration for his services way commission as therein provided. Nevertheless, as such use was made of the introduction of the purchaser that the BROKER-Conti ned.
broker was prevented effecting a sale according to the terms of his agreement, the conduct of the principal in that respect entitled the agent to recover compensation way of quantum meruit.- Per Brodeur J.-The broker had, under the agreement, a general authority the sale of the lands for which he found and introduced the purchaser; therefore, should not be denied compensation for his services on account of the conduct the owner in carrying out the sale terms different from those to which he had been restricted the agreement.
(Leave to appeal to Privy Council was refused, 20th March,
.........................
commission-Named price-Introduction
General retainer lower price-Right of action-Alberta statute, Edw. VII., s.
Alberta statute, Edw. VII., ch. respecting sales of real estate, denies recovery action, for services rendered in connection with such sales way commission or otherwise, unless upon a memorandum in writing signed or behalf the person to charged. In a letter to the plaintiff, signed by the fendant, the latter agreed to sell a hotel for $40,000 and added, "I will pay you commission on purchase price."
Defendant subsequently sold the property to purchaser introduced by the plaintiff for $34,000.-Held, affirming the judgment appealed from D.L.R. 498; 4
West. W.R. 83), that "purchase price,"
as used in the letter, had reference to any price for which a sale might be made, and that, construed in connection with the conduct of the parties, the memorandum was sufficient, under the statute, to entitle the plaintiff to recover a mission at the rate mentioned for his services in regard to the sale made the reduced price to the purchaser introduced him. Toulmin Miller
L.T. 96), and Burchell v. Gowrie and
Blockhouse Collieries ([1910]
3-Dealings "on Change"-Specula tire options-Principal and agent-Liability for contracts agent in his own name- Privity of contract-Purchases and sales
BROKER-Continued.
on "margin"-Settlements through clearing house-Wagering contract - Malum prohibitum
Criminal Code, sec. 231.] entered into speculative transactions, on "margin," instructing the plaintiffs, members of a "Grain Exchange" to buy and sell for him on the Exchange, for future delivery in accordance with the rules, regulations and -customs the Exchange, and a number of purchases and sales were made on commission him. He was not, however, informed the names of any sellers or purchasers, the brokers carrying out the transactions in their own names. There was a "clearing house" association connected with the Grain Exchange of which the brokers dealing on the Exchange were members and through which all transactions were settled daily setting purchases against sales, liability for the same being assumed the clearing house and the brokers released upon a settlement for the resulting balances instead of for every separate transaction reported. was not proved that was aware of this practice as to settlements, although he, from time to time paid "margins" to the brokets when required to do them in order to protect them against losses his account.
became in arrears "margins" and, in an action against him, the brokers recovered the amount of their claim.-Held, reversing the judgment appealed from Man. R. 306), the Chief Justice and Duff J. dissenting, that, the evidence failed to shew that, the manner in which the transactions were made, the amounts claimed had expended in carrying out the commissions according to the instructions the brokers had received from B., they were not titled to recover the balance so claimed from him.-Held, further, per Idington and Brodeur JJ., and semble per Anglin J.-Where, in such transactions, neither party intends that there should actual delivery made or received the commodities to which the purchases or sales relate the contracts are illegal and prohibited the terms of section of the Criminal Code.
v. RicHARD- & Sos .....................
BUILDERS CONTRACTORS-Construction contract - Sub-contract - Dan- BUILDERS CONTRACTORS-Con.
BUILDERS CONTRACTORS-Con. gerous premises - Servant or agent - Duty of principal contractor-Injury to invitee-Responsibility for damages-Evidence-Findings of jury.] The contractors for plumbing and heating in a building under construction, sub-let part of their contract to the R. who manufactured the necessary material at Amherst, N.S., and at one time shipped a boiler-plate for use in executing their sub-contract consigned to the at Montreal.
The sent the advice notice the shipment to the R. Co.'s local representative, who employed carters to get the plate from the railway company and carry it to the place where the works were being carried on.
It was, under directions of the Co.'s foreman, leaned up against a pillar of the building and remained there for about one day in a position where it projected over a part of the cartway used bringing materials into the building. T.
applied for employment as a labourer on the works and was told to return next day which he did and, while waiting to employed, stood near the plate. When a vehicle entered the cartway the plate fell upon causing injuries from which died. In an action his dependents to recover damages from the R. and the Co.,-Held, Anglin J. dissenting, that, in the circumstances, the were responsible for damages; that the fault from which the injury resulted was that of their foreman who, acting as their servant or agent, supervised the placing of the plate in a dangerous position, and that the plate itself was a thing which was, at the time, in the care of the Lucy Bawden ([1914]
K.B. 318), referred to.-Held, also,
Anglin J. (dissenting)
, that the evidence shewing the circumstances stated justithe jury in finding that deceased was lawfully in the place where the that he not guilty of contributory negligence, and that the accident was due to negligence of the and the sub-contractors in placing the plate in a dangerous position. W. J.
2-Dangerous works - Independent contractor-Master and servant-Risk
3-Tra of wbrks gerous s ligence- -Correl amway company - -Independent contractor-Danystem-Injury to property-Neg- Exercise of statutory authority ative duty
Special .. ....... CAPTATION-Emecution of will-Testamentary capacity-Undue influence-Approval testatrix-Evidence-Beneficiary propounding will
Onus of proof. .................................
pendents-B.C. "Families Compensation Act"-Release deceased-Defence to Setting aside release-Personal representative- Right of action-Return of money paid- Limitation of actions-General statutory provision-Carriers-Private Act-B.C. "Consolidated Railway Company's Act"- Statute -R.S.B.C.,
82-"Lord Campbell's Act"-(B.C.)
55, ............................
I-AcquAduc de la Jeunne Lorette V. Verrett Can. S.C.R. 2-Attorney-General of Canada City of Sydney Rep. reversed. .................................
3- Attorney-General of Manitoba Manitoba Licence Holders' Association ([1902] referred to ...... 4-Attorney-General of Ontario Attorney-General for the Dominion ([1896] 5-Backhouse Bonomi H.L. 503) referred to .................
S.C.R. VOL. XLIX.]
6--Bark-Fong V. Cooper B.C. Rep.
Barry Butlin P.C.
Breakey Carter
Dig.,
8-Brown v. Fisher L.T. re- Buckbec United States In.uronace,
Annuity and Trust Barb.
Cowrie
Collieries ([1910] 614) referred to.
. . . . . . . . . . . . . . . I . . . . . . . . . . . . . . . .
11-Calgary and Edmonton Land
A ttorney-Gencral of Alberta Can.
S.C.R. followed ..............
12-Canadian Northern Rway.
Robinson Can. S.C.R. referred
.............................
13-Carey Roots Alta. L.R.
reversed. West. W.R. 1060..
14-Cedars Rapids Manufacturing and
Power Lacoste ([1914] 569;
Times L.R. followed .......
15-Chanbly Manufacturing
Willet
Can. S.C.R.
16-'lough London and North Western Riway. (L.R. Ex. referred
17-Colonial Sugar Refining Co. Irving ([1905] followed ..... Conrod The King Ex. C.R. 19--Consumers' Cordage v. Connolly Can. S.C.R. followed. 20-Craig Lamoureux (Q.R. 22 K.B. 21-Cunningham v.
Tomey Homma ([1903]
22-Daynes British Columbia Electric Rtway. B.C. Rep. 498) reversed ...........................
23-Disher Donkin B.C. Rep. 230) reversed ....................
24-Dorchester Electric Roy K.B. affirmed........ Erdman v. Town of TValkerton Ont. App. 444) referred to....... Frith Alliance Investment Co. D.L.R. affirmed ......... 27-Fulton v. Andrew (L.R. H.L. 27a- Gale Bureat Can. 27b-Gentile B.C. Elec. Rcay. Co.. B.C. Rep. 307; [1914] W.N. ......................
CASES-Contin u(d.
28-George Howard D.L.R.
West. W.R. affirmed ........
29-Green v. British Columbia Electric
Riway. B.C. Rep. referred
30-Hardaker Idle District Council
1 referred to ....
Haricood v. Baker P.C.
Hlerron Como D.L.R. 381; 3
West. W.R. 923) reversed ..........
33-Hitchcock Sykes Ont. L.R.
34-Hodge The Queen Cas.
CONSTITUTIONAL 1.
Hounsome v. Vancouver Pozoer
B.C. Rep. affirmed ........
36-Hyde Y. Lindsay Can. S.C.R.
followed .....................
.
37-Indermaur v. Dames (L.R. C.P.
311), referred to .................
38--Insurance Co. v. Wolff U.S.R.
326) referred to ..................
39lohnson v. Grand Trunk Rway.
Ont. App. R.
rr 1.
40-Kerr
Canadian Pacific Rway.
D.L.R. affirmed ......
41-Kilmer British Columbia Orchard Lands <([1913]
fol- Lapointe V. Montreal Police Benevolent and Pension Society Can. R. referred to .................
Lawrence Accidental Insurance (7 distinguished.. 44-Lee v. Lancashire and Yorkshire Nicay. referred to. ....... 45-Lucas and Chesterfield Gas and Water Board, In re (
1 K.B. followed ........................
46-Lucy Bawden ( 47-Macdonald
Galivan Can. S.C.R. referred to ............
48-McLaughlin McLellan Can. S.C.R. 646) referred to .......... 48a-McPhee V. Esquimalt and Nanaimo Rway B.C. Rep. 450) reversed ..........................
49-Markey v. Tolworth Joint Isolation Hospital District Board ( K.B. 454) referred to ............ 50-Marney v. Scott ( 986) referred to ..................
51-Mayrand
Dussault Can.
S.C.R. 460) referred to ..........
52-Migneault Malo
Jur.
53-Mblsons Bank Beaudry (Q.R.
K.B. overruled ...........
54-Montreal Street Rway. Co. Boudreau Can. S.C.R. 329) referred to.
........................
55-Morton and the City of St. Thomas,
In re Ont. R. referred to.
.......................
Paquin v. Beauclerk ([1906]
57-Pells Bostwell 680) referred to ........................
58-Pym v. Great Northern Rtay.
& 759; & referred
59-Queen, The, Charlesworth B.
& 460) referred to ..............
60-Read Great Eastern Rway.
(L.R. referred to ......
61-Redmond v. Canadian Mutual Aid
Association Ont. R. 335)
ferred to ........................
62-Reg. Johnson & K. 354)
63-Reg.
S1avin U.C.C.P. 64-Rex v. Blythe Ont. L.R. 65-Rex v. Lewis L.J.K.B. 66-Rex
V. Mulvihill West. WE. 1229; West. L.R. affirmed... 67-Rex Quong-Wing West. W.R. 68- Richardson & Sons Beamish Man. R. reversed ............
69-Rideal v. Great Western Rway. F. & F. referred to ........ 70- Robinson v. Beanconsfield Rural ........ 71-Robinson v.
Canadian Pacific Rway. ( [1892] referred to. .................................
72-Royal Guardians Clarke (Q.R. K.B. affirmed .............
73-Sayers British Columbia Electric Rway. B.C. Rep. referred to ........................
74-Schmidt Miller Can. S.C.R. 74a- Schwartz Winnipeg Electric Rway. Alan. R. affirmed. CASES-Continucd.
75-Seward v. The "Vera Cruz" (10
Cas. referred to ......... .470
76-Skeate Staters Times L.R.
290) referred to .................
77-Smith v. Baker & Sons ([1891]
78-Snell Brickles Ont. L.R.
358) reversed ....................
79-St.
George's Society of Montreal v.
Nichols (Q.R. referred to.
.................................
80-Sydney, Cape Breton and Montreal
SS. Harbour Commissioners
Montreal Ex. C.R. 1) affirmed..
Talbot Guilmartin Can.
C.R. referred to ............
See 3.
82-Tattersall v. People's Life Insurance Ont. L.R. referred to.
......................
83-Toulmin v. Millar L.T. 96)
84-Towonsend Northern Crown Bank
Ont. L.R. affirmed .......
85-Trawford v.
British Columbia
Electric Rway. Co. B.C. Rep.
86-Tribe Tribe Jur. 793) re- CASES-Contin
Tyrrell Painton ( [1894] P. Union Colliery Co. of British lumbia v. Bryden ( [1899] 580) referred to ........................
44( 89-Velasky Western Power Co. (18 90-Vermilion Hills, Rural Municipality of, Smith West. L.R. 903; 4 Wadsworth Canadian Railway Accident Insurance Co. Ont. L.R, 537; D.L.R. affirmed.... 92-Vilkes v. Matthews (Q.R. K.B. 92a-illiams
V. Irvine Can. S C.R. followed ...............
93-Williams Mersey Docks and 1 K.B. 804) re- Wing v. Harvey & Winsor The Queen (L.R. 1 390) referred to..................
96-Winspear v. Accident Insurance Co. distinguished... 97-inter v. Gault Bros. B.C. 98-Zimmer Grand Trunk Rway.
Ont. R. referred to.. 470
Bill of sale- Mortgage
Verification B.C. "Bills of Sale Act," 5
VII., s. .............
Constitutional
Crim-, inal law - Legislation respecting Orientals-Chinese places of business-Employment of females-Statute-2 ss. 92-Local and private matters-Property and civil rights-Naturalized British subjects-Conviction under provincial statute ................
- Arts. 1164 (Payent)
..........................
2-Arts.
(Money received without valid consideration) ......
See 1.
3-Arts. (Fraud)
Art. (Gaming) .........
Art. (Quasi
CIVIL et seq. (Abandonment) .......
HOUSE-Broker - Dealings
"on Change"-Speculative options-Principal and agent-Liability for contracts agent in his own name-Privity contract-Purchase and sales on "margin"-Settlements through clearing house
-Wagering contract-Malum prohibitum
-Criminal Code, sec. .........
LAW-Benevolent society- Life insurance assessments-Extension of time-Rules and regulations-Place of payment-Demand
Authority to waive conditions - Conduct officials-Estoppel ................
LAW-Criminal law -Legislation respecting Orientals-Chinese places of business white fenales-Statute-2 17 (Sask.)-"B.N.A. Act, ss. -Local and private matters-Property and civil rights - Naturalized British subject - Conviction under provincial statute.] The provisions of the statute the Province of Saskatchewan, containing a prohibition against the employment of white female labour in places of business and amusement kept or managed Chinamen, sanctioned fine and imprisonment, intra vires of the Provincial Legislature. Union Colliery Co. Bryden ([1899] 580), and Cunningham Tomey lomma ([1903]
-Per Duff J.-The imposition of penalties for the purpose of enforcing the provisions of a provincial statute does not, in itself, amount to legislation on the subject-matter criminal law within the meaning of item of the 91st section of the "British North America Act, Hodge The Queen Cas. The Attorney-General of Ontario The Attorney-General for the Dominion 348), and The Attorney- General of Manitoba v. The Manitoba Licence Holders' Association ([1902] referred to.-The judgment appealed from West. W.R. was aflirmed, Idington J. dissenting.- (Leave to appeal to the Privy Council refused, 19th May,
...........................
2-Assessment and taxes - Crown lands-Interest of occupier-Exemption from taxation-Construction "B.N.A. Act, s. - (Sask.) Edw. VII., "Local Improvements Act"-(Sask.) 7 Edw. VII.. "Supplementary Revenue Act"-Re- CONSTITUTIONAL LAW-Continued.
taxes
Non-resident for debt - Jurisdiction of provincial courts.]
The Saskatchewan statutes, 6
Edw. VII., ch. ("The Local Improvements Act")
and Edw. VII., 3
("The Supplementary Revenue Act") and their amendments, authorizing the taxation of interests in Dominion lands held persons occupying them under grazing leases or licences from the Minister the Interior, are not in contravention the provisions of section
"British North America Act, exempting from taxation all lands or property belonging to the Dominion of Canada; consequently, these enactments are intra vires of the provincial legislature.
The Calgary and Edmonton Land v.
The Attorney-General of Alberta (45 Can.
S.C.R. followed.-For the purposes of the collection of taxes so levied the provincial authorize their recovery personal action, as debt, against persons occupying such lands, in the civil courts of the province, notwithstanding that the residences such persons may outside the limits ofthe province.-The judgment appealed from West. L.R. 903; West. W.R.
hILLS.
CONTRACT-Broker - Sale of land - Commission - Principal and agent - Introduction
Interference by principal
Quantum mernit
Variation written contract
Edio. VII.,
The Alberta statute
Edw. VII., ch.
provides that no action shall lie to recover any commission for services in connection with the sale of land except a contract therefor in writing signed the person sought to charged or by his agent thereunto authorized in writing.
dum authorized H. to sell a section and a half of land, containing 960 acres, the named price of per acre, and to pay him commission on the sale at the rate
In attempting to make a sale H. introduced T. to and, after they three had inspected the land together, T. made an offer to to purchase the section alone at per acre provided certain other property should
CONTRACT-ntinued.
taken in exchange as part payment. This proposition was accepted and sold the section alone to T. on those terms.-Held, that the sale effected was an entirely new contract which was no manner referable to the written agreement respecting commission on a sale for a price in money and, as there had no written contract respecting remuneration to the broker in respect of the transaction which took place he could not recover compensation for the services rendered him either way of mission or as quantum meruit. judgment appealed from D.L.R. West. W.R.
was reversed, Duff and Brodeur JJ. (dissenting)
.-Per Duff J.-The broker should held strictly to the terms of the written which was drafted himself; it did constitute a general authority to sell the lands therein described;
he could not, therefore, recover remuneration for his services way commission as therein provided.
Nevertheless, as such use made of the introduction of the purchaser that the broker was prevented effecting sale according to the terms his agreement, the conduct of the principal that respect entitled the agent to recover compensation way of quantum meruit.-Per Brodeur
.- The broker had, under the agreement, a general authority for the sale of the lands which he found and introduced the purchaser: therefore, he should not nied compensation for his services account of the conduct of the owner carrying out the sale on terms different from those to which he had been restricted by the agreement. - (Leave to appeal to Privy Council was refused. 20th March,
Cosro 1... . .. . .. . . of land-Defcasance-"Time to of the essence of the agrerment"-Deferred payments-Notice after default- Laches-Abandonment-Specific performanc.]-In an agreement for the sale lands, for a price of which half was paid and the balance to paid by deferred instalments at specified dates, there was clause for forfeiture, both the agreement and the payments made, upon fault in punctual payments; time was the essence of the contract and, on CONTRACT-Continued.
fault, the vendor had the right to give the purchasers thirty days' notice sion and re-sell the lands. default in the terms mentioned, but only to one of the purchasers, an extension of time paid, which was refused by the vendor weeks later the purchasers sued
Held, reversing the judgment appealed from
Rep. 271), that the clause making time of the essence of the contract had refernot to the gale dates, but to the time mentioned in the notice; that the notice as given did not comply with the condition of the agreement requiring notice to all of the purchasers, and that, in the circumstances of the case, there were not such laches chargeable against the purchasers as would amount to abandonment of their rights under the agreement or deprive them of their remedy specific
.........................
3-Accident insurance of policy-Special conditions-Increased and diminished indemnity-Injuries from fits causing death.] In an accident policy an insurance company agreed to pay the insured the principal sum in case death or specified injuries, double that sum if such death or injuries occurred under certain conditions and one-tenth
"injuries the policy, went at night with a lantern to an outbuilding of the fishing club
Which he was visiting. Shortly after the outbuilding was seen to on fire.
fire was extinguished and W. brought out badly burned, from the effects of which he died the next day. In an action the policy the trial judge found as a fact that W. had been seized with a and in that condition caused the fire.
CONTRACT-Continued.
This finding was concurred in the two provincial appellate courts.
The trial judge held that the company was liable for one-tenth only of the insurance. The Divisional Court reversed this ruling Ont. L.R. D.L.R. 668), but it was restored the Appellate Division Ont. L.R. D.L.R. 113).-Held, Division, Duff and Anglin JJ. dissenting, that the injuries causing the death of W. happened from a fit within the meaning the clause in the policy diminishing the indemnity to be paid.
Winspear v. Accident Ins. Co. 42), Lawrence v. Accidental Ins. Co. 216), distinguished.-Held, per Fitzpatrick C.J.-The clause diminishing the indemnity payable is not an exempting clause but one of the three separate contracts between the insurers and insured as to amount of liability.-Per Anglin J.-It does not create a new liability, but is a clause limitation in favour the company and to be strictly construed.was refused, 15th July, 4-Benevolent society-Life insurance -Payment of assessments-Extension Rules and regulations Place Demand
Suspension - Authority to waive conditions Estoppel pany law--Arts. the constitution and by-laws of a mutual benevolent society death indemnities were assured to members who, in order to maintain good standing and entitle their beneficiaries the indemnity, were, thereby, required to make prompt payments of monthly assessments within thirty days from the dates when they became payable. In the subordinate lodge of which was a member it had for some time been the practice of its financier to receive such payments fifteen days later than the thirty days so limited and, then paid, members were not reported as having been in default and, ipso facto, under suspension according to the regulations provided the constitution and by-laws incorporated in the certificate whereby the indemnity was secured. For several years the financier of the subor- CONTRACT-Contin ned.
dinate lodge had habitually received these payments from at his residence, on about the last day of this extended term.
Seven days after the expiration of the thirty days for payment of the last assessment, and while it was still unpaid, died and, on the following day, the overdue assessment was paid to the local financier and a receipt therefor granted him.
The Grand Treasurer of the
Society refused to accept this payment the ground that was then under suspension and was not a member in good standing at the time of his death.-Held, affirming the judgment appealed from
(Q.R. K.B. 541), Duff J. dissenting, that the course of conduct in the subordinate lodge, which the Grand Lodge was aware, the condition as to prompt payment had been waived, that remained in good standing until the time of his death and that the death indemnity was exigible the beneficiaries.
Wing v. Harvey DeG. & 265;
Eng. R. 872) ; Tattersall People's Life
Ins. Ont. L.R. ; Buckbee
United States Annuity and Trust Co. (18
Barb. ; Insurance Co. v. Wolff
U.S.R. 326); and Redmond Canadian
Mutual Aid Association Ont.
R.
referred to.-Per Fitzpatrick
C.J. and Brodeur J.-As no place of payment had been indicated, according to the law of the Province of Quebec (art.
assessments were payable at the domicile of the assured; consequently, owing to the practice which had prevailed as to the receipt of payment at domicile and because no demand for payment had been made at such domicile, there had been no default on the part and he had not become suspended at the time of his death.-Per Duff J., dissenting.-Neither the Grand Lodge nor the subordinate lodge or their officials had power to waive the conditions as to payment prescribed the constitution and by-laws and the certificate of membership of C.; these instruments constituted the contract of insurance and sufficiently designated the of the financier of the subordinate lodge as the place where payment of the assessments was to made; even if article applies, no notification was given or proof made conformably to article and consequently, failure to make pay- -Continued.
ment of the assessment due within the thirty grace days, at the of the subordinate lodge, worked a default and, ipso facto, the suspension of membership, and, therefore, was not in good standing at the time of his death so as to entitle the beneficiaries to the indemnity according to the regulations society.-Held, further, per Duff J.-As the member must be presumed to know the limitations of the authority of the Grand Lodge, the subordinate lodges, and the officials of each of them, as determined the constitution and by-laws, the ostensible authority of officials cannot, for any relevant purpose, be of wider scope than the actual authority which defined specifically and exhaustively the constitution.
o- Vendor and purchaser land-Payment instalments-Specified (ates
Penalty - Payment declared to deposit.]
An offer to purchase land provided for payment of the price as follows: $500 "as deposit accompanying this offer" to returned if offer not accepted, the balance instalments at specified dates: it also provided that if the vendor was unable or unwilling to remove any valid objection to the title, and purchaser did not wish to accept it other- %vise the former could return the deposit and cancel the contract; that the if accepted should constitute a binding contract of purchase and sale and "time shall in all respects strictly of the essence hereof"; and that should the purchaser fail to complete the purchase in the manner and at the time specified the vendor could retain any monies paid on account as liquidated damages, rescind the contract and re-sell the property.-Held, reversing the judgment appealed from Ont. L.R. 358), Fitzpatrick C.J. and Anglin J., dissenting, that the $500 paid "as deposit" was part the purchase money, that the retention the vendor of monies paid when the purchase was not completed was only a penalty for failure to make the payments promptly; and that the court could grant the purchaser relief from the consequences of such failure. Kilmer v. British Columbia Orchard Lands ([1913] CONTRACT-Continued.
319), followed.
Railways
Crossing lines head bridges-Maintenance-Future traf- railway company wishing to cross the line another contracted with the latter for four crossings, three an overhead bridge and one a subway under a bridge of the other company.
The contract contained this provision:
all maintained at the cost of the tario Company (junior road), and shall each always maintained in a good and safe state, and as in no way to danger the property, fixed or movable, the Midland Company (senior road)."
The said bridges were to constructed according to plans !and specifications settled and approved the chief engineer the senior r6ad, and if the junior failed to maintain them to the satisfaction of said chief engineer the senior could cause the necessary work to done at the cost of the other company.that the obligation of the junior road was not merely to the crossings in good and sufficient repair in the condition they were in when the contract was made, but they could, at any time, ordered the Railway Board to make them fit for the heavier traffic caused the increased business of the senior road.
...............
7- Municipal corporation-Dedication of lands for highway-Opening of street of agreement.]
A land company made a donation certain lots of land to the municipal coporation the purpose of a highway and the corporation agreed to open and construct a portion the street when necessary.- Held, that, on the proper construction the agreement, in view of the powers conferred upon the corporation by tion its charter (Que.),
Vict.
the word "necessary"
in the agreement should construed as meaning "necessary in the public or general interest" and not merely in the interest of the other party to the agreement. In re Morton and the City of St, Thomas (6
Ont. R. and Pells Boswell
CONTRACT-Continued.
680), referred to.
S-Payment insolvent - Preference curator Gaming transaction-Illegal contract-Right action-Arts. et seq., ......... Vendor and purchaser-Agreement cedent-Specific performance ...... 10-Municipal councillor-Interest in municipal contract-Money received under prohibited contract funds-Right of action ............
11-Sale of lands-Agreement for resale-Novation-Rescission-Specific performance-Defence to action-Practice- Evidence-Statute of Frauds-Principal and agent-Agent purchasing-Disclosure -Findings of fact ...............
12-Vendor and purchaser-Agreement mission-Rescission contract Broker-Dealings "on Change"- Speculative options-Principal and agent -Liability for contracts agent in his Privity contract Purchase and sales on "margin" - Settlements through clearing house-Wagering contract-Malum prohibitum - Criminal Code, see. ...................
CRIMINAL LAW-Constitutional law- Legislation respecting Orientals-Chinese places of business-Employment of white females-Statute-2 Geo.
Act, ss. 92-Local CRIMINAL LAW-Continued.
Conviction under provincial statute.] The provisions of the statute of the Province of Saskatchewan, containing a prohibition against the employment of white female labour in places business and amusement kept or managed
Chinamen, sanctioned fine and imprisonment, is intra vires the Provincial Legislature.
Union Colliery
Brifden ([1899] 580), and Cunningham Tomey Homma ( [1903]
referred to.-Per Duff J.-The imposition of penalties for the purpose forcing the provisions of a provincial statute does not, in itself, amount to legislation the subject-matter of criminal law within the meaning of item 27 of the 91st section of the "British North
America Act, Hodge The Queen
Cas. The Attorncy-General of Ontario v. The Attorney-General for the Dominion ( [1896] 348), and
The A ttorney-General of Manitoba v. The
Manitoba Licence Holders' Association
( [1902] 73), referred to. judgment appealed from West. W.R.
was affirmed, Idington J. (dissenting)
. - (Leave to appeal to the Privy refused,
19th
Stated case - Extension of time - Notice of appeal-Criminal Code, ss.
Where, on application under section
Criminal Code, the court, in the exercise judicial discretion, has refused to allow postponement of the trial the person indicted, there can no review of the decision an appellate court and the question presented does not constitute question law upon which there may reserved case under the provisions of section the Criminal
Judgment appealed from West.
W.R.
West. 955) affirmed.
The Queen Charlcsurorth (1 &
460); Winsor The Queen (L.R. I
Rex Lewis L.J.K.B.
Her v. Blythe ( Out. L.R. ; Hrg.
Johnson & K. 354); and Reg.
Slavin
U.C.C.P.
CROWN LANDS-Action - Timber pre-empted lands-Rights of pre-emptor
"Land Act." R.S.B.C.,
CROWN LANDS-Continued.
ss. et seq. and 132-Negligence- Fire set railway loco motive-Assessment of damages ................
stitutional law-Exemption front taxa- (Sask.) 7 Edw. VII., "Supplement- Yo n-resident-Action for debt--Jurisdic- CURATOR-Payment insolvent-Preference-Recovery back curator-Gaming transaction-Illegal contract-Right of action-Arts. C.C.-Arts. et seq., C.P.Q..... - Timber on press. et seq. and 132-Issue on appeal- Practice-Negligence-Fire set railway locomotive-Assessment of damages -Findings of trial judge.]-A pre-emptor of Crown lands, under the provisions the British Columbia "Land Act," R.R.B.C., who has not forfeited his rights, is entitled to maintain an action for such damages as he has sustained consequence of the destruction of timber growing upon his preempted lands.-As to the quantum judge, following Schmidt Miller Can. S.C.R. held that the respondent was entitled to recover the full value of the standing timber destroyed.
All evidence bearing upon the question of respondent's interest was omitted in printing the case on appeal and the point was not taken in the Court Appeal or in the appellant's on the present appeal. cision of the Supreme Court of Canada Schmidt v. Miller was, subsequently, reversed appeal to the Privy Council and the point raised upon the hearing of the present appeal that the respondent's damages should reduced in consequence of his DAMAGES-Continued.
limited interest in the timber destroyed.
-Held, that, in these circumstances, the contention in respect to the pre-emptor's limited interest in the property stroyed (the evidence bearing upon having been omitted from the appeal case) was not open for consideration the Supreme Court of Canada. court refused to disturb findings the trial judge, based upon sufficient dence, or the assessment of damages made him as limited section the "Railway Act," R.S.C.,
The judgment appealed from D.L.R.
...............
Rivers and streams-Industrial improvements-Penning back tvaters-Permanent works - Measure of damages - -Loss of woater-power-Puture damages
-Compensation once for all-Right action-Practice-Statute,
Per Davies, Duff and
Brodeur JJ., Idington and Anglin JJ.
contra.-In an action for damages occasioned constructions in a stream industrial purposes the plaintiff is entitled, under the provisions of article the Revised Statutes of Quebec, to recover the full extent of damages which experts acting under article would have authority to award as compensation, once for all, for the injuries sustained.
Breakey
Carter (Cass. Dig. ed.) and Gale
Bureau Can. S.C.R. 312), referred to.-By the judgment appealed from was that the plaintiff was entitled to reparation for loss incurred in respect the diminution in value of his waterpower and the adjoining property on count of the construction the works in question.-Held, affirming the judgment appealed from (Q.R. K.B. 265),
Idington and Anglin JJ. (dissenting)
, that the plaintiff was entitled to reparation for such injuries. - Per Idington and
Anglin JJ.-As it was apparent that the defendants could operate their works such a manner as to avoid, or diminish, the inconveniences occasioned thereby, it would not proper, in such an action, to include possible future losses in assessing the damages to be given as compensation for the injuries complained of.
DAMAGES-Continued.
Montreal Street Railway v. Boudreau Can. S.C.R. 329); Chanbly Manufacturing Co.
Villett Can. S.C.R. 502); and Backhouse Bonomi H.L. (as. 503), referred to.-Fer Davies, Anglin and Brodeur JJ.-Where no effective steps have been taken the party from whom damages are claimed to have the damages resulting from improvements constructed in a stream ascertained an expertise, in the manner provided article 7296, cannot up a mere proposal such an arbitration as an exception to an action against him to recover compensation.-Per Duff J. - The defendants not having taken steps under the statute for several months, and not having shewn that they were in fact ready and willing to proceed under the statute, the action lies. Roy. ...... 3-Tramwoay company gerous system-Injury to property-Negligence-Exercise of statutory authority -Correlative duty-Special release.] A the construction and operation of the with his use thereof.
This injury could -Held, affirming the judgment appealed take tiff's lands.
Held, further, that the general language of the release should matters in regard to which it had granted with reference to the proper DAMAGES-Continued.
statutory powers respecting the construetaken to avoid unnecessary injurious consequences to the property other and they are responsible accordingly.
Hardaker
(
1 335), and Robinson v.
seferred to.
IouNsoE ................
DEDICATION-Dedication of lands for highway-Opening of street - Construction of agreement.................
DEPOSIT-Sale of land-Payment instalments-Specificd dates-Time of sence-Forfeiture - Penalty-Payment declared to deposit ............
EMINENT
EMPLOYER'S LIABILITY - -Ship labourer - Disregard of rules- "Accident in course of employment"-Action-Claim by dependents-Findings jury-Evidence-Art. 1054 0.0.]
A labourer employed on board a ship went ashore for purposes of his own while the ship was in port and, on returning to his work, he attempted to descend from the upper deck the hatchway, which was prohibited rules laid down for the men engaged in stowing cargo.
doing he fell into the hold, his body struck his foreman (who was there the discharge of his duties) and caused injuries which resulted in the death the foreman.
There was evidence to shew that the rules, which required labourers to use the companion-way, instead of the hatchway which the labourer had attempted to descend had been habitually disregarded.
The jury
44 1/
EMPLOYERS LIABILITY-Continued. found that the defendants were at fault "in not having taken the necessary precautions to enforce their rules," judgment went for the plaintiff, and this judgment was affirmed the Court Review.-Held, that there was evidence to support the finding of the jury and, consequently, their verdict should not be disturbed on appeal.-Quwre, per Fitzpatrick C.J.-Whether or not the course judicial decisions in the Province Quebec has adopted the principle that, in case like the present, an employer subject to liability derived from the law alone, and departed from the rule of the Roman Civil Law that there is no liahility without fault.-Per Brodeur J.exception, in article relieving parents, tutors, curators, schoolmasters and artisans from liability, cases where it is established that they could not prevent the act which caused injury, does not apply to employers. DONALDSON
-. ........ 2-Negligence-Answers by jury-"Yolenti non fit injuria"-Issue undecided- Practice-B.C. Supreme Court Rules, 0. r. 4-ew
3-egligence - Dangerous works Electric transmission line - Independent contractor - Master and servant - Strengthening poles-Stringing wires- Injury to linesman-Risk of employment -Responsibility of owner ........ ESTOPPEL-Benevolent society-Life insurance-Contract - Payment of assessments-Extension of time-Rules and regulations-Place of payment-Demand- Authority conditions-Conduct of officials- Company law ....................
EVIDENCE-Fisheries-Seizure of foreign ship - Fishing within territorial iwaters--Jurisdiction of Canadian court -Concurrent findings of fact.] the evidence as to the place of the seizure vessel for unlawful fishing within Canadian waters is unsatisfactory, and EVIDENCE-Continued.
leaves it doubtful whether or not the vessel seized was, at the time of seizure, within the three-mile limit of the Canadian coast, it would unsafe and unjust to condemn her.-Per Fitzpatrick
C.J. and Anglin J.-Where a charge unlawful fishing within the territorial waters of Canada involves the condemnation a foreign ship, the evidence must establish with accuracy and certainty the fact that the offence was mited within such territorial waters.
Per Duff condemnation involves the forfeiture of a ship longing to an alien friend, as well as the jurisdiction of the trial court to award the condemnation and of the legislature over the locus the act complained of, the evidence must establish more than a probability barely sufficient to sustain a verdict in any ordinary civil action in which none of these exceptional elements are present. - The judgment appealed from was reversed, Idington and Brodeur JJ. dissenting on the ground that the concurrent findings of both courts low ought not to be disturbed on appeal.
Expropriation of lands-Estimating compensation-Prospective value- Opinions.]
In expropriations of lands for public purposes, under the 198th tion of the "Railway Act," R.S.C., as authorized by section of the
"National
Transcontinental
Railway
Act," Edw. VII. the estimation of compensation to awarded to the owners the lands should made according to the value of the lands to such owners at the date of expropriation. The prospective potentialities of the lands should taken into account, but it only the existing value of such advantages at the date of expropriation that falls to determined.
In re Lubas and the Chesterfield Gas and Water Board
(
1 K.B. and Cedars Rapids
Manufacturing and Power v. Lacoste
Times L.R. 293), followed.-Per
J.-The opinions of witnesses to the effect that certain values would assigned to expropriated lands upon a comparison of those lands with other lands in the vicinity for which selling prices might estimated in a vague way cannot deemed evidence sufficient to estab- EVIDENCE-Continiucd.
lish values for the expropriated lands.was refused,
20th May, KIG
3-Rejection evidence-Memorandum witness-Withdrawing case from jury -New trial.] the trial of a case it is permissible for a witness to consult a eopy of a memorandum respecting circumstances attending the occurrence an accident, which was made himself at the time, in order to refresh his memory.
The refusal of the trial judge to permit him to is ground for ordering a new trial.-The trial judge is not justified in withdrawing a case from the jury on the ground that the evidence tablishes contributory negligence on the part of a plaintiff unless no other conclusion can drawn from it.
............. 4-Broker-Sale of land-Commission-agent-Introduction of purchaser-Interference principal-Quantum Variation of written contract-(Alta.) Master and servant-Profit-sharing -Partnership---Statute-R.S.B.C., 3, s. 3;
s. 4-Words and phrases-"Partners hip" .. ........... 6-Findings of fact-Inference jury -Determining cause of accident-Evi- 7-Negligence-Employer's liability- -Claim dependents-Findings of jury -Art.
1054 0................... 8-Execution of will - Testamentary capacity-Undue influence-Captation- EVIDENCE-Continued.
Approval testatrix - Beneficiary propounding will-Onus of proof ......
Sale of lands-Agreement for resale-Novation-Rescission-Specifio performance-Defence to action-Practice- Statute of Frauds-Principal and agent purchasing-Disclosure- Findings of fact ......................
Construction contract
Sub-contract-Dangerous premises - Servant principal contractor-Injury to invitee- Responsibility for damages-Findings jury ...........................
EXPERTISE-Rivers and streams-Industrial improvements - Penning back wa ters-Permanent works - Measure of damages-Arbitration paration-Loss of water-power-Future
Compensation once fbr all - Right of action-Practice-Statute-.S.
EXPROPRIATION - Expropriation
Estimating compensation-Prospective value-Evidence.] In expropriations of lands for public purposes, under the 198th section of the "Railway Act,"
R.S.C., as authorized section of the "National Transcontinental Railway Act," Edw.
the estimation of compensation to be awarded to the owners of the lands should made according to the value the lands to such owners at the date expropriation.
The prospective potentialities of the lands should be taken into account, but it is only the existing value such advantages at the date of expropriation that falls to determined.
re Lucas and the Chesterfield Gas and
Water Board (
1 K.B. and
Cedars Rapids Manufacturing and Power
Lacoste Times L.R. 293), followed.-Per Duff J.-The opinions witnesses to the effect that certain values would assigned to expropriated lands upon a comparison those lands with
EXPROPRIATION-Continued.
other lands in the vicinity for which selling prices might estimated in a vague cannot deemed evidence sufficient to establish values for the expropriated lands.-(Leave to appeal to the Privy Council was refused, 20th May, 1HE .............
LABOUR-Constitutional law -Criminal law-Legislation respecting Orientals-Chinese places of business- Employment of white females-Statutess. 92-Local and private natters - Property and civil rights Naturalized British subject-Conviction under provincial statute ......... FINDINGS FACT-Inferences jury accident-Evideuce to support verdict the jury, drawing inferences, adopted one several theories respecting the determining cause of the accident through which the plaintiff's injuries were sustained, and there was evidence to support their finding, the court refused to disturb the verdict. 2-Principal and agent-Evidence - Disclosure.] The Supreme Court of Canada refused to review the finding of the courts below that the defendants, while agents for the sale of the property in question, when purchasing it themselves under the contract for re-sale, had discharged their duty towards the plaintiff regard to disclosure of material facts relating to the value of the property. FRITH 384 sea 3-Action - Timber on pre-empted lands-Rights of pre-emptor-B.C. "Land Act," R.S.B.C., ss. et seq. and 132-Issue on appeal-Practice Assessment of damages Findings of trial judge ............
4-Negligenee-Employer's liability- FINDINGS FACT-Continued.
dependents-Findings of jury
-Evidence-Art. C.C.........
5-Fisheries-eizure of foreign ship
-Fishing within teritorial waters-Evidence-Jurisdiction of Canadian court- Concurrent findings of fact .......
FISHERIES-Seizure of foreign ship- Fishing within territorial waters-Evidence-Jurisdiction of Canadian court- Concurrent findings of fact.] Where the evidence as to the place of the seizure a vessel for unlawful fishing within Canadian waters is unsatisfactory, and leaves it doubtful whether or not the vessel seized was, at the time of seizure, within the three-mile limit of the Canadian coast, it would be unsafei and unjust to condemn her.-Per Fitzpatrick C.J. and
Anglin JJ.-Where a charge of unlawful fishing within the territorial waters
Canada involves the condemnation of a foreign ship, the evidence must establish with accuracy and certainty the fact that the was committed within such territorial waters.-Per J.-Where condemnation involves the forfeiture of a ship belonging to an alien friend, as well as the jurisdiction of the trial court to award the condemnation and of the legislature over the locus of the act plained of, the evidence must establish more than a probability barely sufficient to sustain a verdict in any ordinary civil action in which none of these exceptional elements are present.-The judgment appealed from was reversed, Idington and
Brodeur JJ. (dissenting)
on the ground that the concurrent findings of both courts below ought not to disturbed
RELATIONS--Fisheries-Seizure of foreign ship-Fishing within territorial waters-Evidence-Jurisdiction of Canadian court-Concurrent findings of fact ..........................
2-Legislation respecting Orientals- Chinese places of business-Naturalized
British subjects .................
FORFEITURE-Vendor and purchaser- Sale of land-Payment instalments- Specified dates-Time of essence-Penalty-Payment declared to deposit. ...... FRAUD-Vendor and purchaser-Agreement for sale-Agent to procure purchaser joining in purchase-Non-disclosure to co-purchaser-Payment of commission-Rescission contract. 2-Practice-Action by dependents- B.C. "Families Compensation Act"-Release deceased-Defence to action-Repudiation-Setting aside release sonal representative-Right of action- Return of money paid-Limitation of actions-General statutory provision-Carriers-Private Act-B.C. "Consolidated Railwcay Company's Act"-Statute-R.S. B.C., 82-"Lord Campbell's Act" s. 60......... FRAUDULENT PREFERENCE - Payment by insolvent-Preference-Recovery back curator-Gaming transaction- Ellegal contract-Right of action-Arts. C.C.-Arts. seq., Owing to suspicions aroused exposure insolvent's methods of business, a creditor who had deposited money with him for investment in anticipation of obtaining large profits through his operations on the stock market urgent demands secured re-payment of the sums so deposited together with a large amount of alleged profits the day preceding that on which the insolvent absconded.-Held, that, as the creditor must be deemed to have had knowledge of the insolvent circumstances the debtor at the time of the payment, the curator to the abandoned estate the insolvent was entitled to recover back the amount so paid, under the provisions of article of the Civil of Lower Canada.-The judgment appealed from (Q.R. K.B. in its result affirming the judgment at the trial (Q.R. . .. . .. . . .... . . .. . .. . .. . .. . .. . .. .. GAMING CONTRACT-Illegal contract- Insolvency
Preference curator-Right of action.] An action the curator of an abandoned estate to recover back moneys paid an insolvent to one creditor to the prejudice the others, on the of insolvency, is not barred the provisions of article of the Civil Code of Lower Canada denying a right of action in respect gaming contracts.
from (Q.R. K.B. reversed. WiLKs see INsoLvEncY.
HIGHWAYS - Dedication of lands for highway-Opening of street-Construction of agreement ................
INSOLVENCY-Payment insolvent- Preference-Recovery back by curator- Gaming transaction- Illegal contract
Right of action-Arts.
C..-Arts, et seq., 0.P.Q.]
An action the curator an abandoned estate to recover back moneys paid an insolvent to one creditor to the prejudice of the others, on the of insolvency, is not barred by the provisions article of the Civil Code of Lower
Canada denying a right of action in respect of gaming contracts. Judgment appealed from (Q.R. K.t3. reversed.
-Owing to suspicions aroused the posure of the insolvent's methods of business, a creditor who had deposited money with him for investment in anticipation of obtaining large profits through his operations on the stock market urgent demands secured re-payment of the sums so deposited together with a large amount of alleged profits on the day preceding that on which the insolvent absconded. - Held, that, as the creditor must deemed to have had knowledge the insolvent circumstances of the debtor at the time of the payment, the curator to the abandoned estate of the insolvent was entitled to recover back the amount paid under the provisions article of the Civil of Lower Canada.
judgment appealed from (Q.R.
K.B. in its result affirming the judgment at the trial was
INSURANCE, ACCIDENT-Construction of policy-Special conditions - Increased and diminished indemnity-Injuries from fits causing death.] In an accident policy an insurance company agreed to pay the insured the principal sum in case death or specified injuries, double that sum if such death or injuries occurred under certain conditions and one-tenth "injuries the policy, went at night with a lantern to an outbuilding of the fishing club which he was visiting. Shortly after the outbuilding was seen to be on fire. The was extinguished and W. brought out badly burned, from the effects which he died the next day. In an action on the policy the trial judge found fact that W. had been seized with a and in that condition caused the-fire. This finding was concurred in by the two provincial appellate courts.
The trial judge held that the company was liable for onetenth only of the insurance.
The Divisional Court reversed this ruling Ont. L.R. D.L.R. 668), but it was restored the Appellate Division Ont. L.R. D.L.R. 113).-Held, Division, Duff and Anglin JJ. dissenting, that the injuries causing the death of W. happened from a fit within the meaning the clause in the policy diminishing the indemnity to paid.
Winspear Accident Ins.
42), and Lawrence Accidental Ins. Co. 216), distinguished.-Held, per Fitzpatrick C.J.-The clause diminishing the indemnity payable is not an exempting clause but one of the three separate contracts between the insurers and insured as to amount of liability.-Per Anglin J. does not create a new liability, but a clause of limitation in favour of the company and to strictly construed.was refused, 15th July, 1914.) Is.
INSURANCE, LIFE-Benevolent society Payment of assessments- ,Extension of time-Rules and regulations -Place of payment-Demand-Default- Authority to waive conditions-Conduct of officials-Estoppel- Company la;-Arts. 1152, C.0.1 By the constitution and by-laws of a INSURANCE, LIFE-Continued.
mutual benevolent society death indemnities were assured to members who, in order to maintain good standing and title their beneficiaries to the indemnity, thereby, required to make prompt payments of monthly assessments within thirty days from the dates when they became payable.
In the subordinate lodge of which was a member it had for some time been the practice of its financier to receive such payments fifteen days later than the thirty days so limited and, if then paid, members were not reported as having been in default and, ipso facto, under suspension according to the regulations provided the constitution and by-laws incorporated in the certificate whereby the indemnity was secured. For several years the financier the subordinate lodge had habitually received these payments from at his residence, on, or about the last day this extended term. Seven days after the expiration the thirty days for paynient the last assessment, and while was still unpaid, died and, on the following day, the overdue assessment was paid to the local financier and a receipt therefor granted by him.
Grand Treasurer of the Society refused to accept this payment on the ground that was then under suspension and was not a member in good standing at the time of his death.-Held, affirming the judgment appealed from (Q.R.
K.B. 541), Duff J. dissenting, that the course of conduct in the subordinate lodge, which the Grand Lodge was aware, the condition as to prompt payment had been waived, that remained in good standing until the time his death and that the death indemnity was exigible the beneficiaries.
Wing
DeG. & G. 265; Eng.
R. ; Tattersall v. People's Life Ins.
Ont. L.R. 611); Buckbee United
States Annuity and Trust Co. Barb.
541); Insurance Wolff U.S.R.
; and Redmond Canadian Mutual
Aid Association Ont. R. 335), referred to.-Per Fitzpatrick C.J. and
Brodeur J.-As no place of payment had been indicated, according to the law the Province of Quebec (art.
assessments were payable at the domicile of the assured; consequently, owing to the practice which had prevailed as to the
INSURANCE, LIFE-Continued. receipt of payment at C.'s domicile and because no demand for payment had made at such domicile, 'there had no default on the part of and he had not become suspended at the time of his death.-Per Duff J. dissenting.-Neither the Grand Lodge nor the subordinate lodge or their officials had power to waive the conditions as to payment prescribed the constitution and by-laws and the certificate of membership of these instruments constituted the contract insurance and sufficiently designated the of the financier of the subordinate lodge as the place where payment of the assessments was to made; even article applies, no notification was given or proof made conformably to article consequently, failure to make payment of the assessinent due within the thiry grace days, at the of the subordinate lodge, worked a default and, ipso facto, the suspension of membership, and, therefore, was not in good standing at the time of his death so as to entitle the beneficiaries to the indemnity according to the regulations of the society.-Held, further, per Duff J.-As the members must be presumed to know the limitations of the authority of the Grand Lodge, the subordinate lodges, and the officials of each of them, as determined the constitution and by-laws, the ostensible authority of officials cannot, for any relevant purpose, of wider scope than the actual authority which is defined specifically and exhaustively the constitution. ...... Fisheries
Seizure foreign ship - Fishing within territorial waters-Evidence-Jurisdiction of Canadian court-Concurrent findings of fact. .......... 36,
(Sask.) Edw. VII., 3, "Supplement- .676
JURISDICTICN-Contin
Se
"Colonial Courts of niralty Act, (Imp.), & V.
c. - "Public Authorities Protection
Act, (Imp.), & V.
Limitation of actions-Effect of statutes
-Practice and procedure ..........
JURY-Employer's liability-Negligence
-Answers jury-"Volenti non fit injuria"-Issue undecided-Practice-B.C.
Supreme Court Rules, 0. r. 4-New
2-Findings of fact-Inference by jury
Determining accident
Evi- 3-Negligence-Employer's liabilitydependents-Findings of jury
-Evidence-Art. C.C .........
See NEGLIGENCE 1.
4-Construction contract - Sub-contract-Dangerous premises-Servant principal contractor-Injury to invitee- Responsibility for damages-Evidence- Findings of jury .................
LACHES-Sale of land-Contract
Defeasance-"Time to be of the essence the contract"-Deferred payments-Notice after default-Abandonment-Specific
2-Industrial works-Penning backtcater-Damages - Arbitration-Right of action-Practice ..............
LEASE-Crown lands taxes
Interest of occupier - Constitutional lawt-Exemption from taxationtaxes-Yon-resident - Action for debt -Jurisdiction of provincial courts. . MAXIMS-Ex turpi causa non oritur actio .................
271,295 2-Nemo auditur propriam turpitudinem allegans .............
271,277,296 Ser Porior est conditio defendentis. ..............................
271,296 Volenti non fit injuria ....... - Criminal law-Legislation respecting Orientals-Chinese places of business-Employment of white females-Statute-2 Geo.
ss. 92-Local and private matters-Property and civil rights-Naturalized British subject - Conviction under provincial statute................. 440 LIMITATION ACTIONS-General statutory provisions-Carriers-Private "Consolidated Railway Company's "Lord Campbell's Act"-(B.C.) s.
By section of the "Con- (B.C.), Vict., ch. actions for daminjury sustained tramway railway, limitation months.-Held, that limitation thus private corporation altering the limitation Act," R.S.B.C., ch. Green V. British Columbia Electric Rway. Co. B.C. Rep. 199); Canadian Northern Rway. Co. v. Robinson Can. S.C.R. LIMITATION ACTIONS-Continued.
; Zimmer v. Grand Trunk Rway. Co.
Ont. R. 693); Markey Tolworth Joint Isolation Hospital District
(
K.B. 454), and Williams v.
Mersey Dock and Harbour Board ((1905)
1 K.B. 804), referred to.-Per Duff J.- Section of the "Consolidated Railway
Company's Act" (B.C.),
Vict., ch.
has no application to an action brought against the company for breach duty as a carrier. Sayers v. British
Columbia Electric Rway. Co.
Rep. referred to.
Gentile B.C. Elec. Rway. Co. B.C.
affirmed Privy Council,
BelTIsa
2-Statute-"Colonial Courts of Admiralty Act, (Imp.), 53 & V.
- "Public Authorities Protection
Act, (Imp.), & 57.V.
Effect of statutes-Practice and procedure - Jurisdiction.]-The "Public Authorities Protection Act, (Imp.),
& Vict. does not apply to suits or actions instituted in the Exchequer Court of Canada in the exercise its jurisdiction as a Colonial Court
Admiralty.
appealed
.......................
LUMBER.
MASTER SERVANT-Profit-shar- Statutes s.
c. s. - Words and phrases vant
R.S.B.C., respecting profit-sharing servants, declares that no agreement that nature shall create any relationship in the nature of partnership.
tion the "Partnership Act," R.S.B.C., provides rules for deter- MASTER SERVANT-Continued. mining partnership and, sub-sees. 2 and declares that the sharing of gross profits does not, of itself, create a partnership, that the receipt of a share the profits of a business is primd facie evidence of a partnership, that the receipt such share or a payment varying with the profits does not of itself make the person receiving the same a partner, and that a contract to remunerate a servant a share of the profits does not, of itself, make him a partner. The plaintiff, an employee of the defendant, the terms of his engagement was to receive as remuneration for his services a one-half share the profits defendant's business and conversations took place regarding an arrangement whereby plaintiff might have a "share the business," but no definite agreement Plaintiff, claiming to have become a partner, wrote a letter to fendant asserting that he had an undivided interest in the business and asking him to execute articles of partnership. Defendant replied to this letter an evasive temporizing manner and the business continued to conducted without any change.
Later on, the defendant served upon the plaintiff a notice of dissolution of partnership and, in the notice as well as in the correspondence, made use of the word "partnership" in referring to the relations between them.-Held, reversing the judgment appealed from B.C. Rep. 230) that, under the statutes referred to, the onus was upon the plaintiff to shew that he had been admitted as a partner the business in the strict legal sense and that the indefinite use of the term "partnership" in the correspondence and notice did not, in the circumstances, amount to of an agreement that there should be a partnership.
2-egligence - Dangerous works - Electric transmission line-Independent contractor-Strengthening poles-Stringing wires-Injury to linesman-Risk Responsibility of owner. ............ MILITIA-"Militia Act"-R.S.C. [1896] 41-"Senior
MILITIA-Contin ued.
at any locality"- Military district- Right of action-4 Edw. VII. s.
Retrospective sec. of the "Militia Act"
(R.S.C.
Canada is divided into military districts of which the Province of Nova Scotia is one.
By "the senior at any locality" may, on requisition from three justices peace call out the troops in aid of the civil power wherever a riot or disturbance the peace has occurred or is anticipated.-Held, Brodeur J. dissenting, that the "senior present at any locality" is not necessarily the senior of a corps stationed at the place where the riot occurs or is likely to occur.
The justices, in their discretion, may requisition the senior of any available force.-By sub-see.
of the above Act the commanding the troops called out may, in his own name, take action against the municipality in which the riot occurred to recover the amount of the expenses thereby incurred which are to be paid to His
Majesty when recovered.
By Edw.
VII. this right of action was vested in His Majesty.-Held, that the latter being a procedure Act is retrospective and an action was properly
General of Canada to recover the penses of calling out the troops on the occasion of an industrial strike in the
City Sydney, part which expenses were incurred before, and part after, the last mentioned Act came into force.- Judgment appealed from N.S. Rep.
or ......................
Bill sale
Chattel mortgage
Verification-B.C. "Bills of Sale Act," 5
Edi. VII., ...............
See BLLs
MUNICIPAL
- Member
Interest in municipal contract-Public policy-Legal maxim- Money reccived under prohibited contract-Recovery of funds-Right of ac- Hon-Statute-(Que.) ss. 1.
11-Arts.
contrac- MUNICIPAL CORPORATION-Con. tor with a municipality applied to the mayor thereof for financial assistance carrying out works he had agreed to construct and obtained the necessary financial aid from him upon an understanding that the mayor should receive a bonus in consideration of the financial assistance to rendered.
the completion of the works, but prior to the dates when the corporation was obliged to make payment, a promissory note was obtained from the municipality which was indorsed by the contractor, delivered to the mayor as collateral security for the amount owing to him, and, the latter, was discounted at a bank.
The mayor retained the proceeds of the note for the purpose of satisfying the. amount of the bonus promised to him and some other charges which he claimed in connection with his services in financing the con- In an action the contractor to recover the funds,-Held, that the arrangement so made had the effect giving the mayor an interest in the contract incompatible with his duty as a member of the municipal council, contrary to public policy and in violation of the provisions of sections 1 and of the Quebec statute, Vict., and that he was not entitled to retain the moneys.-Held, also, that, in the circumstances of the case, the plaintiff's right of action was not affected the illicit nature of the agreement and that he was entitled to recover the amount so retained in an action for money had and received to his use the defendant, under the provisions of section of the Quebec statute, Vict., 42.-Judgment appealed from reversed.
Consumers' Cordage v. Connolly Can. S.C.R. 244) followed.-(Leave to appeal to Privy Council granted,
7th July, ...... 2-Dedication of lands for highwiay- Opening of street-Construction of agreenent.)
land company made donation of certain lots of land to the municipal corporation for the purpose of a highway and the corporation agreed to open and construct a portion of the street when necessary.-Held, that, the proper construction of the agreement, in view of the powers conferred upon the corporation section of its MUNICIPAL CORPORATION-Con.
charter
(Que.),
Viet., 54, the word
"necessary"
should construed as meaning "necessary in the public or general interest"
and not merely in the interest of the other party to the agreemqnt.
In re
Morton and the -City of St. Thomas (6
Ont. R. 323), and Pells Boswell
3-Assessment and
(Sask.) 7 Edw. VII., "Supplement- NATURALIZATION-Legislation respecting Orientals-Chinese places of business of white females-Local
Conviction under provincial statute. 440 liability dependents
Findings jury-Evidence-Art. 1054 0.0.]
A labourer employed on board a ship went ashore for purposes of his own while the ship was in port and, on returning to his work, attempted to descend from the upper deck the hatchway, which was prohibited rules laid down for the men engaged in stowing cargo.
doing so fell into the hold, his body struck his foreman (who was there the discharge of his duties) and caused injuries which resulted in the death the foreman. There was evidence to shew that the rules, which required labourers to use the companion-way, instead the hatchway which the labourer had attempted to descend had been habitually disregarded.
The jury found that the defendants were at fault "in not having taken the necessary precautions to force their rules," judgment went for the plaintiff, and this judgment was affirmed by the Court of Review.-Held, that there was evidence to support the finding of the jury and, consequently, their verdict should not disturbed appeal.-Quwre, per Fitzpatrick C.J.- Whether or not the course of judicial decisions in the Province of Quebec has adopted the principle that, in a case like the present, an employer is subject to liability derived from the law alone, and departed from the rule of the Roman Civil Law that there is no liability without fault.-Per Brodeur J.-The exception, in article relieving parents, tutors, curators, schoolmasters and artisans from liability, in cases where it is established that they could not prevent the act which caused injury, does not apply to employers.
2-Dangerous works - Electric transmission line-Independent contractor- Master and servant-Strengthening poles -Stringing wires-Injury to linesman- Risk of employment-Responsibility owner.]
The company having become aware that the poles for an electric transmission line erected them had become insecure employed an independent contractor to strengthen the poles and to string wires upon them.
The plaintiff, a linesman employed the contractor, ascended a pole before it had been secured, without first having ascertained that it was safe for him to do in order to string wires upon it.
The pole fell while he was at work upon it and he was injured. - Held, reversing the judgment appealed from B.C. Rep. that the accident was the result the default of the contractor in relation to the work he had undertaken in regard to the strengthening of the poles and, consequently, the owners of the transmission line were not liable for the damages sustained the plaintiff.
Marney Scott (
1 986); Indermaur v. Dames (L.R. C.P. 311), and Lucy Bawden (
K.B. 318), referred 3-Tramway company gerous system-Injury to property-Exercise of statutory authority - Correlative duty-Damages-Special release.] A construct tramway acquired a strip tramway and the severance his farm.
tor who, in the construction the roadwith his use thereof.
This injury could affirming the judgment appealed to take general language the release should construed as to restrict it to the matters in regard to which it had been statutory powers respecting the constructaken to avoid unnecessary injurious consequences to the property of other contractor fails that and they are responsible accordingly.
Hardaker v.
(
1 335), and Robinson v.
4-Operation of tramway-"Block and staff" system-Disregard of rules-Defective system.] A motorman in the defendants' employ was injured in a collision with the car ahead of that upon which he was performing his work. The company's ated in the same direction, as "doubleheaders," unless block signals were in use, should kept at least five minutes apart, except in closing up at stations; also that, when the view ahead was scured, cars should kept under such control that they might stopped within the range of vision, but the rule was not enforced.
The plaintiff, one of the company's motormen, on a foggy night, ran his car into the rear of another car standing at the station he was entering, and sustained injuries for which he claimed damages, alleging a defective system.
The defence set up contributory negligence on the part of the motorman, but made no allusion to the breach these regulations.
judgment, entered on the verdict of the jury in favour the plaintiff, was set aside the Court of Appeal on the ground that the injury had resulted in consequence of the plaintiff's disregard of the rules.-Held, that as the rules had not been enforced by the defendants nor set up in their pleadings they could not relied upon in support of the charge of contributory negligence. appealed from Rep. reversed and a new trial ordered. ......................
Axo 5-Construction contract-Sub-con tract Dangerous premises-Servant or agent -Building materials-Duty of principal contractor-Injury to invitee-Responsibility for damages-Evidence-Findings of jury.] The contractors for plumbing and heating in a building under construction, sub-let part their contract to the R. who manufactured the necessary material at Amherst, and at one time shipped a boiler-plate for use in executing their sub-contract consigned to the at Montreal. The sent the advice notice the shipment to the R. Co.'s local representative, who employed carters to get the plate from the railway company and carry it to the place where the works were being caried on.
It was, under directions of the Co.'s foreman, leaned up against a pillar of the building and remained there for about one day in a position where it projected over a part of the cartway used bringing materials into the building. T.
applied for employment as a labourer on the works and was told to return next day which he did and, while waiting to employed, stood near the plate. When a vehicle entered the cartway the plate fell upon causing injuries from which he died.
In an action his dependents to recover damages from the R. Co. and the Co.,-Held, Anglin J. dissenting, that, in the circumstances, the were responsible for damages; that the fault from which the injury resulted was that of their foreman who, acting as their servant or agent, supervised the placing the plate in a dangerous position, and that the plate itself was a thing which was, at the time, in the care the Lucy v. Bawden ([1914]
K.B. 318), referred to.-Held, also,
Anglin J. (dissenting)
, that the evidence shewing the circumstances stated justithe jury in finding that deceased was lawfully in the place where the accident occurred, that had not been guilty contributory negligence, and that the accident was due to negligence of the and the sub-contractors in placing the plate in a dangerous posiu-Action-Damages-Timber on press. et seq. and 132-Issue on appeal- Fire set railway locomotive-Assessment of damages-Findings of trial judge ....................
7-Employer's liability - Answers jury-"Volenti non fit injuria"-Issue
Supreme
Court Rules, 0. r. 4-New trial. 43
8-Right of action-"Lord Campbell's
Death accident widow-Accord and satisfaction...
NEW TRIAL - Employer's liability - Answers jury-"Volenti
NEW TRIAL-Continued.
non fit injuria"-Issue undecided-Practice-B.C. Supreme Court Rules, 0. r. 4.]
On the defence of "volens," in action for damages an employee account of injuries sustained in the course of his employment, the question which has to considered is whether the plaintiff agreed that, if injury should befall him, the risk was to his and not his master's. Smith Baker Sons ([1891]
referred to.-In an action to recover damages for injuries sustained the engineman in charge the company's steam-shovel in use on the construction of their works, questions were submitted to the jury. to which they answers negativing contributory negligence the plaintiff and finding the company negligent in failing to provide a guard on part of the gearing and in leaving it uncovered, but they did not answer one of the questions submitted to them, viz.: "Did the plaintiff know and appreciate the risk and danger and did he voluntarily encounter them?" The fence resting upon this issue was duly presented at the trial and evidence submitted to support it.-Held, that, although the Court of Appeal for British Columbia, under Order rule the "Supreme Court Rules, has power to draw inferences of fact and to give any judgment and make any order which ought to have been made in the trial court, and to make such further or other order as the case in appeal may require, nevertheless, it should not undertake the functions a jury where it may reasonably open to them to come to more than one conclusion on the evidence. Therefore, in the circumstances of the present case, there should an order a new trial to have the issue of volens decided.
Paquin Beauclerk ([1906] and Skeate Slaters Times L.R. 290), referred to.-Judgment appealed from B.C.R. 450) reversed. 2-Rejection of evidence-Withdrawal of case from jury ................
NOTICE-Sale of land-Contract-Defcasance-"Time to be of the essence NOTICE-Continued.
the contract" - Notice after default-Laches-Abandonrnent-Specific performance .......
Broker
Dealings
Change"-Speculative options-Principal and agent - Liability for contracts by agent in his own name-Privity of contract-Purchase and sales on "margin"- Settlements through clearing house
Wagering contract-Malum prohibitum- Criminal Code, sec. ..........
ORIENTALS-Constitutional law-Criminal law - Legislation respecting Orientals business ployment of white females-Statute-2 ss. - Local and private matters-Property and civil rights-Naturalized British subject - Conviction under provincial statute ..........
See 1.
PARTNERSHIP-Master and servant
Profit-sharing
Statutes
"Master and Servant Act," R.S.B.C.
ch. respecting profit-sharing servants, declares that no agreement that nature shall create any relationship in the nature of partnership.
Section of the "Partnership Act," R.S.
ch. provides rules for termining partnership and, sub-sees.
and declares that the sharing gross profits does not, of itself, create a partnership, that the receipt of a share of the profits of a business is primd facie evidence of a partnership, that the receipt such share or of a payment varying with the profits does not, of itself, make the person receiving the same a partner, and that a contract to remunerate servant share of the profits does not, of itself, make him a partner.
The plaintiff, an employee of the defendant, the terms of his engagement was to receive as remuneration for his services a one-half share of the profits defendant's business and conversations took place regarding an arrangement whereby plaintiff might have a "share
PARTNERSHIP-Continued.
the business," but no definite agreement Plaintiff, claiming to have become partner, wrote a letter to fendant asserting that he had an undivided interest in the business and asking him to execute articles of partnership.
Defendant replied to this letter nn evasive temporizing manner and the business continued to conducted without any change.
Later on, the defendant served upon the plaintiff a notice dissolution of partnership and, in the notice as well as in the correspondence, made use the word "partnership" in referring to the relations between them. - Held, reversing the judgment appealed from B.C. Rep. 230) that, under the statutes referred to, the onus was upon the plaintiff to shew that he been admitted as a partner in the buisiness in the strict legal sense and that the indefinite use the term "partnerin the correspondence and notice did not, in the circumstances, amount to evidence of an agreement that there should a partnership.
.........................
PAYMENT-Benevolent society-Life insurance nents-Extension of time-Rules and regulations-Place of payment-Demand- Authority -aive conditions-Conduct of officials- Estoppel-Company lao .......... See LIFE.
2-Vendor and purchaser-Sale of land Payment instalments dates
Penalty-Payment declared to be deposit. ........ PENALTY-Tendor and purchaser-Sale of land-Payment instalments-Specifled dates-Time of essence-Forfeiture- Payment declared deposit PLEADING.
Sed -Damages-Timber on pre-empted lands Rights pre-emptor
B.C. "Land
Act," R.S.B.C., ss. et seq.
and 132-Issue on appeal-Negligence- Fire set railway locomotive-- I soessmcnt of damages - Findings of trial judge.]
A pre-emptor of Crown lands, under the provisions of the British lumbia "Land Act," R.S.B.C., ch.
who has not forfeited his rights, entitled to maintain an action for such damages as he has sustained in consequence the destruction timber growing upon his pre-empted lands.-As to the quantum of damages, the trial judge, following Schmidt Miller (46 Can.
45), held that the respondent was entitled to recover the full value of the standing timber destroyed.
All evidence bearing upon the question of respondent's interest was omitted in printing the case on appeal and the point was not taken in the Court of Appeal or in the appellant's factum on the present appeal.
The decision of the Supreme Court
Canada in Schmidt Miller was, subsequently, reversed on appeal to the
Privy Council ( [1914]
the point was raised upon the hearing the present appeal that the respondent's damages should reduced in consequence of his limited interest in the timber destroyed.-Held, that, in these circumstances, the contention in respect to the pre-emptor's limited interest the property destroyed bearing upon it having been omitted from the appeal case) was not open for consideration in the Supreme Court of Canada.-The court refused to disturb findings of the trial judge, based upon cient evidence, or the assessment of damages made him as limited by section of the "Railway Act," R.S.C.,
The judgment appealed from (12 v. .......
2-Employer's liability-Negligence- Answers jury-"Volenti non fit injuria"-Issue undecided
B.C. Supreme
Court Rules, 0. r. 4-New trial.]
the defence of "volens," in an action damages an employee on account injuries sustained in the course his ployment, the question which has to be considered is whether the plaintiff agreed that, if injury should befall him, the risk was to his and not his master's. Smith v. Baker & Sons ( [ 1891] 325) referred to.-In an action to recover damages for injuries sustained the engineman in charge of the company's steamshovel in use on the construction of their works, questions were submitted to the jury to which they gave answers negativing contributory negligence the plaintiff and finding the company negligent failing to provide a guard on part of the gearing and in leaving it uncovered, but' they did not answer one of the questions submitted to them, viz.: "Did the plaintiff know and appreciate the risk and danger and did he voluntarily encounter them?"
The defence resting upon this issue was duly presented at the trial and evidence submitted to support it.-Held, that, although the Court of Appeal for British Columbia, under Order rule of the "Supreme Court Rules, has power to draw inferences of fact and to give any judgment and make any order which ought to have been made in the trial court, and to make such further other order as the case in appeal may require, nevertheless, it should not undertake the functions a jury where may reasonably open to them to come to more than one conclusion on the evidence. Therefore, in the circumstances the present case, there should an order for a new trial to have the issue volens decided.
Paquin v. Beauclerk ( [1906] and Skeate Slaters Times L.R. 290), referred to.-Judgment appealed from reversed.
McPIEE V. 3-Findings of fac!
Inferences by jury-Determining cause of accident- Evidence to support verdict.] Where the jury, drawing inferences, adopted one several theories respecting the determining cause the accident through which the plaintiff's injuries were sustained, and there was evidence to support -their finding, the court refused to disturb the .....................
ment for re-sale-Novation-Rescission- Defence to action -Evidence-Statute of Frauds-Principal and agent-Agent purchasing-Disclosure-Findings of fact.] In a suit specific performance of a contract for the sale of lands an agreement for the re-sale of the lands may set up as a defence notwithstanding that such re-sale agreement does not satisfy the requirements of the 4th section of the Statute
Frauds.
Judgment appealed from (10 affirmed.-Such an agreement for re-sale affords a sufficient reason for refusing a decree for specific performance of the original contract sale.-The Supreme Court of Canada refused to review the finding of the courts below that the defendants, while agents for the sale of the property in question, when purchasing it themselves under the contract for re-sale, had discharged their duty towards the plaintiff in regard to disclosure of material facts relating to the value of the property.
......................
Action dependents-B.C. "Families Compensation Act"-Release deceased-Defence to action-Repudiation
Setting aside release sonal representative-Right of action- Return of money paid-Limitation of action-General statutory provision-Carriers-Private Act-B.C. "Consolidated
Railway Company's Act"-Statute-R.S.
ch. - "Lord Campbell's dcet"-(B.C.) Vict., ch. sec.
Where a release the deceased is relied upon the defendants in an action for damages his dependents, under the provisions of the "Families Compensation Act," R.S.B.C., ch. the plaintiffs may take exception to the release on the ground that it was fraudulently procured, although the personal representative of the deceased has not made party to the action.-The judgment appealed from Rep.
was affirnied.-Such an exception may h' entertained a court of equity notwithstanding that the money paid as consideration for the release is neither tendered back to the defendants nor brought into court to abide the issue of the action.
Lee v. Lancashire and Yorkshire
Ricay. Co. 527),
Read
Great Eastern Ricay. (L.R.
Robinson v.
Canadian Pacific
Itcay. (
; Rideal v. Great Western Reay. F. & F. ; Clough London and North Western Rcay. (L.R. Ex. 26); Seward The "Vera Cruz" Cas. Great Northern Ricay. (2 & 759; & ; Williams Mersey
Docks and Harbour Board (
1 K.B. ; Erdman of Walkerton
Ont. App. R. and Johnson Grand Trunk Ont.
R.
408), ferred to.-By section
"Consolidated
Railway
Company's Act" (B.C.), Vict., actions damage or injury sustained reason tramway or railway, or the works operations of the company, are subject a limitation of six months.-Held. that the limitation thus provided for the protection of a private corporation had not the effect altering the general limitation twelve months provided the tifth section of the "Families Compensation Act," R.S.B.C., Green British Columbia Electric Rway. B.C. Rep. ; Canadian Northern Ricay. v. Robinson Can. S.C.R. ; Zimmer Grand Trunk Ricay. Oat. App. 1. ; Markey Tolworth Joint Isolation Hospital District j
K.B. 454), and Williams v. Mersey
Dock
((1905)
1 K.B. 804), referred to.-Per Duff J.-Section of the "Consolidated Railway Company's Act,"
Vict., has application to an action brought against the company breach of duty as a carrier.
Sayers British Columbia Electric Ricay. Co. (12 T.C. Rep. referred to.
Gentile B.C. Electric Riray. (18 Rep. affirmed by Privy Coun- W.N.
278.]-(Leave appeal to Privy Council refused, 2nd July,
COLUMBIA Taic ........ 6-Rejection of evidence- Memorandum witness-TVithdrawing case from jury-New trial-Negligence-Operation of tramicay-"Block and staff" system- Disregard of rules
Defectire system.] On the trial case it is permissible a witness to consult a copy of memorandum respecting circumstances attending the occurrence of an accident, which was made himself at the time, order to refresh his memory.
fusal the trial judge to permit him to is ground for ordering a new trial.
trial judge is not justified in withdrawing a case from the jury on the ground that the evidence establishes tributory negligence on the part a plaintiff unless no other conclusion can drawn from it.-A motorman in the defendants' employ was injured in a collision with the car ahead of that upon which he was performing his work. The company's operation rules provided that cars operated in the same direction, as
"double-headers,"
unless block signals were in. use, should kept at least minutes apart, except in closing up at stations; also that, when- the view ahead was obscured, cars should kept under such control that they might stopped within the range of vision, but the rule was not enforced.
The plaintiff, one the company's motormen, on a night, ran his car into the rear another car standing at the station he was entering, and sustained injuries which he claimed damages, alleging a fective system.
The defence set up contributory negligence on the part the motorman, but made no allusion to the breach these regulations. judgment, entered on the verdict the jury in favour the plaintiff was set aside the
Court of Appeal on the ground that the injury had resulted in consequence of the plaintiff's disregard of the rules.-Held, that as the rules had not been enforced the defendants nor set up in their pleadings they could not relied upon in support the charge of contributory negligence.-Judgment appealed from (17
Rep. reversed and a new trial ordered.
. ..............
7-cet right of appeal-Statute - Pending actions ..................
Rivers and streams-Industrial immanent works all-Right of action- Statute-R.S.Q., .44 9-Statute-"Colonial Courts of Admiralty Act, (Imp.), & 54 -"Public
Authorities Protection Act, (Imp.), - V. 61-Limitation of actions-Effect of statutes-Jurisdiction ........................
PRESCRIPTION.
PRINCIPAL AGENT-Sale of lands Agreement for re-sale Novation
Defence
Evidence-Statute of Frauds purchasing
Disclosure Findings of Fact.)
In a suit for cific performance of a contract for the sale of lands an agreement for the re-sale of the lands may set up as a defence notwithstanding that such re-sale agreement does not satisfy the requirements of the 4th section the Statute Frauds.
Judgment appealed from (10 affirmed.-Such an agreement for re-sale affords a sufficient reason for refusing a decree for specific performance of the original contract for sale.-The Supreme Court of Canada refused to review the finding the courts below that the defendants, while agents for the sale of the property in question, when purchasing it themselves under the contract for re-sale, had discharged their duty towards the plaintiff in regard to disclosure of material facts relating to the value of the property.-Per Davies and Idington JJ. - Where the parties to a contract come to a fresh agreement of such a kind that the two cannot stand together the effect of the second agreement is to rescind the first. FRITH 2-Vendor and purchaser-Agreement mission - Rescission of contract.] a commission ten per cent, for finding PRINCIPAL AGENT-Continued.
a purchaser therefor.
H. afterwards wrote to stating that the mine was very rich and urging him to induce some of his friends to join in a syndicate company to purchase and work it.
without disclosing his agency, induced to take up the matter and they agreed to join in the purchase and divide the profits.
contract was entered into with H., and W. paid $20,000 on account of the purchase price on which was paid his commission.
Default having been made in the further payments H.
brought action claiming possession of the property and the right to retain the amount paid.
counterclaimed for rescission of the contract and return of the money paid with interest and on the trial swore that knew itothing of agency for several months after the contract was signed.-Held, affirming the judgment of the Appellate Division
Ont. L.R. 6), Fitzpatrick C.J. dissenting, that it was the duty of H., on becoming aware that was a co-purchaser with W., to satisfy himself that the latter was aware of the agency of S.; and that was entitled to the relief asked his counterclaim.-eld, per Davies and
Anglin JJ. (Duff J. contra), that concealing from the fact that he was to receive a commission from the vendor was guilty of a fraud for which H. was responsible as agent.-(Leave to appeal to Privv Council refused, 23rd July,
......
3-Broker
Dealings "on Change"
Speculative options - Liability for contracts agent in his own name-Privity of contract - Purchases and sales
"margin"-Settlements through clearing house-Wagering contract-Malum prohibitum-Criminal Code, sec. 231.]
entered into speculative transactions,
"margin," by instructing the plaintiffs, members of a "Grain Exchange" to buy and sell for him on the Exchange, and a number of purchases and sales were made on commission for him.
He was not, however, informed of the names any sellers or purchasers, the brokers carrying out the transactions in their own names.
"clearing house" association connected with the
Grain Exchange which the brokers dealing on the Exchange were members
PRINCIPAL AGENT-Continued. and through which all transactions were settled daily setting purchases against liability being assumed the clearing house and the brokers released upon a settlement for the resulting balances instead of for every separate transaction reported. was not proved that was aware this practice as to settlements, although from time to time, had paid "margins" to the brokers when required to do them in order to protect them against losses on his account.
became in arrears for "margins" and, in an action against him, the brokers recovered the amount of their claim.-Held, reversing the judgment appealed from Man. 306), the Chief Justice and Duff J. dissenting, that, as the evidence failed to shew that, the manner in which the transactions were made, the amounts claimed had been expended in carrying out the commissions according to the instructions the brokers had received from they were not entitled to recover the balance claimed from him. further, per Idington and Brodeur JJ., and semble per Anglin J.such transactions, neither party intends that there should actual delivery made or received of the commodities to which the purchases or sales relate the contracts are illegal and prohibited by the terms of section of the Criminal ..... Broker-Sale of land-Commission Introduction Quantum meruit-Variation of written contract-Evidence-(Alta.) Edw. VII. ............................
PROFIT SHARING-Mlaster and servant R.S.B.C., s. 3; s. Words and phrases-"Partnership". PUBLIC AUTHORITIES-Statute-"Colonial Courts of Admiralty Act, (Imp.), & a. 27-"Public Authorities Protection Act, 1892," (Imp.), & 61-Limitation of actions PUBLIC AUTHORITIES-Continued.
-Effect of statutes-Practice and procedure-.Jurisdiction ..............
PUBLIC INTEREST-Dedication of lands for highway-Opening of street-Construction of agreement ............
PUBLIC POLICY-Municipal corporation
-Member of council-Interest in municipal contract-Legal maxim-Money received under prohibited contract covery of funds-Right of action-Statute-(Que.) ss. 1,
Arts. 0.0.]
contractor with a municipality applied to the mayor thereof fur financial assistance in carrying out works he had agreed to construct and obtained the necessary financial aid from him upon an understanding that the mayor should receive a bonus in consideration the financial assistance to rendered.
the completion of the works, but prior to the dates when the corporation was obliged to make payment, a promissory note was obtained from the municipality which was indorsed the contractor, delivered to the mayor as collateral security for the amount owing to him, and, the latter, was discounted at a bank.
The mayor retained the proceeds of the note for the purpose of satisfying the amount of the bonus promised to him and some other charges which he claimed in connection with his services in financing the contractor. In an action the contractor to recover the funds,-Held, that the arrangement made had the effect of giving the mayor an interest in the contract incompatible with his duty as a member of the municipal council, contrary to public policy and in violation of the provisions sections 1 and of the Quebec statute, Vict., and that was not entitled to retain the moneys. - (Leave to appeal to Privy granted, 7th July,
MERUIT-Broker-ommission-General employment-Variation
MERUIT-Continued. written contract-Principal and agent- RAILWAYS-Tramway company Construction of works - Independent con- Dangerous system Injury property
Exercise of statutory authority - Special release.] company with statutory authority with his use thereof. This injury could affirming the judgment appealed from B.C. Rep. Fitzpatrick C.J. take precautions general language of the release should matters in regard to which it had statutory powers respecting the constructhose powers to see that due care taken to avoid unnecessary injurious consequences to the property other and they are responsible accordingly. Hardaker
(
1 335), and Robinson v. [S.C.R. VOL. XLIX. RAILWAYS-Continued.
2--Crossing lines-Overhead bridges- Contract for maintenance-Future trafrailway company wishing to cross the line of another contracted with the latter for four crossings, three an overhead bridge and one a subway under a bridge of the other company.
The contract contained this provision:
all maintained at the cost of the tario Company (junior road), and shall each always maintained in a good and safe state, and so as in no other way to endanger the property, fixed or movable, of the Midland Company (senior road)."
The bridges were to constructed according to plans and specifications settled and approved the chief engineer of the senior road, and if the junior failed to maintain them to the satisfaction the chief engineer the senior road could cause the necessary work to done at the cost the other company.
-Held, that the obligation of the junior road was not merely to keep the crossings in good and sufficient repair in the condition they were in when the contract was made, but they could, at any time, ordered the Railway Board to make them fit for the heavier traffic caused the increased business of the senior road.
RwY.
3-Action-Damages-Timber on pre- B.C. "Land Act," R.S.B.C., c.
ss. et seq. and 132-Negligence-Fire set railicay locomotive ........
4-Employers' Liability - -Ansicers jury-Issue undecided- Y ew trial .......................
"Families Compensation Art"- Release deceased - Defence to action
Setting aside
Personal representative - Right of action - Return of money paid
Limitation actions statutory provision
Private Act - B.C. "Consolidated Railway
RAILWAYS-Continued.
82-"Lord Campbell's Act"c. s. 60........... REGISTRY LAWS-Bill of sale-Mort- Verification-B.C. "Bills of Sale Act," Edw. s.
The defendants rendered financial aid to F. & N. enabling them to purchase the stock-in-trade in the possession of a dealer in Vancouver, including also a quantity of goods ordered but not then delivered, a payment account being made in cash advanced the defendants and the balance four promissory notes, in deferred payments, which the defendants indorsed. At the same time new stock to the amount $2,700 was purchased F. & N. from the defendants which was afterwards livered to them.
A bill of sale way of chattel mortgage was then given by F. & to the defendants from the advances made and to secure them against liahility on the indorsements, the proviso for redemption being on payment of the amounts mentioned and also for all goods thereafter supplied the defendants to F. & N. during the continuance the security.
The bill of sale was registered with an affidavit the acting-manager the defendants, at Vancouver, who therein described himself as "secretary" the company, which was also held by him.
The affidavit stated that the bill of sale was made bond fide for valuable consideration, namely, amounts therein mentioned, and other considerations therein set forth, but it did not state that the grantors were justly and truly indebted to the grantees such sums.
About two years later, & made an assignment for the benefit of creditors to the plaintiff and, on the same day, after the execution the assignment, but before the assignee had taken possession, the appellants entered into possession of F. & N.'s stockin-trade virtue the bill of sale and refused delivery to the assignee. action the assignee for a declaration that the bill of sale was void as against him and the creditors and to recover possession the stock-in-trade.-Held, that the registration the bill of sale was REGISTRY LAWS-Continued.
not effective against the assignee or the creditors as it had not been verified conformity with the provisions of the
British Columbia "Bills of Sale Act," 5
In regard to the goods supplied after the execution the bill of sale, the onus was upon the defendants to shew that there were such goods in the possession of the mortgagors at the time of the assignment the benefit of creditors.-Judgment appealed from B.C. Rep. affirmed.
-Per Duff J.
(Idington J. dubitante).
The affidavit of bona fides required section the British Columbia "Bills
Sale Act," Edw. VII., may be made the secretary of a company at the time makes such affidavit, also facto manager of the pany's business.
1RELEASE-Practice-A ction by dependents - B.C. "Families Compensation Act"
Setting aside release - Personal representative
Return money paid - Limitation of action- General statutory provision - Private
"Consolidated
Railway Company's Act"-Statute-R.S.
B.C., 82-"Lord Campbell's Act"
Vict., s.
a release the deceased is relied upon the defendants in an action for damages his dependents, under the provisions of the "Families Compensation
R.S.B.C., the plaintiffs may take exception to the release on the ground that it was fraudulently procuralthough the personal representative the deceased has not been made a party to the action.
The judgment appealed from
B.C. Rep.
affirmed.-Such an exception may entertained by a court of equity notwithstanding that the money paid as consideration for the release is neither tendered back to the defendants nor brought into court to abide the issue of the action.
Lancashire and Yorkshire Rway.
527); Read Great
Eastern Rway. (L.R.
Robinson v. Canadian Paci'ic Rway. Co.
(
481); Rideal Great
Western Rway Co. (1 F. & F.
RELEASE-Continued.
Clough London and North Western Rway. (L.R. Ex. Seward The "Vera Oruz"
Cas. Great Northern Rway. Co. &.S. 759; & 396); Williams Mersey
Docks
((1905)
804) ;
Erdman Town
W1alkerton
Ont. 444),
Johnson
Grand Trunk
Rway.
Out. R. 408), referred to. 2-Right of action-"Lord Campbell's Death qccident widow-Accord and satisfaction.] Where the death of a person is caused the wrongful act, neglect or default another an action for damages does not under "Lord Campbell's Act" unless the deceased could have maintained an action if death had not ensued.-C. was a temporary employee on the Intercolonial Railway and, as such, a member of the "Employees Relief and Insurance Association."
By the rules of the Association the object of the Temporary Employees Accident Fund was to provide for members suffering from bodily injury and for the family or relatives of ceased members.
Each member had to contribute to the fund and the Railway Department all sation for injury or death of any member."
was killed a railway train and his widow was paid $250 out this fund. She then brought an action under Aet."-Held, the judgment of the Exchequer Court (14 Ex. 472), that as his contract with the Association could not have maintained an action had lived the right barred.- 3-Tramway company gerous system-Injury to property-Negligence-Exercise of statutory authority duty-Damages-Special See 3.
RESCISSION-Sale of lands-Agreement for re-sale - Davies
Idington
JJ. - Where the parties to a contract to a fresh agreement of such a kind that the two cannot stand together the of the second agreement is to rescind the first.
.............................
REVENUE - Lease of Crown lands-Interest of occupier
Exemption from taxation-Construction of statute- '-1.Y..l. Act, s. 125-(Sask.)
Edw. VII., "Local Improvements
Act"-(Sask.) 7 Edw. VII., "Supplementary Revenue Act"-Recovery taxes-Non-resident-Action for debt- Jurisdiction of provincial courts....
RIOT-"Militia Act"-R.S.C., 1906,
-"Senior officer present at any locality"
-Military district-Right of action-4
Edw. VII., s. 86-Statute-Retrospective effect.] By of the "Mil- .itia Act" (R.S.C. [1893]
Canada is divided into military districts which the Province of Nova Scotia is one.
By "the senior present at any locality" may, on requisition from three justices of the peace, call out the troops in aid of the civil power wherever a riot or disturbance of the peace has occurred or is anticipated.- Held, Brodeur J. dissenting, that the
"senior present at any locality"
is not necessarily the senior a corps stationed at the place where the riot occurs or is likely to occur. The justices, in their discretion, may requisition the senior any available force.
-By section sub-section of the
"Militia commanding the troops callod out may, his own name, take action against the municipality in which the riot occurred to recover the amount of the expenses thereby incurred which are to be paid to
His Majesty when recovered.
By Edw.
VII. this right of action was vested in His Majesty.-Held, that the latter being a procedure Act is retrospective and an action was properly
RIOT-Continued.
General Canada to recover the penses of calling out the troops the occasion.of an industrial strike in the City of Sydney, part of which expenses Judgment appealed from X.S. Rep. RIVERS STREAMS-Industrial immanent
Reparation-Loss of water-power-Future damages-Compensation once for all -Right of action-Practice-Statutearts. 7295,
Davies, Duff and Brodeur JJ., Idington and Anglin JJ. contra.- In an action damages occasioned tonstructions stream for industrial purposes the plaintiff is entitled, under the provisions of article of the Revised Statutes Quebec, to recover the full extent damages which experts acting under article 7296, would have authority to award as compensation, once for all, for the injuries sustained. Breakey Carter (Cass. Dig. and Gale Bureau Can. S.C.R. 312), referred to.-By the judgment appealed from it was held that the plaintiff was entitled to reparation for loss incurred in respect the diminution value his water-power and the adjoining property on account of the construction of the works in question.-Held, affirming the judgment appealed from K.B. 265), Idington and Anglin JJ. dissenting, that the plaintiff was entitled to reparation for such injuries.- Per Idington and Anglin JJ.-As it was apparent that the defendants could operate their works in such a manner as to avoid, or diminish, the inconvenience casioned thereby, it would not be proper, future losses in assessing the damages to given as compensation for the injuries complained of. Montreal Street Railway Co. Boudreau Can. S.C.R. Chambly Manufacturing Willett Can. S.C.R. 502); and Backhouse V. Bonomi H.L. Cas. 503), referred to. -Per Davies, Anglin and Brodeur JJ.- RIVERS STREAMS-Continued.
Where no effective steps have been taken the party from whom damages are claimed to have the damages resulting from improvements constructed a stream ascertained an expertise, the manner provided article R.
he cannot set up a mere proposal of such an arbitration as an exception to an actioh against him to recover fendants not having taken steps under the statute for several months, and not having shewn that they were in fact ready and willing to proceed under the statute, the action lies.
v. Roy....
SALE-Broker-Sale of land-Commission
Principal and agent-Introduction of purchaser- Quantum merit-Tariation of written contract- Evidencc-(Alta.) Edw. VII.,
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ance-"Time to of the essence of the
Notice after default
Laches-Abandonment - 3-Sale commission-Yamed price-Introduction retainer price
Alberta statute, VII., 1....
4-Tendor and purchaser-Agreement cedent-Specific performance ......
5-Vendor and purchaser-Sale of land
Payment by instalments-Specified dates of essence-Forfeiture-Pendlty
-Payment declared to be deposit... 360
6-Sale of lands for re- Novation
SALE-Continued.
performance-Defence to action-Practice
Statute Frauds Principal and agent-Agent purchasing -Disclosure-Findings of fact..... 7-Vendor and purchaser-Agreement mission-Rescission of contract.... 403 Defeasance-"Time of the essence of the agreement"-Deferred payments-Notice after default- Laches-Abandonment.] In an agreement for the sale of lands, for a price of which half was paid and the balance to be paid deferred instalments at specified dates, there was a clause for forfeiture, both the agreement and the payments made, upon default in punctual payments; time was of the essence of the contract and, default, the vendor had the right to give the purchasers thirty days' notice sion and re-sell the lands. default in terms mentioned, but only to one of the purchasers, an extension time paid, which was refused the vendor Two weeks later the purchasers sued specific performance.-Held, reversing the judgment appealed from B.C. Rep. 271), that the clause making time of the essence of the contract had reference not to the gale dates, but to the time mentioned in the notice; that the notice as given did not comply with the condition of the agreement requiring notice to all the purchasers, and that, in the circumstances of the case, there were not such laches chargeable against the purchasers as would amount to abandonment of their SPECIFIC PERFORMANCE-Continued.
SPECIFIC PERFORMANCE-Continued. rights under the agreement or deprive them their remedy of specific performance.
icndor and purchaser-Agreement cedent.]
26th November, R.
gave a memorandum respecting the sale his land, as follows: "In consideration of a payment of I agree to give to Major Carey the option quarter-section-N.E. of Tp.
Medicine Hat, at the rate of per acre.
Balance to be paid 1/ on the last day of January of each year till paid."
the 20th of January, a letter was written, by C.'s solicitor, to as follows: "Major Carey is prepared to make payment of one-third of purchase price, and are anxious to close the matter out at
We would suggest that, rather than give an agreement for sale, you execute a transfer of the land in favour our client and take a mortgage back for unpaid balance.
We would obliged if you would let hear from you at once.
We would pleased to prepare the necessary documents, and you can submit same to your solicitor at Medicine Hat."-Held, reversing the
Davies and Anglin JJ. (dissenting)
, that the memorandum constituted an offer requiring acceptance; that the letter the solicitor was not an unqualified acceptance of the terms of the contract such as was called for, in the circumstances, and that was, therefore, not entitled to a decree for specific performance.-(Leave to appeal to Privy Council refused. 7th May. See West.
W.1.
RooTs ......
Salc lands mcet for re-sale fecer action
Statute Frauds
Principal agent-Agent purchasing-Disclosure- Findings of fact.] In a suit for specific performance of a contract for the sale lands an agreement for the re-sale of the lands may set up as a defence notwithstanding that such re-sale agreement does not satisfy the requirements of the
4th section of the Statute of Frauds.
Judgment appealed from D.L.R.
affirmed.-Such an agreement for re-sale affords a sufficient reason for refusing a decree of specific performance of the original contract for sale.-The Supreme Court of Canada refused to review the finding of the courts below that the fendants, while agents for the sale of'the property in question, when purchasing themselves under the contract for re-sale, had discharged their duty towards the plaintiff in regard to disclosure of material facts relating to the value of the property.-Per Davies and Idington JJ. the parties to contract to a fresh agreement of such a kind that the two cannot stand together the the second agreement is to rescind the first.
FITH ............................
STATUTE-Master and servant-Profitsharing-Partnership-Evidence- R.S.B. 3; 4-Words and phrases-"Partnership."] The "Master and Servant Act," R.S.B.C., respecting profit-sharing servants, declares that no agreement that nature shall create any relationship in the nature of partnership.
Section 4 of the "Partnership Act," R.S.B.C., provides rules for determining partnership and, sub-sees. and declares that the sharing of gross profits does not, of itself, create a partnership, that the receipt of a share of the profits of a business is primi facie evidence partnership, that the receipt of such share or of a payment varying with the profits does not, of itself, make the person receiving the same a partner, and that a contract to remunerate a servant a share of the profits does not, of itself, make him a partner.
The plaintiff, an employee of the defendant, the terms of his engagement was to receive as remuneration for his services a onehalf share of the profits of defendant's business and conversations took place regarding an arrangement whereby plaintiff might have a "share in the business," hut no definite agreement
Plaintiff, claiming to have become a partner, wrote a letter to defendant asserting that had an undivided interest the business and asking him to execute articles of partnership.
Defendant replied to this letter in an evasive and temporizing manner and the business continued to conducted without any change.
Later on, the defendant served upon the plaintiff a notice of dissolution partnership and, in the notice as well as -in the correspondence, made use the word "partnership" in referring to the relations between them.-Held, reversing the judgment appealed from B.C.
Rep. 230) that, under the statutes referred to, the onus was upon the plaintiff to shew that he had been admitted as a partner in the business in the strict legal sense and that the indefinite use of the term "partnership" in the correspondence and notice did not, in the circumstances, amount to evidence an agreement that there should a partnership.
2-Appeal-New right of appeal-Application to pending actions.] An Act
Parliament enlarging the right of appeal to the Supreme Court Canada does not apply to a case in which the action was instituted before the Act came into force.
Williams Irvine Can.
R. 108); Hyde v. Lindsay Can.
99), and Colonial Sugar Refining Co.
Irving ([1905]
-followed.
[See now Stat. (Dom.)
& V.,
3-"Militia Act"-R.S.C. [1896] c.
-"Senior present at any locality"-Military district-Right of action-4 Edw. VII. s. 86-Retrospective effect.] section of the "Militia
Act" (R.S.C. [1896] Canada divided into military districts of which the Province Nova Scotia is one.
section "the senior present at any locality" may, on requisition from three justices the peace, call out the troops in aid of the civil power wherever a riot or disturbance of the peace has occurred or is anticipated.-Held, Brodeur J. dissenting,. that the "senior present at any locality" is not necessarily the senior of a corps stationed at the place where the riot occurs or is likely to occur. The justices, in their discretion, may requisition the senior of any available force.-By section sub-section of the above Act the commanding the troops so called out may, in his own name, take action against the municipality in which the riot occurred to recover the amount of the expenses thereby incurred which are to be paid to His Majesty when recovered. Edw. VII., ch. sec. this right action was vested in His Majesty.-Held, that the latter being a procedure Act is retrospective and an action was properly General Canada to recover the expenses of calling out the troops on the occasion an industrial strike in the City of Sydney, part which expenses Judgment appealed from N.S. Rep. 4-Appeal-Jurisdiction - "Matter in controversy"
Annuity-Quebec "Workmen's Compensation Act," arts. et seq.-9 Edw. VII., "Supreme Court Act," R.S.C., s. 46(c)-Construction of statute.] Plaintiff's
"Workmen's Compensation Act," claimed for loss of earnings, for six months, during incapacity occasioned personal injuries, and also an annuity of per annum.
The plaintiff recovered judgment for the specific amount claimed and was also awarded an annuity $247.50, which might subject to revision, under the statute. The capitalized value of the annuity would, probably, amount to a sum exceeding $2,000, the appealable limitation fixed by section 46(c) of the "Supreme Court Act," R.S. 139.-Held, Davies J. dissenting, that, in the circumstances of the case, it did not appear that the demande amounted to the sum or value of two within section 46(c)
of the "Supreme Court Act," and, consequently, the court had no jurisdiction to entertain the appeal. Talbot v. Guilmartin Can. S.C.R. 482) ; La Cie. d'Aqueduc de la Jeune Lorette v. Verrett Can. S.C.R. Lapointe v. The Montreal Police Benevolent and Pension Society Can. S.C.R. 5), and Macdonald v. Galiean Can. S.C.R. 258), referred to.-(Leave to appeal to Privy Council granted, 15th July, .......................
5-Banks and banking-Loans-Security-Wholesale purchaser-"Products the forest"-"Bank Act," s.
By sec.
(1) of the "Bank Act" a bank "may lend money to any wholesale purchaser agriculture, the forest, etc.; or to any wholedead stock and the products thereof, upon the security of such products or such live stock or dead stock and the products thereof."-Held, affirming the judgment of the Appellate Division
Ont. L.R. which affirmed the decision a Divisional Court Ont. L.R.
which the judgment of the trial
Judge Ont. L.R.
was maintained, that a person who purchases lumber the carload having on hand times 200,000 or 300,000 feet and sells it retail or uses it in his business is a
"wholesale purchaser" within the meaning of the above provision.-Held, also, that sawn lumber is a "product of the forest" on which money can lent under said provisions.
Molsovs Bank Beaudry K.B. 212) overruled.-Held, per Duff and Anglin JJ.-The words
"and the products thereof" at the end the above sub-section mean the products live or dead stock and not of the other articles mentioned. V.
................
6-Constitutional law-Criminal
Legislation respecting Orientals-Chinese places of business white females-2 Geo. (Sask.)
-"B.N.A.
Act, ss. 92-Local
Conviction under provincial statute.] The provisions of the statute of the Province
Saskatchewan, containing a prohibition against the employment of white female labour places of business and amusement kept managed by Chinamen, sanctioned fine and imprisonment, is intra vires of the
Provincial Legislature.
Union Colliery
Bryden ( [1899] 580), and
Cunningham v. Tomey Homma ([19031 referred to.-Per Duff J.- The imposition of penalties for the purpose of enforcing the provisions of a provincial statute does not, in itself, amount to legislation on the subject-matter criminal law within the meaning of item of the 91st section of the "British North America Act, Hodge The Queen Cas. The Attorney- General of Ontario v. The Attorney- General for the Dominion ([1896] 348), and The Attorney-General of Manitoba The Manitoba Licence Holders' .!ssociation ([1902]
73), referred to.-The judgment appealed from West. W.R. was affirmed. Idington J. dissenting.- (Leave to appeal to the Privy Council refused, 19th May, KING......... Limitation of actions-Genrral stotutory provisions-Carriers-Private "Consolidated Railway Company's Act"-R.S.B.C., 82-"Lord Campbell's Act"-(B.C.) s. Per Duff J.-Section the "Consolidated Railway Company's Act," (B.C.) Vict. has no application to an action brought against the company for breach duty as a carrier.
Sayers v. British Columbia Electric Ricay. Co. Rep. 102), referred to. [NOTE-Sre Gentile V. B.C. Electric Ricay. Co. ([1914] PROCEDuR: 8-Assessment and taxes stitutional late-Exemption from taxation - Construction of statute---"B.Y.A. Act, s. 125-(Sask.) VII., (Sask.) Edio. VII., "Supplement- Yon-resident-Action for debt--Jurisdiction of provincial courts.] The Saskatchewan statutes, Edw. VII., ("The Local Improvements Act") and Edw. VII.. ("The Supplementary Reyenue Act") and their amendments, authorizing the taxation of interests in Dominion lands held persons occupying them under grazing leases, or licences from the Interior, travention of the provision of section the "British North America Act, taxation .695 or property belonging to the Dominion of Canada;
consequently, these enactnients are intra vires of the provincial
The Calgary and Edmonton
Land v. The Attorney-General of Alberta Can. S.C.R. followed.- For the purposes of the collection taxes levied the provincial legislature may authorize their recovery by personal action, as for debt, against persons occupying such lands, in the civil courts the province, notwithstanding that the residences of such persons may outside the limits of the province. judgment appealed from West. L.R.
West. W.R. was affirmed.
SurI
MILloN ...................
9- Municipal corporation-Dedication of lands for highway-Opening of street of agreement.]
company made a donation of certain lots land to the municipal corporation for the purpose a highway and the corporation agreed to open and construct a portion of the street when necessary.- Held, that, on the proper construction the agreement, in view of the powe-s eonferred upon the corporation by section its charter (Que.), Vict., the word. "necessary" in the agreement should construed as meaning "necessary in the public or general interest"
and not merely in the interest of the other party to the agreement.
In re
Morton and the City of St. Thomas (6
Ont. R. and Pells v. Boswell
10-"Colonial Courts of Admiralty Act,
(Imp.), 54
"Public Authorities Protection Act,
(Imp.), 4 61-Limitations of actions-Effect of statutes-Practice and procedure-Jurisdiction.] The "Public Authorities Protection Act,
(Imp.), & Vict., does not apply to suits or actions instituted in the Exchequer Court of Canada in the exercise of its jurisdiction as a Colonial
Court of Admiralty. Judgment appealed from Ex. 1) affirmed.
S.S.
........--.............
Sale of lands-Agreement to pay commission-Yamed price-Introduction General retainer price
Alberta statute, Edw. VII., s. 1 .... Municipal councillor-Interest municipal contract - Public policy - Money received under prohibited contract of funds-Right of action- Construction of statute-(Que.) 58 ss. 1, 11-Arts. 989, ......... 13-Rivers and streams - Industrial improvements-Penning back waters- Permanent works-Damages-Measure all-Right of action-Practice-R.S.Q., 14-Bill of sale-Mortgage-Registralion
Verification "Bills of Sale Act," Edw. VII., s. for re-sale - Specific
Evidence-Principal and agent.] In a suit for specific performance of a contract for the sale of lands an agreement the re-sale of the lands may set up as a defence notwithstanding that such re-sale agreement does not satisfy the requirements the 4th section of the Statute Frauds.
from D.L.R. affirmed.-Such an agreement for re-sale affords a sufficient reason for refusing a decree for specific performance the original contract ........ STATUTES-(Imp.) "B.N.A. Act, ss. (Legislative .....
2-(Imp.)
"B.N.A. Act, s.
(Exemption from taxation) .......
(Imp.) & (Colonial
Courts of Admiralty) ............
(Imp.) 56 & ("Public
Authorities Protection Act")
.....
R.S.C., s. (Banking).
6-R.S.C., c. s. (Railways) .........
..................
6a-R.S.C., s. (Railways)
............
.............
(Militia)
8- R.S.C., 1906, s. 46(c) (Supreme Court) ....................
R.R.C.. ("Criminal Code")
.....................
10-R.S.C., s. (Criminal appeals) ....................
11-(D.) Edw. VII., s. 15
("National Transcontinental Railway
12-(D.) 4 Edw. VII., s.
(Military aid to civil .....
STATUTES-Continued.
& Geo. (Supreme Court) ..........................
Que.) 54, s. (Highw ays) ...........................
1909, arts. (Watercourses) ..................
18-R.S.B.C., ("Families Compensation Act") ..............
R.S.B.C.,
20-R.S.B.C., s. ("Master and Servant Act") ............
R.S.B.C., s. ("Partnership Act") ....................
(B.C.) ("Consolidated Railway Company's Act") ........ Edw. VII., s. 7 (Bills of sale) ...................
(Alta.) Edw. VII., (Commission on land sales) ............
Edw. VII., 27, s. 1 (Sales STATUTES-Continued.
26-(Sask.) Edw. VII., (Local
Improvements) ..................
27-(Sask.) 7 Edw. VII., (Supplementary revenue) ...............
28-(Sask.) (Employment of females) .................
TIMBER-Action on pre-empted lands - Rights of preemptor-B.C. "Land Act," R.S.B.C., ss. et seq. and 132-Negligence
-Fire set railway locomotive....
TRAMWAYS-Tramway company-Construction of works - Independent con- Dangerous system
Injury property
Exercise of statutory authority - Special release.]
ages which he might sustain by reason with his use thereof. This injury could
-- Held, affirming the judgment appealed to take
TRAMWAYS-Continued.
iatters in regard to which it had statutory powers respecting the construetaken to avoid unnecessary injurious consequences to the property of other and they are responsible accordingly. Hardaker v.
Idle District Council (
1 335), and Robinson v. 188), v. ................
2--Negligence - Operation of tramand staff" system Disregard of rules - Defective system.] A motorman the defendants' employ was injured in a collision with the car ahead of that upon which he was performing his work.
The company's operation rules provided that cars operated in the same direction, as "doubleheaders," unless block signals weie use, should kept at least minutes apart, except in closing up at stations; also that, when the view ahead was obscured cars should kept under such control that they might be stopped within the range of vision, but the rule was not enforced.
The plaintiff, one of. the company's motormen, on a foggy night, ran his car into the rear of another car standing at the station he was entering, and sustained injuries for which he claimed damages, alleging a defective system. The defence set up contributory negligence on the part*of the motorman, but made no allusion to the breach these regulations.
judgment, entered on the verdict of the jury in favour the plaintiff, was set aside the Court of Appeal on the ground that the injury had resulted in consequence the plaintiff's disregard of the rules.-Held, that as the rules had not been enforced by the defendants nor set up in their pleadings they could not be relied upon in support TRAMWAYS-Continued.
the charge of contributory negligence.
appealed from Rep.
reversed and a new trial ordered.
......................
3-Practice-Action dependents- "Families Compensation Act"-Release deceased-Defence to action-Repudiation-Fraud-Setting aside release
-Personal representative-Right of action--Reurn of money paid-Limitation of actions-General statutory provision- Carriers-Private Act
B.C. "Consolidated Railway Company's Act"-Statute
-R.H.B.C.,
82-"Lord Campbell's Act"-(B.C.) s.
....................
VENDOR PURCHASER - Defeasance to of the essence of the agreement"- Deferred payments-Notice after default
Laches
Abandonment performance.] In an agreement for the sale of lands, for a price of which half was paid and the balance to paid deferred instalments at specified dates, there was a clause for forfeiture, both the agreement and.the payments made, upon default in punctual payments; time was the essence of the contract and, default, the vendor had the right to give the purchasers thirty days' notice sion and re-sell the lands.
default in in the terms mentioned, but only to one the purchasers, an extension of time paid, which was refused the vendor
Two weeks later the purchasers sued for the judgment appealed from
Rep. 271), that the clause making time
VENDOR PURCHASER-Con. of the essence of the contract had refernot to the gale dates, but to the time mentioned in the notice; that the notice as given did not comply with the condition of the agreement requiring notice to all of the purchasers, and that, in the circumstances of the case, there were not such laches chargeable against the purchasers as would amount to abandonment their rights under the agreenent or deprive them their remedy Agreement for sale of land-Option - Icreptance-Uncertainty as to terms- Condition precedent - Specific performance.] 26th November, R. gave a memorandum respecting the sale his land, as follows: "In consideration payment of I agree to give to Major Carey the option of my quarter-section-N.E.
of Tp. Medicine Hat, at the rate of per acre.
Balance to paid on the last day of January of each year till paid." the 20th of January, a letter was written, C.'s solicitor, to as follows: "Major Carey is prepared to make payment of one-third of purchase price, and are anxious to close the matter out at once. We would suggest that, rather than give an agreement for sale, you execute a transfer of the land favour of our client and take a mortgage back for unpaid balance. We would obliged if you would let us hear from you at once.
We would be pleased to prepare the necessary documents, and you can submit same to your solicitor at Medicine Hat."-Held, reversing the judgment appealed from Alta. L.R. Davies and Anglin JJ. dissenting, that the memorandum constituted an offer requiring acceptance; that the letter the solicitor was not an unqualified acceptance of the terms of the contract such as was called for in the circumstances, and that was, therefore, not entitled to a decree for specific performance.-(Leave to appeal to Privy Council refused, 7th May, See West. W. R.
RooTs ........ 3-Contract for sale of land-Payment instalments-Specified dates-Time Penalty Pay- VENDOR PURCHASER-Con.
ment declared to deposit.] An to purchase land provided for payment price as follows: $500 "as deposit accompanying this offer" to returned offer not accepted, the balance instalments at specified dates; it also provided that if the vendor was unable or unwilling to remove any valid objection to the title, and purchaser did not wish to accept it otherwise the former could return the deposit and cancel the contract; that the offer if accepted should constitute a binding contract of purchase and sale and "time shall in all respects strictly the essence hereof"; and that should the purchaser fail to complete the purchase in the manner and at the time specified the vendor could retain any moneys paid on account as liquidated damages, rescind the contract and re-sell the property.-Held, reversing the judgment appealed from Ont. L.R.
Fitzpatrick C.J. and Anglin J dissenting, that the paid "as deposit" was part the purchase money, that the retention the vendor of money paid when the purchase was not completed was only a penalty for failure to make the payments promptly; and that the court could grant the purchaser relief from the consequences of such failure. Kilmer
British Columbia Orchard Lands
([1913]
319), followed.
.......................
Agreemnct for sale-Agent to procure purchaser-Agent joining in purchase-Yon-disclosure to co-purchaser- Payment of commission-Rescission contract.] H. was owner of mining land and offered a commission of ten cent. for finding a purchaser therefor. H.
afterwards wrote to stating that the mine was very rich and urging him to induce some of his friends to join in a syndicate or company to purchase and work it.
without disclosing his agency, induced W. to take up the matter and they agreed to join in the purchase and divide the profits.
contract was entered into with and W. paid on account of the purchase price on which was paid his commission.
having been made in the further payments H. brought action claiming possession the property and the right to retain the amount paid.
W. counter- VENDOR PURCHASER-Con. claimed for rescission of the contract and return of the money paid with interest and on the trial swore that he knew nothing of S.'s agency for several months after the contract was signed.-Held, Division Ont. L.R. Fitzpatrick C.J. dissenting, that it was the duty on becoming aware that was a purchaser with to satisfy himself that the latter was aware of the agency S.; and that W. was .entitled to the relief asked his cointerclaim.-Held, per Davies and Anglin JJ. .(Duff J. contra), that concealing from W. the fact that was to receive a commission from the vendor was guilty of a fraud for which H. was responsible as agent.-(Leave to appeal to Privy Council refused, 23rd July, cocK v. ..................
VERDICT.
See JuRY.
WATERCOURSES.
WILL-Execution - Testamentary capacity
Captation Approval testatrix-Evidence-Beneficiary propounding will-Onus of proof.] person propounding a will, in the preparation of which he was instrumental and which he is sole beneficiary, is obliged to support it by evidence sufficient not only to shew that the will was duly executed, but also to justify the righteousness the transaction and to establish that it truly expresses the last testamentary wishes of the testator and that the testator knew and appreciated the effect of its dispositions and approval of them.-Two days before her death the testatrix, to whom morphine was being administered to alleviate pain, executed two wills in the English form.
She requested her husband to have a will prepared and, on his instruetions, his brother, an advocate, drafted will whereby the husband was siade sole beneficiary.
Upon this will being read over to her, in the forenoon, the testatrix took exception to it because it ignored a promise, made to her father, that certain property she had received WILL-Continued.
from him should ultimately revert to members of her own family; and she did not then execute it.
Another will was drafted the husband's brother to meet her wishes, but, either on account her drowsiness or because of the presence in her bedroom of friends, including her sister, the plaintiff, the second will, though ready at noon, was not presented to the testatrix for signature until late in the afternoon, when she attempted to sign it, but the brother clared it worthless owing to the illegibility of the signature.
On being told this opinion, the will read to her the morning, or one siihilar in its contents, was presented to her for signature and her husband offered to read to her, but she declined to have this done, saying that she had already heard it read and knew of its contents; she then signed it with her mark in presence witnesses. In an action to set aside the last will, the evidence failed to establish that the testatrix understood its contents and the difference between its provisions and those of the will which she had attempted to sign, nor did it remove suspicion arising from the fact that the impeached will had been prepared under the instructions of the sole beneficiary, and other peculiar circumstances attending its execution.-Held, reversing the judgment appealed from
(Q.R. K.B. 252), the Chief Justice dissenting, that the evidence failed to establish that the will in question expressed true last testamentary wishes of the testatrix and, consequently, that it should set aside.-Barry v.
Butlin Moo. P.C. 480); Fulton v.
Andrew (L.R. I.L. 448); Tyrrell v.
Painton ((1894)
P.-151); McLaughlin
McLennan (26
Can. S.C.R.
Brown Fisher
L.T. 465); St.
George's Society of Montreal v. Nichols
(Q.R. 273); Harwood v. Baker
P.C. 282); Tribe v. Tribe (13
Jur. 793); Mignault Malo
Jur. 288), and Mayrand v. Dussault
Can. S.C.R. 460), referred to.-(Leave to appeal to Privy Council granted, 15th
WORDS PHRASES.
1-"Accident in course of employment"
............
WORDS PHRASES-Continued. "Block and staff" system .... "Deposit" .. ..................
"Double-headers" .. ............ 4a-"njuries happening front fits" ........ " Matter in controversy" ...... 6--"Margin s" ..................
7-'"Necessary"
.................
"On Change" ................
"Oriental s" .................
.. .............
11- "Product of the forest" ....... 394 "Products thereof" .......... 12a- "Purchase price"......... "Secretary" ...............
"Senior officer present at the locality" ............................
"Time of the essence of the contract" ............................
"Wholesale purchaser" .. ....