Laroche v. Laroche

f RESPONDENTS. APPEAL FROM THE OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.

the judgment of the court below rests, I cannot see my way to reversing the same.

.-The better view seems to be, on principle, that the failure of the husband to make an inventory within three months after the death of the wife has the effect of concluding him finally as against the minor children from saying whether the community was dissolved by the death of the wife.

It is for the minor children to say whether they shall or shall not take advantage in this way of the default and until something has been done by them which precludes them from doing so they do not lose this right. It is difficult to say why the death of the father should deprive them of the right. The heirs claim through the father and I cannot understand why, in principle, their position as against his minor children should be any better than his position at the moment of his death.

The respondent's construction leads to inconveniences and I have been unable to find any satisfactory ground upon which such rule can properly be rested. It might throw some light upon the question to know whether the community is dissolved -by the death of the infant heir leaving an heir. As the right is not a right personal to the infant heir and as it is given in substitution of the right to demand an account as at the expiration of the time for making an inventory, it should seem on ordinary principles that it is a demand that could be made at any time unless it could be said that the failure to make it during the lifetime of the survivor operates as a renunciation. Pothiers' treatment of the subject seems to be opposed to the respondent's hypothesis.

See also Lamignon at pages 288 and 289:- Le mome article ajoute, faute faire clore Pinventaire dans les trois mois, la communautA est dissolue, si bon semble aux enfants: et quelques-uns ont pens6 que qui 6tait A la fin de article ne signifie autre chose, sinon que la continuation de communaut4 n'est point necessaire de la part des enfants, et qu'il est en leur libert6 d'y renoncer; et que, quand ils demandent la continuation communaut6, ils sont oblig6s d'en souffrir le cours pour I'avenir, nonobstant Pinventaire qui n'a point 6t4 clos dans les trois mois, puisque, par le d4faut cloture, il trouve nul et d4fectueux, et est declare tel par la coutume.

Mais il semble que Fintention et Pesprit de la coutume t faire une d4cision contraire; car il 4tait inutile rdp6ter, article, que les enfants ont la facultA prendre la communaut6 temps du niariage, dans '4tat qu'elle 6tait lors de la dissolution du mariage, on bien de demander la continuation de communauts. avait 6t6 regl, en termes formels et prdcis, par le pr6ckdent article. Mais, dans celui-ci la coutume avant d6cide, premierement, que communaut46 est dissolue du jour que Pinventaire est fait et parfait, a la charge de le faire clore dans trois mois: et, en second lieu, qu'a faute de faire la, dite cloture dans le temps prescrit, la communautd est continube, et reprend son cours ordinaire; elle a apport6 A cette derniare d4cision un temperament, si bon semble asi enfants; c'esta-dire, que la ddfaut de cloture, dans trois mois, rend la continuation de communaut6 n6cessaire contre le survivant des pbre et mere, qui pouvait et devait faire clore 'inventaire pour satisfaire a la coutume.

A 1'Agard des enfants, elle a laiss6 A leur libert6 de servir du ddfaut de cette formalit6 pour faire courir la communaut6; on bien de Parrter du jour linventaire, quoiqu'il ne soit pas clos; parceque cette cloture et cette affirmation judiciaire de l'inventaire avant 6t0 ordonn6e fareur des enfants. il leur est loisible renoncer f qui a 6t4 6tabli en leur faveur, et A une solemnitO extrinseque qui n'est ni du corps ni de la substance 'inventaire, attendu meme que, par texte Particle. linventaire tait parfait capable de dissoudre la communaut4 avant la cloture.

Had the representatives from Quebec in this court been unanimous I should not have ventured to differ from the view of the court below.

In the existing circumstances, however, with great diffidence, I am constrained to say that in my opinon the appellant ought to succeed.

J.-Ini Kiy

JIHClendry(1), Mr. Justice (irouard speaking for his colleagues says, at page 456, that, in order that there should be tinuation of community between a surviving spouse and the children of the marriage,

The learned judge adds that the maxim, de minimis non curat le.r, applies and that the possession of trifling articles of absolute necessity and exempt from seizure does not impose the obligation of inventory. This was -the basis of the judgment of this court, reversing that of the Court of King's Bench.

This precedent binds us.

In the formal judgment of the Court of King's Bench in the present case we find this "consid6rant": Mr. Justice Trenholme, speaking for the majority of the court, says:- Speaking for the dissenting minority, Mr. Justice Carroll says:- It is, therefore, evident that the appellant failed to prove the existence at the time of his mother's death of such property of the community as would, under the authority of King V. McHendry(1), subject his father to the obligation of inventory.

While by no means satisfied that if free from the constraint of authority I should not have reached the same conclusion as the learned trial judge, in deference to the previous decision of this court I concur in the dismissal of this appeal.

J.-l

S'agit dans cette cause de savoir s'il y a eu continuation de communaut6.

Lors du d~chs de la femme, qui est arriv6 en 1877, les biens de la communaut6 qui avait exist6 entre elle et son mari 6taient peu consid~rables, et il parait 6vident que le passif exc~dait 1'actif. A tout 6v~nement, deux ou trois ans plus tard, le mari, qui faisait aff aires comme pharmacien. a 6t6 oblig6 de faire cession de ses biens suivant les dispositions de l'acte de faillite de Il n'avalit pas jug6 it propos de faire inventaire, 6videmment A raison du fait que les frais d'inventaire et de partage auraient occasionn6 des d6penses qui auraient augmentI davantage le passif de la commnnaut6; et alors il a cru qu'il valait mieux continuer les affaires.

II comptaAt sur des jours meilleurs il pourrait aDliorer la situation financire de la comnuiiautk. Maiheureusement ce commerce ne fut point prospare J. et il fut oblig6 de faire cession de ses biens. Il y eut liquidation de tous les biens, mime ceux de la communaut6, et le mari est rest6 avec des dettes. Le mari a fait affaire ensuite sous le nom d'un frdre qui a 6t6 oblig6 encore cependant de faire cession de ses biens vers 1885.

Il a continu6 encore h faire affaire comme pharmacien sous la raison sociale de Laroche & Compagnie et en definitive, a sa mort, avait rhussi A amasser une fortune assez consid6rable. Le demandeur est devenu majeur il y a h peu pr~s quinze ans et pendant la vie de son phre il n'a jamais song6 a demander la continuation de la communaut6. Je vois que la Gour d'Appel a d6clar6 qu'il n'y avait pas eu continuation de communaut6 parce que l'absence d'inventaire n'avait caus6 aucun pr6judice au demandeur.

Cette question 6tait venue devant cette cour il y a quelques ann6es dans une cause de King v. McHendry (1), et il avait t6 jug6 dans cette cause qu'il n'y avait pas eu ncessit de faire inventaire parce que les biens 6taient d'une valeur insigniflante et que dans ce cas n'y avait pas lieu A la continuation de communaut6.

En appliquant les principes de cette d6cision A la cause actuelle, je considbre que le demandeur n'est pas en droit de faire d6clarer qu'il y a en continuation de communaut6 parce que s'il n'y a pas eu d'inventaire cela ne lui a occasionn6 aucun pr6judice.

I me parait 6vident que la communaut6 6tait insolvable a la mort de la femme. Le pire, cependant, a jug6 iA propos de continuer A tenir pharmacie dans I'espoir qu'il r6ussirait a sortir des difficult6s financibres oii il se trouvait. Malheureusement le succ~s ne vint pas couronner ses efforts: il fut oblig6 de faire cession de ses biens et la un inventaire a 6t6 fait, qui n'est pas, il est vrai, linventaire notari6 requis par la loi mais il y a en liquidation des biens de la communaute et le droit demander alors I'inventaire est disparu, puisqu'il n'y avait plus rien a inventorier. Pour ces raisons, le jugement de la Cour d'Appel qui a d6clar6 qu'il n'y avait pas eu continuation de communauth doit 6tre confirm6 avec d6pens.

Gov'ernment of British Columbia unsuccessfully attempted, through the agency to obtain a transfer the rights of a band of Indians in the Kitsilano

Reserve.

About a year afterwards C.

became interested in the matter and arranged with R., a solicitor, that they should undertake to obtain the required transfer on the understanding that any profits made out of the transaction should be equally divided between them. Long negotiations with the band took place without any definite result, when, without the consent of through the intervention at the request R., the transfer was obtained and R. received a sum money from as a share of the profits realized carrying the transaction through.

In an action by C. to recover one-half of the amount so received by R., from B.C. Rep. that throughout the whole transactions the fiduciary relationship of solicitor and client had continued between R. and C. and, consequently, that R. was obliged to account to C. for what he had received from as remuneration for services in connection with the business which they had jointly undertaken in order to obtain the transfer the title from the Indians.

ACTION-Municipal corporation-Powers of council-Highways-Exclusive privilege

-Necessity of by-law-Validity of contract of action-Status of plaintif- Shareholder in joint-stock company-Ratepayer-Special injury-Public interest- Prosecution Attorney-General-Practice

-Art. 978, C.P.Q.] Assuming to act under authority of an existing by-law regulating traffic by autobusses and in virtue of a special statute Geo. ch. (Que.) ), and the general powers conferred by the city charter the municipal council passed a resolution authorizing the corporation

ACTION-continued.

of the municipality to enter into a contract granting a joint stock company the exclusive privilege of operating autobus lines on certain streets in the city and charging fares for the carriage passengers. action was brought by a shareholder a tramway company (which held similar privileges), who was also a municipal ratepayer attacking the validity the by-law and of a contract made by the municipal corporation in pursuance of the resolution on the grounds that there was no authority for the granting of such exclusive privileges, that such powers, if they existed, could only be exercised by means of a by-law, and that a provision in the contract whereby the municipality became entitled to certain shares in the stock the autobus company was ultra vires the municipal corporation.-Held, affirming the judgment appealed from (Q.R. K.B. Idington and Anglin JJ. dissenting, that in the absence evidence special injury sustained by the plaintiff, he had no status entitling him to bring the action.-Per Idington J. dissenting. The plaintiff was entitled to institute the action by virtue either of his quality as a shareholder in the tramway company, the privileges of which might be injuriously affected, or as a ratepayer the municipality.-Per Anglin J. dissenting. The plaintiff could bring the action his capacity as a ratepayer of the municipality.-Per Fitzpatrick C.J. and Duff and Brodeur JJ. An appropriate remedy in such a case would be by action prosecuted by the Attorney-General of the province under article 978 of the Code Civil Procedure.-Per Duff J. Such an action might be prosecuted either by the municipal corporation itself or by authority representing the general public. -Validity of the by-law, resolution and contract in question discussed by Idington, Duff and Anglin JJ.-(Leave to appeal to the Privy Council was refused 18th

December, 2--Illegality of contract-Rescission- Recovery of money paid-Right of action.] ACTION-continued.

The vindicatory sanction imposed by the

Alberta statute, Edw. VII., ch. sec.

as annulled by 1 Geo. V., ch. 4, is directed against the vendor and where there is no presumption knowledge of the invalidity on the part the purchaser he cannot be deemed in pari delicto with the vendor and is not deprived of the right of action to set aside the agreement and recover back moneys paid thereunder.

3--"Lord Campbell's Act"-Injury outside province-Right of action in Manitoba.]

Per Idington, Duff and Brodeur JJ. A legal obligation delicto, arising in consequence a fatal accident which happened beyond the territorial limits the

Province Manitoba, may be enforced in the Manitoba courts where, according to the law in force in Manitoba, a similar right action would have arisen if the accident had occurred within the province.

Phillips v. Eyre (L.R. Q.B. 1) referred

4--Personal wrongs-Trial jury- Art. C.C.-Arts. 421 et C.P.Q.- Right of action defendants.] An action for damages, under -article 1056 the

Civil Code, brought by dependents a person whose death was caused in consequence dilit or quasi-dilit an action resulting from personal wrongs within the meaning articles et seq. the Code

Civil Procedure Quebec in which there may be trial by jury. Fitzpatrick

C.J. contra.-Per Fitzpatrick C.J. dissenting.

The right action given to the dependents, under article the

Civil Code, purely statutory, and not a representative right (see Robinson v.

Canadian Pacific Railway Co. (1892) A.C.

481); consequently, the dependents, who have suffered no personal wrongs, are not entitled to trial by jury under the provisions chapter the Code Civil

Procedure Quebec.

SAGUIN............... 644

ACTION-continued.

5--Pilotage authority-Compulsory retirement of pilot-Judicial function-Liability to action.................... 6--Fire insurance-Bawdy house-Immoral contract-Legal maxim-Ex turpi causd non oritur actio-Cancellation policy-Statutory condition-Notice to insured-Return of premium-Principal and agent...........................

ADVANCEMENT-Title to land-Conveyance in fraud of creditors -Husband and relief Restitution-Evidence-Statute of Frauds. . AGENCY

APPEAL-Jurisdiction-Probate Court- Surrogate Court-R.S.C. Under the terms of section the "Supreme Court Act" an appeal lies to the Supreme Court of Canada from the judgment the Appellate Division the Supreme Court Ontario in a case originating in a Surrogate Court of that province.

Idington J. dubitante.-On the merits the judgment the Appellate Division (32 Ont. L.R. 312) was -- Construction of statute-Retrospective legislation-Practice-Pleading.] After the judgment appealed from had been rendered the statute in question was amended by the addition of a sub-section (8 (a) ) providing that the seventh sub-section could not be- pleaded or relied upon in any civil action or proceeding by a party to any such agreement when the plan question had been registered before the action or proceeding was instituted where it was the duty the party pleading to make such registration.-Held, that, as the last amending Act was not a statute declaratory the law as it stood at the time when the judgment appealed from was rendered, and as appeals to the Supreme Court of Canada are not of the nature of re-hearings to which the principle the decision in Quilter v. Mapleson Q.B.D. 672) applies, the restricting APPEAL-continued.

decision the present appeal.

11EIGHTS

3--Jurisdiction-Injunt ion-Matter in controversy - Refusal of Costs - Supreme

Court Rule 4-"Supreme Court Act," s. 46.1

In an action for an injunction restraining the defendant from carrying on dangerous operations in a quarry, and for damages, Held, that the Supreme Court

Canada had no jurisdiction to entertain an appeal.

Price'Bros. v. Tanguay

S.C.R. and Hamilton

Hamilton Distillery Co. (38 Can. S.C.R.

Shawinigan Hydro- Electric Co. v. Shawinigan Water and

Power. Co. (43 Can. S.C.R. distinguished.-The appeal was quashed but without costs as the respondent had neglected to move for an order to quash the appeal within the time limited

Supreme Court Rule No. 4.

CAUCHON.......................

4--A ppeal-Jurisdict ion of provincial

Assessment-Railway bridge navigable river-R.S.O. 195-R.S.O.

Court Revision to the county court railway company took an appeal direct from the Court Revision to the Board. When the appeal came up court judge.

The Board then heard the section 80 the "Assessment Act," which allows an appeal on a question law only, to the Appellate Division which reversed it.

On appeal from the last mentioned judgment to the Supreme Court Canada.

-Held, Fitzpatrick C.J. and Idington J.

dissenting, that the case was not adjudicated upon by the Board extra cursun curiw; that it came before the Appellate

Division and was heard and decided in the ordinary way; appeal would therefore to the Supreme Court under section the "Supreme Court Act."-Per Duff J.

The decision the Board that the ob- APPEAL-continued.

jection to its jurisdiction could be waived and that it could lawfully hear the appeal from the Court Revision direct (and affirm or amend the assessment) given at the invitation both parties pursuant to an agreement between them and acted upon by the Board in hearing the appeal on the merits, and acted on by the Appellate Division, is binding on the parties and not open to question on this appeal: Ex parte Pratt Q.B.D. 334); Forrest v. Harvey (4 Bell App. Cas. 197); Gandy v. Gandy (30 Ch. D. 57); Roe v. Mutual Loan Fund Association Q.B.D. 347); and, consequently, the appellant municipality precluded from contending on appeal to the Supreme Court of Canada that, in 5--Trial by jury-Acquiescence in courts below-Taking new objection-Art. C.C.-Arts. 421 C.P.Q.-"Lord Campbell's Act."] Per curiam.-Where an order has been made for trial with a jury, according to the provisions of articles 422 seq the Code Civil Procedure Quebec, and both parties have acquiesced in that form trial, objection to the right to trial by jury cannot be urged for the first time on an appeal to the Supreme of Canada.

Co. SGUIN............... ASSESSMENT AND TAXES-Interest in land-Recitals in agreement-Val idat ion by statute-Legislative declarations-Construction of contract-R.S.B.C., s. 47-2 (B.C.)-3 s. (B.C.).] By an agreement, executed in H. agreed to sell to and certain subsidy lands of a railway company and it was therein provided that the moiety of the lands should be subsequently conveyed to H. but no formal instrument was ever executed for the purpose vesting this interest in him.

In 1912, an agreement was entered into by all the persons interested in the lands and the Crown for the re-purchase by the Government British Columbia the unsold portions of the lands and this latter agree- ASSESSMENT TAXES-cont.

ment was validated by the "Railway

.Subsidy Lands Re-purchase Act," 2 Geo.

V., ch. 37 (B.C.) (to which it was annexed as a schedule), which declared that the provisions of the agreement were to be construed as if expressly thereby enacted.

The agreement so validated declared, in recitals therein, that H. was entitled to an undivided one-half interest in the lands in virtue of the agreement executed in

1898, that the portions thereof conveyed to the Crown were subject thereto, and that the title should pass to the Crown subject to such estate or interest.-Held, affirming the judgment appealed from

(20 B.C. Rep. 99), that, by the effect of the validated agreement as supplemented by the legislative declarations in the

Subsidy Lands

Repurchase

Act," 2 Geo. V., ch. 37, an interest in the lands became vested in H. which was liable to assessment and taxation under the British Columbia "Taxation Act,"

R.S.B.C., 1911, ch. 222, sec. 47, as amended by 3 Geo. V., ch. 71, sec. 5.

Angus v.

Heinze (42 Can. S.C.R. 416), referred to.

(Leave to appeal to Privy Council was refused, 3rd Feb., 1916.)

RE

2--Appeal-Jurisdiction of provincial river-R.S.O. c. 195-R.S.O.

c. 186.]

By the Ontario Assessment Act an appeal is given from a decision of the

Court of Revision to the county court

A railway company took an appeal direct from the Court of Revision to the Board. When the appeal came up court judge. The Board then heard the section 80 of the "Assessment Act," which allows an appeal on a question of law only, to the Appellate Division which reversed it.

On appeal from the last mentioned judgment to the Supreme

Court of Canada, Held, Fitzpatrick C.J.

and Idington J. dissenting, that the case was not adjudicated upon by the Board extra cursum curia; that it came before

ASSESSMENT TAXES-cont. the Appellate Division and was heard and decided in the ordinary way; an appeal would therefore lie to the Supreme Court under section 41 of the "Supreme Court Act."-Per Duff J. The decision of the Board that the objection to its jurisdiction could be waived and that it could lawfully hear the appeal from the Court of Revision direct (and affirm or amend the assessment) given at the invitation of both parties pursuant to an agreement between them and acted upon by the Board in hearing the appeal on the merits, and acted on by the Appellate Division, is binding on the parties and not open to question on this appeal: Ez parte Pratt (12 Q.B.D. 334); Forrest v. Harvey (4 Bell App. Cas. 197); Gandy v. Gandy (30 Ch. D. 57); Roe v. Mutual Loan Fund Association (19

Q.B.D.

347); and, consequently, the appellant municipality is precluded from contending on appeal to the Supreme Court of Canada that, in A railway company, under authority of the Parliament of Canada, built an international bridge over the St. Lawrence River at Cornwall and have since run trains over it.-Held, that such superstructure supported by piers resting on Crown soil and licensed for railway purposes was not included in the railway property assessable under sec. 47 of the "Ontario Assessment Act" (R.S.O. [1914] ch. 195); if it is included it is exempt from taxation under sub-sec. 3 of sec. 47.-Judgment appealed against (34 Ont. L.R. 55) Co. 466 ASSIGNMENT-Builders and contractors -Materials supplied--Order for money payable under contract-Evidence-Estoppel-Lien-Enforcing equitable assignment A building contractor gave a written order upon the owner directing him to pay the sum of $800 to the plaintiff on account of the price of materials supplied for use in the building which was in writing, was held over to await the time for making payments under the contract.

The contractor failed to complete the work, and it was finished by the owner at an outlay which left the balance of the contract price insufficient to meet ASSIGNMENT-continued.

the full amount of the order.-Held, the

, that the order was effective as an assignment of money payable under the contract, but, as there was no evidence of a promise to pay the amount thereof out of the fund, or of facts precluding the owner from denying the sufficiency of what ultimately was payable to the contractor, it could not be enforced against the owner as an equitable assignment.- Per Duff J. As the equitable relief sought could be granted only upon a consideration of all the circumstances and no claim therefor was made in the courts below nor was the evidence directed to any such claim, the claim came too late on an appeal to the Supreme Court of Canada.-Per

. As the conduct of the owner respecting the order was equivocal and misleading and induced the materialman to abstain from filing a lien to protect himself, the owner ought to be held liable for the full amount of the order as an equitable ment of the Appellate Division (8 West.

W.R. 729; 8 Alta. L.R. 215) was dismissed with costs. RITCHIE 243

2--Construction of statute-Alberta "Assignments Act"-Assignment for benefit of creditors-Occupation of leased premises- Liability of official assignee.] The Alberta

"Assignments Act," as amended by the

Alberta statutes, ch. 4, sec. 14 of 1909 and ch. 2, sec. 12 of 1912, provides that assignments for the general benefit of creditors must be made to an official assignee appointed under the Act and that the assignment shall vest in such assignee all the assignor's real and personal property, credits and effects which may be seized and sold under execution.

The lessee of premises held under a lease from the plaintiffs made an assignment to the defendant who took possession thereof and, on threat of distress, agreed that he would guarantee the rent so long as he remained in occupation.

After three months, the defendant quitted the premises and notified the landlord that he would no longer be responsible for or pay the rent. In an action for breach of the covenants of the lease and to recover the rent accruing to the end of the term: Held, reversing the judgment appealed from

(8 Alta. L.R. 226), Idington and Brodeur

, that by the effect of the

ASSIGNMENT-continued.

assignment and entry into possession the term of the lease passed to the official assignee who, thereupon, became liable for the whole of the rent accruing for the remainder of the term.

CO. MACKINNON ....... ATTORNEY-GENERAL-Right of action -Status of shareholder-Public interest- Prosecution by Attorney-General-Practice -Art. 978 C.P.Q.................. BANKS AND BANKING-Banking- Purchase of company's assets-Bill of sale -Description of chattels-B.C. "Bills of Sale Act," R.S.B.C., 1911, c. 20-Registration-Recital in bill of sale-Consideration-Defeasance-Reference to unregistered note-Collateral security-Loan by bank-"Bank Act," 3 & 4 Geo. V., c. 9, s. 76.] Under the British Columbia "Bills of Sale Act," R.S.B.C., 1911, ch. 20, any description by which the goods affected by a bill of sale can be identified is formally sufficient, as the Act does not require specific description of the chattels comprised therein.-A bill of sale given as security for the payment of a promissory note contained recitals shewing particulars of the note and that interest was payable on the amount thereof, but the rate of interest was not mentioned and the note was not annexed thereto nor registered with the bill of sale.-Held,' per Davies, Idington, Duff and Brodeur JJ. that the recitals stated the consideration in a manner which substantially conformed to the requirements of section 19 of the "Bills of Sale Act," R.S.B.C., 1911, ch. 20, and the omission to annex the note to the instrument as registered was, in this regard, immaterial. Credit Co. v. Pott (6 Q.B.D.

295) followed.-Per Duff, Anglin and Brodeur JJ. (Idington J. contra.)

As the assurance was embodied in two documents, the bill of sale and the note, and one of these documents, the note, was not registered as required by section 19 of the B.C. "Bills of Sale Act," the absence of a complete statement of the terms of defeasance in the bill of sale rendered it void as a security to the bank. Cochrane v. Matthews (10 Ch. D. 80n); Ex parte'Odell'(10'Ch. D. 84); Counsell v. London and Westminster Loan and Discount Co. (19TQ.B.D. 512); Edwards v. Marcus ( (1894) 1 Q.B. 587), and Ex parte BANKS BANKING-continued.

Collins (10 Ch. App. 367), referred to.-As part the consideration an agreement by which the bank acquired the office site and business of a trust company the bank became responsible for the claims persons who had deposited money with the company and, to secure the bank respect to this liability and form a fund to meet payments to depositors, the company gave the bank a promissory note the amount the deposits and assigned assets to the bank which included, amongst other securities, the bill sale above mentioned.-Held, per Fitzpatrick C.J. and Davies, Duff, Anglin and

Brodeur JJ. (Idington J. contra), that the transaction was not a loan of money an advance made by the bank in contravention section sub-sec.

the "Bank Act," & 4 Geo. ch.

but a legitimate exercise the powers conferred by the Act.-Per Duff J. If the transaction were to be considered as a loan it would, nevertheless, be unobjectionable because it would be a loan upon the security an "obligation" of a corporation within the meaning clause of the first sub-section section 76 the "Bank Act," and it is immaterial that the "obligation" was secured by a charge upon the property of the corporation.-The judgment appealed from

D.L.R. 647; West. W.R. 734) was reversed, Fitzpatrick C.J. and Davies J.

BILL OF SALE-Banking-Purchase company's assets-Description of chattels- B.C. "Bills of Sale Act," R.S.B.C.,

20-Registration-Recital in bill of sale to unregistered note-Collateral security-Loan bank-"Bank Act," & 4

V.,

Under the British

Columbia "Bills Sale Act," R.S.B.C., ch. any description by which the goods affected by a bill of sale can be identified is formally sufficient, as the

Act does not require specific description of the chattels comprised therein.-A bill of sale given as security for the payment a promissory note contained recitals shewing particulars the note and that interest was payable on the amount thereof, but the rate interest was not mentioned and the note was not annexed thereto nor registered with the bill of sale.- BILL OF SALE-continued.

Held, per Davies, Idington, Duff and Brodeur JJ., that the recitals stated the consideration in a manner which substantially conformed to the requirements of section of the "Bills of Sale Act," R.S.B.C., ch. and the omission to annex the note to the instrument as registered was, in this regard, immaterial. Credit Co. v. Pott Q.B.D. followed. Duff, Anglin and Brodeur JJ. (Idington J. contra.)

As the assurance was embodied in two documents, the bill sale arid the note, and one these documents, the note, was not registered as required by section the B.C. "Bills

Sale Act," the absence of a complete statement the terms defeasance in the bill of sale rendered it void as a security to the bank. Cochrane v. Matthews Ch. D. 80n); Ex parte Odell Ch. D. 84); Counsell v. London and Westminster Loan and Discount Co. (19 Q.B.D. 512); Edwards v. Marcus ( (1894) 1 Q.B. and Ex parte Collins Ch. App. referred to.-As part of the consideration of an agreement by which the bank acquired the site and business of a trust company the bank became responsible for the claims of persons who had deposited money with the company and, to secure the bank in respect to this liability and form a fund to meet payments to despositors, the company gave the bank a promissory note for the amount of the deposits and assigned assets to the bank which included, amongst other securities, the bill of sale above mentioned.-Held, per Fitzpatrick C.J. and Davies, Duff, Anglin and Brodeur JJ. (Idington J. contra), that the transaction was not a loan of money or an advance made by the bank in contravention of section sub-sec. of the "Bank Act," & Geo. V., ch. but a legitimate exercise of the powers conferred by the Act.-Per Duff J. If the transaction were to be considered as a loan it would, nevertheless, be unobjectionable because it would be a loan upon the security an "obligation" of a corporation within the meaning of clause of the first subsection section 76 the "Bank Act," and it is immaterial that the "obligation" was secured by a charge upon the property of the corporation.-The judgment appealed from D.L.R. 647; West. W.R. 734) was reversed, Fitzpatrick C.J. and Davies J. dissenting.

BROKER-Fire insurance-Bawdy house

-Immoral contract-Legal naxim-Ec turpi causa non oritur actio-Cancellation of policy-Statutory condition-Notice and agent........................

BUILDERS

CONTRACTORS - Materials supplied-Order for money payable under contract-Evidence-Estoppel- Lien-Enforcing equitable assignment- Practice.] building contractor gave a written order upon the owner directing him to pay the sum of $800 to the plaintiff on account of the price of materials supplied for use in the building which was in writing, was held over to await the time for making payments under the contract.

The contractor failed to complete the work, and it was finished by the owner at an outlay which left the balance the contract price insufficient to meet the full amount the order.-Held, the Chief Justice and Idington dissenting, that the order was effective as an assignment of money payable under the contract, but, as there was no evidence a promise to pay the amount thereof out the fund, or facts precluding the owner from denying the sufficiency what ultimately was payable to the contractor, it could not be enforced against the owner as an equitable assignment.- Per Duff

As the equitable relief sought could be granted only upon a consideration all the circumstances and no claim therefor was made in the courts below nor was the evidence directed to any such claim, the claim came too late on an appeal to the Supreme Court of Canada. -Per

Fitzpatrick C.J. and Idington dissenting.

the conduct of the owner respecting the order was equivocal and misleading and induced the materialman to abstain from filing a lien to protect himself, the owner ought to be held liable for the full amount the order as an equitable

W.R. Alta. L.R. was dismissed with costs.

BY-LAW-Municipal corporation-Powers of council-Highways-Exclusive privilege

-Necessity of by-law-Validity of contract-Right of action-Status of plaintiff

BY-LAW-continued.

in joint-stock company- Ratepayer-Special injury-Public interest - Prosecution Attorney-General - Practice-Art. C.P.Q........... 1--Alberta Drilling Co. v. Dome Oil Co. Alta. L.R. 340) affirmed ...... 2---Angus v. Heinze (42 Can. S.C.R. 416) referred to...................

3--Attorney-General for Canada v. Ritchie Contracting and Supply Co. B.C. Rep. affirmed................. 4- Bain v. Fothergill (L.R. H.L. Bowry v. Bennett (1 Camp. re- 6--Browning Masson (Q.R. K.B. 389) reversed..................... 7--Bruneau v. Laliberl (Q.R. S.C. 425) discussed................... 8--Canadian General Electric v. Canadian Rubber Co. (Q.R. S.C. 24) 9--Canadian Pacific Rway Co. v. Continental Oil Co. Alta. L.R. re- 10--Clark v. Hagar Can. S.C.R. 510) referred to ...................

11--Clydebank Engineering and Shipbuilding Co. v.

Yzquierda Castenada A.C. referred to.......... 12--Cochrane v. Matthews (10 Ch.D.

80n) referred to.................

13--Cole v. Read (20 B.C. Rep. 365)

See SoLICIOR 1.

14-Collins, ex parte (10 Ch. App. 367)

.....

15-Counsell v. London and Westminster Loan and Discount Co. (19 Q.B.D. 512)

16--Credit Co. v. Pott (6 Q.B.D. 295)

17--Dana v. Vancouver Breweries (21

B.C. Rep. 19) affirmed .............

18--Davenport v. The Queen (3 App.

Cas. 115) applied..................

19--Day v. Day Ont. App. R. 157)

20--Dunlop Pneumatic Tyre Co. v. New

Garage and Motor Co. ( (1915) A.C. 79)

See 3.

21-Edwards v. Marcus ( (1894) 1 Q.B.

587) referred to...................

22--Forrest v. Harvey (4 Bell App. Cas.

197) referred to...................

23--Gandy v. Gandy (30 Ch.

24--Gentles v. Canadian Pacific Rway

Co. (14 Ont. L.R. 286) distinguished 605

25--Gibb v. The King (15 Ex. C.R. 157

26--Grimsdick v. Sweetman ( (1909) 2 K.B. 740) followed................. 27--Hamilton v. Grainger (5 H. & N. 40) referred to. ................

28--Hamilton, City of, v. Hamilton Distillery Co. (38 Can. S.C.R. 239) referred 29--Hamlyn v. Talisker Distillery Co. ((1894) A.C. 202) referred to....... 349 30--Heinze, Re (20 B.C. Rep. 99) 31--"Industrie" The ( (1894) P. 58) 32- Jackson v. Canadian Pacific Rway. Co. (8 West. W.R. 1043) affirmed.... 281 33--Johnson v. Union Marine Fire Ins. Co. (97 Mass. 288) referred to...... 294 34--King, The, v. Jones (44 Can. S.C.R. 495) applied............... 35--King v. McHendry (30 Can. S.C.R. 450) followed.................L662 36--King, The, v. Paulson (15 Ex. C.R. 252) reversed..................... 37--King, The, v. Tweedie (15,Ex. C.R. 177) reversed.....................!197 38- Lachance v. Cauchon (Q.R. 24 K.B. 421) appeal quashed............... 39-Laroche v. Laroche (Q.R. 24 K.B. 138) affirmed..................... 40--Leroux v. McIntosh (19 R.L.N.S.

444) varied.......................

41--Lewis v. Grand Trunk Pacific

Rway Co. Man. R. affirmed 227

42--Lloyd v. Johnston (1 Bos. & P.

340) referred to...................

43--Mackay v. Dick (6 App. Cas. 251)

44-Matthews v. Feaver (1 Cox 278)

45-Mogul Steamship Co. v McGregor

Q.B.D. 598) applied...........

46--Mucklestone v. Brown (6 Ves. 68)

47--Mundell v. Tinkis (6 O.R. 625)

48--McGillivray v. Kimber (48 N.S.

Rep. 280) reversed................

49--Nakata v. Dominion Fire Ins. Co.

Alta. L.R. reversed.........

50--North-West Theatre Co. v. MacKinnon Alta. L.R. 226) reversed...

51----Odell, ex parte (10 Ch.D. 84) referred to.........................

52--Ontario Asphalt Block Co. v. Montreuil (32 Ont. L.R. 243) affirmed.... 541

53--Ottawa and New York Rway Co. v.

Cornwall, Township of (34 Ont. L.R. 55)

See TAXEs

54--Ottawa, Northern and Western Rway. Co. v. Dominion Bridge Co. (36 Can. S.C.R. 347) referred to .............

55--Pearce v. Brooks (L.R. 1 Ex. 213) 56--Phillips v. Eyre (L.R. 6 Q.B. 1) 57--Pratt, ex parte (12 Q.B.D. 334) 58--Price Bros. v. Tanguay (42 Can. S.C.R. referred to.............

59--Quilter v. Mapleson (9 Q.B.D. 672) 60--Rider v. Kidder (10 Ves. 360) re- 61-Ritchie v. Jeffrey (8 West. W.R. 729; 8 Alta. L.R. appeal dismissed 243 62--Robertson v. City of Montreal (Q.R. 23 K.B. 338) affirmed........ 63--Robinson v. Canadian Pacific Rway. Co. ( A.C. referred to... 644 64-Rochefaucauld v. Bousted ( (1897) 1 65--Roe v. Mutual Loan Fund Association Q.B.D. referred to .... 66-Rowleyv. London and North Western Rway. Co. (L.R. Ex. referred to 281 67--Royal Bank of Canada v. Whieldon al D.L.R. 647; West. W.R. 734)

68--Rundle, re (32 Ont. L.R. 312)

69--Shawinigan Hydro-Electric Co. v.

Shawinigan Water and Power

Can. S.C.R. 650) distinguished .....

70-Sheuerman v. Sheuerman Alta.

L.R. reversed.................

71--Singer, Re Ont. L.R. 602)

72--Symes v. Hughes (L.R. Eq. 475)

73--Taylor v. Bowers (1 Q.B.D.

74--Taylor v. Chester (L.R. Q.B. 309)

75--Trudel v. Parent (Q.R. Q.B. 578)

. 1

76--Vadeboncoeur v. City of Montreal

(29 Can. S.C.R. 9) distinguished ....

77-Veilleux v. Boulevard Heights (8

West.

W.R. 440;

Alta. L.R.

78-Vicksbyrg and Meridian Rrd. v.

Putnam U.S.R. 545) referred to 281

Wallis v. Smith Ch.

80--Webster v. Bosanquet ( A.C. 394) referred to...................

81--Wilson v. Northampton and Banbury Junction Rway. Co. Ch. App. CODE

1--Arts. 938-941, 950, 953 (Substitutions)............................

Arts. 1013, seq. (Obligations).......................... 3--Art. 1056 (Dilit) .. .....

.. .. .. 4- Art. (Continuation of Community ...............................

CODE OF PROCEDURE 1--Art. 217 (Cross-demand) ...... 2-Arts. 421 et. seq. (Jury trials). . 3--Art. 781 (Sheriff's Sales) ...... 4--Art. 978 (Special proceedings).. COMMUNITY-Quebec marriage laws- Community of property-Dissolution by death-Failure make inventory-Insolvent estate-Continuation of community- Estoppel-Renunciation.]

Where circumstances at the time of the wife's death, in 1877, the failure of the husband to make an inventory of the common property did not have the effect causing continuation the provisions of articles seq. the Civil Code as then in force.

King v. McHendry (30 Can. S.C.R. 450) followed. Fitzpatrick C.J. and Duff J. dissented.- The judgment appealed from (Q.R. affirmed.-Per The failure the husband to cause an inventory to be made within COMMUNITY-continued.

three months after the death the wife had the effect concluding him finally, as the minor children, asserting that continuation of community did not take place; the heirs, claiming through him, are in the same position.

As the right to the benefit continuation community is not a personal right, but is one given to the minor children substitution their right to an account, as at the expiration of the time for making an inventory, it is a claim that may be made at any time unless it could be said that the failure to make the demand during the lifetime of the surviving consort operated as a renunciation.- LAROCHE........................

COMPANY-Mining company-Corporate powers-" Digging for minerals"- Drilling oil wells-Carrying on operations

-Becoming contractors for such works.]

mining company incorporated under the "Companies

Ordinance,"

N.-W. Terr. Con. Ord., 1905, and certified, according to section of the ordinance, to have limited liability under the provisions of section thereof, has, virtue the authority given to such companies by section 63a "to dig belonging to the company or not," power to drill wells for mineral oils on its own property and also to carry on similar work as a contractor on lands belonging to other persons.

Idington and Duff JJ. dissented.

-Per curiam. Rock is a "rineral"

within the meaning section the

"Companies Ordinance." -Per

Drilling for is not a mining operation within the contemplation sectiens and 63a of the "Companies Ordinance."

appealed from Alto. L.R.

340; West. W.R. 996) affirmed, Idington and Duff JJ. dissenting.

2--Right of action-Status shareholder

Public interest

Prosecution

Attorney-General

CONDITION-Contract-"Consistent conditions-Impossibility of performance- Release from liability ..............

CONSTITUTIONAL LAW- Canad ia n waters-Sea coasts-Property in foreshores -Harbours-Havens -Roadsteads-Ownership of beds-Construction of statute- "B.N.A. Act, ss. terms "public harbours" in item of the third schedule of the "British North America Act, is not intended to describe or include portions of the sea of refuge are not property the class transferred to the Dominion of Canada by sectinn of the "British North America Act,

The term used refers only to public harbours existing as such at the time when the provinces became part the Dominion of Canada. Davies,

Idington,

Anglin and Brodeur JJ. As that part Burrard Inlet, on the coast British Columbia, known as "English Bay," was not in use as a harbour at the time of the admission of British Columbia into the Dominion Canada, in it did not become the property the Dominion as a "public harbour" within the meaning of section and the third schedule of the "British North America Act, 1867"; consequently, the Province British Columbia retained the property in the bed and foreshore thereof and could validly grant the right removing sand therefrom.-Per Davies, Idington and Anglin JJ. Inasmuch as the proclamation, by the Dominion Government, on the 3rd December, 1912, and the Dominion statute, chapter & Geo. deal merely with the establishment the port and the incorporation the Vancouver Harbour Commissioners, they had not the effect transferring English Bay from the control the Provincial Government to that the Dominion Government nor of giving to the Dominion Government any right of property in the bed or foreshore that bay.-Per Duff J. The transfer effected by section of the "British North America Act, of the subjects described in the third schedule that Act was a transfer of property operative upon the passing of the Act and such subjects were necessarily ascertainable at the passirg the Act by the application the descriptions to the facts then existing, and, consequently, the question of "public harbour" or no "public harbour" must be determined according to the circuirstances as they were at the CONSTITUTIONAL LAW-continued.

date of the Union.-Per Duff J. The term "public harbour" implies public user as a harbour for commercial purposes as distinguished from purposes of navigation simply, or some recognition, formal or otherwise, of the locality in dispute by the proper public authority as a harbour for such purposes, but the question of is a question of fact depending largely upon the particular circumstances. -Per

Duff J. If the question of "public harbour" or no "public harbour" were to be decided according to the circumstances existing when the dispute arose, English

Bay must be held to be now a "public harbour" within the meaning of item 2 of the third schedule of the "British North

America Act, 1867."-Judgment appealed from (20 B.C. Rep. 333) affirmed.-(Leave to appeal to the Privy Council was granted, 20th December, 1915.)

CONTRACT-Assessment and taxation- Interest in land-Recitals in agreement- Validation by statute-Legislative declarations-Construction of contract-R.S.B.C.,

1911, c. 222, s. 47-2 Geo. V., c. 37 (B.C.)

-3

Geo. V., c. 71, s. 5 (B.C.).] By an agreement, executed in 1898, H. agreed to sell to A. and S. certain subsidy lands of a railway company and it was therein provided that the moiety of the lands should be subsequently conveyed to H.

but no formal instrument was ever executed for the purpose of vesting this interest in him. In 1912, an agreement was entered into by all the persons interested in the lands and the Crown for the re-purchase by the Government of British

Columbia of the unsold portions of the lands and this latter agreement was validated by the "Railway Subsidy Lands

Re-purchase Act,"

2 Geo. V., ch. 37

(B.C.) (to which it was annexed as a schedule), which declared that the provisions of the agreement were to be construed as if expressly thereby enacted.

The agreement so validated declared, in recitals therein, that H. was entitled to an undivided one-half interest in the lands in virtue of the agreement executed in 1898, that the portions thereof conveyed to the Crown were subject thereto, and that the title should pass to the

Crown subject to such estate or interest.

-Held, affirming the judgment appealed from (20 B.C. Rep. 99), that, by the effect of the validated agreement as supplemented by the legislative declarations in the "Railway Subsidy Lands Repurchase Act," 2 Geo. V., ch. 37, an interest in the lands became vested in H. which was liable to assessment and taxation under the British Columbia "Taxation Act," R.S.B.C.,

1911,

222, sec. 47, as amended by 3 Geo. V., ch. sec. 5. Angus v. Heinze (42 Can. S.C.R. 416), referred to. (Leave to appeal to Privy Council was refused, 3rd Feb., 1916.) RE 2--Fire insurance - Bawdy house - Immoral contract - Legal maxim - "Ex turpi causd non oritur actio"-Cancellation of policy-Statutory condition-Notice to insured-Return of premium-Principal and agent.] On .application by plaintiff, through an insurance broker, the company insured her house and furniture against loss by fire, the premises being described as a "sporting house" (a house of ill-fame), and, soon afterwards, the local general agent of the company received notification from the head-office that the policy had been cancelled. being notified the broker wrote to plaintiff informing her of the cancellation, but his letter was not delivered and returned through the mails.

on the policy, Held, reversing the judgment appealed from Alta. L.R. 47), Idington and Duff JJ. dissenting, that on the face of the policy insurance it appeared that the effect of the contract was to facilitate the carrying on of an illegal or immoral purpose and, therefore, it would not be enforced in a court of justice.

Pearce v. Brooks (L.R. 1 Ex. 213), applied; Clark v. Hagar (22 Can. S.C.R. 510), Johnson v. Union Marine Fire Insurance Co. (97 Mass. 288), and Bruneau v. Laliberli (Q.R. S.C. 425), referred to. CO. V. NAKATA......................... 3-Delivery-Speciied time-Default- Liquidated damages-Pre-estimate-Penalty-Inexecution-Compensation - Crossdemand-Practice-Arts, 1076, et seq., C.C.-Art. 217, C.P.Q.-A contract (in the form usual in the Province of Ontario) for the manufacture, in Ontario, of electrical machinery to be delivered within a specified time at Montreal, provided that in case of failure to deliver various parts of the machinery as provided therein the sum should

"be deducted from the contract price as liquidated damages and not as a forfeit for every day's delay in the delivery of the apparatus as specified, etc."

contractor brought action in the Province Quebec to recover an unpaid balance of the price and the defendants contended that they were entitled have the claim reduced by a sum equal to the amount so stipulated for default in prompt delivery,-Held, that, on the proper construction of the contract, the intention of the parties was to pre-estimate a reasonable indemnity as liquidated damages for delay in the execution of the contract; that effect should be given to their intention by allowing the deduction of the amount so estimated from the contract price, and that there was no necessity for a cross-demand therefor the defendants nor that they should allege or prove that they had sustained actual damages in consequence of the delay delivery.

Dunlop Pneumatic Tyre Co.

A.C. 79); Wallis v. Smith Ch. D. 243);

Webster v. Bosanquet A.C. 394);

Clydebank Engineering and Shipbuilding

Co. v. Yzquierda Castaneda A.C.

6); Hamlyn v. Talisker Distillery Co.

A.C.

202);

"Industrie"

( (1894) P. 58); and Ottawa Northern and

Western Railway Co. v. Dominion Bridge

Co. Can. S.C.R. 347), referred to.

Judgment appealed from (Q.R. S.C.

4--"

Consistent conditions'"-Impossibility of performance-Release from liability.]

The defendants having filed a tender with the City of Quebec for the reconstruction of Dufferin Terrace agreed with plaintiffs that, if their tender was accepted, they would enter into a written contract, "consistent with the conditions"

of such contract as might be made with the city, for the purchase from the plaintiffs of all the structural steel work that would be needed. The city corporation accepted the tender, but only on the condition that the steel and iron work should be purchased by the defendants from another firm.-Held, reversing the judgment appealed from (Q.R. 24 K.B. 389),

5--Construction of contract-Conditions -Mutual performance-Damages.] In a contract for the sale and delivery of gas if the vendor, not being in default, prevented, by the wrongful act of the purchaser, from fulfilling his obligation to deliver he is entitled to the compensation he would have received but for such wrongful act.

Mackay v. Dick App. Cas. and Wilson v. Northampton and Banbury Junction Railway Co. (9 Ch. App. applied.-Anglin, J., dissented on the quantum of damages. (Leave to appeal to Privy Council refused, 2nd June,

6--Municipal corporation-Powers council-Highways-Exclusive privilege- Necessity of by-law-Validity of contract of action-Status of plaintif- Shareholder in joint-stock company-Ratepayer-Special injury-Public interest- Prosecution Attorney-General-Practice 978, C.P.Q................. 7--Construction of statute-Prohibitive sanction-Retrospective legislation-Illegality of contract-Rescission-Recovery money paid-Right of action......... 8--Banking-Purchase of company's assets-Bill of sale-Description of chattels -B.C. "Bills of Sale Act," R.S.B.C., 20-Registration-Recital in bill sale-Consideration - Defeasance - Reference to unregistered note-Collateral security-Loan bank-" Bank Act," & 4 s.76.............z254 9--Specific performance-Agreement for sale of land-Inability perform-Liability to damages-Diminution in price 541

COSTS-Quashing appeal-Refusal of costs

-Supreme Court Rule 4... .. .. .. .. ..

CROWN LANDS - Dominion lands - Lease mining areas - "Dominion

Lands Act," s. 47-Statutory regulations- Conditions of lease-Defeasance-Notice

-Cancellation on default-Forfeiture rights-Principal and agent-Solicitor.]

lease granted under the regulations regarding the leasing school lands in the North-West Territories for coal mining purposes, made pursuant to 47 of the "Dominion Lands Act," provided that, on default by the lessee to perform conditions the lease, the Minister the Interior should have power to cancel the lease by written notice to the lessee, whereupon the lease should become void and the Crown might re-enter, re-possess and enjoy its former estate in the lands.-Held, reversing appealed from Ex. C.R. Idington and Brodeur, JJ. dissenting, that order to determine such a lease it essential that the cancellation should be effected by a notice in writing from the

Minister which actually reaches lessee.-Per Fitzpatrick, C.J. The notice should declare the intention the

Minister to make the cancellation account breach the conditions, and the lessee should be given an opportunity to remedy the breach in question or, at least, to be heard before forfeiture.

No proposed cancellation can be effective against the lessee unless such a notice has been given to him before the forfeiture is declared.-Per Duff J. In the absence of special authority, solicitors employed by the lessee in respect his business with the Department cannot be deemed agents to whom such notice of cancellation could be given on his behalf.-Per Duff

J.

of the regulations has not the effect, upon default in performance nominated conditions, of terminating the lessee's interest ipso jure, but only on the election the Crown manifested as provided for in the lease.

Davenport v. The Queen App. Cas. applied.- Per Idington J (dissenting).

The lease in question was determinable at the

CROWN LANDS-continued.

election the Crown upon the mere factof breach of conditions and, the Crown having so elected, the Minister was not competent to revive it or to waive the consequences of default.-Per Idington and Brodeur JJ. By notification to his solicitors and the effect of the correspondence with the Department, which took place thereafter, it must be taken that the lessee had actual -notice the intenti on the Minister to cancel the lease for breach of conditions.

2-Canadian waters-Sea coass-Property in foreshores-Harbours---Havens- Roadsteads-Ownership in beds-Construction of statute-" B.N.A.

Act" 1867, ss. 109...........................78

Personal injuries-Complete reparation- Loss of prospective earnings-Pain and suffering-Evidence--Mortuary tables- Where froni the amount the damages awarded and the circumstances the case, it does not appear that the jury took into consideration matters which they should not have considered, or applied a wrong measure of damages, the verdict ought not to be set aside or a new trial directed simply because the amount damages awarded may seem excessive to an appellate court. Duff J. dissented on the ground that a jury appreciating the evidence and making due allowance for the risk of accident apart from negligence, in the hazardous pursuit in which the plaintiff was employed, could not have given the verdict in question. -Per Idington and Anglin JJ. The evidence a witness testifying in regard to estimates based on mortuary tables in use by companies engaged in the business annuity insurance is admissible, quantum valeat, notwithstanding that he may not be capable explaining the basis upon which the tables had been prepared.

Rowley v. London and North Western Railway Co. (L.R. Ex. and Vicksburg and Meridian Railroad Co. v. Putnam U.S.R. referred Judgment appealed from West. W.R. affirmed, Duff J. dissenting. DAMAGES-continued.

2-Contract-Delivery-Specified time- Default-Liquidated damages-Pre-estimate

-Penalty-Inexecution-Compensation - Cross-demand-Practice-Arts.

C.C.-Art. 217, C.P.Q.]-A contract (in the form usual in the Province of Ontario) for the manufacture, in Ontario, of electrical machinery to be delivered within a specified time at Montreal, provided that in case of failure to deliver various parts the machinery as provided therein the sum of should

"be deducted from the contract price as liquidated damages and not as a forfeit for every day's delay in the delivery the apparatus as specified, etc."

contractor brought action in the Province of Quebec to recover an unpaid balance of the price and the defendants contended that they were entitled to have the claim reduced by a sum equal to the amount so stipulated for default in prompt delivery.-Held, that, on the proper construction the contract, the intention the parties was to pre-estimate a reasonable indemnity as liquidated damages delay in the execution the contract, that effect should be given to their intention by allowing the deduction of the amount so estimated from the contract price, and that there was no necessity a cross-demand therefor by the defendants nor that they should allege or prove that they had sustained actual damages in consequence of the delay in delivery.

Dunlop Pneumatic Tyre Co. v. New Garage and Motor Co.

A.C. 79);

Wallis v. Smith Ch. D. 243); Webster v. Bosanquet A.C. 394); Clydebank

Engineering and Shipbuilding Co.

Yzquierda Castaneda A.C.

Hamyln v. Talisker Distillery Co.

A.C. 202); The "Industrie" ((1894) P.

58); and Ottawa Northern and Western

Railway Co. v. Dominion Bridge Co.

(36 Can. S.C.R. 347), referred to.-Judgment appealed from (Q.R. S.C. 24)

GENERAL

Co. v.

3.--Contract-" Consistent conditions"

Impossibility of performance-Release from liability.] The defendants having filed a tender with the City of Quebec for the reconstruction of Dufferin Terrace agreed with plaintiffs that, if their tender was accepted, they would enter into a written contract, "consistent with the conditions"

of such contract as might be made with

DAMAGES-continued.

the city, for the purchase from the plaintiffs all the structural steel work that would be needed.

The city corporation accepted the tender, but only on the condition that the steel and iron work should be purchased by the defendants from another firm.-Held, reversing the judgment appealed from (Q.R. K.B. 389), Davies and Idington JJ. dissenting, that, on a proper construction, the agreement contemplated a contract to be entered into on terms consistent with whatever contract might have to be made with the city; that the nature the condition imposed by the city corporation made impossible for the defendants to purchase the necessary steel and iron work from the plaintiffs, and that without fault on the part of the defendants, the agreement never became operative and both parties were liberated from obligations thereunder.

4--Construction of contract-Conditions -Mutual performance-Damages.] In a contract for the sale and delivery of gas if the vendor, not being in default, prevented, by the wrongful act the purchaser, from fulfilling his obligation to deliver he is entitled to the compensation he would have received but such wrongful

Mackay v. Dick App. Cas. and Wilson v. Northampton and Banbury Junction Railway Co. Ch. App. applied.

Anglin J. dissented on the quantum damages. (Leave to appeal to Privy Council refused, 5--Specific performance-Agreement for sale of land-Inability perform-Liability to damages-Diminution in price.] lease land for ten years provided that on its termination the lessee could, giving notice, purchase the fee for $22,000. In a suit for specific performance of this agreement.-Held, applying rule in Bain v. Fothergill (L.R. H.L. Fitzpatrick C.J. and Davies J. dissenting, that if the lessor, without fault, was unable to give title in fee to the land the lessee was not entitled to damages loss of his bargain.-Per Fitzpatrick C.J. and Davies J.

The above rule should not be applied in a case like this where the lease contained onerous conditions binding the lessee to expend large sums in improving the property and it must have been contemplated by the parties that DAMAGES-continued.

such expenditure would have caused him special damage if he could not purchase the fee. - Judgment

(32 Ont. L.R.

243) affirmed.

6-Expropriation-Eminent domain- Public work-Abandonment-Revesting land taken--Compensation--Estimating

Transcontinental Railway Act"-'"Railway Act," R.S.C., ch. 37-"Exchequer

Act"-" Expropriation

DEBTOR AND CREDITOR-Construcof statute-Alberta "Assignments

Act'"-Assignment for benefit of creditors

-Occupation of leased premises-Liability of official assignee ..................

creditors-Husband and wife-Advancement-Trustee-Equitable relief-Restitytion-Evidence-Statute of Frauds ....

EQUITABLE RELIEF-Title to land- Conveyance in fraud of creditors-Husband and wife-Advancement-Trustee- Restitution-Evidence-Statute of Frauds.

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

ESTOPPEL-Principal and agent-Receipt delivered payment.] The local agent of the railway company received the personal cheque of the defendants' agent in settlement of freight charges due by the defendants and thereupon receipted the freight bills. By means of these receipted bills the defendants' agent was enabled to obtain the amount of the freight charges from his employers and absconded, leaving no funds to meet his cheque which was dishonoured. In an action for the recovery of the amount of the freight charges,-Held, reversing the judgment appealed from (8 Alta. L.R. 363)

, that the delivery of the receipts in advance of payment afforded means of inducing the defendants to pay over the amount repre- ESTOPPEL-continued.

sented by them to their agent and, consequently, the plaintiffs were estopped from denying actual receipt of payment of the freight charges.-Per Duff J. dissenting. In the circumstances disclosed by the evidence in the case the principle of estoppel could not be applied. Gentles v. Canadian Pacific Railway Co. (14 Ont. L.R. 286), distinguished.

2--Builders and contractors-Materials supplied-Order for money payable under Enforcing equitable assignment-Practice. .. .. .. 243 3--Appeal-Jurisdiction of provincial tribunal-Consent of parties-Assessment -Railway bridge over nagivable river. . 466 4--Quebec marriage laws-Community of property-Dissolution death-Failure make inventory-Insolvent estate-Continuation of community-Renunciation 662 EVIDENCE-Title to land-Foreshore- Title possession-Nature of possession -Disclaimer-Evidence of title-Nullum tempus Act.J In proceedings by the Dominion Government for expropriation of land on the Miramichi River the owner, T., claimed compensation for the part of the adjoining foreshore of which he had no documentary title. It was proved that in 1818 the original grantee had leased a part of the land and the privilege of erecting a boom for securing timber on the river in front of it; that his successors in title had, by leasing and devising it, dealt with the foreshore as owners; that for over forty years from about 1840 the boom in front of it was maintained and used by the owners of the land; and that at low tide the logs in the boom would rest on the solum.-Held, reversing the judgment of the Exchequer Court (15 Ex. C.R. 177), Davies and Idington JJ. dissenting, that there was sufficient evidence of adverse possession of the foreshore by the owners of the adjoining land for more than sixty years to give the present holder title thereto.-Per Anglin, J. From a continuous user for more than EVIDENCE-continued.

forty years, which is proved, a prior like user may be inferred.

Moreover, from the evidence of assertion of ownership and possession since a lost grant might, if necessary, be presumed.-Per

Davies and Idington JJ. The placing and use of the boom was only incidental to the lumber business carried on at this place and the consent of the riparian owner thereto cannot be regarded as a claim of adverse possession.

The presumption of lost grant was not pleaded and cannot be relied on; moreover, a lost grant could not presiimed in the circumstances. -On application by the

Minister of Justice for a disclaimer damages for the taking the foreshore the Government of New Brunswick passed an order in council stating that the owner of the adjoining land taken claimed title to said foreshore; that it had been used by the owners for booming purposes and otherwise for more than sixty years;

that the Attorney-General was of opinion that whatever rights the province may have had were extinguished and that no claim should be made by it to said foreshore.-Held, per Duff J. This is an admission touching the title to the foreshore by the only authority competent to make it and is evidence against the

Dominion Government in the expropriaion proceedings; that it is primd facie evidence of title by possession in T.;

and that there is nothing in the record to impair the strength of this primd facie case.

2--Damages - -Personal injuries-Complete reparation

-Loss of prospective earnings-Pain and suffering-Mortuary tables - New trial.] Where, from the amount of the damages awarded and the circumstances of the case, it does not appear that the jury took into consideration matters which they should not have considered, or applied a wrong measure of damages, the verdict ought not to be set aside or a new trial directed simply because the amount of damages awarded may seem excessive to an appellate court.

Duff J. dissented on the ground that a jury appreciating the evidence and making due allowance for the risk of accident, apart from negligence, in the hazardous pursuit in which the plaintiff was employed, could not have given the verdict in question.-Per Idington and Anglin

EVIDENCE-continued.

JJ. The evidence of witness testifying in regard to estimates based on mortuary tables in use by companies engaged the business of annuity insurance admissible, quantum valeat, notwithstanding that he may not be capable explaining the basis upon which the tables had been prepared. Rowley v. London and North Western Railway Co. (L.R. Ex. and Vicksburg and Meridian Railroad Co. v. Putnam U.S.R. 545), appealed from West. W.R. affirmed, Duff J. 3--Bawdy house - Immoral contract- Legal maxim-Ex turpi causd non oritur actio.] Per Idington and Duff JJ (dissenting).

The mere description of the premises insured as a bawdy house is not sufficient evidence to justify the inference that the contract had the effect of promoting illegal or immoral

Clark v. Hagar Can. S.C.R. 510); Lloyd v. Johnston (1 Bos. & P. 340); Bowry v. Bennett (1 Camp. 348); Hamilton v. Grainger H. & N. 40), and Pearce v. Brooks (L.R. 1 Ex. referred to. Bruneau v. Laliberte (Q.R. S.C. 425), .......................

And

4--Builders and contractors - Materials supplied-Order for money payable under contract-Estbppel

Enforcing Equitable asrignment-Practice ...... 5--Title to land-Conveyance in fraud ment - Trustee - Equitable relief--Restitution-Statute of Frauds............ EXCHEQUER COURT - -Eminent domain-Public work-Abandonment - Revesting of land taken-Compensation-Estimating damages - Construction of statute - Jurisdiction of Exchequer Court-" National Transcontinental Railway Act"-"Railway Act," R.S.C., ch. 37-"Exchequer Court Act"- "Expropriation Act"-"Railways and Canals Act"................

..... EXECUTION -Substitution

EXEMPTIONS - Title to land-Conveyance in fraud of creditors-Husband and wife-Advancement - Trustee - Equitable relief - Restitution-Evidence-Statute of Frauds..................

-Public work-Abandonment - Revesting land taken - Ccmpensation-Estimating

Transcontinental Railway Act,"

3 Edw.

VII., c. 71-" Railway Act," R.S.C., 1906, ch.37, sec. 207-Exchequer Court Act R.S.C.

1906, ch.140, sec. 20-'"Expropriation Act,"

R.S.C., 1906, ch. 143-"Railways and

Canals Act," R.S.C. 1906, ch. 35, sec. 7.]

Per Curiam.-The jurisdiction of the

Exchequer Court of Canada is not, by the effect of the provisions of sec. 23 of the "Expropriation limited to adjudication upon claims for compensation in consequence of expropriation proceedings in regard to which there has been only partial abandonment of the property taken, but extends as well to claims made in cases where the whole of the property has been abandoned. Decision appealed from (15 Ex. C.R. 157)

affirmed.-Under the provisions of sec.

23 of the "Expropriation Act," the person from whom re-vested land has been taken is entitled to compensation for damages sustained in consequence of the expropriation proceedings in the event of abandonment of the whole parcel of land as well as in the case of the abandonment of a portion thereof only. Idington

J. dubitante.-Per Fitzpatrick C.J. and

Davies, Idington and Brodeur JJ. Sec.

23 of the "Expropriation Act" applies in matters of expropriation for the purposes of the National Transcontinental Railway under the provisions of the "National

Act";-Per

Anglin J. It was so held in The King v.

Jones (44 Can. S.C.R. 49,5); Duff J.

contra.-Per Duff J. The Minister of

Railways and Canals has not, by virtue of the 23rd section of the "Expropriation Act," authority to abandon lands compulsorily taken for the Eastern Di- EXPROPRIATION-continued.

vision of the National Transcontinental Railway which have become vested in the Crown by force of the 13th section of the "National Transcontinental Railway Act."

Sec. 207 of the "Railway Act" is not incorporated in the "National Transcontinental Railway Act" by force of the 15th section of that statute.-On the merits of the appeal, Davies, Idington and Brodeur JJ. considered that, in the circumstances, the amount of the award for damages made by the judgment appealed from (15 Ex. C.R. 157) was sufficient, and that the appeal should be dismissed.

The Chief Justice and Anglin J. held that the appeal should be allowed and the case remitted to the Exchequer Court for the purpose of estimating damages on the basis of allowing suppliants the value of the land at the date of expropriation less its value at the time of the abandonment.

Duff J. was of opinion that the suppliants were entitled to the full compensation tendered by the Crown for the land taken, but, having accepted the property as returned and agreed to credit its diminished value in part satisfaction of their claim, the appeal should be allowed and damages awarded estimated according to the difference between the admitted value of the land to them when taken and its value at the date of the abandonment.

Consequently, on equal division of opinion among the judges of the Supreme Court of Canada, the judgment appealed from (15 Ex. C.R. 157) stood affirmed, no costs being allowed GIBa

2--Foreshore-Title by possession-Disclaim-Evidence of title-Nullum tempus FORESHORES-Canadian waters-Sea coasts-Property in foreshores-Harbours -Havens

FRAUD--Title to land-Conveyance in fraud of creditor-Husband and wife- FRAUD-continued.

Advancement - Trustee-Equitable relief- Restitution -Evidence-Statute of Frauds.]

Lands which, at the time of the transaction, would be exempted from seizure and sale under execution by the Alberta

"Exemptions Ordinance" were purchased by and, with the intention of protecting them from pursuit by his judgment creditor, he caused them to be conveyed to his wife, on a parol agreement with her that the title should remain in her name until the judgment debt was satisfied.

The debt was subsequently paid by 8.

and he brought suit against his a declaration that she held the lands trust for him and for reconveyance.- Held per curiam. That the court should not grant relief to the husband against the consequence his unlawful attempt to delay and hinder his creditor, although the illegal purpose had not been carried out.

Mucklestone v. Brown Yes.

Taylor v. Chester (L.R. 4 Q.B.

309);

Rochefoucauld v.

Bousted

(

1 Ch. referred to.

Judgappealed from Alta. L.R. 417), reversed, AnglinJ. dissenting on the ground that the conveyance of exempted lands could not prejudice the rights creditors and, although it had been made with fraudulent intent, it was not fraudulent as against them.

Mundell v.

Tinkis

(6 O.R. 625); Mathews v. Feaver Cox

278); Rider v. Kidder Ves. 360);

Day v. Day Ont. App. R. 157); Symes v. Hughes (L.R. Eq. 475), and Taylor v. Bowers (1 Q.B.D. referred to.- Per Duff J. In the absence proof that his creditor had not been prejudiced in consequence the conveyance being taken in the name his wife the plaintiff was not entitled to relief.

FRAUDULENT

CONVEYANCE - Title to land-Conveyance in fraud of creditors- Husband and wife-Advancement-Trustee

-Equitable relief - Restitution-Evidence

-Statute of Frauds.................

HAVENS - Canadian waters-Sea coasts

-Property inforeshores-Harbours-Roadsteads-Ownership in beds-Construction of statute-" B.N.A. Act, ss.

109..........

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

HARBOURS - Canadian waters - Sea coasts-Property in foreshores-Havens- Roadsteads - Ownership in beds-Construction of statute-"B.N.A. Act, ss. 108, 109....................... HIGHWAY-Powers of council -Highways-Exclusive privilege-Necessity by-law-Validity of contract-Right of action-Status of plaintiff-Shareholder in joint-stock company-Ratepayer - Special injury-Public interest-Prosecution by Attorney-General-Practice-Art. 978, P.Q.]

Assuming to act under authority an existing by-law regulating traffic by autobusses and in virtue a special statute Geo. ch. (Que.) ), and the general powers conferred by the city charter the municipal council passed a resolution authorizing the corporation - the municipality to enter into a contract granting a joint stock company the exclusive privilege of operating autobus lines on certain streets in the city and charging fares for the carriage passengers. An action was brought by a shareholder in a tramway company (which held similar privileges), who was also a municipal ratepayer attacking the validity of the bylaw and a contract made by the municipal corporation in pursuance of the resolution on the grounds that there was no authority for the granting of such exclu-sive privileges, that such powers, if they existed, could only be exercised by means a by-law, and that a provision in the contract whereby the municipality became entitled to certain shares in the stock of the autobus company was ultra vires of the municipal corporation.from (Q.R. K.B. Idington and Anglin JJ. dissenting, that in the absence of evidence special injury sustained by the plaintiff, he had no status entitling him to bring the action.-Per Idington J., The plaintiff was entitled 'to institute the action by virtue either his quality as a shareholder in the tramway company, the privileges of which might be injuriously affected, or as a ratepayer of the municipality.-Per Anglin The plaintiff could bring the action in his capacity as a ratepayer municipality.-Per Fitzpatrick C.J. and Duff and Brodeur JJ. An appropriate remedy in such a case would be by action prosecuted by the Attorney- General the province under article HIGHWAY-continued.

of the Code of Civil Procedure.-Per

Duff J. Such an action might be prosecuted by the municipal corporation itself or by an authority representing the general public.-Validity of the by-law, resolution and contract in question discussed by

Idington, Duff and Anglin JJ. (Leave to appeal to the Privy Council was refused on the 18th of December, 1915.)

HUSBAND AND WIFE - Title land

-Conveyance in fraud of creditors-A dvan- Equitable relief- Restitution

Statute

Frauds..........................

Jurisdiction

-Matter in controversy-Refusal costs- Supreme Court Rule 4-' Supreme Court

Act," s. 46.] In an action for an injunction restraining the defendant from carrying on dangerous operations in a quarry, and for $100 damages,-Held, that the

Supreme Court of Canada had no jurisdiction to entertain an appeal. Price

Bros. v. Tanguay (42 Can. S.C.R. 133), and City of Hamilton v. Hamilton Distillery Co. (38 Can. S.C.R. 239), referred

Shawinigan Hydro-Electric Co. v.

Shawinigan Water and Power

Can. S.C.R. 650), distinguished.-The appeal was quashed but without costs as the respondent had neglected to move for an order'to quash the appeal within the time limited by Supreme Court Rule No. 4.

INSOLVENCY - Construction of statute-Alberta "Assignments Act"-Assignment for benefit of creditors - Occwpation of leased premises-Liability of official assignee..........................

2--Quebec marriage laws-Community of property-Dissolution death-Failure to make inventory-Insolvent estate - Continuation of community-Estoppel - Renunciation .....................

INSURANCE, FIRE - Bawdy house - Immoral contract-Legal maxim-"Ex turpi causd non oritur actio"-Cancella- INSURANCE, FIRE-continued. tion of policy-Statutory condition-Notice and agent.] On application by plaintiff through an insurance broker, the company insured her house and furniture against loss by fire, the premises being described as a "sporting house" (a house of ill-fame), and, soon afterwards, the local general agent of the company received notification from the head-office that the policy had been cancelled. being notified the broker wrote to plaintiff informing her of the cancellation, but his letter was not delivered and was returned through the mails.

on the policy,-Held, reversing the judgment appealed from (9 Alta. L.R. 47), Idington and Duff JJ. dissenting, that on the face of the policy of insurance it appeared that the effect of the contract was to facilitate the carrying on of an illegal or immoral purpose and, therefore, it would not be enforced in a court of justice. Pearce v. Brooks (L.R. 1 Ex. 213), applied; Clark v. Hagar (22 Can. S.C.R. Johnson v. Union Marine Fire Insurance Co. Mass. and Bruneau v. Laliberte (Q.R. S.C. 425), referred to.-Per Davies J. In the circumstances of the case the broker through whom the plaintiff effected the insurance became her agent for all purposes in connection therewith and he was also constituted the agent of the company for the purpose of giving notice of the cancellation of the policy.-Per Idington and Duff JJ. (dissenting).

The mere description of the premises insured as a bawdy house is not sufficient evidence to justify the inference that the contract had the effect of promoting illegal or immoral purposes.

Clark v. Hagar (22 Can. S.C.R. 510); Lloyd v. Johnston (1 Bos. & P. 340); Bowry v. Bennett (1 Camp. 348); Hamilton v. Grainger H. & N. 40), and Pearce v. Brooks (L.R. 1 Ex. referred to. Bruneau v. Laliberte (Q.R. 19 S.C. 425), discussed.-Per Idington and Duff JJ. The broker, who was handed the policy for delivery to insured and collection of the premium, became the agent of the company for those purposes.

He, however, had no authority from the insured to receive notice of cancellation of the policy on her behalf nor to waive the requirements of statutory condition 19 of the "Northwest Territories Ordinance,"

16 (1st sess.), 1903, as to notice of cancellation of poli- INSURANCE, FIRE-continued, cies of insurance and return premium

FIRE

Jurisdiction of provincial tribunal-Consent parties-Estoppel

Railway bridge navigable river ........

JURY-Personal wrongs-Trial jury- Art. 1056 c.c.-Arts. 421 seq. C.P.Q.- Charge the jury-Opinion on questions of fact.]-Per Idington, Duff and Anglin

JJ.-In his charge to the jury, the judge is entitled to express his opinion on questions of fact if he does so in such a manner as will not lead the jury to think that they are being given a direction which it would their duty to

Co. SEGUIN...........

2--Action dependent-Injury sustained outside province-Right of action in

Manitoba-Evidence-Answers jury.

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

3--Damages award-Personal injuries-Complete reparation-Loss of prospective earnings-Pain and suffering-Evidence-Mortuary tables

LANDLORD

TENANT - Lease

-Licensed hotel-Accommodation required regulations-Covenant lessor-Repairs and improvements-Loss of liquor licence- Determination of lease-Implied condition.]

In a lease of property, upon which was situated a hotel licensed to sell liquors, the lessor covenanted to repair and improve the premises in compliance with municipal regulations which might be made from time to time in respect to hotels for which liquor licences should be granted.

During the term of the lease a regulation was made, requiring licensed hotel premises to be enlarged and improved in certain respects, with which the lessor did not comply and, in consequence, the renewal of the liquor licence was refused at the end of the licence year then current.-Held, that neither the circum- LANDLORD TENANT-cont. stances in which the lease was entered into nor the lessor's covenant to make repairs and improvements gave rise to an implied condition to the effect that the obligation of the tenant to pay the rent reserved should terminate upon the hotel, through no fault attributable to the lessee, ceasing to be licensed premises. Grimsdick v. Sweetman K.B. 740) followed.

Judgment appealed from B.C. Rep. affirmed.

2--Construction of statute - "Assignments Act"-Assignment for benefit of creditors-Occupation of leased premises-Liability of official assignee.] The Alberta "Assignments Act," as amended by the Alberta statutes, ch. 4, sec. 14 of and ch. sec. of provides that assignments for the general benefit of creditors must be made to an official assignee appointed under the Act and that the assignment shall vest in such assignee the assignor's real and personal property, credits and effects which may be seized and sold under execution. The lessee premises held under a lease from the plaintiffs made an assignment to the defendant who took possession thereof and, on threat of distress, agreed that he would guarantee the rent so long as he remained in occupation. After three months, the defendant quitted the premises and notified the landlord that he would no longer be responsible or pay the rent.

In an action for breach the covenants the lease and to recover the rent accruing to the end of the term: Held, reversing the judgment appealed from Alta. L.R. Idington and Brodeur JJ. dissenting that by the effect of the assignment and entry into possession the term of the lease passed to the official assignee who, thereupon, became liable for the whole of the rent accruing for the remainder of the term. LEASE-Landlord and tenant-Licensed hotel-Accommodation required regulations-Covenant lessor-Repairs and improvements-Loss of liquor licence- Determination of lease-Implied condition.] In a property, upon which situated a hotel licensed to sell li'nors, the lessor covenanted to repair and improve the premises in compliance with municipal regulations which might be LEASE-continued.

made from time to time in respect to hotels for which liquor licences should be granted.

During the term of the lease a regulation was made, requiring licensed hotel premises to be enlarged and improved in certain respects, with which the lessor did not comply and, in consequence, the renewal the liquor licence was refused at the end of the licence year then current.-Held, that neither the circumstances in which the lease was entered into nor the lessor's covenant to make repairs and improvements gave rise to an implied condition to the effect that the obligation of the tenant to pay the rent reserved should terminate upon the hotel, through no fault attributable to the lessee, ceasing to be licensed premises.

Grimsdick v. Sweetman (

K.B. 740) followed.

Judgment appealed from B.C. Rep. affirmed.

s.

default-Forfeiture of rights-Principal and agent-Solicitor.] lease granted under the regulations regarding the leasing of school lands in the North-West

Territories for coal mining made pursuant to of the "Dominion

Lands Act," provided that, on default by the lessee to perform conditions the lease, the Minister of the Interior should have power to cancel the lease by written notice to the lessee, whereupon the lease should become void and the

Crown might re-enter, repossess and enjoy its former estate in the lands.-Held reversing the judgment appealed from

Ex. C.R. Idington and Brodeur

, that in order to determine such a lease it is essential that the cancellation should be effected by a notice in writing from the Minister which actually reaches the lessee.-Per Fitzpatrick

C.J. The notice should declare the intention of the Minister to make the cancellation on account breach of the conditions, and the lessee should be given an opportunity to remedy the breach in question or, at least, to be heard before forfeiture. No proposed cancellation can be effective against the lessee unless such a notice has been given to him before the forfeiture is declared.-Per

Duff

J.

In the absence of special authority, solicitors employed by the lessee in respect

LEASE-continued.

of his business with the Department cannot be deemed agents to whom such notice of cancellation could given on his behalf-Per Duff J. of the regulations has not the effect, upon default performance of the nominated conditions, of terminating the lessee's interest ipso jure, but only on the election of the Crown manifested as provided for in the lease. Davenport v. The Queen Cas. applied.-Per Idington J. (dissenting). The lease in question was determinable at the election of the Crown upon the mere fact of breach conditions and, the Crown having so elected, the Minister was not competent to revive it or to waive the consequences of default.-Per Idington and Brodeur JJ. By notification to his solicitors and the effect of the correspondence with the Department, which took place thereafter, it must be taken that the lessee had actual notice of the intention of the Minister to cancel the lease for breach of conditions.

3--Agreement for sale of land-Inability to perform-Liability for damages-Specific performance-Diminution in price.... 4--Construction of statute - "Assignments Act"-Assignment for benefit of creditors-Occupation of leased pre-: mises-Liability of official assignee.... 588 LEGAL

MAXIM - Fire insurance- Bawdy house-Immoral contract-Legal maxim-Ex turpi causd non oritur actio- ........... LEGISLATION-Assessment and taxation-Interest in land-Recitals in agreement-Validation statute-Legislative declarations-Construction of statute... See TAxEs Builders and contractors-Materials supplied-Order for money payable under contract-Evidence - Estoppel- Enforcing equitable assignment-Practice ....... Action dependent-Injury sustained outside province-Right of action in Manitoba- Evidence-Answers by jury..........

MARRIAGE

LAWS - Quebec marriage laws-Community of property-Dissolution death-Failure to make inventory- Insolvent estate-Continuation of munity

Renunciation.]

Where the matrimonial community was in insolvent circumstances at the time of the wife's death, in the failure of the husband to make an inventory the common property did not have the effect causing continuation of community under the provisions of articles seq. of the Civil Code as then force. King v. McHendry Can. S.C.R.

450) followed.

Fitzpatrick C.J. and Duff

J. dissented.-The judgment from (Q.R. 24 K.B. was affirmed.- Per Duff J. (dissenting).

The failure of the husband to cause an inventory to be made within three months after the death the wife had the effect of concluding him finally, as against the minor children, from asserting that continuation of community did not take place; the heirs, claiming through him, are in the same position.

As the right to the benefit of continuation of community is not a personal right, but is one given to the minor children in substitution of their right to an account, as at the expiration of the time for making an inventory, it is a claim that may be made at any time unless it could be said that the failure to make the demand during the lifetime of the surviving consort operated as a renuncia- MINES AND MINING-Mining company-Corporate powers-" Digging for minerals' -Drilling oil wells-Carrying operations-Becoming contractors for such under the "Companies Ordinance," ch.

N.W. Terr. Con. Ord., and certified, according to of the ordinance, to have limited liability under the provisions thereof, has, in virtue the authority given to such companies

.

.

.

whether belonging to the company or not," power to drill wells for mineral oils on its own property and also to carry on similar work as a contractor

MINES AND MINING-continued. lands belonging to other persons. Idington and Duff JJ. dissented.-Per curiam. Rock oil is a "mineral" within the meaning of sec. the "Companies Ordinance."-Per Duff J. Drilling for oil not mining operation within the contemplation of sees. and 63a of the "Companies Ordinance."-Judgment appealed from West. W. I. 996; 8 Alta. L.R. 340) affirmed, Idington and Duff JJ. Co. v. Statutory regulations-Conditwns of lease fault-Forfeiture of rights-Principal and agent-Solicitor................... CRowN 1.

MORTUAR TABLES - Verdict-Excessive award-Personal injuries-Complete reparation-Loss of prospective earnings-Pain and suffering- Evidence -Practice -New trial. MUNICIPAL

CORPORATION - Powers of council-Highways-Exclusive privilege-Necessity of by-law-Validity contract-Right of action-Status of plaintiff-Shareholder in joint-stock company- Ratepayer-Special injury-Public interest -Prosecution Attorney-General-Practice-Art. 978,

Assuming to act under authority of an existing bylaw regulating traffic by autobusses and in virtue a special statute Geo. V., ch. (Que.), and the general powers conferred by the city charter the municipal council passed a resolution authorizing the corporation the municipality to enter into a contract granting a joint stock company the exclusive privilege of operating autobus lines on certain streets in the city and charging fares for the carriage passengers.

An action was brought by a shareholder in a tramway company (which held similar privileges) who was also a municipal ratepayer attacking the validity of the by-law and of a contract made by the municipal corporation in pursuance of the resolution on the grounds that there was no authority for granting of such exclusive privileges, that such powers, if they existed, could only be exercised by means of a by-law, and that a provision in the contract where- MUNICIPAL CORPORATION-cont.

by the municipality became entitled to certain shares in the stock of the autobus company was ultra vires of the municipal corporation.-Held, affirming the judgment appealed from (Q.R. 23 K.B. 338),

, that in the absence of evidence of special injury sustained by the plaintiff, he had no status entitling him to bring the action.- Per Idington J., dissenting.

The plaintiff was entitled to institute the action by virtue either of his quality as a shareholder in the tramway company, the privileges of which might be injuriously affected, or as a ratepayer of the municipality.-Per

Anglin

J.,

The plaintiff could bring the action in his capacity as a ratepayer of the municipality.-Per Fitzpatrick C.J. and Duff and Brodeur JJ. An appropriate remedy in such a case would be by action prosecuted by the Attorney-General of the province under article 978 of the Code of

Civil Procedure.-Per Duff J. Such an action might be prosecuted either by the municipal corporation itself or by an authority representing the general public.

-Validity of -the by-law, resolution and contract in question discussed by Idington,

Duff and Anglin JJ. (Leave to appeal to the Privy Council was refused on the

18th of December, 1915.)

NATIONAL

Eminent

Domain-Public work - Abandonment- Revesting of land taken-Compensation- Estimating damages-Construction of statute-Jurisdiction of Exchequer Court- "National Transcontinental Railway

-"Railway Act,"

R.S.C., 1906,

"Exchequer Court Act"-"Expropriation

NEGLIGENCE - Operation of railway- Unsafe roadbed-Speed of trains-Disobedience to orders-Answers by jury- "Lord Campbells' Act"-Injury sustained outside province-Right of action in Manitoba.] At a curve in the permanent way there was a sink-hole, over which the roadbed had been recently constructed, where the weight of passing trains caused the tracks to be depressed, but trains running slowly had been safely operated across the unsafe spot for several months.

NEGLIGENCE-continued.

Orders had been given that no trains were to be run over this place at greater speed than 5 miles per hour. The husband of plaintiff was engine-driver of a train which was run over the dangerous spot at a rate exceeding that indicated in the order and was derailed, causing injuries which resulted in his death. The accident happened in the Province of Ontario and the action to recover damages was instituted in Manitoba. In answer to the question, "In what did such negligence consist," the jury answered, "a defective roadbed, and not having provided a watchman for same."-Held, affirming the judgment appealed from (24 Man. R. 807), Idington and Brodeur JJ. dissenting, that the answer returned by the jury was insufficient and vague; that there was no reasonable evidence to support a finding that, assuming the order regulating speed of trains to be observed, the permanent way at the place in question was so dangerous as to make it negligence on the part of the railway company, vis-a-vis deceased, to operate trains thereupon or that the cause of the accident was the state of the roadbed rather than' the running of the train at excessive speed. -Per Idington, Duff and Brodeur JJ. A legal obligation ex delicto, arising in consequence of a fatal accident which happened beyond the territorial limits of the Province of Manitoba, may be enforced in the Manitoba courts where, according to the law in force in Manitoba, a similar right of action would have arisen if the accident had occurred within the province.

Phillips v. Eyre (L.R. 6 Q.B. 1) referred to.

NEW

TRIAL-Damages

NOTICE-Fire insurance-Bawdy house -Immoral contract-Legal maxim-Ex turpi causd non oritur actio-Cancellation of policy-Statutory condition-Notice to and agent......................... areas-" Dominion Lands Act" s. NOTICE-continued.

Defeasance-Cancellation on default-Forfeiture of rights-Principal and agent- Solicitor..........................

"NULLUM TEMPUS ACT."

OFFICIAL ASSIGNEE-Construction statute-Alberta "Assignments Act"-Assignment for benefit of creditors-Occupation of leased premises-Liability of official assignee..........................

PAYMENT-Local agent of railway company-Collection of freight charges-Receipt delivered before payment .............

Delivery-Specifled time - Default-Liquidated damages

-Per-estimate- Inexecution - Compensa- Cross-demand-Practice ......

PILOTS-Pilotage authority-Compulsory retirement of pilot-Judicial functions- Liability action.] The pilotage authority in a pilotage district Canada has not absolute and arbitrary power to cancel a pilot's licence, but can only do so after complaint and inquiry and proof on oath incapacity.

If a pilotage authority by resolution alone, without complaint, notice or investigation, declares a pilot to be dismissed "for neglect and incapacity" and thus prevents him from performing a pilot's duties, inasmuch as it failed to observe the statutory requirements respecting the proceedings for such dismissal it has not exercised judicial functions and is not protected from liability to an action by the pilot for damages.

.

Duff J. by-law of a pilotage authority purporting to provide for the forfeiture of pilot's licences for incapacity could only have the effect, if at all, subject to the condition exacted by (j)

the "Shipping Act" that such incapacity should be "proved on oath before the pilotage authority" and a resolution a pilotage authority pretending to dismiss

PILOTS-continued.

a licensed pilot for incapacity without such proof on oath was legally inoperative; but as the resolution was intended to have and had the effect of preventing the pilot exercising his calling and since was an act without justification or excuse it was actionable within the principle laid down by Bowen L.J. in Mogul Steam Ship Co. v. McGregor Q.B.D. -Per Duff J. See. 433(e) of the "Shipping Act" does not empower a pilotage authority to limit the term of a pilot's licence to a period of one year. Judgment of the Supreme Court of Nova Scotia

1N.8.

Rep.

(Leave to appeal to Privy Council granted, 14th

April,

PLANS-Construction of statute-Sales subdivided lands - Registration plans-Prohibitive sanction-"Land Titles 6Edw. VII., s.-s. (Alta.);- 4 Geo.V., 2,s,9; Geo.V., c.2,s,25 (Alta.) Retrospective legislation-Illegality of contract-Recission-Recovery of money paid of action-Practice-Pleading- Appeal.] The effect the amendment to the Alberta "Land Titles Act," Edw. VII., ch. by 1 Geo. ch. see. 15 adding the seventh sub-section to sec. that Act, is to prohibit sales of lands subdivided into lots according to plans of subdivision until after the registration of the plans in the proper land titles and also to render any sales made in contravention of the prohibition inoperative.-The vindicatory sanction imposed by the statute directed against the vendor and where there is no presumption of knowledge of the invalidity on the part of the purchaser he cannot be deemed in pari delicto with the vendor and is not deprived the right of action to set aside the agreement and recover back moneys paid thereunder.-After the judgment appealed from had been rendered the statute was further amended Geo. ch. sec. by the addition of sub-sec. 8(a) providing that the seventh sub-section could not be pleaded or relied upon in any civil action or proceeding by a party to any such agreement when the plan in question had been registered before the action or proceeding was instituted or where it was the duty the party pleading to make such registration. -Held, that, as the last amending was not a statute declaratory of the law PLANS-continued.

as it stood at the time when the judgment appealed from was rendered, and as appeals to the Supreme Court of Canada are not of the nature of re-hearings to which the principle of the decision in

Quilter v. Mapleson Q.B.D. 672) applies, the restricting provisions can have no effect upon the decision of the present appealed from

West. W.R. 440; 8 Alta. L.R. 160) affirmed.

PLEADING-Construction of statute- Prohibitive sanction-Alberta. "Land Titles

Act" -Reprospective legislation-Illegality of contract - Rescission-Recovery of money paid-Right of action-Practice-Appeal.

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

POSSESSION-Title to land-Foreshore

-Nature of possession-Nullum tempus

PRACTICE AND PROCEDURE- Materials supplied-Order for money payable under contract-Evidence - Estoppel

A building contractor gave a written order upon the owner directing him to pay the sum of $800 to the plaintiff on account of the price of materials supplied for use in the building which was in writing, was held over to await the time for making payments under the contract.

The contractor failed to complete the work, and it was finished by the owner at an outlay which left the balance of the contract price insufficient to meet the full amount the order.-Held, the Chief

, that the order was effective as an assignment of money payable under the contract, but, as there was no evidence of a promise to pay the amount thereof out of the fund, or of facts precluding the owner from denying the sufficiency of what ultimately was payable to the contractor, it could not be enforced against the owner as an equitable assignment.-Per Duff J.

As the equitable relief sought could be granted only upon a consideration of all the circumstances and no claim therefor

PRACTICE AND PROCEDURE-cont. was made in the courts below nor was the evidence directed to any such claim, the claim came too late on an appeal to the Supreme Court of Canada.-Per Fitzpatrick C.J. and Idington J., dissenting. As the conduct of the owner respecting the order was equivocal and misleading and induced the materialman to abstain from filing a lien to protect himself, the owner ought to be held liable for the full amount of the order as an equitable ment of the Appellate Division (8 West. W.R. 729; Alta. L.R. was dismissed with costs.

V. .. 243 2--Trial jury-Personal wrongs- Appeal-Taking new objection-Art. C.C.-Arts. 421 seq. C.P.Q.-"Lord Campbell's Act"-Charge to jury-Opinion on questions of fact.] Per curiam.- Where an order has been made for trial with a jury, according to the provisions of articles 422 et seq. of the Code of Civil Procedure of Quebec, and both parties have acquiesced in that form of trial, objection to the right to trial by jury cannot be urged for the first time on an appeal to the Supreme Court of Canada. -An action for damages, under article 1056 of the Civil Code, brought by dependents of a person whose death was caused in consequence of dilit or quasi-dilit an action resulting from personal wrongs within the meaning of articles 421 et seq. of the Code Civil Procedure Quebec in which there may be trial by jury. Fitzpatrick C.J. contra.-Per Fitzpatrick C.J. dissenting. The right of action given to the dependents, under article 1056 of the Civil Code, is purely statutory, and not a representative right (see Robinson v. Canadian Pacific Railway Co. ( (1892) A.C. 481); consequently, the dependents, who have suffered no personal wrongs, are not entitled to trial by jury under the provisions of chapter of the Code of Civil Procedure of Quebec.-Per Idington, Duff and Anglin JJ. In his charge to the jury, the judge is entitled to express his opinion on questions of fact if he does in such a manner as will not lead the jury to think that they are being given a direction which it would be their duty to SAGUIN......................... Right of action-Status of plaintiff in joint-stock company- Ratepayer - Special injury-Public in- PRACTICE PROCEDURE-cont.

terest-Prosecution Attorney-General- Practice-Art. C.P.Q...........

-- Pilotage authority-Compulsory retirement of pilot-Judicial function-Liabilityto action.....................

5--Construction of statute-Retrospective legislation-Illegality of contract-Rescission-Recovery of money paid-Right action-Practice-Pleading-A

6--Quashing appeal-Refusal of costs- Supreme Court Rule 4...............

7--Action dependent-Injury sustained outside province-Right of action in

Manitoba-Evidence-Answers jury.

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

8--Damages award-Personal injuries-Complete reparation-Loss of earnings-Pain and suffering -Evidence -Mortuary tables- N trial.........................

9--Contract - Default-Liquidated damages-Pre-estimate

Penalty tion-Compensation - Cross-demand. 349

10--Appeal

Jurisdiction

Provincil tribunal-Consent-Estoppel-Assessment............................

11--Title to land-Conveyance in fraud ment-Trustee - Equitable relief-Restituion-Evidence-Statute of Frauds..

PRINCIPAL AGENT-Insurance broker-Immoral contract-Cancellation policy-Statutory condition-Notice to insured-Return of premium.] Per Davies

J.

In the circumstances of the case the broker through whom the plaintiff effected

PRINCIPAL AND AGENT-cont. the insurance became her agent for all purposes in connection therewith and he was also constituted the agent of the company for the purpose giving notice of the cancellation the policy.-Per Idington and Duff JJ. The broker, who was handed the policy for delivery to insured and collection of the premium, became the agent the company for those purposes. He, however, had no authority from the insured to receive notice of cancellation the policy on her behalf nor to waive the requirements of statutory condition 19 of the "Northwest Territories Ordinance," ch. (1st sess.), as to notice of cancellation of policies of insurance and return of premiums paid.

2--Estoppel-Local agent of railway company-Receipt delivered before payment of freight.] The local agent the railway company received the personal cheque of the defendants' agent in settlement of freight charges due by the defendants and thereupon receipted the freight bills.

By means of these receipted bills the defendants' agent was enabled to obtain the amount of the freight charges from his employers and absconded, leaving no funds to meet his cheque which was dishonoured.

In an action for the recovery of the amount of the freight charges -Held, reversing the judgment appealed from Alta. L.R. Duff and Brodeur JJ. dissenting; that the delivery the recQipts in advance of payment afforded means of inducing the defendants to pay over the amount represented by them to their agent and, consequently, the plaintiffs were estopped from denying actual receipt of payment of the freight charges.-Per

. In the circumstances disclosed by the evidence in the case the principle of estoppel could not be applied.

Gentles v. Canadian Pacific Railway Co. Ont. L.R. 286), distinguished.

Foreshore-Title possession-Nature

Disclaimer title-Nullum tempus Act.]

In proceedings by the Dominion Government for expropriation of land on the Miramichi River the owner, T., claimed compensation for the part of the adjoining foreshore of which he had no documentary title.

It was proved that in 1818 the original grantee had leased a part of the land and the privilege of erecting a boom for securing timber on the river in front of it; that his successors in title had, by leasing and devising it, dealt with the foreshore as owners; that for over forty years from about 1840 the boom in front of it was maintained and used by the owners of the land; and that at low tide the logs in the boom would rest on the solum.-Held, reversing the judgment of the Exchequer

Court (15 Ex. C.R. 177), Davies and Idington JJ. dissenting, that there was sufficient evidence of adverse possession of the foreshore by the owners of the adjoining land for more than sixty years to give the present holder title thereto.-Per

Anglin J. From a continuous user for more than forty years, which is proved, a prior like user may be inferred. Moreover, from the evidence of assertion of ownership and possession since 1818 a lost grant might, if necessary, be presumed.

-Per Davies and Idington JJ. The placing and use of the boom was only incidental to the lumber business carried on at this place and the consent of the riparian owner thereto cannot be regarded as a claim of adverse possession. The presumption of lost grant was not pleaded and cannot be relied on; mreover, a lost grant could not be presumed in the circumstances.-On application by the Minister of Justice for a disclaimer of damages for the taking of the foreshore the Government of New Brunswick passed an order in council stating that the owner of the adjoining land taken claimed title to said foreshore; that it had been used by the owners for booming purposes and otherwise for more than sixty years; that the

Attorney-General was of opinion that whatever rights the province may have had were extinguished and that no claim should be made by it to said foreshore.

-Held, per Duff J. This is an admission touching the title to the foreshore by the only authority competent to make it and is evidence against the Dominion Government in the expropriation proceedings;

that it is prima facie evidence of title by

PRESCRIPTION-continued.

possession in T.; and that there is nothing in the record to impair the strength of this primd facie case.

PROMISSORY NOTE-Banking - Purchase of company's assets-Bill of sale- Description of chattels-B.C. "Bills of Sale Act," R.S.B.C., 20-Registration -Recital in bill of sale-Consideration- Defeasance-Reference to unregistered note -Collateral security-Loan bank- "Bank Act," (D.) & 4 s. 76 ...............................

PUBLIC INTEREST - Municipal Corporation-Powers of Council-Highways- Exclusive privilege-Necessity of by-law- Validity of contract-Right of action- Status of plaintiff-Shareholder in jointstock company-Ratepayer-Special injury -Public interest-Prosecution Attorney- General-Practice-Art. 978 C.P.Q. PUBLIC WORK

R.S.C., 37- "Exchequer Court Act "-"Expropriation RAILWAYS - Negligence - Operation railway-Unsafe roadbed-Speed of trains -Disobedience orders-Answers by jury.] At a curve in the permanent way there was a sink-hole, over which the road-bed had been recently constructed, where the weight of passing trains caused the tracks to be depressed, but trains running slowly had been safely operated across the unsafe spot for several months. Orders had been' given that no trains were to be run over this place at greater speed than 5 miles per hour. The husband of plaintiff was engine-driver of a train which was run over the dangerous spot at a rate exceeding that indicated in the order and was derailed, causing injuries which resulted in his death. accident happened in the Province of Ontario and the action to recover damages was instituted in Manitoba.

In anwer RAILWAYS-continued.

to the question, "In what did such negligence consist," the jury answered, "a defective roadbed, and not having provided a watchman for same."-Held, affirming the judgment appealed from

Man. R. Idington and Brodeur

, that the answer returned by the jury was insufficient and vague;

that there was no reasonable evidence to support a finding that, assuming the order regulating speed of trains to be observed, the permanent way at the place in question was so dangerous as to make it negligence on the part the railway company, vis-d-vis deceased, to operate trains thereupon or that the cause the accident was the state the roadbed rather than the running the train at excessive speed.

2-Damages - -Personal injuries-Complete reparation

-Loss of prospective earnings-Pain and suffering - Evidence-Mortuary tables- 3-Expropriation - Public work-Abandonment-Revesting land

Transcontinental Railway Act" -"Railway Act," R.S.C., - " Exchequer Court Act" - 4-Appeal - Jurisdiction-Provincial river............................

5-Local agent of railway company- Collection of freight charges-Receipt livered before payment ..............

REGISTRY LAWS-Substitution-Registration-Sheriff's sale - Right institute

-Effect of sale under execution-Arts.

938-941, 950,

2090, C.C.- The judgment ap- REGISTRY LAWS-continued. pealed from R.L.N.S. 444), affirming the judgment of the Superior Court, which maintained the plaintiff's action to recover certain substituted lands on the ground that the rights of the substitute had not been purged by a sheriff's sale thereof, was affirmed with a variation regard to the expertise ordered respecting the amounts to be allowed to the purchaser at the sheriff's sale for improvements made thereon and as to accounts rents, issues and profits.

Brodeur dissented.-Per Duff and Anglin JJ. The provisions the Civil Code in regard to the registration of unopened substitutions do not contemplate registration affecting immovables, as such, but refer merely to registration necessary to the operation of the instrument creating the substitution; consequently articles and of the Civil Code have no application.-Per Duff Brodeur J. contra. Article the Code Civil Procedure deals primarily with procedure and should be construed in connection with article 953 of the Civil Code so as to effectuate rights resting upon the provisions of the Civil Code relating to substantive law. Vadeboncceur v. City of Montreal Can. S.C.R. distinguished.-Per Duff and Anglin JJ. The registration of an instrument creating a substitution is effective from the date upon which it is registered and protects the rights of the substitute against the right acquired by a purchaser under a subsequent sale in execution made by the sheriff.

Trudel v. Parent (Q.R. Q.B.

referred to.-Per Anglin J. In the case a sale under execution against an institute, subsequent to the registration the substitution, the purchaser at sheriff's sale acquires merely the personal interest the institute subject to the substitution; such a title cannot defeat the claim of the substitute. -Per Brodeur dissenting. Inasmuch as the claim of the execution creditor was for a debt due and exigible prior to the date when the instrument creating the substitution was registered, the effect the sale by the sheriff was to discharge the immovable sold from the claim of the substitute and to give the purchaser at that sale an absolute title to the land having priority over that of the substitute. 2--Construction of statute-Sales of subdivided lands - Registration of plans- REGISTRY LAWS-continued.

Prohibitive sanction-Alberta "Land Titles

Act" -Retrospective legislation....... 185

3--Banking-Purchase of assets-Bill of sale - Description of chattels -B.C.

"'Bills of Sale Act," R.S.B.C.,

20-Registration-Recital in bill of sale- Consideration - Defeasance-Reference to unregistered note-Collateral security - Loan bank-"Bank Act,"

(D.) &

4 76................

RIVERS

STREAMS - Canadian

Waters-Sea coasts-Property inforeshores

-Harbours-Havens-Roadsteads - Ownership of beds-Construction of statute- "B.N.A. Act, ss. The terms "public harbours" in item 2 of the third schedule of the "British North

America Act, 1867," is not intended to describe or include portions of the sea of refuge are not property of the class transferred to the Dominion of Canada by section 108 of the "British North

America Act, 1867."

The term used refers only to public harbours existing as such at the time when the provinces became part of the Dominion of Canada.

-Per Davies, Idington, Anglin and Brodeur JJ. As that part Burrard Inlet, on the coast of British Columbia, known as "English Bay," was not in use as a harbour at the time of the admission

British Columbia into the Dominion of

Canada, in it did not become the property of the Dominion as a "public harbour" within the meaning of sec.

and the third schedule of the "British

North America Act, 1867"; consequently, the Province British Columbia retained the property in the bed and foreshore thereof and could validly grant the right removing sand therefrom.-Per Davies,

Idington and Anglin JJ. Inasmuch as the proclamation, by the Dominion Government, on the 3rd of December, and the Dominion statute, chapter 54, and & 4 Geo. deal merely with the establishment the port and the incorporation of the Vancouver Harbour Commissioners, they had not the effect of transferring English Bay from the control

RIVERS AND STREAMS -continued. of the Provincial Government to that of the Dominion Government, nor of giving to the Dominion Government any right of property in the bed or foreshore of that bay.-Per Duff J.

The transfer effected by see. of the "British North America Act, of the subjects described in the third schedule that Act was a transfer of property operative upon the passing of the Act and such subjects were necessarily ascertainable at the passing of the Act by the application the descriptions to the facts then existing, and, consequently, the question of "public harbour" or no "public harbour" must be determined according to the circumstances as they were at the date of the Union.-Per The term "public harbour" implies public user as a harbour for commercial purposes as distinguished from purposes of navigation simply, or some recognition, formal or otherwise, of the locality in dispute by the proper public authority as a harbour for such purposes, but the question of "public harbour" or no "public harbour" is a question of fact depending largely upon the particular circumstances.-Per Duff

If the question of "public harbour" or no "public harbour" were to be decided according to the circumstances existing when the dispute arose, English Bay must be held to be now a "public harbour" within the meaning of item of the third schedule of the "British North America Act, Judgment appealed from B.C. Rep. 333) affirmed.

(Leave to appeal to the Privy Council was granted 20th December,

2--Appeal-Jurisdiction of provincial rver.............................

ROADSTEAD-Canadian waters - Sea coasts-Property in foreshores-Harbours - Havens-Ownership in beds--Construction of statute-" B.N.A. Act, ss. 109..........................

SALE-Sales of subdivided lands-Registration of plans-Prohibitive sanction.] The effect of the amendment to the Alberta "Land Titles Act," 6 Edw. VII., ch. 24, SALE-continuew.

by 1 Geo. ch. 15(25), adding the seventh sub-section to section that

Act, is to prohibit sales of lands subdivided into lots according to plans subdivision until after the registration the plans the proper land titles and also render any sales made in contravention of the prohibition inoperative.

2--Specific performance - Agreehtent for sale of land-Inability to perforn-Liability to damages-Dininution in price.]

lease of land for ten years provided that on its termination the lessee could, by giving notice, purchase the fee

822,000.

In a suit for specific performance this agreement.-Held, applying the rule in Bain v. Fothergill (L.R. 7

I.L. Fitzpatrick C.J. and Davies

J. dissenting, that the lessor, without fault, was unable to give title in to the land the lessee was not entitled to damages for loss his bargain.-Per

Fitzpatrick C.J. and Davies

The above rule should not be applied in a case like this where the lease contained onerous loonditions binding the lessee to expend

.arge suns in improving the property and

It must have been contemplated by the parties that such expenditure would have caused him special damage he could not purchase the fee.-Judgment

Ont. L.R.

243) affirmed.

REUIL...........................

3--Substitution - Registration--Sherif's sale-Right of institute-Efect sale under execution................

Municipal Corpora tion-Pouers of council-Ialidity of tract-Right of action-Status of plaintif

See 1.

SHERIFF

S

Shriff's sale-Right of institute-Effect ofsale under ion..............

SHIPPING - Pilotage authority - Coit pulsory retirement of pilot-Judicial func lions-Liability action.] The pilotage

SHIPPING-continued.

authority in a pilotage district Canada has not absolute anl arbitrary power cancel a pilot's licence, but can only do after complaint and inquiry and proof on oath incapacity.

If a pilotage authority, by resolution alone, without plaint, notice or investigation, declares a pilot to be dismissed "for neglect and incapacity" and thus prevents him from performing a pilot's duties, inasmuch it failed to observe the statutory requirements respecting the proceedings for such dismissal it has not exercised judicial functions and not protected from liability to an action by the pilot for damages.

. -Per Duff J. by-law a pilotage authority purporting to provide for the forfeiture pilot's licences incapacity could only have the effect, if at all, subject to the condition exacted by 433(j) of the "Shipping Act" that such incapacity should be "proved on oath before the pilotage authority" and a resolution a pilotage authority pretending to dismiss licensed pilot for incapacity without such proof on oath was legally inoperative; but as the resolution was intended to have and had the effect preventing the pilot exercising his calling and since it was an act without justification or excuse it was actionable within the principle laid down by Bowen L.J. in Mogul Steat Ship Co. v. McGregor Q.B.D. 598).-Per Duff

433(e) the "Shipping Act" does not empower pilotage authority to limit the term a pilot's licence to period one year. Judgment the Supreme Court Nova Scotia

N.S.

Rep.

(Leave to appeal to Privy Council granted, SOLICITOR- Soliritor and client-Fiduciary relationship-Transfer of lands- Joint negotialions

Agreement share profits-Interaention of third party-Solicitor's separate adrantagc -Bonus fron third party--Obligation ucount client.] The Government of British Columbia had unsuccessfully attempted, through the agency to obtain a transfer the rights band Indians in the Kitsilano Reserve.

About year afterwards C. became interested in the matter and arranged with R., a solicitor, that they should undertake to obtain the required transfer the understanding that any SOLICITOR-continued.

profits made out the transaction should be equally divided between them. Long negotiations with the band took place without any definite result, when, without the consent through the intervention at the request of R., the transfer was obtained and R. received a sum money from as a share of the profits realized on carrying the transaction through. In an action by C. to recover one-half of the amount so received by R., from B.C. Rep. that throughout whole transactions the fiduciary relationship solicitor and client had continued between R. and C. and, consequently, that R. was obliged to account to for what he had received from A.

remuneration for services in connection with the business which they had jointly undertaken in order to obtain the transfer the title from the Indians.

47fault-Forfeiture of rights-Principal and

SPECIFIC PERFORMANCE - Agreement for sale of land-Inability to perform- Liability damages-Diminution in price.]

lease of land for ten years provided that on its termination the lessee could, giving notice, purchase the fee

$22,000.

In a suit for specific performance this agreement.-Held, applying the rule in Bain Fothergill (L.R. H.L.

Fitzpatrick C.J. and Davies J.

dissenting, that if the lessor, without fault, was unable to give title in fee to the land the lessee was not entitled to damages for of his bargain.-Per Fitzpatrick C.J.

and Davies J. The above rule should not be applied in a case like this where the lease contained onerous conditions binding the lessee to expend large sums in improving the property and it must have been contemplated by the parties that such expenditure would have caused special damage if he could not purchase

Judgment appealed against

Ont. L.R. affirmed.

Canadian waters-Sea coasts-Property in foreshores-Harbours-Havens- Roadsteads- Ownership of beds-Construction of statute -- 'B.N.A. Act, ss. The terms "public harbours" in item of the third schedule the "British North America Act, is not intended to describe or include portions the sea refuge are not property the class transferred to the Dominion of Canada by sec. the "British North America The term used refers only to public harbours existing as such at the time when the provinces became part the Dominion Canada.-Per Davies, Idington, Anglin and Brodeur JJ. As that part Burrard Inlet, on the coast British Columbia, known as "English Bay," was not in use as a harbour at the time the admission British Columbia into the Dominion Canada, in did not become the property of the Dominion as a "public harbour" within the meaning of sec. and the third schedule the "British North America Act, 1867;" consequently, the Province of British Columbia retained the property in the bed and foreshore thereof and could validly grant the right of removing sand therefrom.-Per Davies, Idington and Anglin JJ. Inasmuch as the proclamation, by the Dominion Government, on the 3rd December, and the Dominion statute, chapter 54 of & 4 Geo. deal merely with the establishment of the port and the incorporation the Vancouver Harbour Commissioners, they had not the effect of transferring English Bay from the control the Provincial Government to that of the Dominion Government nor of giving to the Dominion Government any right property in the bed or foreshore that bay.-Per Duff J. The transfer effected by see. of the "British North America Act, the subjects described in the third schedule of that Act was a transfer of property operative upon the passing the Act and such subjects were necessarily ascertainable at the passing the Act by the application of the descriptions to the facts then existing, and, consequently, the question must be determined according to the circumstances as they were at the date the Union. -Per Duff J. The term "pubharbour" implies public user as a barbour for commercial purposes as distinguished of navigation simply, or some recognition, formal or otherwise, of the locality in dispute the proper public authority as a harbour for such purposes, but the question is a question fact depending largely upon the particular circumstances.-Per Duff

within the meaning of item of the third schedule of "The British North America

Judgment appealed from

B.C. Rep. 333) affirmed.

(Leave to appeal to the Privy Council was granted,

20th December,

2--Construction of statute-Sales sub-divided lands-Registration of plans- Prohibitive sanction-"Land Titles Act,"

Edw. VII., 24, s.-s. (Alta.); 4 Geo.

2, s. Geo. V., s. (Alta.) - Retrospective legislation-Illegality of contract-Rescission-Recovery of money paid of action-Practice-Pleading- Appeal.] The effect the amendment to the Alberta "Land Titles Act," Edw.

VII., ch. by 1 Geo. ch. 4, sec. 15 adding the seventh sub-section to sec. that Act, is to prohibit sales of lands subdivided into lots according to plans of subdivision until after the registration of the plans in the proper land titles and also to render any sales made in contravention of the prohibition inoperative. -The vindicatory sanction imposed by the statute is directed against the vendor and where there is no presumption of knowledge of the invalidity on the part of the purchaser he cannot be deemed in pari delicto with the vendor and is not deprived of the right of action to set aside the agreement and recover back moneys paid thereunder.-After the judgment appealed from had been rendered the statute was further amended Geo. V., ch. by the addition sub-sec.

8(a) providing that the seventh sub-section could not be pleaded or relied upon in any civil action or proceeding by a party to any such agreement when the plan in question had been registered before the action or proceeding was instituted where it was the duty the party pleadto registration.-Held, that, as the last amending Act was not a statute declaratory of the law as it stood at the time when the judgment appealed from was rendered, and as appeals to the Supreme Court Canada are not of the nature of re-hearings to which the principle of the decision in Quilter v. Mapleson Q.B.D. 672) applies, the restricting provisions can have no effect upon the decision the present appeal. Judgment appealed from West. W.R. 440; Alta. L.R. affirmed.

3--Expropriation - Public land taken - Compensation-Estimating Jurisdiction of Exchequer National Transcontinental Railway Act,"

Edw...

VII., 71-" Railway Act," R.S.C., 207-"Exchequer Court Act," R.S.C., 20-"Expropriation Act," R.S.C., 143-" Railways and Canals Act," R.S.C., s. Per Curiam.-The jurisdiction the Exchequer Court of Canada not, by the effect of the provisions sec. the "Expropriation Act," limited to adjudication upon claims compensation in consequence of expropriation proceedings in regard to which there has been only partial abandonment the property taken, but extends as well to claims made in cases where the whole of the property has been abandoned. Decision appealed from Ex. C.R. affirmed.-Under the provisions of the "Expropriation Act," the person from whom re-vested land has been taken is entitled to compensation for damages sustained in consequence of the expropriation proceedings in the event of abandonment of the whole parcel of land as well as in the case of the abandonment of a portion thereof only.

Idington J. dubitante.-Per Fitzpatrick C.J. and Davies, Idington and Brodeur JJ. See. of the "Expropriation Act" applies in matters of expropriation for the purposes of the National Transcontinental Railway under the provisions of the "National Transcontinental Railway Act";-Per Anglin J. It was so held in The King v. Jones Can. S.C.R. 495); Duff J. contra.-Per Duff J. The Minister of Railways and Canals has not, by virtue of the section authority to abandon lands compulsorily taken for the Eastern Division the National Transcontinental Railway. which become vested in the Crown force of the 13th section the "National

Sec.

the "Railway Act" is not incorporated in the "National Transcontinental

Railway Act" by force of the 15th section that statute.-On the merits the appeal, Davies, Idington and Brodeur

JJ. considered that, in the circumstances, the amount the award for damages made by the judgment appeared from

Ex. C.R. was sufficient, and that the appeal should be dismissed.

Chief Justice and Anglin J. held that the appeal should be allowed and the case remitted to the Exchequer CoUrt for the purpose estimating damages on the basis allowing suppliants the value the land at the date expropriation less its value at the time the abandonment.

Duff J. was opinion that the suppliants were entitled to the full compensation tendered by the Crown for the land taken, but, having accepted the property as returned and agreed to credit its diminished value in part satisfaction their claim, the appeal should be allowed and damages awarded estimated according to the difference between the admitted value the land to them when taken and its value at the date of abandonment.

Consequently, on equal division opinion among the judges the Supreme Court of Canada, the judgment appealed from

Ex. C.R. stood affirmed, no costs being allowed.

v. 402

4--Appeal - Jurisdiction of provincial

Assessment-Railway bridge navigable river-R.S.O. 195-R.S.O.

By the Ontario "Assessment Act"

an appeal is given from a decision the

Court Revision to the county court railway company took an appeal direct from the Court of Revision to the Board.

When the appeal came up court judge.

The Board then heard the

80 the "Assessment Act," which allows an appeal on a question law only, to the Appellate Division which reversed it. On appeal from the last mentioned judgment to the Supreme Court of Canada,-Held, Fitzpatrick C.J. and Idington J. dissenting, that the case was not adjudicated upon by the Board extra cursun curiw; that it came before the Appellate Division and was heard and decided in the ordinary way; an appeal would therefore lie to the Supreme Court under of the "Supreme Court Act." -Per Duff J.

The decision the Board that the objection to its jurisdiction could be waived and that it could lawfully hear the appeal from the Court Revision direct (and affirm or amend the assessment) given at the invitation both parties pursuant to an agreement between them and acted upon by the Board in hearing the appeal on the merits, and acted on by the Appellate Division, binding on the parties and not open to question on this appeal: Ex parte Pratt Q.B.D. 334); Forrest v. Harvey (4 Bell App. Cas. 197); Gandy v. Gandy Ch. D. 57); Roe v. Mutual Loan Fund Association Q.B.D. 347); and, consequently, the appellant municipalty precluded from contending on appeal to the Supreme Court Canada that, railway company, under authority the Parliament Canada, built an international bridge over the St. Lawrence River at Cornwall and have since run trains over it.-Held, that such superstructure supported by piers resting on Crown soil and licensed for railway purposes was not included in the railway property assessable under sec. 47 the "Outario Assessment Act" (R.S.O. ch. 195); if it is included it exempt from taxation under sub-sec.

Judgment appealed against

(34 Ont. L.R. affirmed.

TowNsHIP 5--Construction of statute - "Assignments Act"

"Assignments as amended by the Alberta statutes, ch. sec. 1909 and ch. sec. 1912, provides that assignments for the general benefit creditors must be made to an assignee appointed under the and that the assignment shall vest such assignee all the assignor's real and personal property, credits and effects which may be seized and sold under execution.

The lessee premises held under a lease from the plaintiffs made an assignment to the defendant who took possession thereof and, on threat distress, agreed that he would guarantee the rent so long as he remained in occupation.

After three months, the defendant quitted the premises and notified the landlord that he would no longer be responsible for pay the rent.

the the to recover the rent accruing to the end the term:-Hfeld, reversing the judgment appealed from Alta. L.R. Idington and Brodeur JJ. dissenting, that the effect the assignment and entry into possecsion the term the lease passed to the official assignee who, thereupon, became liable for the whole the rent accruing for the remainder of the term.

6--Assessment and taxation-Interest in land- Recitals in agreement-Validat statute-Legislative declarations-Construction of statute..................

7--Banking-Purchase of company's assets-Bill of sale-Description of chattels

B.C. "Bills of Sale Act,"

R.S.B.C.

20-Registration - Recital in bill of sale-Consideration - Defeasance- Reference to unregistered note-Collateral security-Loan bank-"'Bank Act,"

& s. 76.........

8--Dominion lands-Lease of mining areas-" Dominion Lands Act'' 47- Statutory regulations - Conditions lease-Defeasance on default-Forfeiture of rights.......

9--Mining Company powers-"Digging for minerals" -Drilling oil wells- Operations...................

STATUTES-(Imp.)

"B.X.A.

ss. (Property of Canada and the province)...................

STATUTES-eontinued.

2--R.S.C., 1886,

54, ss. s. (Dominion Lands) .................

3--R.S.C., s. 7 ("Railways and Canals Act") ..................

4--R.S.C., 1906, 207 ("Railway 5--R.R.C..

c. ("Shipp ni )............................

6--R.S.C., s. ("Supreme Court Act'') ...................

7--R.S.C., 1903, c. s. 20 ("Exchequer Court Act")....................402 8--R.S.C., 1906, ("Expropriation 9--(D.) Edw. VII., c. (''National Transcontinental Act") .............

10--(D.) & 76 ("BankAct")..................... 11--R.S.O., 1914, (Taxation). 466 12--R.S.O., 1914, ("Assessment A )............................

12a--(Que.) V., (City M ontreal) ........................

13--R.S.B.C., 20 (Bills of ,Sale) . ....

4...................... .. 14--R.S.B.C., 222,s.47 ('' Taxa- 15--(B.C.) r. (Railway subsidylands)..................... STATUTES-continued.

16--(B.C.) (Taxes)

..........

. .

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

17-(Alta.) 6 Edw. VII., c. 24 ("Land

Titles Act") ......................

18--(Alta.) 9 Edw. VII. (1909) c. 4

("Assignments Act") ..............

19--(Alta.) 2 Geo. V., c. 2 (Assignments for benefit of creditors)...............

20--(Alta.) 5 Geo. c. 2, s. 25 ("Land

Titles Act") ..............

.......

21--N.W. Ter. Ord., 1903, sess.,

(Insurance) ...................

22--N.W. Terr. Ord., 1905, c. 61 (" Companies Ordinance") ................

SUBSTITUTION

950, 953, 2090, 2091, C.C.-Art. 781,

The judgment appealed from

R.L.N.S. 444), affirming the judgment of the Superior Court, which maintained the plaintiff's action to recover certain substituted lafids on the ground that the rights of the substitute had not been purged by a sheriff's sale thereof, was affirmed with a variation in regard to the expertise ordered respecting the amounts to be allowed to the purchaser at the sheriff's sale for improvements made thereon and as to accounts for rents, issues and profits.

Brodeur J. dissented.

-Per Duff and Anglin JJ. The provisions the Civil Code in regard to the registration of unopened substitutions do not contemplate registration affecting immovables, as such, but refer merely to registration necessary to the operation of the instrument creating the substitution; consequently articles 2090 and 2091 of the Civil Code have no application.

-Per Duff J., Brodeur J. contra. Article

781 of the Code of Civil Procedure deals primarily with procedure and should be construed in connection with article 953 of the Civil Code so as to effectuate rights

SUBSTITUTION-continued.

resting upon the provisions of the Civil Code relating to substantive law. Vadeboncoeur v. City of Montreal (29 Can. S.C.R. distinguished.-Per Duff and Anglin JJ. The registration of an instrument creating a substitution is effective from the date upon which it is registered and protects the rights of the substitute against the right acquired by a purchaser under a subsequent sale in execution made by the sheriff.

Trudel v. Parent (Q.R. 2 Q.B.

578), referred to.-Per Anglin J. In the case of a sale under execution against an institute, subsequent to the'registration of the substitution, the purchaser at sheriff's sale acquires merely the personal interest of the institute subject to the substitution; such a title cannot defeat the claim of the substitute. -Per Brodeur J. dissenting. Inasmuch as the claim of the execution creditor was for a debt due and exigible prior to the date when the instrument creating the substitution was registered, the effect of the sale by the sheriff was to discharge the immovable sold from the claim of the substitute and to give the purchaser at that sale an absolute title to the land having priority over that of the substitute. SURROGATE

Probate Court-Case originating in Surrogate Court-R.S.C. [1906 c. 139, s. 37(d.)]

Under the terms of sec. 37 (d) of the "Supreme Court Act" an appeal lies to the Supreme Court of Canada from the judgment of the Appellate Division of the Supreme Court of Ontario in a case originating in a Surrogate Court of that province. Idington

J. dubitante. the merits the judgment of the Appellate Division (32 Ont. L.R. 312) was affirmed. TAXATION- TITLE TO LAND-Foreshore - Title possession-Nature of possession-Disclaimer-Evidence of title-Nullum tempus In proceedings by the Dominion Government for expropriation of land on the Miramichi River the owner, T., claimed compensation for the part of the adjoining foreshore of which he had no documentary title. It was proved that in 1818 the original grantee had leased a TITLE TO LAND-continued.

part of the land and the privilege of erecting a boom for securing timber on the river in front of it; that his successors title had, by leasing and devising it, dealt with the foreshore as owners; that over forty years from about 1840 the boom in front it was maintained and used by the owners of the land; and that at low tide the logs in the boom would rest on the solum.-Held, reversing the judgment of the Exchequer Court (15

Ex. C.R. Davies and Idington JJ.

dissenting, that there was sufficient evidence adverse possession of the foreshore the owners of the adjoining land for more than sixty years to give the present holder title thereto.-Per Anglin J.

From a continuous user for more than forty years, which is proved, a prior like user may be inferred.

Moreover, from the evidence of assertion ownership and possession since a lost grant might, if necessary, be presumed.-Per

Davies and Idington JJ. The placing and use of the boom was only incidental to the lumber business carried on at this place and the consent of the riparian owner thereto cannot be regarded as a claim adverse possession.

The presumption lost grant was not pleaded and cannot be relied on; moreover, a lost grant could not be presumed in the circumstances.- On application by the Minister Justice for a disclaimer damages for the taking of the foreshore the Government of New

Brunswick passed an order in council stating that the owner the adjoining land taken claimed title to said foreshore;

that it had been used by the owners booming purposes and otherwise for more than sixty years; that the Attorney- General was opinion that whatever rights the province may have had were extinguished and that no claim should be made by it to said foreshore.-Held, Per

Duff J. This is an admission touching the title to the foreshore by the only authority competent to make it and is evidence against the Dominion Government in the expropriation proceedings; that it is primd facie evidence of title by possession in T.; and that there is nothing in the record to impair the strength of this.

primd facie case.

of creditor-Husband and wife-Advancement-Trustee-Equitable relief-Restitution-Evidence-Statute of Frauds.] Lands

TITLE TO LAND-continued.

which, at the time the transaction, would be exempted from seizure and sale under execution by the Alberta "Exemptions Ordinance" were purchased by and, with the intention of protecting them from pursuit by his judgment creditor, he caused them to be conveyed to his wife, on a parol agreement with her that the title should remain in her name until the judgment debt was satisfied. The debt was subsequently paid by and he brought suit against his wife for a declaration that she held the lands in trust for him and for reconveyance. - Held, per curiam. That the court should not grant relief to the husband against the consequence his unlawful attempt to delay and hinder his creditor, although the illegal purpose had not been carried out.

Mucklestone v. Brown Ves. 68); Taylor v. Chester (L.R. 4 Q.B.

309); followed; Rochefoucauld v. Bousted (

1 Ch. Judgment appealed Alta. L.R.- reversed, Anglin J. dissenting on the ground that the conveyance exempted lands could not prejudice the rights creditors and, although it had been made with fraudulent intent, it was not fraudulent as against them. Mundell v. Tinkis O.R. 625); Mathews v. Feaver (1 Cox 278); Rider v. Kidder Ves. 360); Day v. Day Ont. App. R. 157); Symes v. Hughes (L.R. Eq. 475), and Taylor v. Bowers (1Q.B.D. referred to.-Per Duff J. In the absence of proof that his creditor had not been prejudiced in consequence the conveyance being taken in the name of his wife the plaintiff was not entitled to relief. ... .. 3--Construction of statute-Sales of subdivided lands - Registration of plans - -Prohibitive sanction - Alberta "Land Titles Act "-Retrospective legislation- Illegality of contract-Rescission-Recovery of money paid-Right of action....... Will of income - Codicil-Postponement division - Mintenance of children.] The will of contained the following provision:

"I direct my said trustees to pay to my wife Annie Singer, during the term of her natural life and as long as she will remain my widow, the net annual income arising from my estate for the maintenance of herself and our children; should, however, my wife remarry then such TRUSTS-continued.

annuity shall cease."-Held, that Annie

Singer was entitled to said income during her widowhood for her own use absolutely, but subject to an obligation to provide, in her discretion, for the maintenance the children, which discretion would not be controlled nor interfered with so long as it was exercised in good faith.

Such obligation did not extend to a child married or otherwise forisfamiliated.-Per Anglin J.

The jurisdiction to determine the good or bad faith the widow on an originating notice questionable. -Another clause directed the trustees "to pay to each my sons who shall reach the age thirty years a sum equal to half that portion my estate to which such son is entitled under this my will upon the death his payment to sidered as a loan from the estate."

A codicil added several years later contained this provision: "I hereby further direct that my real property shall not be divided among the beneficiaries as directed my will until after the lapse ten years from my death."-Held, that the division so postponed was not the final division to be made on the death or marriage the widow; that it had the effect postponing any advance to a son thirty years old half his portion until the ten years from the testator's death had expired far as such advance would necessitate the sale or mortgage of any of the real estate.-Judgment of the Appellate Division Ont. L.R. 602) affirmed.

ment-Equitable relief -Restitution

VERDICT-see

WAIVER-Fire insurance

WATERS

WATERCOURSES

WIELL-Construction - Devise of income

-Trust

WILL-continued.

will contained the following provision: "I direct my said trustees to pay to my wife Annie Singer, during the term of her natural life and as long as she will remain my widow, the net annual income arising from, my estate for the maintenance herself and our children; should, however, my wife remarry then such annuity shall cease."-Held, that Annie Singer was entitled to said income during her widowhood for her own use absolutely, but subject to an obligation to provide, in her discretion, for the maintenance the children, which discretion would not be controlled nor interfered with so long as it was exercised good faith.

Such obligation did not extend to a child married or otherwise forisfamiliated.-Per Anglin J. The jurisdiction to determine the good or bad faith the widow on an originating notice is questionable.-Another clause of the will directed the trustees "to pay to each of my sons who shall reach the age thirty years a sum equal to half that portion of my estate to which such son entitled under this my will upon the death mother.

to be considered as a loan from the estate." A codicil added several years later contained this provision: hereby further direct that my real property shall not be divided among the beneficiaries as directed by my will until after the lapse of ten years from my death."-Held, that the division so postponed was not the final division to be made on the death or marriage the widow; that it had the effect of postponing any advance to a son thirty years old half his portion until the ten years from the testator's death had expired so far as such advance would necessitate the sale or mortgage any of the real estate.-Judgment of the Appellate Division Ont. L.R. 602) WORDS PHRASES -"Consistent conditions...................... 2--"

Digfor minerals" ............. 3--"

Interest in land .............. -''M ineral''.................. "Public Harbours"............ 6--"Surrogate Court" ..............