Hughes v. Northern Electric and Manufacturing Co.

Three directors owned all the stock a mining company to which they had advanced $43,000 for expenses of. operating. Two of them were at variance with the third as to the mode of operating and all refused further advances.

The company having no other means of procuring money, it was agreed that the two directors should sell their stock to the third for $60,000 secured mortgage on the company's property, the debt of $43,000 to discharged and the purchasing director to advance funds for operating and until the first payment had been made on the mortgage no such advances should a charge on the company's property.

Payments were made on the mortgage which afterwards fell into arrears and on action the mortgagees an order was made for sale and delivery "up of possession." More than a year after the mortgage was made the mining company incurred a debt to the respondent company which brought action for the amount and for a declaration that the mortgage was ultra vires of the company and that the judgment in the mortgage action was void.

The action was dismissed at the trial.

The Appellate Division held the mortgage void but only as to the excess over the indebtedness of the company at the time it was made. Held, reversing the judgment appealed from Ont. L.R. 221) and restoring that of the trial judge, Fitzpatrick C.J. and Idington J. dissenting, that the mortgage was valid; that though the expressed consideration was the price of shares sold one holder *PRESENT:-Sir Charles Fitzpatrick C.J. and Davies, Idington, Duff, Anglin and Brodeur JJ.

to another the real consideration was the discharge of the company's existing indebtedness and securing of financial aid for the future.

..

Per Davies, Duff and Brodeur JJ.-The judgment in the foreclosure action was a conclusive answer to the attack on the mortgage the company. The Great North-Western Railway Co. Charle- M bois ( (1899) distinguished.

Also per Davies, Duff and Brodeur JJ.-The trial judge having effect decided that he had jurisdiction to pass upon the validity of the mortgage, that decision was binding on all parties until reversed in appeal, and, having regard to what occurred at the trial, the decision on the point of jurisdiction was not appealable.

Per Fitzpatrick C.J. and Idington J., dissenting.-The agreements and records made the parties concerned in the transaction upon which alone the mortgage in question rests shew it to have been given solely to secure to the mortgagees the price of their sales of shares in the company to another shareholder and that, as such, the mortgage was ultra tires and void as against any creditors of the company.

The appellants, Hughes and Mackechnie, and the respondent, Kirkegaard, were the owners of a mining property in the Township of Belmont, which they transferred to Cordova Mines Limited (a company they had incorporated for the purpose of acquiring the property), in consideration of the issue to themselves and their nominees of all the authorized capital stock of the company fully paid.

Oordova Mines Limited having issued all its capital stock in payment for the mine, it was necessary that money should be borrowed to carry on operations. Ont. L.R. sub nom. Northern Electric and Co. Cordova Mines.

These operations were extensive and were made possible by loans to the company from Hughes, Mackechnie, and Kirkegaard in equal shares. In April, 1912, Cordova Mines Limited was indebted to Hughes, Mackechnie and Kirkegaard in respect of these loans, including moneys then advanced to the extent of over $43,000. At this time Hughes, Mackechnie and Kirkegaard had drifted apart in their ideas as to the policy to be adopted in carrying on the company's affairs. Hughes and Mackechnie were on one side, Kirkegaard on the other. None of them was willing to advance more money unless his policy was adopted. A deadlock ensued. This deadlock was finally broken and the continuance of operations secured by an arrangement whereby Hughes and Mackechnie sold their shares to Montgomery, who was Kirkegaard's solicitor and trustee, for $60,000, payment of this amount to 'be secured by a mortgage from the company to Hughes and Mackechnie on the mine. Kirkegaard was to provide for the proper operation of the mine and to spend at least $3,000 per month in its development.

The form in which this arrangement was expressed and carried out consists of an agreement between Hughes and Mackechnie of the first part, Joseph Montgomery, trustee, of the second part, and Peter Kirkegaard of the third part, dated 23rd April, 1912; (2) a supplemental agreement between Hughes and Mackechnie of the first part and Joseph Montgomery of the second part, dated 30th April, 1912, and (3) a mortgage from Cordova Mines Limited .to Hughes and Mackechnie, dated 30th April, 1912.

The substance of the arrangement, so far as it affected the company, was set out and embodied in a of its directors held on the 30th April, 1912, "It was explained to the meeting that all moneys required by the company for expenses had heretofore been advanced by the three directors equally, and Messrs. Hughes and Mackechnie did not now desire to continue making advances, but were willing to dispose of their stock to other parties who were willing to guarantee the payment of the purchase price by a mortgage on the company's property, and it was considered advisable in the interests of the company that this should be done provided all shareholders consented thereto."

All the shareholders of the company concurred in this arrangement.

It was part of the agreement that the sum of $43,000 owing by the company was to. be wiped out. All the debts owing by the company at the time of the arrangement were paid, and it was not contemplated that any further debts should be incurred.

contrary it was expressly provided that until the first payment had been made on the mortgage all costs and expenses should be paid by Montgomery and his associate; so as not to become a lien or charge on the com- The result of the transaction was to free the company from its overdue debt of $43,000, and to obtain for it the new advances necessary for carrying on its operations and improving its property.

Hughes and Mackechniie, in pursuance of the agreement, transferred their shares to Montgomery, Kirkegaard's solicitor and trustee, and Kirkegaard proceeded to operate the mine and advanced to the company large sums of money for that purpose. He and others associated with him made payments on account of the purchase money on the shares amounting to $19,000 or thereabouts to Hughes and Mackechnie. Thereafter the mortgage having fallen into arrear Hughes and Mackechnie, the appellants, brought proceedings against Cordova Mines Limited on the mortgage and on the 30th of April, 1913, upon consent of the company, judgment was pronounced for the immediate sale of the mortgaged premises and directing possession to be delivered to Hughes and Mackechnie. More than a year after the mortgage the company incurred a debt to the plaintiff, respondent, the Northern. Electric and Manufacturing Company Limited. The present action was brought by the plaintiff to recover from the company the sum of $817.09 in respect of goods sold to it; (b) to have it declared that the mortgage above mentioned was illegal and ultra vires and a fraud as against the creditors of the company including the plaintiff, and that the consent judgment in the mortgage action brought by appellants was also void.

On the 11th of September, 1913, Cordova Mines Limited and Peter Kirkegaard filed a defence to this They admitted the debt owing by Oordova Mines Limited to the Northern Electric and Manufacturing Company Limited, but denied insolvency and denied that the mortgage was illegal or fraudulent.

Since the commencement of this action judgment by default was obtained by the respondents, the Northern Electric and Manufacturing Company Limited, on the 22nd of September, 1913, for the sum of $817.09 against the mining company, and execution was issued in respect of this debt on the 26th of September, 1913.

At the trial Cordova Mines Limited, having changed its solicitors, asked leave to amend its defence, and, after most of the evidence was in, a new defence on the part of Cordova Mines Limited was filed, denying the making of the mortgage, saying that if made it was ultra vires and void, and claiming that it should be set aside.

The trial judge dismissed the action. The Appellate Division varied his judgment by declaring the mortgage valid for the amount of the indebtedness of the company at the time it was made and void for the excess. The defendants then appealed to the Supreme Court of Canada.

THE (dissenting) .- I agree with Mr. Justice Idington.

J.-1 agree with Mr. Justice Duff. (dissenting). - The respondent, the Northern Electric & Manufacturing Company, suing on behalf of itself and all other creditors, brought this action against the respondent Cordova Mines Limited, the appellants and respondent Kirkegaard to recover from Cordova Mines Limited the amount of $817.09 alleged to be due by it for goods sold and delivered and for an injunction to restrain the appellants and others from selling or offering for sale or dealing with the assets of the Cordova Mines Limited and to set aside a mortgage made by it to appellants.

Judgment was recovered by default for the debt sued for against the Cordova Mines Limited, and execution issued thereon pending the progress of that. part of the action relative to the setting aside of the mortgage, but upon the trial of the issues raised in respect thereof the action was dismissed except as against the Cordova Mines Limited.

The Court of Appeal for Ontario reversed this judgment and substituted one of which the nature will appear later. The appellants appeal from that here and seek to have the trial judgment restored. The respondents each resist the appeal and seek by way of cross-appeal the full measure of relief sought It may be observed that the cross-appeal seems somewhat informal, but no objection has been taken on that account and the parties seem to desire that the question of the validity of the mortgage in question as against the creditors or otherwise, be finally determined.

The respondent Kirkegaard and appellant seem to have acquired what was supposed to be a gold mine, and with two others, who were their nominees we are told, got themselves incorporated under the Ontario "Companies Act."

The supposed gold mine was transferred to the corporate company in consideration of the issue of five hundred thousand dollars of paid-up stock in said company of which appellants were to get, and got, two-thirds and respondent Kirkegaard the other third, saving and excepting the shares necessary to qualify the other two to whom I have referred as their noinees.

Practically these three owners of the stock were equal partners in the venture, owed nothing and acted just as if never incorporated, save in having as a company a minute book now lost and a bank account in the name of the company.

When money was needed each put up his one-third J. share thereof and kept on doing so in the development of the till the sum of $43,000 was spent.

There were no such rich veins struck as to found visions upon to present to the public as no doubt anticipated when getting incorporated. And very humanlike, each had his own plans and fancied if only his methods for future development were adopted they would certainly, if followed, lead on to fortune.

Failing to agree, proposals were made by each of selling out to the other or other two. These negotiations ended in Kirkegaard agreeing to pay the appellants for their $333,320 of stock, the paltry sum of

$60,000, to be secured by a mortgage for that sum on the entire property of the company to be given by the

In an agreement dated 23rd April, 1912, between appellants of first part, one Joseph Montgomery of the second part and said Kirkegaard of the third part, they put the proposition down in plain black and white

Montgomery was but the trustee to take delivery HUGHES of and to hold the stock thus purchased till such time as Kirkegaard had a chance to turn round and so develop the mine according to his plans as might enable him to pay the cash payment.

Idington J.

By other clauses in this agreement he bound himself to assume all the expenses of doing so and to do it in proper miner-like fashion and that the proceeds of all ore mined during the period of payment aforesaid, over and above what is used in actual mining expenses, shall applied on payment purchase price until fully paid. Having executed this agreement personally, Kirkegaard went to California.

He testifies as follows:- Q. Had you any negotiations with the mortgagees after the signing of the agreement that is mentioned here ?

A. No, that closed the negotiations at the time.

Q. Then the mortgage was prepared and executed without your privity in any way ?

Without my presence, yes.

Now, Mr. Kirkegaard there were three shareholders in this company other than the nominal shareholders ?

Yes.

Prior to the agreement that we call the Montgomery agreement ?

Yes.

These three shareholders were yourself and Dr. Mackechnie and Mr. Hughes ?

Yes.

The two defendants and yourself, and you were the President I was.

In his absence Montgomery, who seems to have represented him, entered, on the 30th of April, 1912, into an agreement in writing with appellants, in which former was called the purchaser and latter the vendors. Leaving out the formal parts, the following is a copy:- Whereas the vendors are the owners of two-thirds of the stock Cordova Mines Limited, and the parties hereto are desirous of making an agreement in relation to the sale and purchase the said interests.

Now it is mutually agreed and between the purchaser and ELECRIC vendors and their and each their heirs, executors, administrators and assigns as follows:- (1) The vendors this day transfer to the purchaser all their Idington J. stock in the Cordova Mines Limited, to held the said purchaser intact until the first day of August, or until the sum of ten thousand dollars has been paid the Cordova Mines Limited upon its mortgage to the vendors, bearing even date herewith. The purchaser shall have the power to transfer shares sufficiently to form qualified board directors, which stock shal) reassigned in case failure to pay the sum aforesaid.

The purchaser is to provide for the proper working the mines in a miner-like manner of the Cordova Mines Limited, situate in the Townships Belmont and Marmora and more particularly described in the said mortgage, the understanding being between the parties hereto that at least three thousand dollars per month shall expended in the development of the said mines.

This agreement shall not supersede the agreement made the twenty-third day of April, but shall in addition thereto. The purchaser hereby covenants with the vendors that all costs, expenses, charges and accounts made the Cordova Mines Limited from the first day of May to the first day of August, up to such further time as the said ten thousand dollars is paid, will paid for him and his associates and shall not a lien charge upon any of the property the said Cordova Mines Limited. It appears, from minutes put in evidence, that same day a meeting of the directors was held at the office of Peter Kirkegaard, Toronto, with appellant Hughes (in chair), Vice-President and W. C. Mackechnie, Mr. J. F. Wills and Montgomery acting as secretary of the meeting.

A waiver of notice of this meeting was filed by attorney Joseph Montgomery, Mr. Kirkegaard being absent in California. The remainder of the minute is Statement of outstanding liabilities of the company as of May 1st amounting to $

, subject to correction, was put in the Secretary, which pursuant to agreement is to paid in equal shares the three parties, Peter Kirkegaard, W. Hughes, and W. V,.

kechnie.

Agreement dated 23rd day of April, was produced providing for transfer of stock held W. Hughes and Mackechnie to Joseph Montgomery subject to the condition the pany giving a mortgage to secure payment.

Idington J

It was explained to the meeting that all moneys required by the company for expenses had heretofore been advanced the three directors equally, and Messrs.

Hughes and Mackechnie did not now desire to continue making advances, but were willing to dispose their stock to other parties who were willing to continue advances provided the company would agree to guarantee the payment of the purchase price a mortgage on the company's property and it was considered advisable in the interests of the company that this should done provided all shareholders consented thereto.

motion by-law authorizing the giving of the mortgage was duly considered and passed.

motion the transfer the stock William 'Graem kechnie and William Hughes to Joseph Montgomery of $333,320 is hereby authorized and accepted.

motion the transfer one share Bleecker to V. R. Williams, and one share from J. F. Wills to H. P. Edge was authorized and accepted.

The mortgage thus provided for between Cordova Mines Limited and appellants dated same day is executed accordingly by Joseph Montgomery, Vice-President, and Wm. R. Williams, -secretary, and sealed in presence of Mr. Wills.

The question raised herein is whether or not such a transaction can stand ?

I rather think no one pretends that in the bare nakedness of the transaction as thus expressed in these documents and this minute, that its result would be a valid enforceable mortgage.

However that may be, those who, in varying shades of meaning given it, have seen their way to support it either in whole or in part rely upon something outside of the sale of the stock to help so to support it as to defeat the creditors.

In that sense the $43,000 is spoken of as being wiped out. But how far does that carry us or support the mortgage ?

It is clear as noonday that these three men had been proceeding upon the basis, from the beginning, that the mine belonged to the three, who put in equal shares of all the expenditure in regard to it.

The company as such never borrowed any from them, never had agreed to return them any 1mnev.

The contributions thus given could not in law have been recalled and in fact had been poured into a worthless hole, or one that had proved so up to then.

It was no use to have kept up any kind of form of contract for the return of such moneys. That absurdity, whatever else they did, they spared themselves. If the hole in the ground proved unproductive the property was worthless. If it ever became productive and thus valuable, the market value of the stock would respond accordingly and recoup, in whole or in part or even with a profit, the moneys advanced.

It was only thus and through such a channel that appellants ever expected to be repaid.

And if not so repaid. it was just so much money gone over which it would be foolish to cry.

Hence, when the mortgage was given and the above agreement entered into we do not find a word about releasing any claims for advances, not even the form of passing a receipt. It never entered the head of any one so concerned that they were creating a mortgage to secure such advances. In June following the entries in the company's books of contributions by appellants were squared off by an entry of some kind for which no authority was given. How does that avail ? They were creating a mortgage to secure the price of the sale of stock from two shareholders to another and nothing else. And that was a thing that the company as such had no legal capacity or power in any way to enter into or give. In any way you turn it round and try to make it work out, the transaction is tainted with attempting to do that which was an illegality. I use the word illegality with due fear of the well-founded observations of Lord Cairns in Ashbury Railway Carriage and Iron Co. v. Riche(1), before my eyes. And for this reason that when you try to give vitality to the transaction and make it operative by mixing up the advances and -what relates thereto with the consideration which was present to the minds the parties whose agreement was to be carried out you blend two things (one possibly proper with one obviously improper) in one total consideration in such a way as to render it necessary to inquire whether or not you can sever that which may be good from that which is bad. You cannot, I submit with great respect, make of these two things, the past advance of money to improve the property and the sale of stock by two shareholders to another, a single united consideration to support this mortgage, for the ultra vires part thereof or element therein, is in such a connection illegal and taints the whole and thus renders the mortgage void.

I recognize to the full the difficulty of drawing the J. line where that which is merely ultra vires is to be treated merely as an illegality so tainting a transaction as to render it worthless for every purpose and that where other considerations may be extended to those entering into an ultra vires transaction may be the basis of some legal right springing therefrom which would not be permitted as basis therefor to be extended to those who had in entering into a transaction thereby committed a crime.

The field of such an inquiry is a wide one and needless to enter upon here. For as I conceive the facts here to exist the importation of the old advances into the consideration for this mortgage is something the parties never had in mind, and the transaction such that nothing could in law rest thereon.

Indeed, their economic conceptions of what they were about were too clear headed, it seems to me, to permit of such a mixing up of two things that could not form, either in law or in fact, a single consideration. The advances had made the stock possibly worth something. There is that relation of cause and effect between them.

But when we are asked to hold that the advances formed a part of the consideration and at same time that the stock value they in part created is to be taken as the consideration also, I submit this is a doubling up of consideration that cannot be listened to and I repeat was not at all in the contemplation of the parties.

For these reasons I, with great respect, cannot assent to the ground taken and the results reached by the learned trial judge.

J.

The same reasons together with what I am about to repeat forbid me supporting the judgment of the court appealed from. A majority of that court agrees that the transaction so far as founded on the sale stock i* void, but seems in some way to reach the conclusion that it can 'be supported as to the advances. It is to my mind impossible on such assumption fact to sever the two considerations and say how far either is to be given effect to.

The court first assuies the parties acted or were moved by considerations, which in fact did not move them, and seeks to sever these and give due value to each thereof. Thus it is what the court thinks is to be assigned as such values and not what the parties thought or expressed that the court directs a reference to ascertain.

The parties fixed $60,000 as the value of the appellants' share of the stock after the advances had been made. How much of that value rests upon the original acquisition of the land ?

How much upon the advances ? How much upon the speculative value ? How much of that again upon the assurance of Kirkegaard or Montgomery, or both, that so much would be expended in development ?

Or to put it another way, the appellants had put aside their own views to meet those of Kirkegaard and surrendered their chances of success for a price fixed at $60,000.

How can any court say what proportionate part thereof is to be attributed to these advances, when the parties have neither directly nor indirectly done or said anything whereby the court can sever anything of the manifold considerations moving them. and take an account thereof ?

As illustrative of the whole confusion of thought which has prevailed I most respectfully submit, in- J. volved in approaching the matter from the point view taken below, counsel arguing before us, who usually express themselves clearly, seemed throughout to assume either $60,000 or $43,000 to be the basic value secuied by this iortgage.

It is easy to understand the $60,000 sum being put forward. But why the $43,000 can be put forward I am at a loss to understand, not only for the numerous considerations already adverted to, but also for the further reason that it was only two-thirds of this sum that appellants advanced, and they got repaid $19,000, on account of the mortgage debt.

Surely if the true and lawful consideration is to be fixed, the proper way is to allow thereon credit for that which has been paid, and not to attribute it to that which on this theory of the mortgage could have no existence.

And to crown the whole of what I respectfully submit is an absurd result the two appellants are to be secured their advances and Kirkegaard who had advanced an equal share and ventured on new risks is left unprotected for his advances. Certainly whatever was had in view such a result never was contemplated by any one of those concerned. That result is clearly involved in the departure made by the court from what the parties have so clearly expressed to have been their purpose. Making a bargain for people which they never made or intended is always a rather hazardous proceeding: even when trying to do justice.

~V.

I need not dwell longer on what seems, I submit with great respect, an attempt to uphold in order to do a supposed justice between certain parties, what will, if upheld, defeat the -creditors who have given what is of value to the whole concern and made it worth fighting about and is to benefit only those who have not made it thus valuable.

I submit the better way is to let the mortgage taken for what those creating it intended and said, in no uncertain language.

So taken it falls within what the doctrine declared and held by the judgment in Trevor v. Whitworth (1), could not be done by such a company. The decisions in the cases of Ashbury Railway Carriage and Iron Co. v. Riche (2), and Mann and Beattie v. Edinburgh Northern Tramways Co. (3), exemplify in a wider sense what iay. be ultra vires a corporate There is no power pointed to in the Ontario "Companies Act" which would enable by any reasonable construction thereof such a power as asserted here to be exercised by the company.

When the cardinal purpose of the transaction so offends against the limits of the powers given the company it matters not to refer to the incidentals relative to such a purpose being such as might give some scope to the operation of the powers of the company. Kirkegaard, with whom the contract was made upon which the mortgage is founded, did not bind himself to do anything, but his partners bound themselves not to interfere with his executing his plans and purposes so long as he paid the expenses thereof and did not bring the company under any obligation and accounted for the profits of such proceedings in way of development.

J. The Montgomery agreement did no more than supplement and was not to supersede the purpose of that which appellants and Kirkegaard had entered into. Montgomery was not called and how he came to bind himself, as in last part of his agreement, is not explained. Certainly Kirkegaard in California or his way there could not have so stipulated or been party to the arrangement it expresses. I do not, therefore, see how it can affect the matter.

The matters involved in the transactions in question herein present what was done in the least offensive sense possible as there were no other shareholders and creditors, for then existing liabilities were to be taken care of.

But the doctrine that the majority of the shareholders in any company can if they choose sell, to any one, their shares- and obtain by virtue of their voting power a first mortgage on the whole undertaking for the price of such sale of shares, is rather novel and startling. Yet it seems such is the possible logical outcome of maintaining the proposition appellants contend for. I think such a contention should fail. Then it is contended, that even so, the respondent the company suing on behalf of itself and all other creditors cannot impeach the transaction.

In the first place it is said that the company had no judgment or execution when instituting these proceedings.

The case of v. The Duke of Marlborough(1), and such like cases were taken as upholding that position and they stand for what they decided. But the J. cases of Reese River Silver Mlining Co. v. Atwell(2), following Goldsmith v. Russell(3), pointed out that such objection could not prevail where the creditor sued on behalf of himself and all other creditors. Then the case of Longeway v. itchell(4), decided by the late Vice-Chancellor Strong, afterwards Chief Justice of this Court, no mean authority on such a subject, followed that line of cases and in doing so made some observations on page 194, to which I would refer as justifying the position I am about to take relative to the jurisdiction of the court to set aside as against creditors even if not a transaction expressly within -the Statutes of Elizabeth.

Assuming the mortgage in question is to be treated under the Statute of Elizabeth merely as a voluntary conveyance and void as against creditors, it is alleged there are no creditors antecedent to the creation of the mortgage, and where absolute good faith exists, as found here by the learned trial judge, in such a case later creditors, it may be said, cannot impeach the transaction.

I think not.

It is a deed which is absolutely void and is not merely like the voluntary or fraudulent conveyance which stands good till set aside.

In some way I am quite unable to appreciate the jurisdiction to deal with such a void deed is doubted.

If we have regard to the jurisdiction of the courts equity, for example, over that wide and varied field which for want of a better term has been called constructive fraud, and over injunctions and all other auxiliary grounds of the jurisdiction which such courts have long taken and asserted relative to proceedings court of common law order that justice may be done, the rights of suitors preserved and property held for the benefit of creditors, so that it may not be fraud or evil practice of any kind removed beyond the reach of creditors, I see no difficulty in the way of the creditor suing here.

It is quite clear that the facts here demand the exercise of some such jurisdiction.

The appellaits as mortgagees took proceedings on the mortgage and got judgment and intended to proceed to sell the property under this void mortgage.

The creditor suing herein got an interim injunction and is entitled, if successful, to have that made permanent.

Strangely enough it asks for it in the writ, but omitted specifically to pray for it in the statement of claim, but is entitled thereto, I assume, under the general prayer for other relief, though in days gone by a specific prayer might have been exacted.

In any event for niv present purpose that is only illustrative of what remedies are needed and what has been got in part. For no point is made of it in argument.

But why, as has been suggested, should the credibe restricted to the cases of fraudulent convey- J. ances for the exercise of such a jurisdiction ? Is it because that is the most familiar in practice ? light of such possible suggestion it is rather curious to find as we do in Story on Equity when adverting to such assignments the following:- Of course it is a long time since the power of the Court of Equity was questioned in that regard, but it is very curious now to find in the existence of that jurisdiction, which exists only as a branch of and by virtue of the application of principles of equity jurisprudence assenting a much wider and more comprehensive jurisdiction, a reason for the non-application of the latter.

I have no doubt of the jurisdiction and no doubt of the right of the creditor seeking herein to invoke it and claim that the mortgage being void must be so declared and appellants restrained from using said mortgage as an impediment to the creditors asserting their rights. Whatever equities may arise as between the original partners, arising either out of the implications in the agreement between them or the covenant of Montgomery, not a party hereto, cannot affect the other creditors of the company, and must abide by future independent litigation or in course of liquidation should the company be wound up.

The judgment got upon the mortgage can stand on no higher ground than the mortgage itself. The judg- J. ment in the case of the Great North-TVest Central Railway Co. v. Charlebois (1), is authority for such a proposition if authority be necessary.

It does not in the view I have taken seem necessary to dwell upon many other things argued, and especially as to the attitude of the Cordova Mines Co.

I may refer to the case of Re Pooley Hall Colliery

Co.(2), where a single creditor got a summons to have it declared that certain holders of debentures in excess of what the company had power to issue, should not have the priority which the debentures, if good, would have given and that was made absolute, yet the holders entitled to rank as creditors but only in pari passu with others.

Indeed, the case of Trevor v. Whitworth(3), cited above for another purpose is on same line.

The Houthampton Boat Co. v. Pinnock(4), may be looked at as another mode of treating the right to impeach an ultra vires mortgage.

In conclusion I think the appeal should be dismissed the cross-appeal allowed with costs throughout and the declaration made as prayed for and injunction granted with such references as needed to work out the result.

The equities I have referred to as possibly existing between appellants and Kirkegaard should not be interfered With or taken as determined by this suit. J.-The appellants, Hughes and Mackechnie, and the respondent, Kirkegaard, were the owners of a mining property in the Township of Belmont, which they transferred to Cordova Mines Limited (a company they had incorporated for the purpose of acquiring the property) in consideration of the issue to themselves and their nominees of all the authorized capital stock of the company fully paid.

Cordova Mines Limited having issued all its capital stock in payment for the mine, it was necessary that money should be borrowed to carry on operations. These operations were extensive and were made possible by loans to the company from Hughes, Mackechnie and Kirkegaard in equal shares. . In April, 1912, Cordova Mines Limited was indebted to Hughes, Mackechnie and Kirkegaard in respect of these loans, including moneys then advanced to the extent of over $43,000.

At this time Hughes, 31ackeehnie and Kirkegaard had drifted apart in their ideas as to the policy to be adopted in carrying on the company's affairs. Hughes and Mackechnie were on one side, Kirkegaard on the other.

None of them was willing to advance more money unless his policy was adopted.

A deadlock ensued.

This deadlock was finially broken and the continuance of operations secured by an arrangement whereby Hughes and -Mackeclinie sold their shares to Montgomery, who was Kirkegaard's solicitor and trustee, for $60,000, payment of this amount to be secured by a from the company to Hughes and Mackechnie on the mine. Kirkegaard was to provide for the proper operation of the mine and to spend at

The fornrin which this arrangement was expressed and carried out consists of an agreement between Hughes and Mackechnie of the first part, Joseph Montgomery, trustee, of the second part, and Peter Kirkegaard of the third part, dated 23rd April, 1912; (2) a supplemental agreement between Hughes and Mackeehnie of the first part and Joseph Montgomery of the second part, dated 30th April, 1912; and (3) a mortgage from Cordova Mines Limited to Hughes and Alackechnie, dated 30th April, 1912.

The substance of the arrangement, so far as it affected the company, was set out and embodied in a minute of its directors held on the 30th April, 1912, All the shareholders of the company concurred in this arrangement.

i It was part of the agreement that the sum of $43,000 owing by the company was to be wiped out. All the debts owing by the company at the time of the arrangement were paid, and it was not contemplated that any further debts should be incurred.

contrary, it was expressly provided that until the first payment had been made on the mortgage all costs and expenses should be paid by Montgomery and his associates so as not to become a lien or charge on the com- The result of the transaction was to free the com-, pany from its overdue debt of $43,000, and to obtain J.

for it the new advances necessary for carrying on its operations and improving its property.

Hughes and Mackechnie, in pursuance of the agreement, transferred their shares to Montgomery, Kirkegaard's solicitor and trustee, and Kirkegaard proceeded to operate the mine and advanced to the company large sums of money for that purpose. He and others associated with him made payments on account of the purchase money on the shares amounting to $19,000 or thereabouts to Hughes and Mackechnie. Thereafter the mortgage having fallen into arrear Hughes and Mackechnie, the appellants, brought proceedings against Cordova Mines Limited on the mortgage and on the 30th of April, 1913, upon consent of .the company, judgment was pronounced for the immediate sale of the mortgaged premises and directing possession to be delivered to Hughes and Mackechnie. More than a year after the mortgage, the company incurred a debt to the plaintiff, respondent, the Northern Electric & Manufacturing Company Limited. The present action was brought by the plaintiff, respondent (a) to recover from the company the sum of $817.09 in respect of goods sold to it; (b) to have it declared that the mortgage above mentioned was illegal and ultra vires and a fraud as against the creditors of the company including the plaintiff, respondent, and that the consent judgment in the mortgage action brought by appelants was also void. On the 11th of September, 1913, Cordova Mines Limited and Peter Kirkegaard filed a defence to- this They admitted the debt owing by Cordova Mines Limited to the Northern Electric & Manufacturing Company Limited, but denied insolvency and 1 denied that the mortgage was illegal or fraudulent.

J. Since the commencement of this action judgment by default was obtained by the respondents, the Northern Electric & Manufacturing Company Limited, on the 22nd of September, 1913, for the sum of $817.09 against the mining company and execution was issued in respect of this debt on the 26th of September, 1913.

At the trial Cordova Mines Limited, having changed its solicitors, asked leave to amend its defence, and, after most of the evidence was in, a new defence on the part of Cordova Mines Limited was filed, denying the making of the mortgage, saying that if made it was ultra vires and void, and claiming that it should be set aside.

Mr. Justice Middleton delivered judgment dismissing the action as against all the defendants (other than the defendant, Cordova Mines Limited, against whom judgment had already been entered as stated above for $817.09) and declaring that the mortgage in question was a good and valid mortgage, and ordering the plaintiffs to pay to the defendants (other than the defendant, Cordova Mines Limited), their costs.

The plaintiffs, the Northern Electric & Manufacturing Company, Limited, appealed to the Appellate

Division; Cordova Mines Limited did not serve any notice of appeal, but counsel for it appeared on the argument.

The Appellate Division on the 6th of April, 1914, allowed the appeal in part, declaring that the mortgayc ultra, vires to the extec6t that it eceeded the litl)ilitick of the CordovUa ines Limited cancelled by the arrangement made at the time the mortgage was given, but valid to the extent of such liabilities. lit is no longer seriously argued that the mortgage is impeachable as in fraud of creditors.

I have not been able to discover any solid ground upon which the plaintiff obtains a locus standi to attack a transaction as ultra vires which was entered into a year before he became a creditor of the com- Another question ought to be disposed of in limine which is suggested by the dissenting judgment of Mr. Justice Riddell. It is the question whether the judgment of the second Appellate Division ought not to be reversed and the action dismissed on the ground that it was not competent for Mr. Justice Middleton to amend the pleadings in such a way as to permit the company being a party defendanit only to attack the mortgage as ultra vires. I do not think it is necessary to pass upon the question whether or not on a proper construction of the Ontario "Judicature Act" and the Consolidated Rules the learned trial judge had power to make the order he did make. I do not think that question arises. The learned trial judge exercising such of the powers of the Supreme Court of Judicature for Ontario as were vested in him as trial judge had, unquestionably, power and authority to hear and pass upon an application by one of the parties for leave to make such an 'amendment and as necessarily involved therein to adjudicate upon the question whether or not the authority conferred upon him by the Consolidated Rules was broad enough to enable him to make such an order. It seems to be quite clear that he did pass upon that question, that he held authority to be vested in him to grant the amendment and to adjudicate upon the issue raised by the amendment as trial judge.

It seems obvious enough that neither the learned trial judge nor any of the counsel present supposed that he was trying the issue as arbitrator or . in a proceeding or ultra vires or in any manner contrary to the course of the court. It may be added that the learned trial judge having tried the issue and pronounced judgment upon it, it seems self-evident that this judgment necessarily involved an adjudication to the effect that he had jurisdiction to pronounce it, an adjudication which as that of a judge exercising the authority of a Superior Court of general jurisdiction to decide upon the scope of its own jurisdiction binding upon the parties until reversed on appeal. The judgment of Mr. Justice Middleton was not challeiged, as understand it, in the court of appeal either of the parties on the ground that he had not jurisdiction to pronounce it, and having regard to what took place at the trial I do not think it would have been open to either of them to raise that question. For the same reason I think the point is not open here; and it may be added indeed that the question was not raised by either of the parties in this court. As to the It is, of course, not contended that the mortgaging its property the purpose securing the payment of the purchase price of shares bought by one of its shareholders for his own benefit would in itself, special circumstances apart, be within the powers of this company; but the broad common sense of the matter seems to be that the company being overwhelmed with debts, the shareholders being involved in disagreements, making effective administration impossible, and the which was proposed and carried out promising an escape from these difficulties and prosperity for the company's undertaking as against ruin otherwise certain, the transaction ought not to be regarded as outside a reasonable application of the doctrine of ultra vires merely because it involved as one of its incidents as part of the consideration moving to one of the shareholders for services in procuring payment of the company's debts and further advances to enable it to carry on its business a guarantee or payment of a limited part of the purchase price of shares in the company,the purchase which was of the very essence of the plan decided upon. The two points to be considered in every such question are, first, is the power to enter into the challenged transaction, if not expressly given, prima facie vested in the company by implication as being reasonably necessary to enable the company to carry on its authorized undertaking? And secondly, if notwithstanding it is prima facie given by implication from necessity is it the proper inference from all the instruments defining the company's objects and powers and prescribing the regulations for the conduct of its business that such a power has been denied? On the first question, Lord Blackburn's observation in Mackay v. Dick (1), to the effect that in business "impossible" and "impracticable" are convertible terms should be borne in mind.

"Necessary" here means necessary in the business sense. I think the observation of Lord Macnaghten in Parkdale Corporation v. West(2), quoted in Mr. Shepley's factum, are pertinent; and I think a case of necessity in this sense has been abundantly established.

As to the second point, our attention has not been called to any provision of the Ontario "Companies Act" expressly forbidding such a transaction and I do not think any argument has been advanced which goes very far to establish ground for implying such a prohibition. It seems to have been assumed in the court below that the transaction is by analogy to be treated as governed by the rule (judicially established) which incapacitates a company from purchasing its own shares in the absence of authority expressly given.

With great respect, I am unable to discover the analogy.

There is another ground, however, upon which, in my judgment, the attack fails. As mentioned above the company was at the time of the transaction indebted to the three persons interested in the sum of $43,000. It was admittedly a part of the arrangement that this debt was to be wiped out or merged in the mortgage debt and I think it is clear that such was the effect of the transaction.

It would, of course, have been within the power of the company in the circumstances existing to have procured the discharge of its liabilities by a lender at the price of $60,000 and to have given a mortgage to secure this sum.

If the transaction had taken that form with the consent of all the shareholders and parties interested it would have been unimpeachable.

Again, the transaction might have taken the form of a mortgage securing the payment of $43,000 to the mortgagees the amount of the company's liabilities discharged and of a further sum of $17,000 for the benefit of the purchaser as in part payment of the purchase price of shares. If it had taken this latter form nobody would have thought disputing the validity of the mortgage as a security for the sum of $43,000; and I understand the majority the court of appeal to have held that to the extent to which liabilities of the company were in fact discharged by the parties to the arrangeinent, the mortgage ought to be treated as a valid security. Now it J.

appears to me to be indisputable that as the transaction could have been expressed in such a form as to make it unimpeachable as a security for $43,000, that is to say, as the transaction in its substance was to that extent intra vires- and inexpugnable, any objection based upon the form of it must have been curable by a subsequent -agreement between the parties declaring that the mortgage should stand as security for this sum of $43,000. In fact as mentioned above, the sum of $19,000 has been paid by Kirkegaard and had been paid by 'him at the date when judgment was recovered against the company in the foreclosure action. It appears to me to follow that the judgment in the.foreclosure action must be held to have precisely the effect of an agreement such as I have suggested. The decision of the Judicial Committee in Great North-Western Central Railway Co. v. Charlebois(1) appears to be beside the point.

In the transactions which came into question in that case the persons having control of the company sought by a consent judgment to impart legal authority to arrangements which in their essence were of such a character that the company had no power to enter into them. The impeached transactions had 'been made to assume a form in which on the surface they appeared to within the powers of the company. The consent judgment was only the final step in the scheme which from its commencement was never anything else but a fraud VOL. L.j

SUPREME COURT OF CANADA.

upon the company's powers.

Their Lordships held that the judgment being a consent judgment could take no higher validity than the ultra, vires agreement upon which it was based.

The principle of that decision can, I conceive, have no application to this case where the transaction to which the judgment gives effect is in so far as effect is given to it by the judgment unimpeachable in substance; and for the short reason that it was not beyond the powers of the company but within the powers of the company by a valid agreement to disembarrass the transaction of the objectionable features which concerned the form of it alone and to giving legal and binding effect to the substance of it.

For these reasons I think the appeal should be allowed and the judgment of Mr. Justice Middleton restored.

J.-The facts of this case are stated in the judgments delivered by the learned trial judge and the learned judges of the Appellate Division, reported in 31 Ont. L.R. p. 221.

Apart from the serious difficulties in the way of the plaintiff as to parties and procedure, discussed in the opinion of Mr. Justice Riddell, but upon which I understand counsel for the appellants do not desire that the action should be disposed of, I am of the opinion that, when the substance of the impugned transaction is considered rather than the form which it took, the attack made upon it should not succeed. There is no suggestion that it was in any sense fraudulent. The intention of all the parties to it was to do what appeared to be in the best interest of the comin fact the only thing which would save it from immediate ruin and dissolution. Its stock had been fully issued. It had not a dollar with which to carry on its undertaking and it owed the three directors and shareholders, Hughes, Mackechnie and Kirkegaard, $43,000 for advances made by them.

By the arrangement in question its existing creditors were J. provided for and the scheme contemplated that the company should not become liable for any new debts and that further advances should be. made to it for development purposes and to enable it to continue its operations.

But it is said that the giving by the company of a mortgage upon its assets to secure the payment of the purchase price ($60,000) of ,the shares of its stock acquired from the mortgagees, Hughes and Mackeehnie, by Kirkegaard, who thus became in reality the sole shareholder-certain qualifying shares being held by his nominees was ultra, vires. If this were the substance of the transaction it could not be supported. But, in -substance, though not in form, the company, in consideration of giving the mortgage,. secured a release of the debt of $43,000, which it owed in equal shares to the two mortgagees and Kirkegaard. It also obtained in fact, though not in a form which would entitle it to sue upon it, the benefit of an agreement 'by which Kirkegaard undertook with the mortgagees to make advances to the extent of $3,000 a month for the development of the company's property and the carrying on of its operations.

Under this agreement, Kirkegaard, who is now hostile to the mortgagees and the instigator of this litigation, swears that he actually advanced to the company upwards of $60,000; and, on this point, there is no reason to doubt his word.

In the trial court the mortgage was held valid and the action dismissed.

In the Appellate Division it was held good to the extent to which it represented the company's indebtedness, but void as to the balance; and an account was directed as to any payments made to the mortgagees out of the -company's funds, by which it was directed that the $43,000 representing such indebtedness should be reduced, the mortgage to stand as security for the balance only.

Payments have already been made on account of the mortgage, the learned trial judge finds "not by the company but by Kirkegaard and his associates," to the extent of $19,000.

Kirkegaard himself swears to this fact and tells of $18,000 borrowed by him from one Nelson and $2,000 from one Johnson. Here agaii there is no reason to discredit his testimony. It would certainly have been better had there been a formal assignment by Kirkegaard to Hughes and Mackechnie of his interest in the $43,000 claim against the company and a formal release to the company of that entire claim. There can be no doubt, however, on Kirkegaard's evidence, that Mackechnie and Hughes in fact acquired his interest and that the company's debt $43,000 was extinguished by the arrangement made; and that is assumed by the judgment in appeal. While the agreement by Kirkegaard for future advances should have been with the company and not with Hughes and Mackechnie, they had the same interest as the company in having those advances made and they were in fact made to the company to the extent of $60,000. Had the mortgage ex facie been given in consideration of the release of the company's debt of $43,000 and of a covenant by Kirkegaard with the company to advance to it $3,000 per month up to the amount of $17,000, it would clearly be intra vires and the advisability of giving it would have been a question for the directors or, at the highest, for the whole body of the shareholders.

Subsequent creditors not then in contemplation would certainly have no status J. to attack it.

That in substance, though not in form, was the real transaction.

The shareholders authorized it and the company has had the full benefit of it. With the transfer of shares from Hughes and Mackechnie 'to Kirkegaard and the securing of the purchase price the company is not concerned.

While in form the case at bar may -bear some resemblance to Trevor v. W7hitwortk(1), and Great North Western Central Railwity Co. v. Charlebois (2), cited by -Mr. Justice Clute, in substance the facts dealt with in those authorities differ toto cwlo from those now before us.

In Trevor v. Ihitworth (1) the - claim against the company was by a shareholder for the balance of the purchase price of shares sold by him to it. This dealing in its own shares was held to be ultra vires of In the Charlebois Case(2), the company had been made to give a mortgage of E200,000 for a consideration of only E50,000.

Here the defendant company has had the full $60,000 for which it gave the mortgage and nearly $50,000 'more as the direct outcome of the impeached transaction.

I think the judgment of the learned trial judge was right. It should not have been disturbed and should now be restored; and the appellants should have their costs in this court and the Appellate Division. L.]

SUPREME COURT

J.-I concur in the opinion of my brother Duff.

ACTION-Continued.

railway crossings-Construction of subway directors,) the consequences -Order-in-council-Apportionment of cost volve not only the disqualification the -Land damages-Injurious affection directors, but also give right action "Nova Scotia Railway Act,"

R.S.N.S.

on the part any shareholder for a ss. and

In the declaration such disqualification and City Sydney the Dominion Iron and for an account the moneys improperly Steel Co. and the Dominion Coal Co.

received by them as profits under conowned railways passing along a public tracts between them and the company. highway and intersected by the tracks

Such contracts, being prohibited by the the Cape Breton Electric Railway Co.

ordinance, could not be ratified by a Under the provisions sees. and majority the shareholders, as the the "Railway Act" (R.S.N.S.

matter is not one merely internal ch. an order-in-council was passed directing that the highway be carried uishd-The judgment under the said railway tracks, the Doappealed from West. L.R. was minion Iron and Steel Co. to execute the work and the cost to be paid in a specific proportion by the City and the three companies and "that all the land dam- 3-Partnership-Lease-Scope authorages be paid by the City Sydney."

ity-Resiliation-Form of action-Approowned land opposite the railway priate relief-Pleading-Practice.] parttracks, and by the construction the nership, consisting H. and W., which subway the sidewalk in front thereof was was to expire by effiuxion time on 31st narrowed and altered and access to it

December, held a lease warechanged.

Claiming that his property house property in Montreal, which the was greatly depreciated in value thereby term expired on the 30th April, he brought an action against the City of

During the absence H., in September, Sydney for compensation therefor.and without authority from him Held, that the "land damages" which to do so, obtained renewal the the city was to pay would include damlease for three years, from the 1st May ages for injurious affection such as B.

then following, which was repudiated claimed.

But-Held, Fitzpatrick C.J.

H. on his return to Montreal. In action and Idington J. dissenting, that the city by H. to have the renewal lease declared was not liable for such damages, B.'s null and void,-eld, (the Chief Justice only recourse being against the company which executed the work.-Judgment plaintiff had sufficient interest to enthe Supreme Court Nova Scotia able him to maintain the action and N.S. Rep. 480) affirmed, Fitzpatrick C.J.

obtain a declaration that the lease was and Idington J. dissenting.

not binding upon the partnership or upon himself as a member the firm.-Per 2-Company-Disqualification of directors-Taking personal profit-Fraud-Illegal contract-Ratification-Right of action

-Shareholder-Recourse minority- Alberta "Companies Ordinance," N.-1f.

Ter. Ord. No. of 1901-Construction statute.] Where the directors a jointstock company organized under the berta "Companies Ordinance"

(N.-W.

Ter. Ord. No. have violated the provisions article Table of that enactment, (as to vacating the

Fitzpatrick

C.J.

dissenting.-In Province Quebec distinct and consistent pleading is essential and, as the plaintiff did not bring his action obtain relief from his obligation under the renewal lease, but merely to have that lease declared null and void, he could not, in the action as brought, have a declaration that the lease was not binding upon him.

Forbes v. Atkinson (Pyke K.B. 40) referred to.-Per Brodeur J. dissenting.-As the partnership was benefited by the renewal the lease ACTION-Continued.

it should be declared valid and binding on all the partners.-Judgment appealed against (Q.R.

K.B.

1) reversed.

WEBSTER.................

4- Municipal corporation-Contract with company-Franchise for water supply- Protection against fire-Negligence-Liability of company to ratepayer-Dilit- Damages.] municipal corporation, with assent the ratepayers, entered into a contract by which it gave the defendant the exclusive privilege for twenty-five years maintaining a system water supply to the municipality. The company was authorized to fix rates for water supplied for domestic purposes and was obliged, for protection against fire, to have hydrants at certain places and at all times, in case fire, except when the plant was undergoing necessary repairs, to maintain a specified capacity and pressure water. The property

B., a ratepayer, was destroyed by a fire

Held, affirming the judgment

King's Bench (Q.R. K.B. which affirmed the Court Review (Q.R. 41

S.C. Brodeur J. dissenting, that tween B. and the company;

that the payer in case violation the provisions for fire protection; and that B., therefore, could not maintain an action the value his property so destroyed.

, that could not maintain an action for damages on the ground that the failure to maintain the pressure stipulated for the contract constituted a dilit or quasidilit under the law Quebec.

Negligence-Operation of tramwayemployment-"Workmen's tions-Construction of statute-(Que.) 9 arts. 7335-Incompatible entice-Charge to jury-Misdirection-Ex- New trial-Art. C.P.Q.] The remedy given by article the Civil Code,

ACTION-Continued.

cases dilit and quasi-dilit, was taken away in regard to the.classes persons enumerated in sec. of the Quebec statute respecting compensation for injuries to workmen, Edw. VII., ch. by the limitation in sec. that statute (now articles and the Revised Statutes Quebec, but the effect these enactments was not to repeal the provisions article C.C., with respect to ascendant relations who were only partially dependent for support on a deceased workman to whom the statute (Q.R. K.B. was reversed, Davies and Brodeur JJ. dissenting.-Per Davies J. dissenting.-The words "in all cases to which this Act applies," in the Quebec statute respecting compensation for injuries to workmen, Edw. VII., ch. sec. have reference to the special classes employment referred to in the first section the Act, and not to the classes persons entitled to compensation thereunder. Consequently, the effect sec. is to limit the employers' liability to the compensation prescribed that Act and to that only. .............. Appeal-Case originating in Superior Concurrent jurisdiction-'"Mechanics' Lien Act" (B.C.)-Action to enforce lien. . 382 APPEAL-Case originating in Superior Concurrent jurisdiction-'"Mechanics' Lien Act" (B.C.)---Action to enforce lien.] For an appeal to lie to the Supreme Court a case not originating in a superior court, as provided in sec. sub-sec. (b) the "Supreme Court Act," it is not sufficient that the inferior court has concurrent jurisdiction with a superior court in respect to its general jurisdiction; there must be concurrent jurisdiction as respects the particular action, suit, cause, matter or other judicial proceeding which the appeal is sought.-In British Columbia the County Court alone may maintain an action to enforce a mechanic's lien.

In such action, so far as the parties or any of them stand in the relation of debtor arid creditor, the court may give judgment for the debt due APPEAL-Continued.

whatever its amount and if it exceeds brought in the Supreme Court the foundation for the County Court action is the enforcement the lien as to which there is no concurrent jurisdiction and no appeal lies to the Supreme Court Canada from the judgment the Court peal in such an action.

Expropriation-Application to appoint arbitrator-Persona designata

Amount in controversy- "Railway Act,"

R.S.C. s. 196-Jurisdiction court-Practice.]

A railway company served notice expropriation land on the owner, offering $25,000 as compensation. It later served a copy said notice on lessee said land for a term ten years. On application to a Superior

Court judge for appointment arbitrators claimed to be entitled to a separate notice and an independent hearing to determine his compensation.

The judge so held and dismissed the application and his ruling was affirmed by the Court

King's Bench. The company sought to appeal to the Supreme Court Canada.

per Fitzpatrick C.J. and Idington J., following Canadian Pacific Railway

Co. v. Little Seminary of Ste. Thirise (16

Can. S.C.R.

and St. Hilaire

Lambert (42 Can. S.C.R. that the

Superior Court judge was persona designata to hear such applications as the one made by the company; that the case, therefore, did not originate in a superior court and the appeal would not lie.-Per

Duff J.-The judge, under sec. the

"Railway Act" acts as persona designata and no appeal lies from his orders under that section;-in this case, the application having been made to and the parties having treated the contestation as a proceeding in the Superior Court, which had no jurisdiction, the Court King's

Bench rightly dismissed the appeal from the order refusing to appoint arbitrators;

and the appeal to the Supreme Court

Canada being obviously baseless should for that reason be quashed.-Held, por

Davies, Duff, Anglin and Brodeur JJ., that as there was nothing in the record to shew that the amount dispute was

$2,000 or over, and no attempt had been made to establish by affidavit that failed.

APPEAL-Continued.

"Railway Act"-Municipal plan-Severance of lots-Injurious affection-Reference back to arbitrators-R.S.C. For the purposes expropriation under the Dominion "Railway Act," unless lots laid out on the owner's registered plan are so united as to form one complete whole, each lot taken by the railway company is an independent, separate and complete property in itself and the owner is not entitled to compensation injurious affection to any such lot, which no part is taken and which severed from the land expropriated by a railway or by land sold to another person. Cooper-Essex v. Local Board for Acton Cas. distinguished. Duff and Anglin JJ. contra.-The owner land adjacent to or abutting upon the street over which a railway passes entitled, by 1 & Geo. V., ch. see. to compensation for injury to such land, but the compensation can only be awarded by the Board Railway Commissioners and is not a matter for arbitration under the "Railway Act."-Held, per Duff and Anglin JJ.-The arbitrators appointed to value land so expropriated are functi officio when their award is delivered and an appellate court has no power to remit the matter to them for further consideration.

Cedars Rapids Manufacturing Co. v. Lacoste ( C. referred to.

2-Agreement to fix

Arbitration or valuation-Powers of referes-Majority decision.] Where the land was expropriated for railway purposes the railway company and the owner agreed to have the compensation determined by reference to three named persons called "valuers" in the submission; their decision was to be binding and conclusive on both parties and not subject to appeal;

they could view the property and call such witnesses and take such evidence, on oath or otherwise, as they, or majority them, might think proper; and either party could have a representative present at the view taking evidence, but his. failure to ARBITRATION-Continued.

attend for any reason would not affect the validity the decision.-Held,

, that this agreement did not provide for a judicial arbitration, but for a valuation merely by the parties to whom the matter was referred, the land expropriated.

agreement provided that a valuator should be appointed by each party and a County Court judge should be the third; if one those appointed would or could not act the party who appointed him could name a substitute; it was the third the parties could agree on a substitute, in which case the decision any two would be binding and conclusive without appeal;

they could not agree a High Court judge could appoint.

There was no necessity for substitution.

-Held, that the decision any two the valuators was valid and binding the parties.

Application to appoint arbitrator-Persona designata-Amount in controversy-"Railway

Act," R.S.C., 196-Jurisdiction of court-Practice ...........

ASSESSMENT AND

Municipal by-law-Exemption from taxaion- Validating legislation - School rates - "Public School Act,"

V. s. 4

(Ont.)-Special by-law.] By see. the

"Public

Schools Act"

Ontario

Vict. ch. it is provided that "no municipal by-law hereafter passed for exempting any portion the ratable property a municipality from taxation, in whole or in part, shall be held or construed to exempt such property from school rates any kind whatsoever."

similar provision is contained in the

"Municipal Act" Viet. ch. sec.

and both are now to be found in the

Revised Statutes Ontario, ch.

sec. and sec.

Held, affirming the judgment

Appellate Division Ont. L.R.

, that the application this legislation is not confined to the case a by-law passed under the general powers a municipality, but it applies to limit the effect a special by-law exempting a company from all municipal assessment any nature

ASSESSMENT TAXES-Con. kind whatsoever"

beyond an amount specified as its annual assessment, even when the by-law was confirmed by an Act the legislature which declared to be legal, valid and binding, "notwithstanding anything contained in any Act to the contrary."

Canadian Pacific Railway Co. v. City of Winnipeg Can. S.C.R. distinguished.-Held, per Idington J.-The by-laws granting emption did not conform to the statutory requirements and were, therefore, invalid.- (Applications for special leave to appeal to the Privy Council by the Canadian Niagara Power Co. and the Electrical Development Co. were refused,.4th Aug.,

2-Sale of land for arrears-Purchase by municipality-Failure to give notice- Curative ct-Evidence-Discovery-Death of deponent-Use of deposition at trial.] By sec. the "Ontario Assessment Act" (R.S.O. ch. where the sale land for unpaid taxes is adjourned for want a bid for the full amount the arrears the municipality may purchase the land at such adjourned sale if its council, before the day thereof, has given notice its intention to do so. Appellate Division Ont. L.R. that failure to give such notice is cured by the provisions Edw. VII. ch. sec. and its amendment, Edw. VII. ch. sec. City of Toronto v. Russell A.C. followed.-On the piration the time for redemption after sale all rights the former owner are barred.-The depositions a party to an action taken on discovery cannot, when the deponent has died in the interval, be used against the -opposite party unless the latter has first used for his own purposes.

3-A'unicipal corporation- Undertaking with ratepayer-Non-collection of taxes- Discretion.]

Held, per Idington and Anglin JJ.-Where there is no statutory prohibition thereof it is not illegal for a municipality, in the bond fide exercise its discretion, and to carry out an undertaking with a ratepayer, to refrain from collecting the taxes levied on the latter's ASSESSMENT -Con.

property over and above a fixed annual sum stipulated for.-Held, per Duff and

Brodeur JJ.-A ratepayer has no status in curid to compel the corporation to collect the balance taxes so allowed to remain unpaid each year.-Judgment the Appellate Division Ont. L.R.

ASSESSMENT TAXES-Con. separate school board any portion the taxes claimed by it.

The Chief Justice and Anglin J. contra.-Per Idington J.-The enactment of sec. 93a was ultra vires the Legislature Saskatchewan. The Chief Justice and Anglin J. contra.- Per Fitzpatrick C.J. and Anglin J.-The Legislature Saskatchewan had jurisdiction to enact sec. 93a the "School 4-Education - School boards - Assessment and the taxes payanie payable incorporated companies-Ap- by the companies in question should be portionment-Shares for public and separapportioned between the public and the ate school purposes-Notice-Construction I separate school boards in shares corresof statute-Legislative jurisdiction-"B.N. ponding with the total assessed value Act, sec. 92-"Saskatchewan assessable property assessed to persons & Edw.

R.S. Sask., public school purposes and the total ss. 93a.]

Section assessed value property assessed to the Saskatchewan "School Assessment persons other than incorporated Act," R.S. Sask., ch. authorpaies for separate school purposes reizes any incorporated company to give spectively.-Judgment appealed from (7 a notice requiring a portion the school

W.R. reversed, the Chief Justice taxes payable by the company to be and Anglin J. dissenting.

applied to the purposes separate schools, and sec. 93a, as enacted by sec.

ch. the Saskatchewan statutes authorizes separate school

AUCTION-Sale of chattels-Public aucboards themselves to give a notice to tion-Disclosure of pincipal-Liability any company which fails to give the auctioneer

Giving credit

Post-dated notice authorized by sec. requiring cheque.]

that its taxes should be apportioned

B.C. Rep. affirming the judgbetween the boards according to the meat Grant Co. J., the County assessments of public and separate school

Court Vancouver, maintained supporters in the district. A number the plaintiffs

(respondents) companies neglected to give the notice with costs.-Two horses were sold, by provided for and the separate school public auction, to a bidder who settled board gave them notices requiring a for the price by giving the auctioneer his portion their taxes to be applied for cheque post-dated several days after the the purposes that board.

In these

The auctioneer then gave his circumstances the public school board cheque for the price, less his commission, claimed the whole the taxes payable to the owners the animals.

The purby the companies in question and the chaser took possession the horses, but, separate school board claimed a portion the following day, discovering that a such taxes. On a special case, directed third person held lien them, he on the application the municipal corstopped payment the cheque given at poration, questions were submitted for the time purchase.-The Supreme decision as follows:

Had the Sas- Court Canada dismissed the appeal Legislature jurisdiction to with costs. & Co. enact sec. 93a the "School Assessment

Act"; (b) if question be answered in

AWARD.

the negative, has the defendant (the separate school board) the right it claims to a portion the said taxes;

BENEVOLENT SOCIETY-Grand counquestion (a) be answered in the affirmcit constitution-Incorporation of subordinative, has the defendant the right it ate lodge

Dissolution

Disposition of claims to a portion the said taxes?properly.] The charter the respondent Per Davies and Duff JJ. (expressing no association provided that upon the disopinion as to the constitutionality the solution a subordinate lodge all its legislation), that the effect of the enactproperty shall vest in the Grand Council ments in question was not to give the to be applied, first, in payment debts INI)EX.

BENEVOLENT SOCIETY-Continued.

of the lodge and the balance as deemed best for the general interests of the order. There was also a provision allowing any subordinate lodge to become incorporated, and in 1890 Pioneer Lodge

No. 1 was incorporated and all its property vested in the corporate body. In vote was taken on the question amalgamation with a kindred society for which Pioneer Lodge was overwhelmingly in favour. The amalgamation was rejected by the Grand Council and the lodge then surrendered its charter, practically all its members joining the other body.-Held, affirming the judgment appealed against N.S. Rep.

that the incorporation the subordinate lodge did not constitute it an independent body; that it still remained a constituent part the Association; that the surrender its charter was a dissolution within the meaning the provision respondents' charter above referred to;

and that its property on such dissolution became vested in the Grand Council for the purposes mentioned.-Leave to appeal to the Privy Council was refused,

4th Aug., 1914.

Asso- CIATION.........................

BILL OF SALE-Ownership of horses- Foreign judgment-Interpleader-Secondary evidence-Parol testimony.]

By the

237), affirming the judgment of Harvey

C.J., at the trial, the claim the plaintiff, respondent, was allowed with costs, and the counterclaim the defendant, appellant, was dismissed with costs.- The action was to recover possession horses which plaintiff claimed as her property and defendant refused delivery.

By counterclaim defendant claimed possession of certain other horses which were in the possession of the plaintiff.- The Supreme Court Canada dismissed the appeal with costs.

BOARD OF RAILWAY COMMISSION- ERS-Jurisdiction-Lands of provincial railway company-Undertaking for general advantage of Canada-Transfer to provincial railway-Construction of statute- "Railway Act," R.S.C. 37, for Canada has no jurisdiction, under sec. the "Railway Act," R.S.C.

BOARD OF RAILWAY COMMISSION- ERS-Continued.

1906, ch. 37, to order that a Dominion railway company should be authorized to use or occupy lands which, at the time of the application for the approval and of the approval of the location of the Dominion railway, had become the property of a provincial railway company. City of Montreal v. The Montreal Street Railway Co. ( (1912) A.C. 333), referred Idington J. dissenting.-Per Idington J.-The Board of Railway Commissioners for Canada has the same power to make orders respecting the use and occupation of the lands of a provincial railway company as it has in regard to the lands of any other corporate body created by a provincial Legislature. 2-Jurisdiction-Constructed line of rail- Deviation

Application municipality-"Special Act"-Stated case- Question of law-Statute-"Railway Act," R.S.C. 1906, c. 37, ss. 2 (28), 3, 26, 28, 55, 167-(Ont.), 68-(D.) & V. c. 66.] Under the provisiops of see. 55 of the "Railway Act," R.S.C. ch. 37, the Board of Railway Commissioners for Canada may, of its own motion, state a case in writing for the opinion the Supreme Court of Canada upon a quesof the Board, involves a question of law. Board of Railway Commissioners for Canada has no power under see. of the "Railway Act," R.S.C. 1906, ch. 37, to order deviations, changes or alterations in a constructed line of railway, of established, except upon the request of the railway company. Anglin J. contra.- The Dominion statute 58 & 59 Vict. ch. 66, confirming the municipal by-law by which the location of the portion of the railway in question was definitely established constitutes a "special Act" within the meaning of the "Railway Act," R.S.C. ch. sbes. and 3.-Per Anglin J.-The power of the Board Railway Commissioners for Canada to order deviations, ebanges Cb. ERS-Continued.

3-Expropriation-Injurious afection- Lands adjacent street.............

BY-LAW-Municipal by-law-Exemption from taxation-Validating legislation

School rates-"Public School Act," V.

s. (Ont.)-Special by-law.... 168

1-Ainslie Mining Co. v. McDougall

Can. S.C.R. distinguished..

2-Belanger v. Montreal Water and

Power Co. (Q.R. K.B. 487) affirmed

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

See 4.

3-Bergklint v. Western Canada Power

Co. B.C. Rep. new trial ordered

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

4- Boehner Hirtle N.S. Rep.

5-Brooks, Scanlon, O'Brien v.

Fakkema Can. S.C.R.

tinguished..........................

Burland v. Earle ( A.C. 83)

distinguished........................

7-Burt v. City of Sydney N.S. Rep.

8-Canadian Niagara Power Co. v.

Township of Stamford Ont. L.R.

9-Canadian Pacific Railway Co. v.

Little Seminary of Ste. Thirkse Can.

S.C.R. followed...............

Canadian Pacific Railway Co. v.

City of Winnipeg Can. S.C.R.

distinguished.......................

11-Cartwright v. City of Toronto Ont. L.R. affirmed.............. Cedars Rapids Manufacturing Co. v. Lacoste( A.C. referred to. 265 13-Champion v. World Building Co. (6 West. W.R. appeal quashed... 382 14-Cooper-Essex v. Local Board Acton Cas. distinguished ........ 15-Dominion Permanent Loan Co. v. Morgan B.C. Rep. reversed. 485 Electrical Development Co. of Ontario v. Township of Stamford Ont. L.R. affirmed.................. Evans v. Evans West. L.R. See BIL

Forbes v. Atkinson (Pyke K.B. referred to.........................

Great North-Western Railway Co. v. Charlebois (

A.C.

distinguished............................ 20--Hlparin v. Bulling Man. R. Howard v. Stewart (Q.R. K.B. 22-Hyde v. Webster (Q.R. K.B. 1) 23-Laidlaw v. Campbellford, etc., Railway Co. Ont. L.R. affirmed.. 409 24-Lamontagne v. Quebec Light, Heat and Power Co. (Q.R. K.B. reversed..........................

25-Long v. Toronto Ry. Co. Can.

Ry. Cas. D.L.R. reversed. 224

Mathewson v. Burns Ont. L.R.

27-Montreal, City of, v. Montreal

Street Railway Co. ( A.C. referred to.........................

Norfolk v. Roberts Ont. L.R.

29-Northern Electric and Manufacturing

Co. v. Hughes Ont. L.R. reversed..........................

Ontario Power Co. of Niagara Falls v. Township of Stamford Ont. L.R.

31-Parker v. Gossage C.M. & R.

referred to..........

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

32-Pearson v. Adams Ont. L.R.

33-Pickering v. Grand Trunk Pacific

Railway Co. Man. R. affirmed

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

34- Prescott v. Trapp B.C. Rep.

Pringle v. Anderson (Q.R. S.C.

Provincial Workmen's Association v. McPherson (46 N.S. Rep. affirmed..........................

Queen, The, v. Saddlers' Co. (10 H.L. Cas. 404) referred to.......... 38-Regina Public School District v. Gratton Separate School District West. .R. reversed................... 39-Ricard v. Ville

Grand'Mre (Q.R. K.B. affirmed......... 40-Rowland v. City of Edmonton West. L.R. reversed........... See 2

St. Hilaire v. Lambert Can. S.C.R. followed................ Stone v. Theatre Amusement Co. West. L.R. affirmed....... Storey v. Ashton (L.R. Q.B. followed........................... 44-Stratford Fuel, Ice and Construction Co., Re, Ont. L. R. affirmed. Thompson v. Yockney

West. L.R. D.L.R. affirmed... 46--Tobin v. City of Halifax N.S. Rep. affirmed.................. 47-Toronto, City of, v. Russell ( A.C. followed.................. Uplands v. Goodacre B.C. Rep. 49-Wilson v. Merry (L.R. 1 H.L.

326) applied .................

Act," ss. 130-Agreement for mortgage

"Interest in land" subject to incumbrance-Indorsement instrument registered ................

CODE, CIVIL - Art. 964 (Lapse of vise) ...............................

Art. (Dilit) ...............

Arts. (Sale) .........

Arts. (Registration of real rights) ................

CODE OF CIVIL PROCEDURE-Arts.

et seq., (New trial) .........

COLONIZATION - Crown lands-Location ticket-Transfer locatee-Sale- Issue of letters patent-Title to land- Registry laws-Notice-Arts.

COMPANY-Disqualification of directors

-Taking personal profit-Fraud-Illegal contract-Ratification-Right of action- Shareholder-Recourse minority-Alberta "Companies Ordinance,"

Ter.

Ord. No. 20 of 1901-Construction statute.] Where the directors a jointstock company organized under the berta "Companies Ordinance"

(N.-W.

Ter. Ord. No. have violated the provisions article Table that enactment, (as to vacating the directors,) the consequences involve not only the disqualification the directors, but also give a right action the part any shareholder a declaration such disqualification and for an account the moneys improperly received by them as profits under contracts between them and the company.

COMPANY-Continued.

Such contracts, being prohibited by the ordinance, could not be ratified by a majority the shareholders, as the matter is not one merely of internal management. Burland v. Earle ( A.C. distinguished.-The judgment appealed from West. L.R. was 2-Constitutional law-Provincial mining company-Power mining outside of province-Incorporation "with pro- Comity.] mining company incorporated under the law the Province Ontario has no power or capacity to carry its business in the Yukon Territory and assignment to it mining leases and agreements for leases is void. Idington and Anglin JJ. contra.-Held, per Fitzpatrick C.J. and Davies J., that "the incorporation companics with provincial objects" as to which the provinces are given exclusive jurisdiction ("B.N.A. Act," sec. sub-sec. authorizes the incorporation whose operations are confined, territorially, to the limits the incorporating province.-Per Idington and Anglin JJ.- Such company has capacity to avail itself the sanction any competent authority outside Ontario to operate within its jurisdiction.-Per Duff J.- The term "provincial objects" in said sub-section means provincial with respect to the incorporating province, and the business mining in the Yukon is not an object "provincial" with respect to Ontario. The question whether capacity to enter into a given transaction compatible with the limitation that the objects shall be "provincial objects" one to determined on the particular facts.-Also, per Duff J.-On the true construction the Ontario "Companies Act," the appellant company only quired capacity to carry on its business as an Ontario business; and there was no legislation by the Dominion or the Yukon professing to enlarge that capacity.-Held, per Fitzpatrick C.J. (Duff and Anglin JJ. contra), that to enable a joint stock company to obtain a free miner's certificate under the regulations force in the Yukon Territory it must be authorized by an Act of the Parliament Canada, and at present only a British or foreign company could be authorized Vict. ch. 1 (D.) ). COMPANY-Continued.

3-Powers of company-Sale of shares- Mortgage company-Subsequent creditor

-Status.]

Three directors owned all the stock a mining company to which they had advanced $43,000 for expenses operating. Two them were at variance with the third as to the mode operating and all refused further advances.

company having no other means procuring money, it was agreed that the two directors should sell their stock to the third for secured by mortgage on the company's property, the debt

$43,000 to be discharged and the purchasing director to advance funds for operating and until the first payment had been made on the mortgage no such advances should be a charge on the company's property. Payments were made on the mortgage which afterwards fell into arrears and on action by the mortgagees an order was made for sale and delivery

"up possession."

More than a year after the mortgage was made the mining company incurred a debt to the respondent company which brought action for the amount and for a declaration that the mortgage was ultra vires the company and that the judgment in the mortgage action was void.

The action was dismissed at the trial.

The Appellate

Division held the mortgage void but only as to the excess over the indebtedness the company at the time it was made.-Held, reversing the judgment appealed from Ont. L.R. and restoring that the trial judge, Fitzpatrick C.J. and Idington J. dissenting, that the mortgage was valid;

that though the expressed consideration was the price shares sold by one holder to another the real consideration was the discharge the company's existing indebtedness and securing financial aid for the future.-Per Davies, Duff and

Brodeur JJ.-The judgment in the foreclosure action was a conclusive answer to the attack on the mortgage by the company. The Great North-Western Rail- Co. v. Charlebois ( A.C.

distinguished.-Also per Davies, Duff and Brodeur JJ.-The trial judge having in effect decided that had jurisdiction to pass upon the validity the mortgage, that decision was binding on all parties until reversed in appeal, and, having regard to what occurred at the trial, the

COMPANY-Continued.

decision on the point jurisdiction was not appealable.-Per Fitzpatrick C.J. and Idington J., dissenting.-The agreements and records made by the parties concerned in the transaction upon which alone the mortgage in question rests shew it to have been given solely to secure to the mortgagees the price their sales shares in the company to another shareholder and that, as such, the mortgage-was ultra vires and void as against any creditors the company. Education-School boards-Assessment and taxes-Taxes payable incorporated companies-Apportionment- Shares for public and separate school purposes- Notice-Construction of statute-Legislatice jurisdiction-"B.N.A. Act," s. 92-"Saskatchewan Act," & Edw. VII., s. 17-"School Assessment Act," R.S. Sask., c. ss. 92, 93a.. CONDITION - Cancellation of contract- Expelling contractor-Condition precedent -Possession of plant-Waiver-Seizure in Abandonment of works-Suretyship... 2-Sale of land-Stipulation as to user- Covenant or condition-"Detached dwelling-house"-Apartment house ........ CONSTITUTIONAL LAW - Provincial mining company-Power to mining outside of province-Incorporation "with pro- Comity.] mining company incorporated under the law the Province Ontario has no power or capacity to carry on its business in the Yukon Territory and an assignment to it mining leases and agreements for leases is void. Idington and Anglin JJ. contra.-Held, per Fitzpatrick C.J. and Davies J., that "the incorporation companies' with provincial objects" as to which the provinces are given exclusive jurisdiction ("B.N.A. Act," sec. sub-sec. authorizes the incorporation companies whose operations are confined, territorially, to the limits the incorporating province. Idington and Anglin JJ.-Such CONSTITUTIONAL LAW-Continued.

company has capacity to avail itself the sanction any competent authority outside Ontario to operate within its jurisdiction.-Per

Duff J.-The term

"provincial objects" in said sub-section means provincial with respect to the incorporating province, and the business mining in the Yukon is not an object

"provincial" with respect to Ontario.

The question whether capacity to enter into a given transaction is compatible with the limitation that the objects shall be "provincial objects" is one to be determined on the particular facts.-Also, per Duff J.-On the true construction the Ontario appellant company only acquired capacity to carry on its business as an Ontario business; and there was no legislation by the Dominion or the Yukon professing to enlarge that capacity.-Held,

Fitzpatrick C.J. (Duff and Anglin JJ.

contra), that to enable a joint stock company to obtain a free miner's certificate under the regulations in force in the

Yukon Territory it must be authorized by an Act the Parliament Canada, and at present only a British or foreign company could be so authorized Vict.

ch. sec. 1 (D.) ).

2-Education ment and taxation-Taxes payable incor- Legislative jurisdiction-"B.N.A. Act,"

s. 92-"Saskatchewan Act."]

Idington J. (the Chief Justice and Anglin

J. contra), the enactment sec. 93a the "School

Assessment Act,"

R.S.

Sask., ch. the statutes was ultra vires the Legislature Sas- 3-Board of Railway Commissioners- Jurisdiction-Lands of provincial railway tage of Canada-Transfer of provincial railway-Construction of statute- "Railway

Act," R.S.C., s. 176.....

Disqualification of directors-Taking personal profit- CONTRACT-Continued.

Fraud - Illegal contract - Ratification - Right of action-Shareholder-Recourse by minority - Alberta "Companies Ordinance," N.-W. Ter. Ord. No. of Construction of statute.]

Where the directors a joint-stock company organized under the Alberta "Companies Ordinance" (N.-W. Ter. Ord. No. have violated the provisions of article Table that enactment, (as to vacating the office directors,) the consequences involve not only the disqualification the directors, but also give a right action on the part of any shareholder for a declaration such disqualification and for an account the moneys improperly received by them as profits under contracts between them and the company. Such contracts, being prohibited by the ordinance, could not be ratified by a majority the shareholders, as the matter is not one merely internal management.

Burland v. Earle ( A.C. distinguished.-The was affirmed. 2-Cancellation-Expelling contractor- Condition precedent-Possession of plant- Waiver-Seizure in execution-Interpleader -Insolvency-Abandonment of works- Suretyship.] A contract for the construction works provided that upon the insolvency the contractor, or the company's manager certifying that, in his opinion, the contractor had abandoned the contract, then the company might enter upon the works, expel the contractor and itself use the materials and plant upon the premises for the use itself another contractor in the completion the works, and that, upon such entry the contract should be determined. In consequence a letter from the contractor notifying the company the stoppage the works, on account alleged unjustifiable interference therewith, the company took possession the materials and plant the contractor, without obtaining the certificate specified, did some work therewith, and then entered into correspondence with the contractor's bondsmen to induce them to proceed with the contract. Upon seizure the goods under execution by a judgment creditor the contractor,-Held, Duff J. dissenting, that as the insolvency the contractor had not been proved nor a certificate their manager procured, as CONTRACT-Continued.

provided by the contract, the goods in question did not become the property the company and the contractor's letter could not be considered as a waiver the conditions precedent stipulated the contract; consequently, the possession so taken the plant and materials did not entitle the company to the right possession thereof as against the execution creditor.-Per Duff J. dissenting.- In the contract question the term "insolvency" should be construed as meaning the condition a person unable to pay his just debts in the ordinary course business; the cbntractor was visibly insolvent in this sense; the contract had also been abandoned, the company had taken possession under the provision the contract, and, there being no evidence to establish a contract suretyship by the bonding company which was requested to proceed with the works, the possession the company was effective as against the execution creditor.

Queen v. The Saddlers' Co. H.L. Cas.

and Parker v. Gossage C.M. & R.

referred to.-Judgment appealed from B.C. Rep. affirmed.

Ur- .......

3-Municipal corporation - Exclusive franchise-Renewal at expiration of term- Right of preference-By-law-Approval ratepayers.] The municipal corporation granted to supplying electric light, etc., to the inhabitants'of the municipality for the term ten years, with a proviso giving R. a preference over any other person tendering for such services, at the end that term, at the rates mentioned in the competing tender, for an additional term ten years.

On the termination the ten years mentioned in the contract, pursuance powers obtained from the legislature permitting corporation to supply electric light, etc., to the inhabitants, the corporation passed a by-law whereby it undertook to perform these services and refused to renew the contract for the additional term.

In an action by R. to have the by-law set aside, a declaration that he was entitled to the renewal of his contract for the additional term, and for an injunction restraining the corporation from acting upon the by-law,-Held,

(Q.R. K.B. that there was no obligation arising under the contract

CONTRACT-Continued.

which prevented the corporation from exercising the new powers vested in it for the advantage the inhabitants, and that, in consequence the exercise of those powers, R. had no contractual right to a renewal for the additional term.the by-law in question had been ratified by the provincial statute Geo. ch. during the time the suit was pending, the cross-appeal by the corporation was allowed and the by-law and a resolution the municipal council based thereon were declared valid.

GRAND'MtRE............. -Protection against fire-Negligence- Liability of company to ratepayer-Dilit- Damages.] municipal corporation, with assent the ratepayers, entered into a contract by which it gave the defendant company the exclusive privilege for twenty-five years maintaining a system of water supply to the municipality. company was authorized to fix rates for water supplied for domestic purposes, and was obliged, for protection against fire, to have hydrants at certain places and at all times, in case fire, except when the plant was undergoing necessary repairs, to maintain a specified capacity and pressure water. The property B., a ratepayer, was destroyed by a fire Held, affirming the judgment the King's Bench (Q.R. K.B. which affirmed the Court Review (Q.R. S.C. 348), Brodeur J. dissenting, that tween B. and the company; that the payer in case violation the provisions for fire protection; and that B., therefore, could not maintain an action for the value his property so destroyed.- Held, also, Brodeur J. dissenting, that B. could not maintain an action for damages on the ground that the failure to maintain the pressure stipulated for in the contract constituted a dlit or quasidilit under the law Quebec. COURT - Appeal-"Supreme Court Act," sec. (b).............. 382 .

Trespass

Cutting timber-Conflicting claims-Priority title- Evidence......................

tion ticket-Transfer locatee-Sale- Issue of letters patent-Title to land-Registry laws-Notice-Arts.

Per Idington,

Anglin and Brodeur JJ.-Prior to

July, the holder a location ticket for colonization land in the Province of

Quebec had an interest in the land capable being sold. In case sale the purchaser's title became absolute on issue the letters patent.

Such title was good, even unregistered, against a purchaser from the original locatee after the issue of letters patent who had notice the prior sale.-Per Duff J.- Without the approval the Crown Lands

Department, a locatee Crown lands was incapable transferring any jus in re therein while the location was vested in him. Nevertheless he could make a contract for the sale his rights in the located land, while he remained locatee thereof, which, under the provisions article the Civil Code, would have the effect transferring the land upon the issue letters patent thereof to him by the Crown. On the proper construction article the Civil Code, where the title the transferror does not come within the classes rights exempted from the formality registration by article C.C. and has not been registered a transfer that title does not take effect until the prior title deed has been registered.-Judgment the

Court King's Bench (Q.R. K.B. 80)

. - Davies J. dissenting.-A transfer by the locatee his rights is void if made to a person or a company who could not become a bond fide settler and, therefore, could not, himself or itself, obtain a location ticket for colonization land.

DAMAGES-Right of action-Protection of railway crossings-Construction of subway-Order-in-council-Apportionment cost-Land damages-Injurious affection- "Nova Scotia Railway Act," R.S.N.S.

ss. and In the City of Sydney the Dominion Iron and Steel

Co. and the Dominion Coal Co. owned railways passing along a public highway and intersected by the tracks the Cape

DAMAGES-Continued.

Breton Electric Railway Co. Under the provisions sees. and of the "Railway Act" (R.S.N.S. ch. 99) an order-in-council was passed directing that the highway be carried under the said railway tracks, the Dominion Iron and Steel Co. to execute the work and the cost to be paid in a specific proportion by the City and the three companies and "that all the land damages be paid the City Sydney."

B. owned land opposite the railway tracks, and by the construction the subway the sidewalk in front thereof was narrowed and altered and access to it changed. Claiming that his property was greatly depreciated value thereby, he brought an action against the City Sydney for compensation therefor.-Held, that the "land damages" which the city was to pay would include damages for injurious affection such as claimed. But-Held, Fitzpatrick C.J. and Idington J. dissenting, that the city was not liable for such damages, B.'s only recourse being against the company which executed.the work.- Judgment the Supreme Court Nova Scotia N.S. Rep. affirmed, Fitzpatrick C.J. and Idington J. dissenting. -Protection against fire-Negligence- Liability payer--Dilit ... .............. ... ............... 3-Negligence-Operation of tramwaytion Act"-Right of action-Dependent rearts. 7335-Incompatible enactment-Repeal-Art. C.C.-Practice- Charge to jury-Misdirection- Excessive damages - Modification of verdict - New trial-Art. C.P.Q................ DEBTOR

CREDITOR - Powers of company-Sale of shares-Security by mortgage-Subsequent creditor-Status- Jurisdiction-Foreclosure............ DEDICATION-Highways-Old trails Rupert's Land-Survey-Width of highway DEDICATION-Continued.

-Construction of statute-'"North-West

Territories Act," s. 108-Transfer of highway-Plans-Registration-Estoppel-Expenditure of public funds ............

DEED-Sale of land-Stipulation as user condition dwelling house-Apartment house.]

In a deed sale land it was stipulated that it was "to be used only as a site for a detached brick or stone dwelling house, to cost at least two thousand dollars, etc."-Held, that this stipulation constituted a covenant.-Held, also, reversing the judgment of the Appellate

Division (28 Ont. L.R. 154), and restoring that of the Divisional Court Ont.

L.R. 87), Fitzpatrick C.J. and Duff J.

dissenting, that an apartment house intended for occupation by several families was not a "detached dwelling house"

within its meaning.

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

DtLIT-Municipal corporation-Contract

-Protection against fire-Negligence-Liability of company to ratepayer-Damages

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

See 4.

2-"Quebec" Workmen's Compensation

Act"-Incompatible enactment-Repeal- Right of action ....................

Assessment and taxation-Taxes payable incor- Legislative jurisdiction - "B.N.A. Act, sec. 92-'"Saskatchewan Act," 4 &

Edw.

93a.] Section the Saskatchewan

"School Assessment Act," R.S. Sask.,

1909, ch. authorizes any incorporated company to give a notice requiring a portion of the school taxes payable by the company to be applied to the purposes of separate schools, and sec. 93a, as enacted by see. 3 of ch. 36 of the

Saskatchewan statutes of

1912-1913, authorizes separate school boards themselves to give a notice to any company which fails to give the notice authorized by sec. requiring that its taxes should

EDUCATION-Continued.

be apportioned between the boards according to the assessments public and separate school supporters in the district. A number companies neglected to give the notice provided for and the separate school board gave them notices requiring a portion of their taxes to be applied for the purposes of that board. In these circumstances the public school board claimed the whole of the taxes payable by the companies in question and the separate school board claimed a portion of such taxes.

On a special case, directed on the application of the municipal corporation, questions were submitted for decision as follows: (a) Had the Saskatchewan Legislature jurisdiction to enact see. 93a of the "School Assessment Act"; (b) if question (a) be answered in the negative, has the defendant (the separate school board) the right it claims to a portion of the said taxes; (c) if question (a) be answered the affirmative, has the defendant the right it claims to a portion the said taxes?-Per Davies and Duff JJ. pressing no opinion as to the constitutionality the legislation), that the effect of the enactments in question was not to give the separate school board any portion of the taxes claimed by it. The Chief Justice and Anglin J. contra.- Per Idington J.-The enactment of see. 93a was ultra vires of the Legislature of Saskatchewan.

The Chief Justice and Anglin J. contra.-Per Fitzpatrick C.J. and Anglin J.-The Legislature of Saskatchewan had jurisdiction to enact see. 93a of the "School Assessment Act." and the taxes payable by the companies in question should be apportioned between the public and the separate school boards shares corresponding with the total assessed value assessable property assessed to persons other than incorporated companies for public school purposes and the total assessed value property assessed to persons other than incorporated companies for separate school purposes respectively.-Judgment appealed from West. W.R. reversed, the Chief Justice and Anglin J. dissenting. GRA'rON Transfer of Interswitching-Negligent coupling-Duty train crew-Scope of employment-Jury- Findings of fact-Evidence.]

A train EMPLOYER'S LIABILITY-Continued.

crew the defendants while performing their duty in the transfer yard another railway company were directed by the yardmaster to remove a special car freight which was to be transferred to the defendants' railway from amongst a number other cars in the yard.

order to do so it was necessary to shunt several cars placed in front the car to be transferred and the train crew switched these cars to certain tracks which there was then standing a train the other railway company, headed an engine under which the fireman, plaintiff, was then working. They underto.

to couple the cars which they were switching to the standing train, as a matter convenience, and, in doing so, struck the rear of the train with such force as to move the engine and cause injuries to the fireman who was working under it.

Specific questions were not submitted to the jury, notwithstanding suggestions made by defendants' counsel after the judge had charged them, and they returned a general verdict in favour the plaintiff.-Held, affirming the judgment appealed from Man. R.

that in so proceeding to couple the cars they had switched on to the standing train the defendants' train crew were still acting within the scope their employment in the defendants' business and, as they performed the work in a negligent manner, the defendants were liable in damages for the injuries caused to the plaintiff.-Per Duff J.-The question, whether the acts negligence the company's servants were done course their employment was a question fact for the jury in respect which there was evidence to support their finding in favour the plaintiff.

PICKERING.........................

2-Negligence-Operation of tramwaytion Act"-fight of action-Dependent re- Edw. VII., as. 15-R.S.Q., arts. 7335-Incompatible tice-Charge to jury-Misdirection-Excessive damages-Alodification of verdict- New trial-Art. C.P.Q.] The remedy given by art. of the Civil Code, cases dtlit and quasi-ddlit, was taken away in regard to the classes persons

EMPLOYER'S LIABILITY-Continued. enumerated in sec. the Quebec statute respecting compensation for injuries to workmen, Edw. VII., ch. by the limitation in sec. that statute (now arts. and the Revised Statutes Quebec, but the effect these enactments was not to repeal the provisions art. C.C., with respect to ascendant relations who were only partially dependent for support on a deceased workman to whom the statute applied. The judgment appealed from (Q.R. K.B. was reversed, Davies and Brodeur JJ. dissenting.-Per Davies J. dissenting.-The words all cases to which this Act applies," the Quebec statute respecting compensation for injuries to workmen, Edw. VII., ch. sec. have reference to the special classes employment referred to in the first section the Act, and not to the classes persons entitled to compensation theretmder. Consequently, the effect sec. is to limit the employers' liability to the compensation prescribed by that Act and to that only. Negligence-Master and servant - Use of motor car-Disobedience-Act in course of employment.] was owner an automobile and hired a chauffeur to run it, giving him positive instructions that the car was not to be used except for purposes the owner and his family, and that, when not in use for such purposes, it was to kept in a certain garage.

On the evening the accident in question the chauffeur took his master's family to a theatre, in Winnipeg, and was directed by them to take the car to the garage and return for them after the close the performance. The chauffeur took the car from the garage before the appointed time and proceeded with it for the purpose visiting a friend in a distant part the city. While using the car, contrary to instructions, he negligently ran down the plaintiff, causing injuries for which an action was brought to recover damages against B.- Held, affirming the judgment appealed from Man. R. that, at the time of the accident, the chauffeur was not engaged in the performance of any act appertaining to the course of his employment as the servant the owner the car and, consequently, his master was EMPLOYER'S LIABILITY-Continued.

not liable in damages. Storey v. Ashton

(L.R. 4 Q.B. followed.

4-Negligence-Dangerous works-Defective system-Careless management tendence-Employer's duty-Evidence - Employers' Liability Act"-Pleading - Practice-Charge to jury-New trial..

ESTOPPEL-Covenant in mortgage- Married woman-Signature procured by fraud-Pleading-Non est factum.] M., intending to apply for shares in the respondent loan company, pursuant to the proposal, made through her husband, one L. (the agent the company for obtaining such applications) was induced lieved to be an application for shares but which, in fact, was a mortgage for securing a supposed loan to her and contained a covenant to re-pay the amount the loan.

document.-Held, reversing the judgment appealed from B.C. Rep. the

, that as was under no duty to exercise care to protect the company against the possible frauds their agent, L., she was not guilty negligence estopping her from setting up the plea non factum which, in the circumstances, was a good defence to the company's action

2-Highways-Old trails of Rupert's

Land-Survey-Width of highway-Construction of statute-"North-West Territories Act," 108-Transfer of highway- Expenditure of public funds.............

Taxes-Sale of land for arrears - Purchase municipality - Failure to give notice-"Crative Act"- Discovery-Death of deponent-Use of position at trial.] The depositicns a party to an action taken on discovery cannot, when the deponent has died the interval, be used against the opposite party unless the latter has first used

EVIDENCE-Continued.

for his own purposes.

Dangerous works-Defective system - Careless management tendence-Employer's duty-Action-Liability at common law-"B.C. Employers' Liability Act"

Charge to jury-New trial ............ 3-Ownership of horses-Bill of sale- Aoreign judgment - Interpleader-Secondary evidence-Parol testimony ....... 4-Trespass - Cutting timber grant-Conflicting claims-Priority of title ........ cars - Interswitching - -Duty of train crew-Scope of employment of fact...........................

"Railway Act" - Municipal plan-Severance of lots trators-R.S.C., For the purposes expropriation under the Dominion "Railway Act," unless lots laid out on the owner's registered plan are united as to form one complete whole, each lot taken by the railway company is an independent, separate and complete property in itself and the owner is not entitled to compensation for injurious affection to any such lot, which part is taken and which is severed from the land expropriated by a railway or land sold to another person.

Cooper- Essex v. Local Board for Acton Cas. distinguished.

Duff and Anglin JJ. contra.-The owner land adjacent to or abutting upon the street over which a railway passes is entitled, by 1 & Geo. V., ch. sec. to compensation for injury to such land, but the compensation can only be awarded the Board Railway Commissioners and is not a matter for arbitration under the "Railway Act."-Held, per Duff and Anglin JJ.-The arbitrators appointed to EXPROPRIATION-Continued.

value land so expropriated are functi officio when their award is delivered and the matter to them for further considera- Cedars Rapids Manufacturing Co. v.

Lacoste

A.C. referred to.

Co. v.

2-Expropriation - Agreement to fix compensation -Arbitration or valuation- Powers of referees -Majority decision.]

Where the land was expropriated for railway purposes the railway company and the owner agreed to have the compensation determined by reference to three named persons called "valuers" in the submission; their decision was to binding and conclusive on both parties and not subject to appeal; they could view the property and call such witnesses and take such evidence, on oath or otherwise, as they, or a majority them, might think proper;

and either party could have a representative present at the view or taking evidence, but his failure to attend for any reason would not affect the validity the decision.- Held, Fitzpatrick C.J. and Duff J. dissenting, that this agreement did not provide for a judicial arbitration, but for a valuation merely, by the parties to whom the matter was referred, the land expropriated.-The agreement provided that a valuator should be appointed each party and a County Court judge should be the third; one of those appointed would or could not act the party who appointed him could name a substitute; if it was the third the parties could agree on a substitute, in which case the decision any two would be binding and conclusive without appeal; if they could not so agree a High Court judge could appoint.

There was no necessity for substitution.-Held, that the decision any two the valuators was valid and binding on the parties.

MASSIE.............................

Application to appoint arbitrator-Persona designata-Amount in controversy-"Railway Act," R.S.C.

s. 196-Jurisdiction of court-Practice.] A railway company served notice offering as compensation. It later served a copy said notice on lessee said land for a term ten years.

EXPROPRIATION-Continued. application to a Superior Court judge for appointment arbitrators claimed to be entitled to a separate notice and an independent hearing to determine his The judge so held and dismissed the application and his ruling was affirmed by the Court King's Bench.

The company sought to appeal to the Supreme Court Canada.-Held, per Fitzpatrick C.J. and Idington following Canadian Pacific Railway Co. v. Little Seminary of Ste. Thir~se Can. S.C.R. and St. Hilaire v. Lambert Can. S.C.R. that the Superior Court judge was persona designata to hear such applications as the one made by the company; that the case, therefore, did not originate in a superior court and the appeal would not lie.-Per Duff J.-The judge, under sec.

"Railway Act," acts as persona designata and no appeal lies from his orders under that section;-in this case, the application having been made to and the parties having treated the c6ntestation as a proceeding in the Superior Court, which had no jurisdiction, the Court King's Bench rightly dismissed the appeal from the order refusing to appoint arbitrators; and the appeal to the Supreme Court of Canada being obviously baseless should for that reason be quashed.-Held, per Davies, Duff, Anglin and Brodeur JJ., that as there was nothing in the record to shew that the amount in dispute was $2,000 or over, and no attempt had been made to establish by affidavit that was, the appeal failed. Dangerous works-Defective system-Caremanagement-Fault of fellow servant- Efficient superintendence-Employer's duty Liability at mon'law-' "B.C. Employers' Liability Act" Charge to jury- FORECLOSURE-Powers of company - Sale of shares-Security mortgage-Subsequent creditor-Status-Jurisdiction proval ratepayers ...

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

FRAUD-Disqualification of company directors-Taking personal profit - Illegal

Ratification

Right

Shareholder-Recourse minority....

2-Covenant in mortgage - Pleading-Non estfactum-Estoppel. .

sidewalk-Misfeasance.] The corporation

Halifax in laying a concrete sidewalk broke up a portion the asphalt sidewalk a crossing street and replaced with earth and ashes.

The rain washed away the filling and T. was injured stepping into the excavation. - N.S. Rep. that the corporation was guilty misfeasance and a verdict favour T. should stand. CIY

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

2-Old trails of Rupert's Land-Survey- Width of highway-Construction of statute

& V. s. 19-' "North-West

Territories Act," 108-Transfer of high- -Estoppel-Expenditure of public funds.]

The plaintiff's lands, held under Crown grant were bounded on the south by the middle line Rat Creek (now

Edmonton)

were traversed by one the "old trails"

Rupert's Land, known as the "Edmonton and Fort Saskatchewan Trail."

Upon instructions, under sec. the

Territories as enacted by & Vict. ch. sec.

that portion the trail was surveyed and laid out on the ground by a Dominion land surveyor shewing its southern boundary approximately as Rat Creek and thus giving it a width upon -the plaintiff's lands in excess the sixty-six feet limited by this section.

The plan this survey was not shewn to have been approved by the Surveyor-General nor was it filed in the land titles office as required by the statutes in force at the time.-Held, reversing the judgment appealed from West. L.R. 920), that the statute gave the surveyor no power to increase the width the highway authorized to be laid out by him; that the approval the Surveyor-General and the filing the plan in the land titles were necessary conditions to the trans- HIGHWAYS-Continued.

fer the trail as a public highway and, consequently, the land comprised in the augmentation of the highway remained vested in the plaintiff.-Plaintiff sold part of his lands, described as bounded by the northerly limit the surveyed trail, and, subsequently, the purchasers, and persons holding lands south Rat Creek, filed plans subdivision shewing the surveyed trail as of the full width given by the surveyor.

The city also claimed to have expended moneys in improving the roadway at the locality question.-Held, that the registration the plans of subdivision, made without privity on the part the plaintiff, was not binding upon him, and that there was not such evidence public moneys or of conduct by the plaintiff-by the filed-as could preclude him from claiming the lands encroached upon or compensation therefor.

INSOLVENCY-Principal and surety - Insolvency of debtor-Action liquidator against principal creditor - Compromise- Agreement not to rank-Payment sureties-Right of sureties to rank.] By a contract of suretyship C. and others guaranteed payment to a bank advances to a company by discount negotiable securities and otherwise, the contract providing that it was to be a continuing guarantee to cover any number transactions, the bank being authorized to deal or compound with any parties to said negotiable securities and the doctrines law and equity in favour a surety not to apply to its dealings. The company became insolvent and its liquidator brought action against the bank to set aside some its securities, which action was compromised, the bank receiving a certain amount, reserving its rights against the sureties and agreeing not to rank on the insolvent estate. sureties were obliged to pay the bank and sought to rank for the amount.- Held, affirming the judgment the Appellate Division Ont. L.R. that they were not debarred by the compromise of said action from so ranking. 2-Cancellation of contract - Expelling contractor-Condition precedent - Possession of plant-Waiver-Seizure in execu- INSOLVENCY-Continued.

works-Suretyship...................

Ownership of horses

-Bill of sale-Foreign judgment-Secondary evidence-Parol testimony .......

JUDGMENT-Ownership of horses-Bill of sale-Foreign judgment-Interpleader- Secondary evidence-Parol testimony. .

JURISDICTION - Powers of company- Sale of shares-Security mortgage-Subsequent creditor-Status-Foreclosure.

JURY-Negligence - Dangerous works - Defective system -Careless managementtendence-Employer's duty - Employers' Liability Act" - Practice-Charge tojury-New trial. .

cars -Interswitching of train crew-Scope of employment-Employer's Liability fact- Evidence......................

land-Option for purchase-Acceptance new lease- Waiver of option.] Where a lease for a term years gives the lessee an option to purchase the land the latter's acceptance during the term a lease to begin on its expiration is not itself a waiver or abandonment the option.

.-Judgment the Appellate

Division Ont. LIR. reversed.

2-Partnership-Scope of authority siliation-Form of action-Appropriate relief-Pleading-Practice.] partnership, consisting H1. and which was to expire by effluxion time on 31st ber, held a lease of warehouse property in Montreal, which the term expired on the 30th April,

During

LEASE-Continued.

the absence H., in September, and without authority from him to do so, obtained a renewal of the lease for three years, from the 1st of May then following, which was repudiated by H. on his return to Montreal.

In action by H1. to have the renewal lease declared null and void.-Held, (the Chief Justice plaintiff had a sufficient interest to enable him to maintain the action and obtain a declaration that the lease was not binding upon the partnership or upon himself as a member the firm.-Per Fitzpatrick C.J. dissenting.-In the Province of Quebec distinct and consistent pleading is essential and, as the plaintiff did not bring his action to obtain relief from his obligation under the renewal lease, but merely to have that lease declared null and void, he could not, in the action as brought, have a declaration that the lease was not binding upon him.

Forbes v. Atkinson (Pyke K.B. 40) referred t6.-Per Brodeur J. dissenting.-As the partnership was benefited by the renewal the lease it should be declared valid and binding on all the partners.-Judgment appealed against (Q.R. K.B. 1) reversed.

WEBSTER...................

LEGISLATION by-lau - Exemption from taxation-Validating legislation-School rates-"Public School Act," s. (Ont.)-Special by-law -- Education ment and taxes-Taxes payable incor- Legislative jurisdiction-"B..A. Act," s. 92-"Saskatchewcan Act," & 5 Edw.

LETTERS PATENT - Crown lands - Colonization - Location tirkct lca tee-Male-Issue letters patent- Ti'le to land-Registry lairs-Notice- A.rts. C.C. LIEN -Appeal-Case originating in Superior Court-"Supreme Court Act," s. (b) LIEN-Continued.

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

MARRIED WOMAN-Covenant in mortgage-Signature procured fraud-Pleading-Non est factum-Estoppel.......

See 1.

MASTER SERVANT - -Use of motor car-Disobedience-Act in course of employment-Employer's liability.] B. was owner an automobile and hired a chauffeur to run it, giving him positive instructions that the car was not to be used except for purposes the owner and his family, and that, when not in use for such purposes, it was to be kept in a certain garage.

evening the accident in question the chauffeur took his master's family to a theatre, in Winnipeg, and was directed by them to take the car to the garage and return for them after the close the performance.

The chauffeur took the car from the garage before the appointed time and proceeded with it for the purpose visiting a friend in a distant part the city. While so using the car, contrary to instructions, he negligently ran down the plaintiff, causing injuries for which an action was brought to recover damages against B. - Man. R. that, at the time the accident, the chauffeur was not engaged in the performance any act appertaining to the course his employment as the servant the owner the car, and, consequently, his master was not liable in damages.

Storey v. Ashton

(L.R. Q.B. followed.

originating in Superior Court-"Supreme

Court Act," (b)-Concurrentjurisdiction-'"Mechanics' Lien Act" (B.C.) -Action to enforce lien.] For an appeal to lie to the Supreme Court in a case not originating in a superior court, as provided in sec. sub-sec.

"Supreme Court Act," it is not sufficient that the inferior court has concurrent jurisdiction with a superior court respect to its general jurisdiction; there

MECHANICS' LIEN-Continued. must be concurrent jurisdiction as respects the particular action, suit, cause, matter or other judicial proceeding in which the appeal is sought.-In British Columbia the County Court alone may maintain an enforce a mechanic's lien.

In such action, so far as the parties or any them stand the relation debtor and creditor, the court may give judgment for the debt due whatever its amount and if it exceeds brought in the Supreme Court the foundation'for the County Court action is the enforcement the lien as to which there is no concurrent jurisdiction and no appeal lies to the Supreme Court Canada from the judgment the Court Appeal in such an action.

V. CO.............. MINING-Constitutional law-Provincial mining company-Power to mining outside of province-Incorporation "with pro- Comity.] mining company incorporated under the law the Province Ontario has no power or capacity to carry on its business in the Yukon Territory and an assignment to it mining leases and agreements for leases is void. Idington and Anglin JJ. contra.-Held, per Fitzpatrick C.J. and Davies J., that "the incorporation of companies with provincial objects" as to which the provinces are given exclusive jurisdiction ("B.N.A. Act,"

sec. sub-sec. authorizes the incorporation of companies whose operations are confined, territorially, to the limits the incorporating province.-Per Idington and Anglin JJ.-Such company has capacity to avail itself the sanction any competent authority outside Ontario operate within its jurisdiction.-Per Duff J.-The term "provincial objects" in said sub-section means provincial with respect to the incorporating province, and the business mining in the Yukon is not an object "provincial" with respect

Ontario.

question whether capacity to enter into a given transaction is compatible with the limitation that the objects shall be "provincial objects" is one to be determined on the particular facts.-Also, per Duff J.-On the true construction the Ontario "Companies Act," the appellant MINING-Continued.

company only acquired capacity to carry on its business as an Ontario business;

and there was no legislation by the Dominion or the Yukon professing to enlarge that capacity.-Held, per Fitzpatrick C.J. (Duff and Anglin JJ. contra), that to enable a joint stock company to obtain a free miner's certificate under the regulations in force in the Yukon

Territory it must be authorized by an

Act the Parliament Canada, and at present only a British or foreign company could be so authorized Vict. ch.

sec. 1 (D.) ).

Co. v. THE KING...........

2-Powers of company-Sale of shares- Security mortgage-Subsequent creditor

-Status-Jurisdiction-Foreclosure..

MORTGAGE-Manitoba "Real Property

Act," ss. 130-Agreenent for mortgage-Caveat-"Interest in land"-IRegistration subject to incumbrance-Indorsement on instrument registered.] mortgagee or incumbrancee lands in lanitoba, subject to the "new system"

registration titles, has such an interest in the lands as entitles him to file a caveat under sac.

the "Real

Property Act," R.S.M. ch. consequently, where the owner such lands, for valuable consideration, agrees to execute a mortgage thereon in favour another person, the right thus obtained constitutes an interest in the lands, within the meaning see. which may be protected by caveat in the manner therein provided; this right not affected by the terms of sec.

the "Real Property Act" limiting the effect mortgages and incumbrances.

The judgment appealed from West.

L.R. D.L.R. was affirmed.- Per Fitzpatrick C.J. and Idington and

Anglin JJ.-Where a mortgage has been registered, under the "new system," indorsed by the registrar as being subject to the caveat a person claiming the right to have a mortgage in his favour executed affecting the same lands, the mortgagee who has been so registered cannot afterwards claim priority over the right of the caveator.

Corenant in mortgage - Pleading-Non estfactum-Estoppel.] M.,

MORTGAGE-Continued.

intending to apply for shares in the respondent loan company, pursuant to the proposal, made through her husband, of one L. (the agent the company for obtaining such applications) was induced lieved to be an application for shares, but which, in fact, was a mortgage for securing a supposed loan to her and contained a covenant to re-pay the amount the loan.

document.-Held, reversing the judgment appealed from B.C. Rep. the Chief Justice and Davies J. dissenting, that as was under no duty to exercise care to protect the company against the possible frauds their agent, she was not guilty negligence estopping her setting up the plea non est factum, which, in the circumstances, was a good defence to the company's action on the covenant. Company law-Powers of company- Sale of shares - Subsequent creditor - Status.] Three directors owned all the stock a mining company to which they had advanced $43,000 for expenses operating.

Two them were at variance with the third as to the mode operating and all refused further advances.

The company having no other means procuring money, it was agreed that the two directors should sell their stock to the third for $60,000 secured mortgage on the company's property, the debt $43,000 to discharged and the purchasing director to advance funds for operating, and until the first payment had been made on the mortgage no such advances should be a charge on the com- Payments were made the mortgage, which afterwards fell into arrears, and on action by the mortgagees an order was made for sale and delivery "tp possession."

More than a year after the mortgage was made, the mining company incurred a debt to the respondent company, which brought action for the amount and for a declaration that the mortgage was ultra vires the company and that the judgment in the mortgage action was void.

The action was dismissed at the trial. The Appellate Division held the mortgage void, but only as to the excess over the indebtedness the company at the time MORTGAGE-Continued.

it was made.-Held, reversing the judgment appealed from Ont. L.R.

and restoring that the trial judge,

, that the mortgage was valid;

that though the expressed consideration was the price shares sold by one holder to another the real consideration was the discharge the company's existing indebtedness and securing of financial aid for the future.-Per Davies, Duff and

Brodeur JJ.-The judgment in the foreclosure action was a conclusive answer to the attack on the mortgage by the company. The Great North-Western Railway Co. v. Charlebois ( A.C.

distinguished.-Also per Davies, Duff and Brodeur JJ.-The trial judge having effect decided that he had jurisdiction to pass upon the validity the mortgage, that decision was binding on all parties until reversed in appeal, and, having regard to what occurred at the trial, the decision on the point jurisdiction was not appealable.-Per Fitzpatrick C.J.

and Idington J. dissenting.-The agreements and records made by the parties concerned in the transaction upon which alone the mortgage in question rests shew it to have been given solely to secure to the mortgagees the price their sales shares in the company to another shareholder and that, as such, the mortgage was ultra vires and void as against any creditors the company.

Exclufranchise-Renewal at expiration term-Right of preference-By-law-Approval

The municipal corporation granted exclusive franchises to R. for supplying electric light, etc., to the inhabitants the municipality the term ten years, with a proviso giving R. a preference over any other person tendering for such services, at the end that term, at the rates mentioned in the competing tender, for an additional term ten years.

On the termination the ten years mentioned in the contract, in pursuance powers obtained from the legislature permitting the municipal corporation to supply electric light, etc., to the inhabitants, the corporation passed a by-law whereby undertook to perform these services and refused to renew the contract for the additional term.

In an action by R. to have the by-law set aside, a declaration

MUNICIPAL CORPORATION-Con. that he was entitled to the renewal his contract for the additional term, and for an injunction restraining the corporation from acting upon the by-law, Held, (Q.R. K.B. that there was no obligation arising under the contract which prevented the corporation from exercising the new powers vested in for the advantage the inhabitants and that, in consequence the exercise of those powers, R. had no contractual right to a renewal for the additional term.-As the by-law in question had been ratified by the provincial statute Geo. V. ch. during the time the suit the the corporation was allowed and the by-law and a resolution of the municipal council based thereon were declared valid. 2-Assessment and taxes-Municipal law-Exemption from taxation- Validating legislation-School rates-"Public School V. 60, (Ont.)-Special by-law.]

By sec. 4 the "Public Schools Act" Ontario Vict. ch. it provided that "no municipal by-law hereafter passed for exempting any portion the ratable property a municipality from taxation, in whole or in part, shall be held or construed to exempt. such property from school rates any kind whatsoever."

similar provision contained in the "Municipal Act" Vict. ch. sec. and both are now to be found in the Revised Statutes Ontario, ch. sec. and ch. sec. (e).-Held, affirming the Ont. L.R. Duff J. dissenting, that the application of this legislation is not confined to the case a by-law passed under the general powers of a municipality, but it applies to limit the effect a special by-law exempting a company from all municipal assessment any nature or kind whatsoever" beyond an amount specified as its annual assessment, even when the by-law was confirmed by an Act the legislature which declared it to be legal, valid and binding, "notwithstanding anything contained in any Act to the contrary." Canadian Railway Co. v."City Winnipeg (30 Can. S.C.R. 558), distinguished.-Held, per Idington J.-The bylaws granting exemption did not conform to the statutory requirements and were, MUNICIPAL CORPORATION-Con.

therefore, invalid. - (Applications for special leave to appeal to the Privy

Council by the Canadian Niagara Power

Co. and the Electrical Development Co.

were refused, 4th Aug., v. OF v. 168

3-Assessment and taxes-Sale of land for arrears-Purchase municipality- Failure to give notice-Curative Act-Evidence-Discovery-Death of Deponent- Use of deposition at trial.] By sec.

the "Ontario Assessment Act" (R.S.O.

ch. where the sale of land for unpaid taxes is adjourned for want a bid for the full amount the arrears, the municipality may purchase the land at such adjourned sale if its council, before the day thereof, has given notice its intention to do so.-Held, affirming the

Ont. L.R. that failure to give such notice is cured by the provisions

Edw. VII. ch. sec. and its amendment, Edw. VII. ch. sec.

of Toronto v. Russell A.C.

followed.-On the expiration of the time for redemption after sale all rights the former owner are barred.-The depositions party to an action taken discovery cannot, when the deponent has died in the interval, be used against the opposite party unless the latter has first used it for his own purposes.

4-ndertaking with rotepayer - Noncollection of taxes-Discretion.] Held, per

Idington and Anglin JJ.-Where there no statutory prohibition thereof, it not illegal for a municipality, in the bond fide exercise its discretion, and to carry out an undertaking with a ratepayer, to refrain from collecting the taxes levied on the latter's property over and above a fixed annual sun stipulated for..

-Hld, pr Duff and Brodeur ratepayer has no status in curid to cornpel the corporation to collect the balance taxes so allowed to remain unpaid each year. Judgment the Appellate Division Ont. L.R. affirmed.

Non- ROBERTS....................

5-Contract compan -Franchise for water supply-Protection against fire- Negligence-Liablity of company to rate- MUNICIPAL CORPORATION-Con. payer -'Dilit - Damages.] municipal corporation, with assent of the ratepayers, entered into a contract by which it gave the defendant company the clusive privilege for twenty-five years maintaining a system water supply to the municipality.

authorized to fix rates for water supplied for domestic purposes and was obliged, for protection against fire, to have hydrants at certain places and at all times, in case fire, except when the plant was undergoing necessary repairs, to maintain a specified capacity and pressure water.

The property a ratepayer, was destroyed by a fire King's Bench (Q.R. K.B. 487), which affirmed the Court Review (Q.R. S.C. Brodeur J. dissenting, that tween B. and the company;

that the payer in case violation the provisions for fire protection; and that therefore, could not maintain an action for the value his property so destroyed. -Held, also, Brodeur J. dissenting, that B. could not maintain an action damages on the ground that the failure to maintain the pressure stipulated for in the contract constituted a delit quasi-dilit under the law Quebec. 6-Negligence - Municipal sidewalk - Misfeasance.] The corporation fax, in laying a concrete sidewalk, broke up a portion the asphalt sidewalk a crossing street and replaced it with earth and ashes.

The rain washed away the filling and T. was injured by stepping into excavation.

Hild, affirming judgment appealed from N.S. Rep. that the corporation was guilty misfeasance and a verdict in favour '. should stand.

CIr

Dangerous works sytem-Cardtess Fault of fellow serrant-Efficient superin- - Enployer's duty - Employers' Liability Act" against the defendants at common law Charge to jury was not justified.

The finding that the To afford protection to workmen about omission to place barriers above the men to be employed on a ledge below, several working on the lower ledge was neglithem, including the plaintiff, were gence is not supported by the evidence; directed by the defendants' foreman to it were, such negligence would be that clear loose rocks from the hillside and the superintendent.

The trial proform a berm above the place where the ceeded on the assumption that the works work was to be done.

The clearing was in charge competent superinimperfectly performed, although tendent and foreman, having discretion foreman was informed by some the and means to furnish all reasonable safemen that "it was all right."

While guards, and an admission to that effect plaintiff was at work on the lower ledge was made at bar on the hearing the he was struck by rocks, which rolled appeal-consequently, the appeal should down the hillside, fell over the cliff and be dismissed.-Per Idington and Brosustained injuries, for which he brought deur JJ.-The findings the jury were action to recover damages under the sufficiently supported by evidence and British Columbia "Employers' Liability warranted judgment at common law.- Act" and at common law.

It appeared

Per Jdington J.-The defendants were from the evidence that it was customary bound to allege and prove that they had to clear off such inclines or to erect delegated to a competent person the duty pentices or barriers for the protection providing proper safeguards and had the workmen on lower ledges, but not to furnished him with the means doing do both, and there was evidence that on so-Per Duff J.-There was evidence this hillside barriers were unnecessary upon which the jury might have found and might be dangerous.

By the judgment aptrial was ordered, Idington and Brodeur pealed from B.C. Rep. the Court

.

Appeal dismissed the action, holding

CO.................39 that the cause the injury was the failure to clear the hillside sufficiently,

2-Electricrailway-Duty of motorman which was due to the fault the plaintiff

-Contributory negligence

Reasonable and his fellow workmen.-Held, that, care.]

L. started to cross a street having regard to the character the traversed by an electric railway and work in which the plaintiff was engaged proceeded in a north-westerly direction, when injured, the employers' duty to with his head down and apparently unprovide reasonable protection for him conscious his surroundings. car could properly be delegated to a comwas coming from the east, and the motorpetent superintendent or foreman (furman §aw him when he left the curb at nished with adequate materials and a distance about fifty yards. Twenty resources), whose negligence would not yards further he threw the power, render the employer liable at common and when L., still abstracted, crossed law.

Wilson v. Merry (L.R. 1 H.L. (Sc.)

the devil strip and stepped the track, Ainslie Mining and Railreversed, being then about ten feet from way v. McDougall (42 Can. S.C.R.

him. The fender struck him before he and Brooks, Scanlon, O'Brien Co. v.

crossed and he received injuries causing Fakkena Can. S.C.R. 412), distinhis death.

On the trial an action by guished.-Per Fitzpatrick C.J. and Anhis widow the jury found that the motorglin J.-On the evidence, failure to clear man was negligent in not having his car the face the incline sufficiently was ud proper control, that L. was neglidue either (and most probably) to the gnt in not looking out for the car, but negligence the plaintiff and the workthat the motorman could, notwithstandmen engaged with him or to that the ing, have avoided the accident by the foreman and, consequently, a judgment exercise reasonable care.

majority them found, also, that L.'s negligence did not continue up to the moment impact.-Held, (reversing the judgment appealed from: Can. Ry. Cas. 35; 10

D.L.R. 300), Davies and Anglin JJ.

dissenting, that the jury were entitled to find as they did; that when the motorman first saw L. he should have realized that he might attempt to cross the track, and it 'was his duty then to have the car under control;

and that his failure to do so was the direct and proximate cause the accident, for which the railway company was liable.

per Davies J.-The motorman was not guilty negligence prior to the negligence L., which consisted stepping on the track when the car was near and it was then too late to prevent the accident.-Held, per Anglin J.-The findings the jury, especially the finding that L.'s "negligence was not a continuing act up to the moment the accident,"

were not satisfactory and there should be a new trial.-(Leave to appeal to the Privy Council was refused,

4th Aug., cars -Interswitching - -Duty of train creuc-Scope of employment of fact-Evidence.] train crew the defendants, while performing their duty in the transfer yard another railway company, were directed by the yardmaster to remove special car freight which was to be transferred to the defendants' railway from amongst a number other cars in the yard.

In order to do so, it was necessary to shunt several cars placed in front the car to be transferred, and the train crew switched these cars to certain tracks on which there was then standing train the other railway company, headed by an engine, under which the fireman, plaintiff, was then working.

They undertook to couple the cars which they were switching to the standing train, as a matter convenience, and, in doing so, struck the rear the train with such force as to move the engine and cause injuries to the fireman who was working under it.

Specific questions were not submitted to the jury, notwithstanding suggestions made by defendants' counsel after the judge had charged them, and they returned a general verdict in favour of the plaintiff.-Held, affirming the judgment appealed from Man. R. that so proceeding to couple the cars they had switched on to the standing train I the defendants' train crew were still acting within the scope their employment in the defendants' business, and, as they performed the work in a negligent manner, the defendants were liable in damages for the injuries caused to the plaintiff.-Per Duff J.-The question, whether the acts negligence the company's servants were done in course of their employment was a question fact for the jury in respect which there was evidence to support their finding favour the plaintiff.

Municipality Misfeasance.] The corporation Halifax, laying a concrete sidewalk, broke up a portion the asphalt sidewalk a crossing street and replaced it with earth and ashes.

The rain washed away the filling and T. was injured by stepping into the excavation.-Ield, affirming the judgment appealed from X.S. Rep. that the corporation was guilty misfeasance and verdict in favour T. should stand.

ToniN........................... Operation of tramway-Employers' liability-Accident in course of employment "Workmen's Compensation Act"-Right of action - Dependent relations-Construction of statute-(Que.) 1II., ss. 15-R.S.Q., arts. - Incompatible enactment - Repeal -Art.

Charge to Misdirection - Excessive damages -Modefication of verdict -- New trial-Art. C.P.Q.]

The remedy given by art. the Civil Code, in cases dflit and quasi-ddlit, was taken away in regard to the classes persons enumerated in sec. the Quebec statute respecting compensation for injuries to workmen, Edw. VII., ch. by the limitation see. that statute (now arts. and the Revised Statutes Quebec, but the effect these enactments was not to repeal the provisions art. C.C., with respect to ascendant relations, who were only partially dependent for support on a deceased workman to whom the statute * (Q.R. K.B. was reversed, Davies and Brodeur JJ. dissenting.-Per Davies

J. dissenting.-The words "in all cases to which this Act applies," in the Quebec statute respecting compensation for injuries to workmen, Edw. VII., ch.

sec. have reference to the special classes employment referred to in the first section the Act, and not to the classes persons entitled to compensathereunder.

Consequently, effect sec. is to limit the employers' liability to the compensation prescribed by that Act and to that only.--Where no objection has been taken to the judge's charge to the jury at the trial and it does not appear that any substantial prejudice was thereby occasioned, there should not be an order for a new trial under the provisions arts. 498 et seq.

the Code Civil Procedure.-The majority the court considered that the amount damages awarded by the jury was so grossly excessive that there should a new trial, and it was ordered accordingly unless the plaintiff agreed that the verdict should be reduced to an amount mentioned. (See art. C.P.Q.)

6-Master and servant-Use of motor car

-Disobedience-Act in course of employment automobile hired chauffeur to run it, giving him positive instructions that the car was not to be used except for purposes the owner and his family, and that, when not in use for such purposes, it was to be kept in a certain garage.

On the evening the accident in question the chauffeur took his master's family to a theatre,

Winnipeg, and was directed by them to take the car to the garage and return for them after the close the performance.

The chauffeur took the car from the garage before the appointed time, and proceeded. with it for the purpose visiting a friend in a distant part the

While so using the car, contrary to instructions, negligently ran the plaintiff, causing injuries for which an action was brought to recover damages against B.-Held, affirming the judgment appealed from Man. R.

that, at the time the accident, the chauffeur was not engaged in the performance any act appertaining to the course his employment as the servant the owner the car and, consequently, his master was not liable damages.

Storey v. Ashton (L.R. 4 Q.B. followed. 471 7-Municipal corporation - -Protection against fire-Liability of company to ratepayer-Dilit-Damages... Covenant in mortgage - Pleading-Non est factum-Estoppel.. 485 NEW TRIAL-Dangerous works-Defective system-Careless management-Fault of fellow servant-Efficient superintendence -Employer's

Liability at common law-' IV C. Emplayers' Liability Act" - Pleading--Pi-tice-Charge to jury-New trial.] afford protection to workmen about to be employed on a ledge below, several them, including the plaintiff, were directed by the defendants' foreman to clear loose rocks from the hillside and form a berm above the place where the work was to be done.

The clearing was imperfectly performed, although foreman was informed by some the men that "it was all right." While plaintiff was at work on the lower ledge he was struck by rocks, which rolled down the hillside, fell over the cliff and sustained injuries, for which he brought action to recover damages under the British Columbia "Employers' Liability Act" and at common law.

It appeared from the evidence that it was customary to clear off such inclines or to erect pentices or barriers for the protection of the workmen on lower ledges, but not to do both, and there was evidence that this hillside barriers were unnecessary and might be dangerous.

having regard to the character the work in which the plaintiff was engaged when injured, the employers' duty to provide reasonable protection for him could properly be delegated to a competent superintendent or foreman (furnished with adequate materials and resources), whose negligence would not render the employer liable at common law.

Wilson v. Merry (L.R. 1 H.L. 326), applied. Ainslie Mining and Railway Co.

Brooks, Scanlon, O'Brien Co. v. Fakkema

Can. S.C.R. distinguished.- Per Fitzpatrick C.J. and Anglin J.-On the evidence, failure to clear the face the incline sufficiently was due either

(and most probably) to the negligence the plaintiff and the workmen engaged with him or to that the foreman and, consequently, a judgment against the defendants at common law was not justified.

The finding that the omission to place barriers above the men working the lower ledge was negligence is not supported by the evidence;

it were, such negligence would be that the superintendent.

The trial proceeded on the assumption that the works were charge a competent superintendent foreman, having discretion and means to furnish all reasonable safeguards, and an admission to that effect was made at bar on the hearing the appeal-consequently, the appeal should be dismissed.-Per Idington and Brodeur

JJ.-The findings of the jury were sufficiently supported by evidence and warranted a judgment at common law.-Per

Idington J.-The defendants were bound to allege and prove that they had delegated to a competent person the duty providing proper safeguards and had furnished him with the means doing so.-Per Duff J.-There was evidence upon which the jury might have found that the duty providing proper safeguards had been entrusted to a competent person provided with the necessary means doing so, but this was not admitted, and the failure the trial jude to leave this question to the jury caused a mis-trial.-In the result a new trial was ordered, Idington and Brodeur

.

Practice--Charge to jury-Misdirection-Excessive damages-Modification verdict-Art. C.P.Q.]

Where no ob- Continued.

jection has been taken to the judge's charge to the jury at the trial, and it does not appear that any substantial prejudice was thereby occasioned, there should not be an order for a new trial under the provisions arts. 498 et seq. the Code Civil Procedure. majority the court considered that the amount damages awarded by the jury was so grossly excessive that there should be new trial, and it was ordered accordingly unless the plaintiff agreed that the verdict should be reduced to an amount mentioned.

(See art. C.P.Q.) 3-Electric railway-Contributory negligence-Duty of motorman-Reasonable care .......... NOTICE- Taxes-Sale of land for arrears -Purchase municipality-Failure notice-Curative Act-Evidence covery-Death of deponent-Use of deposition at trial............

........... I Issue of letters patent-Title to land- Registry laws-Arts.

.C....................

3-Education ment and taxes-Taxes payable by incorposes-Construction of statute-Legislative jurisdiction-"B.N.A. Act," 92- "Saskatchewan Act," 4 & Edw. VII. c. s. 17-"School Assessment Act," R.S. Sask., ss. 93a ........ authority-Resiliation-Form of action-Appropriate relief-Pleading-Practice.] A partnership, consisting H. and W., which was to expire by effluxion of time on 31st December, held a lease warehouse property in Montreal, which the term expired 30th April,

During the absence H., in September, and with- PARTNERSHIP-Continued.

out authority from him to do so, obtained a renewal the lease three years, from the 1st of May then following, which was repudiated by H.

on his return to Montreal.

In action

H. to have the renewal lease declared null and void,-Held, (the Chief Justice plaintiff had a sufficient interest to enable him to maintain the action and obtain a declaration that the lease was not binding upon the partnership or upon himself as a member the firm.-Per Fitzpatrick

C.J. dissenting.-In the Province

Quebec distinct and consistent pleading is essential and, as the plaintiff did not bring his action to obtain relief from his obligation under the renewal lease, but merely to have that lease declared null and void, he could not, in the action as brought, have a declaration that the lease was not binding upon him.

Forbes v. Atkinson (Pyke K.B. referred to.- Per Brodeur

J. dissenting.-As partnership was benefited by the renewal the lease it should be declared valid and binding on all the partners.-Judgment appealed against (Q.R. K.B. 1)

.......

PERSONA

DESIGNATA-Appeal-Expropriation-Application to appoint arbitrator-Amount in controversy-"Railway

Act," R.S.C., 196-Jurisdiction of court-Practice...............

PLANS-"Railway Act"-Expropriation

-Municipal plan-Severance of lots-Injurious affection-Reference back to arbitrators-R.S.C., 37-(D.)

1 & 2

V.,-c. s. 6..................

See 1.

2-Highways--Old trails of Rupert's

Survey-Width struction of statute-'"North-West Territories Act," s. 108-Transfer of highway- Expenditure of public funds..........

Covenant in mortgage - Married woman-Signature procured by fraud-Non est factum-Estoppel.] M., intending to apply for shares in the respondent loan company, pursuant to the proposal, made through her husband, one L. (the agent of the company for

PLEADING-Continued.

obtaining such applications) was induced lieved to be an application for shares but which, in fact, was a mortgage for securing a supposed loan to her and contained a covenant to re-pay the amount the loan.

document.-Held, reversing the judgment appealed from B.C. Rep. the Chief Justice and Davies J. dissenting, that as M. was under no duty to exercise care to protect the company against the possible frauds their agent, L., she was not guilty negligence estopping her from setting up the plea non est factum which, in the circumstances, was a good defence to the company's action on the covenant.

2-Partnership-Lease-Scope of authority-Resiliation

Form of action- Appropriate relief-Practice ......... PRACTICE-Taxes - Sale of land for arrears-Purchase municipality-Failure to give notice - Curative Act - Evidence-Discovery-Death of deponent- Use of deposition at trial.] The depositions a party to an action taken on discovery cannot, when the deponent has died in the interval, be used against the opposite party unless the latter has first used it for his own purposes. v. ......... 2-Charge to jury-Misdirection-Ex- Art. C.P.Q.]

Where no objection has been taken to the judge's charge to the jury at the trial and it does not appear that any substantial prejudice was thereby occasioned there should not be an order for a new trial under the provisions of articles et seq. the Code Civil Procedure.-The majority the court considered that the amount damages awarded by the jury was so grossly excessive that there should be a new trial and it was ordered accordingly unless the plaintiff agreed that the verdict should be reduced to an amount mentioned.

(See art. C.P.Q.) PRACTICE-Continued.

Company law-Powers of company- Sale of shares-Mortgage company- Subsequent creditor-Status-Jurisdiction

-Foreclosure order.]

Three directors owned all the stock of a mining company to which they had advanced $43,000 for expenses operating.

Two them were at variance with the third as to the mode operating and all refused further advances.

The company having no other means procuring money, was agreed that the two directors should sell their stock to the third for $60,000 secured by mortgage on the company's property, the debt $43,000 to be discharged and the purchasing director to advance funds for operating and until the first payment had been made on the mortgage no such advances should be a charge on the company's property. Payments were made on the mortgage which afterwards fell into arrears and action by the mortgagees an order was made for sale and delivery "up possession."

More than a year after the mortgage was made the mining company incurred a debt to the respondent company which brought action for the amount and for a declaration that the mortgage was ultra vires the company and that the judgment in the mortgage action was void. The action was dismissed at the trial. The Appellate Division held the mortgage void but only as to the excess over the indebtedness the company at the time it was made.-Per Davies, Duff and Brodeur JJ.-The judgment in the foreclosure action was a conclusive answer to the attack on the mortgage by

The Great North-Western

Railway Co. v. Charlebois

A.C.

distinguished.-Also per Davies,

Duff and Brodeur JJ.-The trial judge having in effect decided that he had jurisdiction to pass upon the validity the mortgage, that decision was binding on all parties until reversed in appeal, and, having regard to what occurred at the trial, the decision on the point jurisdiction was not appealable.

Co. 626

4-Negligence-Dangerous works-Defective system-Careless managementtendence - Employer's duty-Evidence - Employers' Liability Act"-Pleading- Charge jury-New trial ............

PRACTICE-Continued.

5-Partnerhip-Lease-Scope of authority -Resiliation-Form of action-Appropriate relief-Pleading............... 6-Appeal-Case originating in Superior Concurrent jurisdiction-"M1echunics' Lien Act" (B.C.)-Action to enforce lien.. 382 cars-Interwitching-Negligent coupling of train crew-Scope of employment-Employer's liability-Jury-Findings of fact-Evidence ...............

S-Appeal pplication to appoint arbitrator-Persona designata-Amount in controversy -"Railway Act," R.S.C. s. 196-Jurisdiction of court......................

PRINCIPAL AND

AGENT chattels - Public auction - Disclosure principal-Liability of auctioneer - Giving credit-Post-dated cheque............ See Aucriox.

PRINCIPAL AND SURETY

RAILWAYS-Right of action-Protection of railway crossings- -Construction of subway-Order-in-council cost-Land damages-Injurious affection- "Nova Scotia Railway Act," R.S.N.S. c. ss. and In the City Sydney the Dominion Iron and Steel Co. and the Dominion Coal Co. owned railways passing along a public highway and intersected by the tracks the Cape Breton Electric Railway Co. Under the provisions sees. and the "Railway Act" (R.S.N.S. ch. an order-in-council was passed directing that the highway be carried under the said railway tracks, the Dominion Iron and Steel Co. to execute the work and the cost to be paid in a specific proportion by the city and the three companies and "that all the land damages be paid by the City Sydney." B. owned land opposite the railway tracks and by the construction the subway the sidewalk in front thereof was narrowed and altered and access to it changed. Claiming that his property was greatly depreciated in value thereby, he brought an action against the City

Sydney for compensation therefor.- Held, that the "land damages" which the city was to pay would include damages for injurious affection such as B. claimed.

-But Held, Fitzpatrick C.J. and Idington J. dissenting, that the city was not liable for such damages, B.'s only recourse being against the company which executed the work.-Judgment the

Supreme Court Nova Scotia N.S.

Rep. affirmed, Fitzpatrick C.J. and

.

2-Board of Railway Commissioners- Jurisdiction - Lands of provincial railway tage of Canada-Transfer to provincial railway-Construction of statute-"Railway Act," R.S.C.

for Canada has no jurisdiction, under sec. the "Railway Act," R.S.C.

ch. to order that a Dominion railway conipany should be authorized to use or occupy lands which, at the time the application for the approval and the approval the location the

Dominion railway, had become the property a provincial railway com- City of Montreal v. The Montreal

Street Railway Co. ( A.C. referred to.

.-Per

Idington J.-The Board Railway Commissioners for Canada has the same power to make orders respecting the use and occupation the lands of a provincial railway company as it has in regard to the lands any other corporate body created by a provincial legislature.

3-Board of Railway Commissioners - Jurisdiction-Constructed line of railway- Deviation - Application municipality - "Special Act"-Stated case-Question

"Railway Act," R.S.C.

ss.

(Ont.), V. 68-(D.) & V.

Under the provisions sec. the

"Railway Act," R.S.C. ch. the

Board Railway Commissioners for

Canada may, its own motion, state a case in writing for the opinion the

Supreme Court of Canada upon a quesof the Board, involves a question law. Board of Railway Commissioners for Canada has no power under sec. the "Railway Act," R.S.C. ch. to order deviations, changes or alterations in a constructed line railway, established, except upon the request the railway company.

Anglin J. contra. The Dominion statute.58 & Viet. ch. confirming the municipal by-law which the location the portion the railway in question was definitely established, constitutes a

"special within the meaning the "Railway Act," R.S.C. ch. sees. and 3.-Per Anglin J.-The power the Board Railway Commissioners for Canada to order deviations, changes 4-Negligence-Electric railway of motorman-Contributory negligence - Reasonable care.] L. started to cross a street electric railway and proceeded in a north-westerly direction, with his head down and apparently unconscious his surroundings. car was coming from the east, and the motorman saw him when he left the curb at a distance about fifty yards. Twenty yards further on he threw off the power, and when L., still abstracted, crossed the devil strip and stepped on the track, reversed, being then about ten feet from him. The fender struck him before he crossed and he received injuries causing his death.

On the trial an action his widow the jury found that the motorman was negligent in not having his car under proper control, that L. was negligent in not looking out for the car, but that the motorman could, notwithstanding, have avoided the accident the exercise reasonable care. A majority them found, also, that L.'s negligence did not continue up to the moment impact.-Held, (reversing the judgment appealed from: Can. Ry. Cas. D.L.R. 300), Davies and Anglin JJ. dissenting, that the jury were entitled to find as they did; that when the motorman first saw L. he should have realized that he might attempt to cross the track, and it was his duty then to have the car under control; and that his failure to do so was the direct and proximate cause of the accident for which the railway company was liable.-Held, per Davies J.-The motorman was not guilty negligence prior to the negligence which consisted in stepping on the track when the car was near, and it was then too late to prevent the accident.-Held, per Anglin J.-The findings the jury, especially the finding that

L.'s "negligence was not a continuing act up to the moment the accident," were not satisfactory and there should be a new trial.-(Leave to appeal to the

Privy Council was refused, 4th Aug.,

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

5-Expropriation - "Railway Act" - Municipal plan-Severance of lots trators-R.S.C. c.

For the purposes expropriation under the Dominion "Railway Act," unless lots laid out on the owner's registered plan are united as to form one complete whole, each lot taken by the railway company is an independent, separate and complete property in itself, and the owner not entitled to compensation for injurious affection to any such lot, which no part is taken and which is severed from the land expropriated by a railway or by land sold to another person.

Cooper-Essex v. Local Board for Acton (14

Cas. distinguished.

Duff and

Anglin JJ. contra.-The owner land adjacent to or abutting upon the street over which a railway passes is entitled, by 1 & Geo. V., sec. to compensation for injury to such land, but the compensation can only be awarded and is not a matter for arbitration tinder the "Railway Act."-Held, per Duff and

Anglin JJ-The arbitrators appointed to value land so expropriated are functi when their award is delivered, and an appellate court has no power to remit the matter to them for further consideration.

Cedars Rapids Manufacturing

Co. v. Lacoste ( A.C. referred

HOLDITCH...............

Transfer of cars-Interswitching train crew-Scope of employient - Enployer's liability - Findings of fact train the dants while performing their duty in the transfer yard another railway company were directed by the yardmaster to remove a special car freight which was to be transferred to the defendants' railway from amongst a number other cars in the yard.

In order to do so was necessary to several cars placed in front the car to be transferred and the train crew switched these cars to certain tracks which there was then standing a train the other railway company, headed by an engine under which the fireman, plaintiff, was then working.

They undertook to couple the cars which they switching to the standing train, as a matter convenience, and, in doing so, struck the rear the train with such force as to move the engine and cause injuries to the fireman who was working under it. Specific questions were not submitted to the jury, notwithstanding suggestions made defendants' counsel after the judge had charged them, and they returned a general verdict in favour the plaintiff. -Held, affirming the judgment appealed from Man. R. that in so proceeding to couple the cars they had switched on to the standing train the defendants' train crew were still acting within the scope their employment the defendants' business and, as they performed the work in a negligent manner, the defendants were liable in damages for the injuries caused to the plaintiff.-Per Duff J.-The question, whether the acts negligence the company's servants were done in course their employment, was question fact for the jury in respect which there was evidence to support their finding in favour the plaintiff.

7-Expropriation-Agreement to fix pensation ........................

8-Negligence-Operation of tramway - Employers' liability-Accident course employment - "Workinen's Compensation tions-Construction of statue-(Que.) 9 arts. 7335-Incompatible enact Repeal

Art. C.C.-Prartice-Charge to jury-Misdirection - Er- 4.9

New trial-Art. C.P.Q...........

REGISTRY LAWS - Manitoba "Real

Property Act," ss. - Agreement for mortgage-Caveat-'"Interest in land"

-Registration subject to incumbrance-Indorsement on instrument registered.] A mortgagee or incumbrancee lands in

Manitoba, subject to the "new system"

registration titles, has such an interest in the lands as entitles him to a caveat under sec. the "Real

Property Act," R.S.M. ch. consequently, where the owner such lands, for valuable consideration, agrees to execute a mortgage thereon in favour another person, the right thus obtained constitutes an interest in the lands, within the meaning sec. which may protected by caveat in the manner therein provided; this right is not affected by the terms sec. the

"Real Property Act" limiting the effect mortgages and incumbrances.

D.L.R. was affirmed.-Per

Fitzpatrick C.J. and Idington and Anglin

JJ.-Where a mortgage has been registered, under the "new system," indorsed by the registrar as being subject to the caveat a person claiming the right to have a mortgage in his favour executed affecting the same lands, the mortgagee who has been so registered cannot afterwards claim priority over the right the caveator.

TnoApsoN...

Issue of letters patent-Title to land - Notice-Arts.

Per Idington, Anglin and

Brodeur JJ.-Prior to 1st July, the holder a location ticket for colonization land in the Province Quebec had interest in the land capable being sold.

In case sale the purchaser's title became absolute on issue the letters patent.

Such title was good, even unregistered, against a purchaser from the original locatee after the issue of letters patent who had notice the prior sale.-Per Duff J.-Without the approval the Crown Lands Department, a locatee Crown lands was incapable transferring any jus in re therein while the location was vested in him.

Never- REGISTRY LAWS-Continued. theless he could make a contract for the sale his rights in the located land, while he remained locatee thereof, which, under the provisions art. the Civil Code, would have the effect transferring the land upon the issue letters patent thereof to him by the On the proper construction art. the Civil Code, where the title the transferror does not come within the classes rights exempted from the formality registration art. C.C. and has not been registered a transfer that title does not take effect until the prior title deed has been registered.-Judgment the Court King's Bench (Q.R. K.B. reversed, Davies J. dissenting. - Davies J. dissenting.-A transfer by the locatee his rights is void made to a person or a company who could not become a bond fide settler and, therefore, could not, himself or itself, obtain a location ticket for colonization land. STEWART......................... 3-Highway-Old trails of Rupert's Land-Survey-Width of highway - Construction of statute-60 & V. 19 Territories Act," Transfer of highway-Plans of public funds.] The plaintiff's lands, held under grant bounded on the south by the middle line Rat Creek (now in the City Edmonton) and were traversed by one the "old trails" Rupert's Land, known the "Edmonton and Fort Saskatchewan Trail."

Upon instructions, under see. the "North-West Territories Act," as enacted by & Vict. ch. sec. that portion the trail was surveyed and laid out on the ground by a Dominion land surveyor, shewing its southern boundary approximately as Rat Creek, and thus giving it a width upon the plaintiff's lands in excess the sixty-six feet limited by this section. The plan this survey was not shewn to have been approved by the Surveyor- General nor was it filed in the land titles as required by the statutes force at the time.-Held, reversing the that the statute gave the surveyor no power to increase the width the highway authorized to be laid out him; that the approval the Surveyor- General and the filing the plan in the REGISTRY LAWS-Continued.

land titles were necessary conditions to the transfer of the trail as a public highway and, consequently, the land comprised in the augmentation the highway remained vested in the plaintiff.-Plaintiff sold part his lands, described as bounded by the northerly limit the surveyed trail, and, subsequently, the purchasers, and persons holding lands south Rat Creek, filed plans subdivision shewing the surveyed trail as the full width given by the surveyor. The city also claimed to have expended moneys in improving the roadway at the locality in question.- Held, that the registration the plans subdivision, made without privity the part the plaintiff, was not binding upon him, and that there was not such evidence expenditure public moneys or conduct by the plaintiff-by recognizing the plans as filed-as could preclude him from claiming the lands encroached upon or compensation therefor.

trails of Rupert's Land-Survey-Width highway-Construction of statute-"North- Territories Act," s. 108-Transfer cation - Expenditure of public funds............................

SALE-Sale of land-Stipulation as to user

-Covenant or condition-Detached dwelling house-Apartment house.] In a deed sale land it was stipulated that it was

"to be used only as a site for a detached brick or stone dwelling house, to cost at least two thousand dollars, etc."-Held, that this stipulation constituted a covenant.-Held, also, reversing

Ont. L.R. and restoring that the

Divisional Court Ont. L.R. Fitzpatrick C.J. and Duff J. dissenting, that an apartment house intended for occupation by several families was not a "detached dwelling house'' within its meaning.

2-Specific performance-Lease of land

-Option for purchase-Acceptance of new lease-Wairer of option..............

3-Taxes-Sale of land for arrears-Purchase municipality-Failure to

SALE-Continued.

notice-Curative covery-Death of deponent-Use of deposition at trial......................... -- Sale of chattels-Public auction-Disclosure of principal-Liability of auctioneer -Giving credit-Post-dated cheque... . Issue letters patent-Title to land-Registry lawa3 -Notice-Arts.

..........

6-Pouers of company-Sale of shares- Security mortgage-Subsequent creditor -Status-Forectosure............... SCHOOLS- Municipal by-law -Exemption from taxation-Validating legislation- School rates-"Public School Act," s. (Ont.)-Special by-law .... SHAREHOLDER - Company-Disqualification of directors-Taking personal profit -Fraud-Illegal contract-Ratiftcation - Right of action-Recourse minority- Alberta "Companies Ordinance," N.-W. Ter. Ord., No. of 1901-Construction SPECIFIC PERFORMANCE - Lease land-Option for purchase-Acceptance new lease-Wairer of option ......... STATUTE-Board of Railway Commissioners-Jurisdiction-Constructed line railway-Deviation-Application municipality-'"Special Act"-Stated case- Question of law-"Railway Act," R.S.C. ss. (Ont.) 68-(D.) & Under the provisions see. the "Railway Act," R.S.C. ch. Canada may, its own motion, state a i case in writing for the opinion _the 48%

Supreme Court Canada upon a questhe Board, involves a question law.

Board Railway Commissioners for Canada has no power under see.

the "Railway Act," R.S.C. ch.

to order deviations, changes or alterations in a constructed line railway, established, except upon the request the railway company. Anglin J. contra.- The Dominion Statute, & Vict., ch.

confirming the municipal by-law which the location the portion of the railway in question was definitely established, constitutes a "special Act"

within the meaning the "Railway

Act," R.S.C. ch. sees. and

3.-Per Anglin J.-The power the

Board Railway Commissioners

Canada to order deviations, changes

Assessment and taxes-Municipal law-Exemption from taxation-Validating legislation-School rates-"Public School

Act,"

Act" Ontario Vict. ch. it provided that "no municipal by-law hereafter passed for exempting any portion the ratable property a municipality from taxation, in whole or part, shall be held or construed to exempt such property from school rates any kind whatsoever."

similar provision is contained in the "Municipal Act"

Vict. ch. sec. and both are now to be found in the Revised Statutes

Ontario, ch. sec. and ch.

sec. (c).-Held, affirming the

Ont. L.R. Duff J. dissenting, that the application this legislation is not confined to the case a bylaw passed under the general powers a municipality, but it applies to limit the effect a special by-law exempting a company from all municipal assessment any nature or kind whatsoever" beyond an amount specified as its annual assessment, even when the by-law was confirmed by an Act the legislature which declared it to be legal, valid and binding, "notwithstanding anything contained in any Act to the contrary." Canadian Pacific Railway Co. v. City Winnipeg Can. S.C.R. tinguished.-Held, per Idington J. - The by-laws granting exemption did not conform to the statutory requirements and were, therefore, invalid.-(Applications for special leave to appeal to the Privy Council by the Canadian Niagara Power Co. and the Electrical Development Co. were refused, 4th Aug., 3-Appeal-Case originating in Superior Concurrent jurisdiction-' Mechanics' Lien Act" (B.C.)-Action to enforce lien.] For an appeal to lie to the Supreme Court in a case not originating in a superior court, as provided in sec. sub-sec. (b) the "Supreme Court Act," it is not sufficient that the inferior court has concurrent jurisdiction with a superior court respect to its jurisdiction; there must be concurrent jurisdiction as respects the particular suit, cause, matter or other judicial proceeding which the appeal is sought.-In British Columbia the County Court alone maintain action to the parties or any them stand in the relation debtor and creditor, the court may give judgment for the debt due whatever its amount, and if it exceeds brought in the Supreme Court the foundation for the County Court action is the enforcement the lien as to which there is no concurrnt jurisdiction, and no appeal lies to 'he Supreme Court Canada from the Judgment the Court of Appeal in such an action.

Negligence-Operation of tramwaytion Act"-Right of action-Dependent rearts. 7335-Incompatible actment-Repeal-Art. remedy given by art. 1056 of the Civil Code, in cases dilit and quasi-ddlit, was taken away in regard to the classes persons enumerated in sec.

Quebec statute respecting compensation for injuries to workmen, Edw. VII., ch.

by the limitation in sec. that statute (now arts. and the

Revised Statutes Quebec, but the effect these enactments was not to repeal the provisions art. C.C., with respect to ascendant relations who were only partially dependent for support on a deceased workman to whom the statute applied. The judgment appealed from (Q.R. K.B. was reversed,

.- Per Davies J. dissenting.-The words

"in all cases to which this Act applies,"

the statute respecting pensation to workmen,

VII., ch. sec. have reference to the special classes employment referred to in the first section the Act, and not to the classes pers6ns entitled to compensation thereunder.

Consequently, the effect see. is to limit the employers' liability to the compensation prescriked by that Act and to that

Application to appoint orbit rator-Persona designata-Amount in controversy-"Railway

Act," R.S.C. 196-Jurisdiclion of court-Practice.] railway company served notice expropriation of land on the owner, offering as compensation. It later served a copy said notice on lessee said land for a term ten years. On application to a

Superior Court judge for appointment arbitrators claimed to be entitled to a separate notice and an independent hearing to determine his compensation. The judge so held and dismissed the application, and his ruling was affirmed by the

Court King's Bench.

sought to appeal to the Supreme Court

Canada.-Held, per Fitzpatrick C.J.

and Idington J., following Canadian Pacific Railway Co. v. Little Seminary of Ste.

Thirkse Can. S.C.R. and St.

Hilaire v. Lambert (42 Can. S.C.R.' that the Superior Court judge was persona designata to hear such applications as the one made by the company;

that the case, therefore, did not originate in a superior court and the appeal would not lie.-Per Duff J.-The judge, under sec. of the "Railway Act," acts persona designata and no appeal lies from his orders under that section;-in this case, the application having been made to and the parties having treated the contestation as a proceeding in the Superior Court, which had no jurisdiction, the Court King's Bench rightly dismissed the appeal from the order refusing to appoint arbitrators; and the appeal to the Supreme Court Canada being obviously baseless should for that reason be quashed.-Held, per Davies, Duff, Anglin and Brodeur JJ., that as there nothing the record to that the amount in dispute was $2,000 or over, and no attempt had been made to establish by affidavit that it was, the failed. Highway-Old trails of Rupert's Land-Survey-Width of highway-Construction of statute-60 & V. 19 Territories Act," Transfer of highway-Plans-Registration of public funds.]

The plaintiff's lands, held under Crown grant were bounded on the south by the middle line Rat Creek (now in the City Edmonton) and were traversed by one the "old trails" Rupert's Land, known as the "Edmonton and Fort Saskatchewan Trail." Upon instructions, under sec the "North-West Territories Act," as enacted that portion the trail was surveyed and laid out on the ground by a Dominion land surveyor shewing its southern boundary approximately as Rat Creek and thus giving it width upon the plaintiff's lands in excess the sixty-six feet limited by this section. The plan this survey was not to have been approved by the Surveyor-General nor was it filed the land titles as required by the statutes in force at the time.-Held, reversing the judgment appealed from West. L.R. that the statute gave the surveyor no power to increase the width* the highway authorized to be laid out by him; that the approval the Surveyor-General and the filing the plan in the land titles were necessary conditions to the transfer the trail as a public highway, and, consequently, the land comprised in the augmentation the highway remained vested in the plaintiff.-Plaintiff sold part of his lands, described as bounded by the northerly limit the surveyed trail, and, subsequently, the purchasers, and persons holding lands south Rat Creek, filed plans subdivision shewing the surveyed trail as the full width given by the surveyor. The city also claimed to have expended moneys in improving the roadway at the locality in question.-Held, that the registration the plans subdivision, made without privity on the part the plaintiff, was not binding upon him, and that there was not such evidence expenditure public moneys conduct by the plaintiff-by recognizing the plans as filed-as could preclude him from claiming the lands encroached compensation therefor.

7-Education and taxation-Taxes payable incor- Legislative jurisdiction - "B.N.A.

92-"Saskatchewan Act," & 5

Edw. VII. c. 17-"School Assessment Act," R.S. Sask., ss.

93a.] Section the Saskatchewan

"School Assessment Act," R.S. Sask., ch. authorizes any incorporated company to give a notice requiring portion the school taxes payable by the company to be applied to the purposes separate schools, and sec. 93a, as enacted by sec. ch. the Saskatchewan statutes authorizes separate school boards themselves to give a notice to any company which fails to give the notice authorized requiring that its taxes should be apportioned between the boards according to the assessments public and separate school supporters in the district. number companies neglected to give the notice provided for, and the separate school board gave them notices requiring a portion their taxes to be applied for the purposes of that board.

In these circumstances the public school board claimed the whole the taxes payable by the companies in question, and the separate school board claimed a portion such taxes. On a special case, directed on the application the municipal corporation, questions were submitted for decision as follows: (a) Had the Saskatchewan Legislature jurisdiction to enact sec. 93a the "School Assessment Act"; question (a) answered in the negative, has the defendant (the separate school board) the right it claims to a portion of the said taxes; question (a) be answered the affirmative, has the defendant the right it claims to a portion the said taxes?-Per Davies and Duff JJ. (expressing no opinion as to the constitutionality the legislation), that the effect the enactments in question was not to give the separate school board any portion the taxes claimed by it. Chief Justice and Anglin J. contra.-Per Idington J.-The enactment see. was ultra vires the Legislature Sas- Chief

Justice Anglin J. contra.-Per Fitzpatrick C.J. and Anglin J.-The Legislature Saskatchewan had jurisdiction to enact sec. 93a the "School Assessment Act," and the taxes payable by the companies in question should be apportioned between the public and the separate school boards shares corresponding with the total assessed value assessable property assessed to persons other than incorporated companies for public school purposes and the total assessed value property assessed to persons other than incorporated for separate school purposes respectively.-Judgment appealed from West. W.R. reversed, the Chief Justice and Anglin J. dissenting. 8-Manitoba "Real Property Act," ss. 130-Agreement for mortgage-Caveat -"Interest in land"-Registration subject to incumbrance-Indorsement on instrument registered..................... 9-Company-Disqualijication of directors-Taking personal proft-Fraud-Illegal contract-Ratification-Right of action-Shareholder-Recourse minority- Alberta "Companies Ordinance," N.-W. Ter. Ord., No. 20 of 1901-Construction of statute.........................

10-Board of Railway Commissioners- Jurisdiction-Lands of provincial railway tage of Canada-Transfer of provincial railway-Construction of statute-"Railway Act," R.S.C.

11-"Railway Act"-Expropriation - Municipal plan-Severance of lots-Intrators-R.S.C., 37-(D.) 1 & 2 s. 6.................

STATUTES - (Imp.) "B.N.A.

Art,"

92 (Provincial powers) ......

(Imp.) "B.N.A.

Act," s.

(Provincial powers) ................

3-RS.C.

. . . . . . .

.

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

8 4

4-R.S.C., 106, c. ss.

5-R.S.C., (Railways)..

R.S.C., s. (Supreme

C ourt) .............................

7-R.S.C., s. (Railways)

..........

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

8-(D.)

& V. (Hamilton Railway Station)........................

9-(D.)

Territories) ......................

10-(D.) 1 (Mining).

11-(D.) 4 & Edw. 'II., 42, s. 17

("Saskatchewan Act")...............

12-(D.) 1 & Geo. s. 6

STATUTES-Continued.

-R.S.O., s. 184 ("Assessments")......................... 14-R.S.O., s. 15--R.S.O., s. ......... (Ont.) V., s. (Municipal Act) ........................

(Ont.) s. (Public schools)............................ (Ont.) (Hamilton Railway Station)........................ 19-(Ont.) Edw. VII., s. 8 (Taxation).......................... (Ont.) Edw. VII., 8 (Taxation).............. ......... R.S.Q., arts. (Workmen's Compensation).......... (Que.) Edw. VII., men's compensation) ................

23-(Que.) (Ville Grand'M are)........................ R.S.N.S., ss. R.S.M., ss. (Registration ) ................. ........... 26-R.

S. B.

liens)...........................

STATUTES-Continued.

27-N.-W. Ter. Ord. of (Companies)..............................

28-R.S.

Sask., s.

SURETYSHIP-Principal and surety- Insolvency of debtor-Action liquidator against principal creditor-Compromise- Agreement not to rank-Payment sureties-Right of sureties to rank.]

By a contract suretyship and others guaranteed payment to a bank advances to a company by discount negotiable securities and otherwise, the contract providing that it was to be a continuing guarantee cover any number transactions, the bank being authorized to deal or compound with any parties to said negotiable securities and the doctrines law and equity in favour a surety not to apply to its dealings.

The company became insolvent and its liquidator brought action against the bank to set aside some its securities, which action was compromised, the bank receiving a certain amount, reserving its rights against the sureties and agreeing not to rank on the insolvent estate. The sureties were obliged to pay the bank and sought to rank for the amount.- Held, affirming the judgment the

Appellate Division Ont. L.R.

that they were not debarred by the compromise said action from so ranking.

2-Cancellation of' contract-Expelling contractor-Condition precedent-Possession of plant-Waiver-Seizure in execu- Insolvency-Abandonment of works....................

SURVEYS-Highways-Old trails of Rupert's Land-Width of highway-Construction of statute-"North-West Territories

Act," s. 108-Transfer of highway-Plans

SALES - Assessment and taxes Sale of land for arrears-Purchase by municipality-Failure to give notice- Curative Act-Evidence-Discovery-Death of deponent-Use of deposition at trial.] By sec. the "Ontario Assessment Act" (R.S.O. ch. where the sale land for unpaid taxes is adjourned for want a bid for the full amount the* arrears the municipality may purchase the land at such adjourned sale if its council, before the day thereof, has given notice its intention to do so. Appellate Division Ont. L.R. that failure to give such notice is cured by the provisions Edw. VII., ch. 86, sec. and its amendment, Edw. VII., ch. sec. City of Toronto v. Russell A.C. followed.-On the piration the time for redemption after sale all rights the former owner are barred.-The depositions a party to an action taken on discovery cannot, when the deponent has died in the interval, be used against the opposite party unless the latter has first used it for his own purposes.

TORONTo........................... TITLE TO LAND-Crown lands-Colonization-Location ticket-Transfer locatee-Sale-Issue of letters patent-Registry laws-Notice-Arts. Per Idington, Anglin and Brodeur JJ.-Prior to July, the holder a location ticket for colonization land in the Province Quebec had an interest in the land capable being sold.

In case sale the purchaser's title became absolute issue the letters patent.

Such title was good, even unregistered, against a purchaser from the original locatee after the issue letters patent who had notice the prior sale.-Per Duff J.- Without the approval the Crown Lands Department, a locatee Crown lands was incapable transferring anyjus in re therein while the location was vested in him. Nevertheless he could make a contract for the sale his rights the located land, while he remained locatee thereof, which, under the provisions art. the Civil Code, would have the effect transferring the land upon the issue letters patent thereof to him by the Crown.

On the proper construction art. the Civil Code, where the title thy transferror does not come within the classes rights exempted TITLE TO LAND-Continued.

from the formality registration art. C.C. and has not been registered a transfer that title does not take effect until the prior-title deed has been registered.-Judgment the Court

King's Bench (Q.R. K.B. reversed,

.-Per

Davies J.

dissenting.-A transfer by the locatee his rights is void if made to person or a company who could not become a bond 'settler, and, therefore, could not, himself or itself, obtain a location ticket for colonization land.

STEWART........................

2-Trespass - Cutting timber grant - Conflicting claims - Priority title- Eidence......................

TORRENS SYSTEM

See LAws.

grant claims-Priority of title-Evidence.] The judgment appealed from N.S. Rep.

Defendant claimed that the wood was cut on his own land.

Each party claimed title through allotment on the foundation the township and by subsequent Crown grants.-The trial judge held that the plaintiff's case depended on the properties overlapping and he could only succeed by establishing priority title.

He held as to this that the original party from whom the defendant claimed had an allotment possession before plaintiff's title originated and the allotment was confirmed by a township grant in and by Crown grant in the latter reciting his possession for more than twenty years previous.

The Supreme

Court Nova Scotia reversed this judgment, holding that, on the evidence, plaintiff's title was prior and defendant's grant in derogated from it.-The

Supreme Court Canada allowed the appeal and restored the judgment at the trial the action.

TRAMWAYS

USER-Sale of land-Stipulation as user-Covenant or condition-"Detached dwelling-house"-Apartment house... 204 VALUATION

Agreement to fix compensation-Arbitration caluation-Powers of referees-Majority decision.] Where the land was expropriated for railway purposes the railway company and the owner agreed to have the compensation determined by reference to three named persons called ''valuers" in the submission; their decision was to be binding and conclusive on both parties and not subject to appeal; they could view the property and call such witnesses and take such evidence, on oath or otherwise, as they, or a majority them, might think proper; and either party could have a representative present at the view or taking evidence, but his failure to attend any reason would not affect the validity the decision.-Held, Fitzpatrick C.J. and Duff J. dissenting, that this agreement did not provide for a judicial arbitration, but for a valuation merely, the parties to whom the matter was referred, the land expropriated.-The agreement provided that a valuator should appointed by each party and a County Court judge should be the third; if one those appointed would or could not act the party who appointed him could name a substitute; if it was the third the parties could agree on a substitute, in which case the decision any two would be binding and conclusive without appeal;

if they could not agree a High Court judge could appoint. There was no necessity for substitution. -Held, that the decision any two the valuators was valid and binding the parties.

MASSIE.......................... WAIVER-Cancellation of contract-Expelling contractor-Condition precedent- Possession of plant-Seizure in executionof works-Suretyship ................

2-Specific performance-Lease of land-. Option for purchase-Acceptance of new lease-Waiver of option............. WATERWORKS-MAunicipal corporation with company-Franchise for water supply-Protection against fire- Negligence-Liability of company to ratepayer-Dilit-Damages.............. 356

WILL-Construction of will-Legacy to church committee-Contribution to "building fund"-Ulterior disposition-Application to purpose intended-Lapse of devise- Art. 964 C.C.] At a time when the congregation of St. Matthew's Presbyterian

Church, in Montreal, was heavily encumbered with debt incurred in building the church, a committee was formed collect contributions to be applied liquidating the debt by means a

"building fund," and the testatrix made her will by which she bequeathed certain real property to that committee.

Several years later the committee were relieved their duty and the building fund ceased to exist, and during the year previous to the death the testatrix the original debt in respect which the building fund had been established was fully paid. There remained, however, at the time her death, balances debt still due for expenses incurred for other building purposes. In an action to have the bequest declared to have elapsed account failure in its ulterior disposition,-Held, the judgment appealed from (Q.R. 46 S.C. Duff and

, that, in the circumstances the case, the bequest must be construed as a bounty to the trustees the church for the purposes of building expenses, including debts incurred for such purposes subsequent to the construction the church; that the motive the testatrix not to make tribution to any particular fund, but to benefit the congregation in respect to its building liabilities generally, and that the legacy did not lapse in consequence the "building fund" having ceased to exist and the extinction the debt regard to which contributions to that fund were to be applied.-Per Duff and

WILL-Continued.

.-It was the essence the gift that it should be capable, at the time the death the testatrix, being applied in furtherance the specific purpose for which the "building fund" had been instituted and, that having become impossible, it lapsed under the provisions art. of the Civil Code. WORDS AND PHRASES - "Building fund............................

"Detached dwelling house"...... 204 "In all cases to which this Act applies" ..............................

4- "Interest in land"............... 5 -"Land damages"............... "Provincial objects"........... "Special Act"................ WORKMEN'S COMPENSATION- Negligence-Operation of tramway-Employers' liability-Accident in course employment- "Workmen's tions-Construction of statute-(Que.) 9 VII., ss. 15-R.S.Q., arts. 7335-Incompatible entice-Charge to jury-Misdirection-Ex- New trial-Art. C.P.Q...........