Majority
191e
JOHN PIGGOTT AND SONS (Sup- *June 5
APPELLANTS; June l5
PLIA1NTS) .. . ...
.. ... . .
. .. .. . .
*June 1b.I
HIS MAJESTY THE KING (RESPOND- ENT) .....
.......................
R
N T ON APPEAL FROM THE EXCHEQUER COURT OF CANADA. To make the Crown liable, under sub-see. (c) of section 20 of the "Exchequer Court Act" (R.S.C. ch. 140), for injury to property, such property must be on a public work when injured. Chamberlin v. The King (40 Can. S.C.R. 350) and Paul v. The King (38 Can. S.C.R. 126) followed.
Letourneau v. The King (33 Can. S.C.R. 335) overruled.
Injury to property by an explosion of dynamite on property adjoining a public work is not "damage to property injuriously affected by the construction of a public work" under sec. 20 (b) of the Act.
APPEAL from a judgment of the Exchequer Court of.Canada dismissing the suppliants' Petition of Right. Servants of the Crown engaged in building a cement dock on the Detroit River caused damage to suppliants' dock adjoining the work by their blasting operations. The suppliants claimed damages by Petition of Right, which was dismissed by the Exchequer Court for want of jurisdiction.
They then appealed to the Supreme Court of Canada.
W. L. Scott for the appellants-referred to Letourneux v. The King (1).
*PRESENT:-Sir Charles Fitzpatrick C.J. and Davies, Idington, Anglin and Brodeur JJ.
(1) 33 Can. S.C.R. 335.
Newcombe K.C. for the respondent cited Paul v. The King(1); Chamberlin v. The King(2).
THE CHIEF JUSTICE.-The appellants brought their The Petition of Right to recover damages against the Crown for injuries alleged to have been caused to their dock through negligence in the course of the work of constructing a public dock 100 feet from the premises of the petitioners.
The "Exchequer Court Act" provides, section 20 (so far as material):- At the trial it was pointed out by the Judge of the Exchequer Court that, excepting by statute, the Crown was not liable for wrongs committed by its servants, and that section 20 (c) of the "Exchequer Court Act," the only statutory provision imposing such liability, did so only in the case of injury to property on any The appellants now seek to rest their case upon section 20 (b) of the Act.
This, however, is to confuse two kinds of action of entirely different nature.
Paragraphs (a) and (b) of section 20 are dealing-with questions of compensation, not of damages.
Compensation is the indemnity which the statute provides to the owner of lands which are compulsorily taken in, or injuriously affected by, the exercise of statutory powers.
For acts done in pursuance of statutory powers there can be no damages, for, the acts being made lawful by the statute, the doing of them can occasion no wrong.
For loss occasioned by the doing of such acts compensation is the remedy provided by statute. It is clear that in the case of a private company or individual committing such acts as those alleged in the petition of. right, the appellants would have had their remedy in an action for damages.
The Crown, however, cannot be sued for what would, between subjects be a wrong done, except in so far as provided by It follows that the appellants cannot establish a claim either to compensation under paragraph (b) or to damages under paragraph (c) of section 20 of the "Exchequer Court Act," and their action accordingly fails.
The appeal must be dismissed with costs.
J.-I think this appeal must be dismissed with costs as being directly within the construction of the "Exchequer Court Act" laid down by this court in the cases of Paul v. The King(1) and Chamberlin v. The King(2).
J.-When the "Petition of Right Act," 1875, 38 Vict. ch. 12, was passed, it recited the expediency of making provision for proceeding by way of petition of right, and to assimilate the proceedings on such petitions, as well as in suits by the Crown, to the course of practice and procedure in force in actions and suits between subject and subject.
It enacted by the first clause thereof that the petition should set forth with convenient certainty the facts entitling the suppliant to relief.
That held out a very comprehensive purpose of relief, but by section 8 there was, in a section that began in an equally comprehensive spirit outlining the practice and procedure to be applied, the following proviso:- It was intended by other parts of that Act to execute its purposes by and through the ordinary courts of the province.
In consequence of the establishment of this court immediately after such enactment, combined with a power of exercising the functions of an exchequer court, that Act was repealed by 39 Vict. ch. 27, sec. 1. And the jurisdiction to try such Petitions of Right was allotted to the Exchequer Court.
By section 19 of that statute, there was, amongst other things, enacted that it was not to give to the subject any remedy against the Crown save in such cases as embraced in above quoted proviso.
By the later. development of the jurisdiction of the Exchequer Court, when separated from this court, it so turned out that the limits of relief under the "Petition of Right Act " were confined to the jurisdiction given that court.
Indeed, it has inadvertently, as I submit, been sometimes said that court had been given not only a jurisdiction, but that its provisions created a right to relief as well as supplied a remedy.
The measure of relief intended by the "Petition of J. Right Act" was, I think, wider than that jurisdiction, but, inasmuch as the jurisdiction given in the Exchequer Court was the only jurisdiction to try any such claims, the only practical relief given was that assigned by the said "Exchequer Court Act."
The result has been to limit by the jurisdiction given the only relief, and that is less than, though probably intended to be coterminous with, the relief given in the Imperial Act above quoted.
It would be impossible properly to extend the express language of the jurisdiction given, by means of any section denying the right to be greater than something else.
The absurdity has continued for many years; and probably justice has often been thereby denied. The sub-section (c) of section 2 of the "Exchequer Court Act" under which the appellant seeks relief reads as follows:- This case illustrates what a stupid enactment this IS.
The words therein, "on any public work," rendered it impossible, in the case of Chamberlin v. The King(1), for us to interfere, solely because the injury, if any, was done to property a long distance from the place wbere the public work existed from which it was said the cause of the destruction of suppliant's property originated.
The cause of the injury there in question was alleged to be the issuing of fire from an improperly constructed or guarded smoke stack.
The court below had therein found there was, in fact, no well-grounded cause of complaint, but the suppliant had a right to have us rehear the case and determine the merits of the appeal if there had been Jurisdiction in the Exchequer Court.
He was in law properly refused, and the decision was put, I suspect, upon the ground of jurisdiction alone not only as a proper way of disposing of the appeal, but a means of bringing home to others the actual condition of the law.
The learned trial judge herein has followed, properly as I conceive, that decision.
This case illustrates how absurd and barbarous the law is.
If counsel for the suppliant states correctly the facts, then the servants of the Crown negligently used dynamite in such a way as to blow up a pier belonging to the suppliant.
The property owned by the suppliant and by the Crown formed at the time parts of a long pier, of which it was desired by the Crown to destroy part of that which it had acquired, and, in doing so, unintentionally, I assume, destroyed part of that same work which had passed into the suppliant's possession.
What right would any private owner ever imagine he could have to use dynamite under such circumstances until he had severed clearly and completely the connection between the properties so that there could be no risk of such consequences as alleged?
However that may be in fact, there can be no question that, under the plain language of the sub-section, dynamite or other explosive might be so used on such a property as to smash to pieces men and property lawfully beside it, and neither owner nor representative could recover for such damages.
The men guilty might be prosecuted criminally and sent to prison, but civil damages there could be none recoverable under this sub-section (c).
And all that, I suspect, comes of someone confusing provisions relative to Crown property found in the statutes preceding this with other subject matters that had to be provided for.
I cannot put the. construction Mr. Scott asks us to put on the word "construction" in the preceding subsection, and get out of the difficulty that way. It was destruction the respondent's servants were engaged in, and not even construction in a sense different from that for which I think the word stands as I read it in sub-section (b).
I respectfully submit that the sooner the probably misplaced words, "on any public work," are stricken out of sub-section (c) the better.
I think the appeal must be dismissed, but should we give costs? I think not.
J.-I respectfully concur in the reasons assigned by the learned judge of the Exchequer Court for dismissing this action.
Since the decisions in Chamberlin v. The King(1) and Paul v. The King(2), Letourneux v. The King(3) is not authority for maintaining such an action.
As to clause (b) of section 20 of the "Exchequer Court Act," invoked in this court by the suppliant, damage to property sustained in the course of construction of a public work through negligence or otherwise is not "damage to property injuriously affected by the construction" of such public J. J.-The claim made against the Crown may result from the negligence of its officers, but does not arise out of an injury "on any public work." There has been a long series of decisions of this court to the effect that the provisions of section 20, sub-section (c), of the "Exchequer Court Act" render the Crown liable for injury to property only when the property is situated on a public work.
City of Quebec v. The Queen(1); Larose v. The King(2); Paul v. The King(3); Chamberlin v. The King(4).
It may be that the provisons of the section have not been given a very wide construction by those decisions, but the latter seem to have been accepted by Parliament, since no legislation has ever been passed to extend the jurisdiction of the Exchequer Court to all claims for damages arising from the negligence of a servant of the Crown while acting within the scope of his duties on a public work.
Until such legislation is passed, we are bound by these decisions, and it is then necessary for the plaintiffs, if they sue for damages, to shew that the injury to their property has occurred on a public work. Their appeal fails because they have been unable to prove such injury.
Appeal dismissed with costs. Solicitors for the appellants: Rodd, Wigle & McHugh. Solicitor for the respondent: T. G. Meredith.
S.C.R. ACCOUNT-Shares in partnership business-Associating third persons-Goodwill
-Accounting between partners-Art.
C .C . ....... ......................
ACTION-Public work-Damage to adjacent lands-Negligence-Liability of Crown
-"Exchequer Court Act," 20-Litigious rights-Bar action-"Rideau Canal
Act," IV., 1 (U.C.)-Limitation of actions ........................
2--Guarantee bank-Sale of goods- Payment of draft-Bill of lading-Goods at disposal of consignor................
3--Negligence-Injury property public work"-Liability of Crown-Jurisdiction of Exchequer Court...........
AFFIDAVIT-Railways-Expropriationof lands-Arbitration tion of court on appeal-Reference back
Proceedings arbitrators- Number witnesses-" Alberta Evidence Act," 1910- Alberta "Arbitration Act," 1909-Alberia
"Railway 1 7-Setting aside award
-Evidence-Admission of prior affidavit- Ascertaining value of lands ..........
AGENCY
APPEAL-Jurisdiction-Matter originating in inferior court-Transfer superior court-Extension of time for appealing- Special leae-"Supreme Court Act," ss.
An action commenced in the
District Court was, by consent of the parties, transferred to and subsequently carried on in the Supreme Court Saskatchewan as if a new writ had been issued therein; the statement of claim, pleadings and proceedings being all filed and taken in the latter court.-Held, that, although the proceedings, after the issue of the writ, had been carried on in the court superior jurisdiction, yet as the cause originated in a court inferior jurisdiction, an appeal plano would not to the Supreme Court of Canada. Tucker v. Young (30 Can. S.C.R. followed. -An order in the Supreme Court Saskatchewan was made extending the time for appealing beyond the sixty days limited for bringing the appeal by the "Supreme Court Act," under On an application, under section the "Supreme Court Act," for special leave to appeal.-Held, also, following Goodison Thresher Co. v. Township of McNab Can. S.C.R. that, notwithstanding the order extending the time for appealing made in the court appealed from; the Supreme Court Canada had no jurisdiction to grant special leave for an appeal limited for bringing appeals by section of the "Supreme Court
.... 2--Jurisdiction - Winding-up proceedings-Time for appealing-Amount in controversy-Construct ion of statute-"Supreme Court Act," R.S.C., 1906, ss. 71-" Winding-up Act, " 144, 106-Practice-Affirming jurisdiction-Motion in court-Discretionary order judge.] Per Fitzpatrick C.J. and Idington and Brodeur JJ. (Duff and Anglin JJ. contra). The appeal to the Supreme Court of Canada given by section the "Winding-Up Act," R.S.C., must be brought within sixty days from the date of the judgment appealed from, as provided by section the "Supreme Court Act," R.S.C., ch. so limited neither the Supreme Court Canada nor a judge thereof can grant leave to appeal. Goodison Thresher Co. v. Township of McNab (42 Can. S.C.R. and Hillman v.
Imperial Elevator and Lumber Co. Can. S.C.R. lowed; Grand Trunk Railway Co. v. Department of Agriculture of Ontario Can.
S.C.R. 557). distinguished.-Per the " Winding-up Act," the application for leave to appeal may be made after the expiration sixty days from the date the judgment from which the appeal sought and, whether it made before lapse of time should be considered by the judge applied to and acted on by him, the exercise discretion, according to the circumstances the case.-Per Anglin J.
(dissenting).
On such an application leave to appeal, the provisions section the "Supreme Court Act" apply and an extension the time for appealing may be obtained thereunder.-Per Idington J. There is no authority under which an application for an order affirming the jurisdiction the Supreme Court
Canada to entertain appeal can be made to the court; the proper and only course by application to the registrar acting as judge in chambers.-Per Duff
J. Although not strictly the proper procedure, the objection to such an application may be waived.-Per Duff J.
tion the "Winding-up Act" imposes a further condition the right appeal over and above those imposed sections and the "Supreme Court
Act;" an applicant, having obtained leave after the expiration the time limited appealing, is still obliged to satisfy a judge the court appealed from that special circumstances justify an extension time, and it is the duty that judge to exercise proper discretion in making such an order on his own responsibility.
Attorney-General v. Emerson Q.B.D.
and Banner v. Johnston (L.R. H.L.
referred to. -Per Brodeur J. In the case appeals from judgments rendered under the "Winding-up Act" the jurisdiction the Supreme Court Canada is determined by section the "Winding-up Act" and is dependent solely upon the amount involved in the judgment appealed from and not upon the amount demanded in the proceedings on which that judgment was rendered.
RE Ross
Ross, & MCRAE
3-Jurisdiction-Title to land-Fraudulent conveyance-Statute of Elizabeth.] In an action to set aside a conveyance of land by the defendant to his wife as intended to defeat, hinder or delay creditors, no title to real estate is in question to give the Supreme Court Canada jurisdiction to entertain an appeal under sec. (a) of the Supreme Court Act. Duff and Brodeur JJ. contra.
4--Final judgment - Substantive right -"Supreme
Court Act," s. (e)-3 & 4 51-Procedure-Service out jurisdiction-Costs.] No appeal lies to the Supreme Court of Canada from a ment of the Supreme Court of New Brunswick affirming the decision a judge who ref used to set aside his order for service a writ out of the jurisdiction. Idington J. dissenting.-Per Davies and Anglin JJ. The judgment appealed from (44 N.B. Rep. did not dispose any substanaction and therefore was not a final judgment as that term is defined in & 4 Geo. 51.-The appeal was quashed but respondent was only given the general costs appeal to the date the motion to quash as he had not conformed to the requirements Supreme Court Rules ......... 5--Jurisdiction - Court of Review - Arts. and C.P.Q.-"Supreme Court article of the Quebec Code Civil Procedure and the third clause article as amended by Edw. VII., ch. an appeal lies to the Judicial Committee of the Privy Council, in certain cases, from judgments of the Court Review, where the amount or value the thing demanded exceeds S5,000.
Section 40 the "Supreme Court Act," R.S.C., ch. provides for appeals from the Caurt Review to the Supreme Court of Canada, in cases which are not appealable to the Court of King's Bench, but are appealable to the Privy Council.-Held, Anglin J. dissenting, that the words "the thing demanded" in the third clause article of the Code of Civil Procedure refer to the demande in the action, and not to the amount recovered by the judgment, if they are different; consequently, an appeal lies, in such cases, from the judgments of the Court Review to the Supreme Court Canada where the amount or value claimed in the declaration exceeds five thousand dollars. Allan v. Pratt App. Cas. 780); Dufresne v. GuiTemont Can. S.C.R. 216); and Citizens Light and Power Co. v. Parent Can. S.C.R. 316) discussed; Town
Outremont v. Joyce Can. S.C.R.
and Dominion Salvage and Wrecking Co.
v. Brown Can. S.C.R. referred to. GENGE.............. 353
6--Appeal from Court of Review Jurisdiction Amount in controversy- Addition of cost of exhibits.] The cohts of exhibits claimed (by action) which may be taxable as costs cause between party and party, cannot be added to the amount the demande in order to increase the amount in controversy to the sum or value necessary to give the right appeal to the Supreme Court Canada.
Dufresne v. Guivremont Can. S.C.R.
McGILL ......................
7--Jurisdiction - 38 (c).]
jurisdiction of the Supreme Court
Canada to entertain the appeal was questioned by the Chief Justice and Tdington
J. on the ground that the judgment appealed from was not a "final judgment."
Davies J. was opinion that, as the suit was "in the nature of a suit or proceeding in equity," an appeal lay to the
Supreme Court Canada in virtue sub-sec. sec. the "Supreme
Court Act," R.S.C., ch. Anglin
J. thought that, as a matter discretion, the Court might decline to hear such an
8--Railways
Expropriation of lands
- Arbitration
Jurisdiction of court
Reference bark to arbitrators - Proceedings
Evidence Act," 1910
Alberta "Arbitration 1909-Alberta "Railway Act,"
1907............................
ARBITRATION AND --- Railways - Expropriation of lands - - Jurisdiction of court on appeal-Reference back to arbitrators -Proceedings by arbitrators-Receiving opinion testimony - Number of witnesses examined-" Alberta
Evidence Act,"
1910-Alberta "Arbitration Act," 1909-Alberta "Railway Act,"
1907-Setting aside award-Evidence- Admission in prior affidavit-Ascertaining value of lands.]
The provisions the
ARBITRATION AWARD-con. Alberta "Arbitration Act"
relation to references to arbitration, apply to proceedings on arbitrations under the Alberta "Railway Act" and give power to the court or judge, on an appeal from the award made, to remit the matters referred to the arbitrators for reconsideration.
Anglin J. inclined to the contrary opinion.
Per Davies, Idington and Anglin JJ. (Fitzpatrick C.J. contra). When arbitrators have violated the provisions of section of the "Alberta Evidence Act" of by receiving the testimony of a greater number of expert witnesses than three, as thereby limited, upon either side the controversy, their award should be set aside by the court upon an appeal.-Per Fitzpatrick C.J. and Idington J. (Davies J. contra). An davit the party whose property has been expropriated, made for different purposes several years prior to the expropriation proceedings, cannot properly be taken into consideration by arbitrators as evidence establishing the value the property at the time its expropriation.-Per Idington and Brodeur JJ. In the circumstances the case the arbitrators were not functi officiis, as their award had been invalidly made.-The appeal from the judgment the Appellate Division the Supreme Court Alberta Alta. L.R. 379) and the cross-appeal therefrom were dismissed with costs.
2---E.rpropriation-Business premises- Special ralu"-Mode of estimating compensation...............
...... ASSESSMENT TAXATION-Municipal corporation -Exempt ions -Crown lands-Allotment for irrigation purposes - Ungranted concession -Construction statute-Words and phrases-" Land"- - Constitutional law -B.N.A.
Act, s. Alberta "Rural Municipality Act," c. 3-"Irrigation Act." R.S.C., Under sections 250 and the Alberta "Rural Municipality Act," 3 Geo. ch. as amended by section the statutes Alberta, Geo. ch. a purchaser lands for irrigation purposes, under the "Irrigation Act," R.S.C., ch. entitled to possession and to complete the purchase and take title thereof (such lands remaining in the mean- ASSESSMENT AND TAXATION-con.
time, Crown lands of the Dominion of
Canada), is an "occupant"
of "lands"
within the meaning of those terms as defined by the interpretation clauses of the
"Rural Municipality Act," and has therein a beneficial and equitable interest in respect of which municipal taxation may be imposed and levied. Such interest is not exempt from taxation under subsection 1 of section 250 of the "Rural
Municipality Act," nor under section 125 of the "British North America Act,
Calgary and Edmonton Land v.
Attorney-General of Alberta (45 Can. S.C.R.
and Smith v. Rural Municipality
Vermilion Hills (49 Can. S.C.R. 563), applied. The Chief Justice and Duff J. dissented.-Per Fitzpatrick C.J.
Sections
250 and 251 of the Alberta "Rural Municipality Act" make no provision for the assessment and taxation of an interest held in lands exempted from taxation.-Per
Anglin J. The provisions of the Alberta
"Rural Muicipality Act" relating to assessment and taxation which could affect such lands as those in question deal only with interests therein other than those of the Crown and their value.-Judgment appealed from, 23 D.L.R. 88; 31 West.
L.R. 725, affirmed, Fitzpatrick C.J. and
(Leave to appeal to
Privy Council refused, 30th Oct., 1916.)
CO. v.
........
2--Sale for delinquent taxes-Tax sale deed-Premature delivery-Statutory authority-Condition precedent - "Assessment Act," B.C. Con. Acts, s. 92-B.C.
"Assessment
1903", & Edw. VII.,
156-Certificate of title (B.C.).] The
British Columbia
"Assessment
(Con. Acts, 1888, ch. 111, see. 92), provides that the owner shall have the right to redeem land sold "at any time within two years from the date of the tax sale or before delivery of the conveyance to the purchaser at the tax sale."
The tax sale deed in question was dated on the day before the expiration of two years from the date of the tax sale. The B.C. "Assessment Act, 1903," 3 & 4 Edw. VII., ch. 53, secs. 125, 153 and 156, declares that all proceedings which may have been heretofore taken for the recovery of delinquent taxes under any Act of the province, by public sale or otherwise, should be valid and of full force and effect; that tax sale
ASSESSMENT AND TAXATION-con. deeds should be conclusive evidence of the validity of all proceedings in the sale up to the execution of such deed, and that such sale and the official deed to the purchaser of any such lands shall be final and binding upon the former owners of the said lands and upon all persons claiming by, through or under them.-Held, per Fitzpatrick C.J. and Idington and Anglin JJ. (reversing the judgment appealed from (9 West. W.R. 440; 24 D.L.R. 851)), Davies and Brodeur JJ. dissenting, that, in the absence of evidence to the contrary, it must be presumed that the delivery of the conveyance to the tax sale purchaser took place on the date of the tax sale deed; that the execution and delivery thereof were premature, and, therefore, the conveyance was ineffectual and insufficient to justify the issue of a certificate of title under the provisions of the "Land Registry Act" or of the "Torrens Registry Act, 1899," nor could the curative clauses of sections 125, 153 and 156 of the "Assessment Act, 1903" be applied so as to have the effect of validating the void conveyance.
BILLS OF LADING-Guarantee-Sale Payment bank-Goods at disposal of consignor.] M., of Toronto, ordered two cars of oranges from a purchasing agent in California, and the Pioneer Bank cashed a draft on M. for the cost on receipt the following telegram from the Bank of Commerce:
"We guarantee payment drafts on J. J. M. with bills lading attached * * * covering two cars oranges, The goods were shipped and consigned by the bills of lading to "Mutual Orange Distributors (shippers) notify J. J. M."
A note was printed on it to deliver without B/L on written order shippers. When the goods arrived, M. refused to accept them, and an action was brought on the bank's guarantee.-Held, affirming (34 Ont. L.R. Idington J. dissenting, that the Bs/L were not in a form to protect the defendant bank; that they left the goods under the entire control of the shippers and the guarantor was deprived its security on the responsibility of its customer or the carrier; and that, though BILLS OF LADING-continued.
an action against M, for the price of the goods might have succeeded, that on the guarantee must fail.
BOARD
COMMIS- SIONERS-Board of Railway Commissioners - Provincial crossgrade - Substitution of subway - Public protection and safety-Power order provincial railshare in payment of cost-" Railway
Act" ss. (a), 59 and The provisions of the "Railway Act"empowering th'e
Board of Railway Commissioners to apportion among the persons interested the cost of works or constructions which it orders to be done or made are intra vires.- On Avenue Road, Toronto, the tracks of the Toronto Ry. Co. crossed those of the
C.P. Ry. Co. at rail level.
On report of its chief engineer that this crossing was dangerous the Board, of its own motion, ordered that the street be carried under the C.P. Ry. tracks. This change of grade relieved the Toronto Ry. Co. from the expense of maintaining an interlocking plant and benefited it otherwise.-Held, that the order was made for the protection, safety and convenience of the public; that the Toronto Ry. Co. was a
"company interested or affected by such order;" and that the Board had jurisdiction to direct that it should pay a portion of the cost of the subway. British
Columbia Electric Railway Co. v. Vancouver, Victoria and Eastern Railway
A.C.
1067, distinguished.-The agreement between the Toronto Ry. Co.
and the City of Toronto by which the former was given the right to lay its tracks on certain streets including Avenue
Road did not affect the power of the Board to make said order.
2-Railway Board - Powers - "Railway Act" and amendments - Bell Telephone Co.-Use of long distance lines- Compensation-Loss of local business- Special toll.] Under the provisions of the "Railway Act"
and its amendment by 7 & 8 Edw. VII., ch. 61, the Railway Board has power to authorize a charge in addition to the established rates of the Bell Telephone
Co. as compensation for the use of its long distance lines. Idington J. contra.- BOARD OF COMMRS.-con. By said Acts the Board is authorized to provide compensation to the Bell Telephone Co. for loss in its local exchange business occasioned by giving independent companies long distance connection. Davies and Idington JJ. contra.-The Board has power also to authorize payment of a special rate by companies competing with the Bell Co. who obtain the lona distance connection, though noncompeting companies are not subjected thereto. Idington J. contra. Altering
Partial closing of highway-Exchange for adjacent land-Assent of ratepayers......... of goods-Payment of draft-Bill of lading -Goods at disposal of consignor .... CASES
1- Allan v. Pratt App. Cas. 780) discussed ....................... 2--Attorney-General v.
Emerson Q.B.D. 56) referred to............ 3--Attorney-General for
Canada v. Giroux (Q.R. 24 K.B. 433) affirmed.. 172 4--Banner v. Johnston (L.R. H.L. Baumann v. James Ch. App. 508) British Columbia Electric Rway. Co. v. Stewart ((1913) A.C. 816) applied. 459 7-British Columbia Electric Rway. Co. Vancouver, Victoria and Eastern Rway. Co. ((1912) A.C. 1067) distinguished. 222 8-Brown v. Coleman Development Co. (34 Ont. L.R. 210; 35 Ont. L.R. 219) ...............
CASES-continued.
9--Calgary and Edmonton Rway. v.
Attorney-General of Alberta
Can.
S.C.R. 170) applied..............
10--Canadian Northern Western Rway.
Co. v. Moore (8 Alta. L.R. 379) appeal and cross-appeal dismissed
...........
11--Canadian Pacific Rway.
Dionne (14 Rev. de Jur. 474) referred
12--Canadian Pacific Rway. v.
Roy A.C. referred to.. ..
13--Chamberlin v. The King (42 Can.
S.C.R. 350) followed........
450, 626
14--Citizens Light, Heat and Power Co.
Parent Can. S.C.R. 316) discussed
.............................
15--Diplock v.
Canadian Northern
Rway. Co. West. W.R. affirmed
...........
....................
16--Dominion Salvage and Wrecking v. Brown (20 Can. S.C.R. 203) re- 17-Donovan v. Excelsior Life Ins.
(43 N.B. Rep. 325, 580) affirmed.. 539
18-Dubg v. Algoma Steel Corporation
(35 Ont. L.R. 371) affirmed as to Algoma
Steel Corptn., reversed as to Lake Superior
Paper Co........................
19--Duckett v. Likely (44 N.B. Rep.
20----Dufresne v. Guivremont (26 Can.
S.C.R. 216) discussed.............
CASES-continued.
21--Dufresne v. Gugoremont Can. S.C.R. 216) followed .............. See 6.
*22--Dumphy v. Montreal Light, Heat and Power ((1905) A.C. 454) referred 23-Fitzgerald v. Canada Cement (7 Ont. W.N. 321; Ont. W.N. appeal dism issed ........................ 24--Goodison Thresher v. Township of McNab (42 Can. S.C.R. 694) followed ............................
15, .
25----Grand Trunk Rway. v. Department of Agriculture of Ontario (42 Can. S.C.R. 557) distinguished .......... 26--Heron v. Lalonde West. W.R. 440; D.L.R. reversed ....... 27--Hillman v. Imperial Elevator and Lumber Co. Can. S.C.R. followed ....
....
.. .. ....
....
.. .. .. .... .. . 28--Johnson v. Roche (49 N.S. Rep. 29--Letourneux v. The King (33 Can. S.C.R. 335) overruled........450, See CRowN 1,
30--Mallory v. Winnipeg Joint Terminals (8 West. W.R. 853) affirmed.. 30a- McArthur v. Dominion Cartridyr Co. ([1905] A.C. 72) referred to..... 31--McGill v. Montreal Tramways 32- McKinnon v. Doran Ont. L.R. 403; 35 Ont. L.R. 349) affirmed ..... See 6.
CASES-continued.
33-McLean, Municipality of, Southern Alberta Land Co.
D.L.R. 88;
West. L.R. 725) affirmed...........
- -Mariwick Kerr K.B.
35--- Meagher v. .Meagher Ont. LR.
Sre
36--North American Life Assurance
Elson Can. S.C.R. distinguished ........................
-0listead v. The King Ex.C.R. 1
38--Outremont, Town of, v. Joyce
Can. S.C.R. referred to ........
-- Paut v. The King Can. S.C.R.
See 1,
40---Pioneer Bank v. Canadian Bank
Conunerce (34 Ont. L.R. affirmed
Montreal and a
Southern
Rway. v. The King Ex. C.R.
S'r
42--Quebec Light, Heat and
Vandry at. K.B. 214) reversed ........................
- -RaosaU District of Vancourer B.C. Rep. approved. .
Net
-- Iidgeway v. Wharton
Cas.
23s followed ....................
Roy v. John Lumber quashed..
CASES-continued.
46-Saint Cathorin-s Milling and Lumber Co. v. The Quen App. Cas. 46) 47--Schooley Erie North(rn Rway. 48--Shauwinigan
(42 Can. S.C.R. referrel to ..... Rural Municipality Vermilion Hills (49 Can. S.C.R. applied ............................
30--Sewart Lepage D.L.R. 554) 51--Sturla Frecria App. Cas. 52--Tucker
Jones Mask. L.R. 387) affirm .....................
--- Tucker Young ('an. S.C.R. United Buildings Corporation City of Vancourer applied ...........................
'eC 1UNCIP.L 1. 55- CHARTERPARTY -Charlored
Suitability for cargo- Duty orner- Dead freight-Denurrage ........... CIVIL CODE - - Art. (Partnership). .... . 2--Art. (Obtigations) ........ 4.A)
CIVIL CODE OF PROCEDURE-Arts
(A ppeals Privy Council). .
ment in company stock-Unorganized conpany-Time for delivery.] J. agreed, by contract in writing, to sell certain coal areas to R., a promoter a mining company which, it expected, would eventually take them over.
The price was to be paid partly in cash and the balance in stock the company to be delivered withsix months. The promoters were unable to secure the necessary capital and the company has never been organized.
In an action claiming damages for breach the contract to deliver the stock.-Held,
Duff J. expressing no opinion, that the time limit in the contract and circumstances disclosed at the trial, shewed that the parties intended that the stock to be delivered was that a fully organized company.-Per
C.J. and
Davies J., that both parties knew when the contract was made that no such stock existed; and as it never came into existence, for which R. was not to blame, the contract could not be enforced.
Idington and Anglin JJ. contra.-Per
Davies J. The contract to deliver the stock was not an unqualified one, but was dependent upon the successful floatation the bonds in the market.-Per Duff J.
The stipulation as to time in the contract was not its essence, but R. was to have a reasonable time, the nature of the busihe was engaged in being considered, delivery the stock; some time before the action J. abandoned his claim to the stock and demanded its value in money as damages, but up to that time there had been no breach on R.'s part and he had done nothing to entitle J. to claim that the contract was rescinded.-Per Idington and Anglin JJ. The contract was absolute for delivery the shares within months or a reasonable time thereafter; the court cannot import into it the condition successful floatation: R. has not fulfilled his part and J. is entitled to substantial damages for the breach.the Supreme Court
Nova Scotia N.S. Rep. reversed,
Idington and Anglin JJ. (dissenting)
.
2--Debtor and creditor - Surety-Statute of Frauds-Advances to company- CONSTITUTIONAL corporation - Assessment and taxation -Exemptions-Crown lands - Allotment for irrigation purposes-Ungranted concession-Construction of statute-Words and phrases-"Land" - "Occupant"-"'B.N.A. Act, "Rural Municipality Art" - 2--rown
109-117-Title "Indian lands"- Surrender-Sale Commissioner - Property in Canada and the provinces-" Indian Act," R.S.C. 43, 42-Evidence
Legal maxim .....................
Payment pany stock - Unorganized company-Time for delivery.]
J. agreed, by contract writing, to certain coal areas to R., a promoter a mining company which, it was expected, would eventually take them over. The price was to be paid partly cash and the balance in stock the company to be delivered within six months. The' promoters were unable to secure the necessary capital and the company has never been organized.
In an action claiming damages for breach the contract to deliver the stock.-Held, Duff J. expressing no opinion, that the time limit in the contract and circumstances disclosed at the trial, shewed that the parties intended that the stock to be delivered was that a fully organized company.-Per Fitzpatrick C.J. and Davies J., that both parties knew when the contract was made that no such stock existed; and as never came into existence, for which R. was not to blame, the contract could not be -enforced.
Idington and Anglin JJ. contra.-Per Davies J. The contract to * deliver the stock was not an unqualified one, but was dependent upon the successful floatation the bonds in the market.- Per Duff J. The stipulation as to time the contract was not its essence, but R. was to have a reasonable time, the nature the business he was engaged in being considered, for delivery the stock: some time before the action J. abandoned his claim to the stock and demanded its value in money as damages, but up to that time there had been no breach on R.'s part and he had done nothing to entitle CONTRACT--ontinued.
J. to claim that the contract was rescinded.
-Per Idington and Anglin JJ. The contract was absolute for delivery the shares within six months or a reasonable time thereafter; the court cannot import into it the condition of successful floatation; R. has not fulfilled his part and J.
entitled to substantial damages for the breach. -Judgment the Supreme Court
Nova Scotia (49 N.S. Rep. reversed, Idington and
Anglin JJ. (dissenting)
.
2--Foreign lands - Specific performance-Jurisdiction of courts of equity-Mutuality remedy - Relief in personai-Discretionary order - " Final judgment"-" Supreme Court Act,"
R.S.C. 38 T., a resident in the State of Iowa, brought suit in Saskatchewan for specific performance a contract by which J., resident
Saskatchewan, agreed to sell him lands in
Saskatchewan, part the price being the conveyance to J. lands in Iowa by T.
The trial judge decreed specific performance the contract by and, on appeal, the full court varied the judgment ordering that there should a reference for inquiry and report upon T.'s title to the lands in Iowa, and that, upon the filing of such report, either party should be at liberty to apply for such judgment as he might be entitled to Sask. L.R. 387).
On the appeal to the Supreme Court
Canada the material questions were whether or not the fact that the lands to exchanged were situated outside the province precluded the courts Saskatchewan from decreeing specific performance for want of mutuality relief, and whether or not there was error in making the order reference, which, in effect, gave the plaintiff a second opportunity proving his title.-Hild, Idington J. dissenting, that the courts Saskatchewan, as courts equity acting in personam, have jurisdiction to decree specific performance contracts for the sale lands situate within the province where the person against whom relief is sought resides within their jurisdiction; that, in the suit instituted by the foreign plaintiff in Saskatchewan, mutuality relief existed between the parties, and that the discretion the court appealed from in ordering the reference before the entry the formal decree ought not to interfered with on the appeal.-The jurisdic- CONTRACT-continued.
tion the Supreme Court of Canada entertain the appeal was questioned by the Chief Justice and Idington J. on the was not a "final judgment."
Davies J. was opinion that, as the suit was equity," an appeal lay to the Supreme Court Canada in vartue sub-sec. of the "Supreme Court Act," R.S.C., ch. Anglin .T. thought that, as matter discretion, the court might decline to hear such an appeal.- Judgment appealed from Sask. L.R. Idington J. dissenting. P.
3--Shipping
Charhred ship Suitability for cargo-Duly of owner-Dead Demurrage.1 chartered the ship "Helen" to carry a full and complete cargo re-sawn yellow pine lumber from port in Florida to St. John, N.B. the port loading the lumber dimensions customary in the trade at that port, was furnished in quantity sufficient to a ship the "Helen's"
tonnage, but could not all be stowed in that ship, which was built for the fruit trade, and could not take a full cargo of lumber of that size. The quantity loaded was delivered at St. John, and the shipowner brought action for the freight on the deficiency.-H1eld, reversing the judgment appealed against N.B. Rep. that it was the duty the owners to provide ship capable carrying the cargo called for by the charterparty; that the evidence established that the "Helen" was not so capable; that the charterer, having furnished lumber the dimensions customary at the port loading ships the size the "IHelen," had discharged his duty under the contract, and was not liable to the owner the dead freight.-Under the demurrage clause the charterparty, the owners claimed damages for delay in loading and discharging the cargo.-Held, that the manner which the ship was constructed prevented the work loading and discharging the lumber from proceeding as fast as it otherwise would have done; the delay was, therefore, imputable to the owners themselves and the charterer was 4--Life insurance - Delivery of poliry- Instructions agent.] D. applied to an insurance agent in St. John, CONTRACT-continued.
for $1.000 insurance on her life.
The application was accepted, the prethe agent, with instructions to reconcile discrepancy between the application and the doctor's return to D.'s age before delivering it. The agent then ascertained that the age given in the application should have been and obtained from
D. the additional premium required for a policy at that age.
new policy was sent by the head to the agent, who did not deliver it on hearing that D.
was ill. She died a few days later. The beneficiary brought action for specific performance the contract to deliver a policy for or for payment that amount.
condition of the policy sent to the agent was that it should not take effect until delivered, the first premium paid, and the ofreial receipt surrendered during the lifetime and continued health the assured.-Held, affirming the judgment the Supreme Court New
Brunswick N.B. Rep. 580) and the trial judge N.B. Rep. Davies and Brodeur JJ. dissenting, that there was no completed contract insurance between the company and D. at the time the latter's death, as the condition as to delivery the policy and surrender the receipt during the lifetime and continued good health the assured was not complied with.
North American Life
Assur. v. Elson Can. S.C.R.
distinguished.
5--Deblor and creditor-Surely-Statute of Frauds-Advances to company-Third party's promise repay.] B., a director a mining company, advanced money the company's purposes, which the president and largest shareholder, orally agreed to repay.-Held, affirming the decision of the Appellate Division (35 Ont.
L.R. 218), which reversed the judgment for the defendant at the trial Ont. L.R.
210), Fitzpatrick, C.J., and Idington J.
dissenting, that this was not a promise to pay a debt of the company and void as a contract by virtue the fourth section the Statute of Frauds; that G. was a primary debtor for the monies advanced by and liable to the latter for their repay- Memorandum in writing-Cor- CONTRACT-continued.
respondence - Relation of documents Parol evidence.]
In an action against D., claiming damages for breach a contract to purchase bonds, a telegram from D. to his partner was produced saying, absolutely bought them yesterday after our 'phone conversation, they agreeing to our terns."-Held, that parol. evidence was properly received to shew that terms had been stated by D., over his signature, that they were the only terms and were those referred to in the telegram and the two constituted a sufficient memorandum within the Statute Frauds. Ridgeway v. Wharton H.L. Cas. and Baumann v. James Ch. App. followed. Duff J. dissented.-Judgment the Appellate Division Ont. L.R. affirming that at the trial (34 Ont. L.R. 403) affirmed. 7--Railway subsidies - Aid construc- Construction of statute-Supplementary Rights of transferee-Obligation binding on the Crown ........... COSTS -Quashing appeal - Procedure- Supreme Court Rules 5-Withholding Costs.] In default of conforming with Supreme Court Rules 4 and in regard to the quashing appeals to the Supreme Court Canada for want jurisdiction, the respondent was only given the general costs of the appeal to the date the motion to quash. Co. Roy. 2--Jurisdiction on appeal-Adding of exhibits ........................
See 6.
CROWN -Public work - Damage to adjacent lands - "Exchequer Court Act," Litigious rights-Bar action-"Rideau Canal Act," IV., 1 (U.C.)-Limitation of actions.] The Crown not liable under sec. sub-sec. (c) the "Exchequer Court Act" (R.S.C., ch. for injury to property by negligence its servants unless the property on a The King Can. S.C.R. and Paul v. The King (38 Can. S.C.R. lowed.-Per Fitzpatrick
C.J. Where property is purchased for the purpose enforcing a claim against the Crown CROWN-continued.
injury thereto, such purpose constitutes a bar to the prosecution the claim.-Per
Brodeur J.
Section the "Rideau
Geo. ch. 1 (U.C.).
providing that any plaint brought against any person or persons for anything done in pursuance said Act must be cominenced within six months next after the act committed, applies to proceedings against the Crown though the Crown was riot mentioned and no claim againt it founded on tort could then be prosecuted.
Idington J. contra. Anglin J. dubitante.
t'. THE ............
Injury "property public work" -- Jurisdiction of Exchequer
R.S.C. c.
To make the Crown liable, under sub-see.
(c) section the "Exchequer Court
Act," R.S.C., ch. for injury to property, such property must be on a
The King Can. S.C.R. 350) and Paul v. The King Can. S.C.R.
lowed. Letourneux v. The King Can.
S.C.R. overruled.-Injury to property by an explosion dynamite on property adjoining a public work not "damage to property injuriously affected by the construction a public work"
under section (b) the "Exchequer Court
- -Railway subsidie- -Aid construc- Purchase of constructed line-Construction of
- Supplementary
Rights of Iransfcree -Obligation binding on Crown.......
..
Municipal corporation -Assessment and taxation - Ext inp- Allotment far irrigation purposes- Ungranted concession- Con struction of statue - Words and phorasrs-" Land" -- "Orcupant" -Constitutional law - "JB.N.A. Act,
-- Alberta "Rural Municipality Act."
c. 3-" Irrigation Act." R.'.C.,
Under sections 249, 250 and the Alberta "Rural Municipality Act." 3
Geo. ch. as amended by section of the statutes Alberta, Geo. ch.
a purchaser lands for irrigation purposes, under the "Irrigation Act," R.S.C.
ch. entitled to possession and to complete the purchase and take title thereof (such lands remaining in the meantime, Crown lands the Dominion Canada), an "occupant"
within the meaning those terms defined by the interpretation clauses the "Rural
Municipality and has therein a beneficial and equitable interest in respect which municipal taxation may be imposed and levied.
Such interest is not exempt from taxation under sub-se'tion I section the "Rural Municipality Act," nor 'nder section the "British North America Act. Calgary and Edmonton Land Co. v. Attorney-General of Alberta Can. .C.R. and Smith v. Rural Municipality Vermilion Hills (49 Can. S.C.R. applied.
The Chief Justice and Duff J. dissented. -Per
C.J. Sections 250 and the Alberta "Rural Municipality Act" make no provision the assessment and taxation of an interest held in lands exempted from taxation.-Per Anglin J. The provisions the Alberta "Rural Municipality Act" relating to assessment a]
taxation which could affect such lands as those question deal only with interests therein other than those of the Crown and their value. ,Judgment appealed from, D.L.R. 88; West. L.R. affirmed, Fitzpatrick C.J. and Duff J. dissenting.
(leave appeal to Privy Council refused, 30th Co. M iCLEA.N. . vesting
Constitutional law
"B.X.A Act, 1867," 109-117-Titic "Indian lands" Sarrenr
Cononissioner - Property of Canada and prorinces -Construction of statuc
IV., c. -.
S.C. c. 43, 42-. Prson "Locatcd Indian" - - Eridence i.in]i.
Vict.. ch. does not prohibit the sale by the Crown all "Indian" public lands which have. on surrender to the Crown. ceased to part an Indian 'reserve."
nor prevent an individual Indian blood, who a member band or tribe of Indians, from acquiring title in such lands. use of the word "person"
in the provisions the "Indian Act"
Viet. see. 31; R.S.C., ch. 43, se'. 42), relating to sales Indian lands, has not the effect excluding Indians from tile CROWN LANDS-continued.
class entitled to become purchasers such lands on account the definition that word in the interpretation clauses the statutes in question.-Per Idington
J. Crown lands the Province Canada, situate in Lower Canada, which had not (as provided by the statute and 15
Vict., ch. been surveyed and set apart, as intended to be vested in the
Commissioner Indian Lands for Lower
Canada, and appropriated to the use
Indians prior to the 1st July, do not fall within the definition "Lands reserved for the Indians" in the 24th item enumerated in section of the
"British North America Act, 1867" and, trol the Government the Dominion of Canada at the time Confederation.
tion the presumption is that they then became vested in the Crown in the right the Province of Quebec, and, in the absence evidence to the contrary, the
Attorney-General for Canada cannot now enforce any claim of title to such lands the right the Dominion.-Per Duff and
Anglin JJ. The order-in-council authorizing the acceptance of a surrender, and the surrender pursuant thereto the Indians the "reserve" within which the lands in question are situate are public documents the recitals in which are prima facie evidence the facts stated therein
(Sturla v. Freccia App. Cas. 623), at pp. 643-4, referred to).
thereby afforded that the band Indians occupied the tract of land in question as a "reserve"
and the principle "omnia prcesumuntur rite esse acta"' is sufficient to justify, primd facie, the conclusion that the order-in-council respecting the constitution of the reserve, was carried out and that the occupation thereof by the Indians was legal. Consequently, the rights acquired by the Indians constituted ownership, the surrender by them to the Crown was validly made and the lands passed under the control of the Government of Canada, at the time of Confederation, in virtue of the provisions as to "Lands reserved for the Indians" in section the "British North
America Act,
St. Catherines Milling and Lumber The Queen App.
Cas. 46) distinguished.-Judgment appealed from (Q.R. 24 K.B. 433), affirmed.
DEBTOR
CREDITOR - Surety -Statute of Frauds - Advances company-Third party's promise repay.] B., a director a mining company, advanced money for the company's purposes, which the president and largest shareholder, orally agreed to repay.- Held, affirming the decision the Appellate Division Ont. L.R. which reversed the judgment for the defendant at the trial (34 Ont. L.R. Fitzpatrick, C.J., and Idington J. dissenting, that this was not a promise to pay a debt of the company and void as a contract by virtue the fourth section the Statute Frauds; that was a primary debtor for the monies advanced by B. and liable to the latter for their re-payment. DEED-Deed of land-Reservation-Right of passage-Changed conditions-Object conveyance.] F. sold land to the Cement Co., reserving by the deed "the right to pass over for cattle, etc., for water going to and from Dry Lake."
in using the land for excavating the marl deposit, cut away the shelving bank Dry Lake and rendered it inaccessibie cattle.-Held, Fitzpatrick C.J. dissenting, that cutting away the bank at this place without providing another suitable watering-place with a proper way leading thereto was an unwarranted interference with the rights F. and the fact that the company purchased the land for the purpose digging marl did not give them a right to extinguish F.'s easement passage for his cattle. Co. v.
2--Sale for delinquent taxes-Tax sale deed-Premature delivery-Statutory authority-Condition precedent-Evidence - Certificate of title (B.C.) ...............
ment in company stock - Unorganized Time for delivery ........ DEMURRAGE - Chartered ship - Suit ability for cargo - Duty of owner - Dead EASEMENT - Deed of land - Reserva- Right of passage - Changed condi- EASEMENT-continued.
of conveyance.] F. sold land to the Cement Co., reserving by the deed "the right to pass over for cattle, etc., for water going to and from Dry
Lake."
The company, in using the land for excavating the marl deposit, cut away the shelving bank Dry Lake and rendered it inaccessible for cattle.-Held,
Fitzpatrick C.J. (dissenting)
, that cutting away the bank at this place without providing another suitable watering-place with unwarranted interference with the rights
F. and the fact that the company purchased the land for the purpose digging marl did not give them right to extinguish F.'s easement passage for cattle.
ELECTRICITY - Electric transinssion - - of installations
- System of operation - Grounding transformers - Defectire fittings - Responsibility fault
........
...............
EMINENT DOMAIN- EMPLOYER EMPLOYEE- EQUITY,
COURTS
Contract - Specific performance of courts of equity - Mutuality of remedy
- Relief in personam - Discretionary order
Statutory conditions - application - 7034claim - Offer of settleient adjuster -- Order-in-Council ing in Crown-Public document - Legal maxim.] Per Duff and Anglin JJ. 'the
EVIDENCE-continued.
order-in-council authorizing the acceptance a surrender, and the surrender pursuant thereto by the Indians the "reserve" within which the lands question are situate are publie documents the recitals in which are primd facie evidence the facts stated therein (Sturla Freccia App. Cas. at pp. 643-1, referred to). Evidence thereby afforded that the hand Indians occupied the tract land in question as a "reserve" the praounntiur rite efta' sufficient justify, priml facie, the conclusion that the order-intion the reserve, was carried out and that the occupation thereof by the Indians was legal.
Consequently, the rights acquired by the Indians constituted ownership, the surrender by them to the Crown was validly made and the lands passed under the control the Government Canada, at the time Confederation, in virtue the provisions to reserved for the Indians" section the "British North America Act, 1867.'" St. Catherines Milling and Lumber v. The Queen App. Cas. distinguished.
GIRoUx............. 2--Expropriation of lands
Number witnesses
"Alberta Evidence Admission of prior affidavit-Ascertaining Per Idington Anglin
(Fitzpatrick C.J. contra). When arbitrators have violated the provisions section the "Alberta Evidence Act" by receiving the testimony of greater number expert witnesses than three, as thereby limited, upon either side the controversy, their award should set aside by the court upon an apl)eal.-Per Fitzpatrick C.J. and Idington J. (Davies J. contra). An affidavit the party whose property has been expropriated, made for different purposes several years prior to the exprotaken into arbitrators evidence establishing the value the property at the time its expropriation. EVIDENCE-continu'd.
3--Contract of --- .cmorandum in writing - - Relation of documents - Parol evidence.]
In an action against claiming damages for breach a contract to purchase bonds, a telegram from D. to his partner was produced saying, absolutely bought them yesterday after our 'phone conversation, they agreeing to our terms."-Held, that parol evidence was properly received to shew that terms had been stated by over his signature, that they were the only terms and were those referred to in the telegram and the two constituted a sufficient memorandum the Statute
Ridgeway v. Wharton H.L.
Cas. v. Jiames (3
Ch. followed.
Duff J. dissented.-Judgment the Appellate Division Ont. L.R. affirming that at the trial (34 Ont. L.R. affirmed.
....
....
4--Sle for delinquent taxes
Condition precedent - Presunption - Curative enactiment - Certificate of title (B.O.)...................503
-Deblor and Creditor-Surety - Statute of Frauds - Advances company - Contract - Jurisdiction of courts of equity-Mutuality of remedy-Relief in personam-Discretionary order - "Final judginnt..................
EXCHEQUER COURT -Crown-Negligence-Injury
Jurisdiction of Exchequer Court- R.S.C., 20 (c).)
make the Crown liable, under sub-sec.
section the "Exchequer Court
R.S.C., ch. for injury to property, such property must be on a
The King Can. S.C.R. 350) and Paid v. The King Can. S.C.R. 126)
lowed. Letourneux The King (33 Can.
S.C.R. overruled. . Injury to property by an explosion dynamite on property adjoining a public work is not "dam- EXCHEQUER COURT-continued. the construction of a public work'.' under sec. the "Exchequer Court Act." (Cf. Olnstead v. The King Can. S.C.R. v. THE EXPROPRIATION - Business premises Mode estimating compensation.]
Where property expropriated owing to its location and adaptability for business, worth more to the owner than its intrinsic value, he not entitled to have the capital amount representing the excess added to the market value the property.
His proper compensation the amount which a prudent man in the position the owner would willing to pay.
Brodeur J. (dissenting)
. against' (34 Ont. L.R. 328) varied. 2--Railways - Arbitration - Jurisdiction of court on appeal - Reference back arbitrators - Proceedings by Evidence Act,"
- Alberta "Railway Evidence - Admission of prior affidavit - Ascertaining value of lands .......... FRAUDULENT CONVEYANCE - Appeal - Title land - Jurisdiction -Statue of Elizabeth.]
In an action to aside a conveyance land by the defendant to his wife as intended to defeat. hinder or delay creditors, no title to real estate in question to give the Supreme Court Canada jurisdiction to entertain an appeal under sec. 48 (a) the Supreme Court Act.
Duff and Brodeur JJ. Suitability for cargo - Duty of owner - Dead freight -Demurrage .....................
Partnership business - Associating third person - Accounting between partners - Art. For a number years the defendants had carried on, in partnership, the business of accountants and, as their GOODWILL-continue(d.
operations expanded, they engaged assistants, who were called "junior partners,"
reuinerating them by salaries and percentage rates on yearly profits and, in with bonus additions. With the approval of the - junior partners,'" the defendants associated a one-fourth share the busintss and the firm name was changed for the new organization which was carried on according to terms nientioned an agreement which recited that it had been agreed between the
"that stituting constituting
P. & Co." should arrange partnership,
Upon making this arrangement the
P.
some time afterwards, in similar circumstances, £1,000 was received by them from
The defendants retained these sums, as their own. and (lid not inform the
"junior partners" that they had been paid. In an action by "junior partner"
for an account andi proportionate share this E21,000:--Held, affirming the judgment appealed from (Q.R. K.B.
that the so received the fendants were not paid for a share in the business to be taken wholly from their individual interests therein, but for a share in the assets and goodwill the business itself; consequently. the plaintiff had an interest in the moneys so paid and was entitled to an account and proportionate share thereof.
-- -. Partnership --- Dissolution of partner -- Survivor's right
-- Annual If the intention that surviving partner should have right to take over the interest a deceased partner clearly appears from the terms partnership agreement, though it not formally expressed, that right exists. Brodeur J. dissented. Idington J. dissented the ground that such intention was not clearly manifested.
The partnership articles pirovided that the end each partnership year account should be taken the stock, liabilities and assets the business and a balance sheet struck for that year; that in case one partner died the co-partnership should continue to the end the current financial year or, at the option survivor, for not' more than twelve months from such death; that for twelve months from the death his partner the
GOODWILL-ronlinud.
survivor should not required to pay over any part of the latter's capital in the business; and that any dispute between the survivor and representatives of the deceased as to the aniount debits against or credits to either the balance sheet or the valuation the assets should referrred to arbitration.-Held, Duff J. dissenting, that the value the interest of the deceased partner was not to be determined the account taken and balance sheet struck at the end the financial year following his death, but the assets should be valued in the ordinary way.- Held, also. Davies and Duff JJ. dissenting, that the goodw the business was to be included in said assets, though it had never formed part of them in the annual balance shcets struck since the co-partnership began. -Judgment the Appellate Division (34 Ont. L.R. G.oL... GUARANTEE -- of good, of draft byt - Bill of lading -- of I.,
Toronto. ordered two cars oranges from purchasing agent in California, and the Pioneer Bank enshed a draft on for the cost receipt the following telegram from the Bank Commerce: guarantee payment drafts on J. J. with bills lading attached * * * covering two cars oranges. The goods were shipped and consigned by the bills of lading to "Mutual (.)range Distributors (shippers) notify J. J. note was printed on it to deliver without B/L written order shippers. When the goods arrived. r-fused acept them, and an action brought on the bank's guarantee.- Held, affirming Ont. L.R. Idington .1. dissenting. that Bs/L were not in form to protect the defendant bank: that they the goods under the entire control the shippers and tie guarantor deprived its security the responsibility its customer or the carrier: and that, though an action against for the price the goods might have suc'eded, that the guarantee nust fail.
. HIGHWAYS - Hailrays -- Location - - Constrution line - Plan of subdirision HIGHWAYS-ontinued.
filed municipality
"Railway
37-Dominion
"Railway Act," The filing location plans by a railway company in the proper registry after such plans have been approved by the Board
Railway Commissioners under the provisions the Dominion "Railway Act,"
sufficient and effective, after the railway company has constructed its line upon the location indicated, to establish the seniority the right the railway company over that the municipality at points where highways were not dedicated, by the filing plans subdivision the owner or otherwise, or actually used, constructed or accepted by the municipal corporation at the time the registration the location plans by the railway company.
Co.. 406
2--Municipal corporation - Altering streets - Partial closing of highway - Exchange for adjacent land - Validity by-law -Assent of ratepayers - R.S.B.C., s.-ss. Under the provisions sub-sections and section the British Columbia
R.S.B.C., ch.
empowering municipal corporations to alter, divert or stop up public thoroughfares and to exchange them for adjacent land, a municipal corporation has power by by-law to close up a portion of highway and dispose the strip so taken from its width in exchange for adjacent contiguous lands to be used in lieu thereof, although the effect may be to cause the narrowing the highway. Davies J. dissented.-Per Idington and Brodeur JJ.
Such a by-law valid although passed without the assent the ratepayers previously obtained. British Columbia Railway Co. v. Stewart A.C. 816) and
United Buildings Corporation v. City
Vancouver A.C. 345) applied.- The decision the Court of Appeal
British Columbia on a previous appeal in the same proceedings B.C. Rep.
was approved.
.....
INDIANS -Crown lands-Lands vesting in Crown - Act, ss. 109-117-Title
Conunissioner - Property of Canada and
INDIANS-continued.
- 42-Words and phrases- "Person"
dian"
Legal maxim.] Per curian.-The "Indian Act," Vict., ch. does not prohibit the sale by the Crown to an "Indian" public lands which have, on surrender to the Crown, ceased to be part an Indian "reserve,"
nor prevent an individual Indian blood, who is a member of a band or tribe Indians, from the word "person" in the provisions the "Indian Act!' Vict., ch. sec. R.S.C., 1886, ch. 43, sec. relating to sales Indian lands. has not the effect excluding Indians from the class entitled to become purchasers such lands the that word interpretation clauses the statutes in question. -Per Idington J.
Crown lands the Province Canada, situate in Lower Canada, which had not (as provided by the statute and Vict., ch. been surveyed and set apart, as intended to be vested the Commissioner Indian Lands Lower Canada, and appropriated to the use Indians prior to the 1st July, do not fall within the definition "Lands reserved for the Indians"
in the 24th item enumerated in section the "British North America Act, and, trol of the Government the Dominion Canada at the time Confederation. tion the presumption that they then became vested in the Crown in the right the Province Quebec. and, in the absence evidence to the contrary, the Attorney-General for Canada cannot now enforce any claim title to such lands the right the Dominion.-Per Duff and Anglin JJ. The order-in-council authorizing the acceptance a surrender, and the surrender pursuant thereto by the Indians the "reserve" within which the lands in question are situate are public documents the recitals in which are prind facie evidence of the facts stated therein (Sturla Freccia App. Cas. at 643-4, referred to). Evidence is thereby afforded that the band of Indians occupied the tract land question as a "reserve"
and the principle "onnia prcesumuntur rile esse acta" is sufficient to justify, facie, the conclusion that the order-in-council INDIANS--contin u-d.
respecting the constitution the reserve, was carried out and that the occupation thereof by the Indians was legal. Consequently, the rights acquired by the Indians constituted ownership, the surrender by them to the Crown was validly made and the lands passed under the control the Government of Canada, at the time Confederation, in virtue the provisions as to "Lands reserved the Indians" in section the "British
North America Act,
St. Catherines Milling and Lumber Co. The
Queen App. Cas. 46) distinguished. - Judgment appealed from (Q.R. K.B.
433) affirmed.
GIROX ................
INSURANCE, FIRE - Statutory condi- 1909, arts. 7034, 7035,
Conditions of applica- Keeping and storing coal oil-Agent's
Adjustment claim - Offer of settlement adjuster - Transaction.] As required article 7034 the Revised Statutes the statutory conditions were printed upon the policy of insurance.
The application for the insurance did not refer to them but contained a condition that the insured should not use coal oil stoves on the premises insured.
At the time the premises were destroyed by fire coal oil was kept and stored there in excess the quantity permitted by clause 10 the statutory conditions, without written permission the insurance company.
had given no written notice to the insured pointing out particulars wherein the policy might differ from the application as provided by the second clause the conditions.-Held,
Brodeur J. (dissenting)
, that the law did not require the statutory conditions to referred to in applications for insurance;
that all applications for insurance which the Quebec legislation applies must be deemed to be made subject to those conditions, except as varied under articles
7035 and 7036, Revised Statutes of Quebec, and that there was no necessity for the insurance company to give notice, as mentioned in the second clause the conditions, calling the attention the insured to the conditions indorsed upon the policy of insurance.-Per curiam. Knowledge by an agent soliciting insurance that coal in large quantities, was kept and stored upon the premises to be insured
INSURANCE, FIRE-continued. does not constitute notice that fact the company insuring them, nor does notice that coal in such quantities was kept and stored upon the premises prior to the insurance involve knowledge that it would be kept there afterwards in violation of the conditions the policy.- Fitzpatrick C.J. held that knowledge the agent was knowledge the company but was not equivalent to waiver the condition the policy respecting the keeping or storing -In the absence proof that adjusting agents employed by the insurer had authority to dispose the matter, the offer settlement the claim by the adjuster does not constitute waiver on the part the insurer objections which might be urged against the claim.
INSURANCE, LIFE -Contract-Delivery of policy-Condition -Instructions agent.I D.applied to an insurance agent in St. John, N.B., for 81,000 insurance on her life. The application was accepted, the premium paid, and the policy forwarded to the agent, with instructions to reconcile a discrepancy between the application and the doctor's return as to D.'s age before delivering it. The agent then ascertained that the age given in the application should have been 65, and obtained from D. the additional premium required for a policy at that age. new policy was sent by the head to the agent, who did not deliver it on hearing that D. was She (lied few (lays later. The beneficiary brought action for specific performance the contract to deliver a policy for $1,000 or for payment that amount.
condition the policy sent to the agent was that it should not take effect until delivered, the first premium paid, and the official receipt surrendered (luring the lifetime and continued good health of the assured.-Hld, affirming the judgment the Supreme Court New Brunswick (43 N.B. Rep. 580) and of the trial judge (43 N.B. Rep. Davies and Brodeur JJ. dissenting, that there was no completed contract insurance between the company and D. at the time the latter's death, as the condition as to delivery the policy and surrender of the receipt (luring the lifetime and continued good health the North American Life Assur. Co. v. Elson INSURANCE, LIFE-continued.
Can. S.C.R. distinguished.
and taxation
Exfor irrigation purposes - Ungranted conces- Constitutional law -"B.
N.A. Act, - Alberta "Rural
Municipality Act" - . . . . . . . . . . . . .. . . . . . . . . . . .. . . . . . . . 1 1
- Dangerous contrivance
Findings against evidence ...........
- "Omnia pr(esumuntur rite esse acta" .....................
LIMITATION
ACTIONS - Liability of Crown - Damage adjacent lands - "Rideau Canal Act,"
IV. c. 1
Per Brodeur J.- Section the "Rideau Canal Act," 8
Geo. IV., ch. 1 providing that any plaint brought against any person persons for anything done in pursuance of said Act must be commenced within six months next after the act committed, applies to proceedings against the Crown though the Crown was not mentioned and no claim against it founded on tort could then be prosecuted.
LITIGIOUS RIGHTS - Damage adjacent lands - Liability of Crown - "Exchequer Court
IV., c. 1
Limitation of actions...............
MANDATE
MASTER
SERVANT - Hire machinery - Negligence of hirer - Negligence of owner.] The Steel Company hired from the Paper Company a crane and crew two men, D. to run it and a fireman. In doing the work for which it was hired, the crane and was killed. In an action by his widow for damages, the jury found that the crane was a dangerous machine and that the' Steel Company was negligent in not having a rigger to superintend its operation.- Held, aflirming the judgment the late Division Ont. L.R. that the Steel Company owed to D. the duty seeing that the crane was properly operated; that the evidence justified the finding the jury that a rigger was necessary for that purpose; and that the judgment against that company should stand.- The jury also found that the crane was defective when delivered to the Steel Company, and that the Paper Company was guilty negligence in not supplying proper equipment for it.-Held, reversing Davies and Idington JJ. disseiting, that the relation master and servant isted between the Paper Company and D. up to the time the latter's death; that the company, in sending D. to run dangerous machine not properly equipped, would be responsible for any injury caused by its operation; and that it was not relieved from responsibility by the fact that the injury might have been avoided if the Steel Company had provided proper superintendence over its MINES MINING - Deed of land - Reservation - Right of passage - Changed conditions of conveyance ............................
MUNICIPAL CORPORATION - Altering streets - Partial closing of highway - Exchange for adjacent land - Validity of by-law - Assent of ratepayers - R.S.B.C., 53, s.-ss. Under the provisions sub-sections and of section the British Columbia "Municipal Act," R.S. B.C., empowering municipal corporations to alter, divert or stop up public thoroughfares and to exchange them for adjacent land, a municipal cor- [S.C.R. VOL. LIII. MUNICIPAL CORPORATION-ron.
poration has power by by-law to close up a portion of a highway and dispose the strip so taken from its width in exchange for adjacent or contiguous lands to be used in lieu thereof, although the may be to cause the narrowing of the highway. Davies J. dissented.-- Per Idington and Brodeur JJ. Such by-law valid although passed without the assent the ratepayers previoulr obtained.
British
Columbia Railway Stewart
A.C. and United Buildings Corporalancourer
345) applied. -The decision the Court
Appeal for British Columbia on previous appeal in the same proceedings
B.C. Rep. was approved.
2--Assessment and taxation - Eremp- Allotmet irrigation purposes -- Ungranted concession - Words and phrases
- "B.N.A. Act,
Allbrta
"Irrigation A .........................
See TAXATION 1.
3--Reilways
Location -- Registration of plans
Construction of line
Plan of subdivision subsequently
Dediration of highway -- Rights of inunicipality -- Priority
Doninion " Railway Act," 1903...................
NEGLIGENCE -- Electric Ira ion
- Statutory authority Splcial - 'haracter of installation of operation
- Grounding transform' rs -- Difteti-r fittings
- Vis major - Responsibility fault
Art. C.C.]
heavy rains, irr cold weather, had coated trees and electric wires with icicles, a violent tore a branch froni na tree, growing on private grounds, and1 blew it it across the defendants' electric transmission wire, causing a high-tension current to escape to secondary house-supply wires, used only for low-tension currents, the destruction buildings by fire.
The high-tension current, 2,200 volts, was stepped down from the primary wire to about volts the secondary wires by means transformer which was not grounded, owing to doubts then existing as to doing being safe practice. The secondary wires were used by the defendants to supply the buildings destroyed, but these buildings were not fitted with "modern" stallations for electric lighting nor with cut-offs to intercept high-tension currents.-V,'s action was to recover damages for the destruction his building, alleged to have been occasioned by the defendants' defective system.
The insurance companies, being subrogated in the rights owners buildings insured by them, brought actions to recover the amounts the policies which had been paid.- Held, per Idington, Anglin and Brodeur JJ. (Davies and Duff JJ. contra). Under the provisions article the Civil Code, the defendants were liable for the damages claimed as they had failed to establish that they were unable, in the circumstances, to prevent the escape the high-tension electric current, dangerous thing under their care, which had been the cause the injuries, or that the injuries thus caused had resulted from the fault the owners the buildings not open as the circumstances in which the injuries occurred could have been foreseen and provided against by the installation safer system for transmission electricity.- Judgment appealed from (Q.R. K.B. re- I JJ. Per Anglin and Brodeur JJ. the their that the company shall be "responsible for all its servants, workmen cause to individuals or property in carrying out or maintaining any its said works" (5S & Viet. ch. se-. and that tle company "shall be responsible for all damages which it may cause in carrying out its works" & Vict. (Que.) see. they are liable for dauages resulting from the operation their constructed works, without regard to any consideration fault or negligence their part.-Per Davies and Duff JJ., dissenting.
Under article the Civil Code, the onus lies upon the plaintiff to prove that the injury complained resulted from the fault of the thing which the defendant had under his care; in the absence such proof there is no liability the part the defendant. In the circumstances the case the defendants are entitled to succeed on the ground that the damages were the result of vis major.
Canadian Pacific Railway Co. v. Roy
A.C. 220); Dumphy v. Montreal
Light, Heat and Power Co. ((1907) A.C.
454); McArthur v. Dominion Cartridge
A.C. 72); Shawinigan Carbide v. Doucet Can. S.C.R. 281; Q.R. 18
K.B. 271); and Canadian Pacific Railway v. Dionne Rev. de Jur. 474) referred
(Leave to appeal to Privy Council granted, 9th May,
RY.,
.... ........ .. ...
2--Railways - System of construction - Exposed switch-rods - Dangerous contrivance - Findings against evi- In accordance with what was shewn to be good railway practice the tracks in the company's yards were provided with switch-rods which were uncovered and elevated a slight distance above the ties. While in performance his work, during the day-time, an employee sustained injuries which, it was alleged, happened in consequence tripping on switch-rods while a car was being moved over the switch. In an action him for damages, the jury based their verdict in his favour on a finding that the railway company had been negligent in permitting the switch-rods remain in an exposed condition.-Held, per curiam, affirming the judgment appealed from West. W.R. that the finding of negligence by the jury in regard to the switch-rods in question was against the evidence as to proper method of construction and could not be upheld. Idington and Brodeur JJ. dissented on the view that evidence respecting the unsafe condition the switch-rods had been properly submitted to the jury and their findings thereon ought not to be questioned. (Leave to appeal to Privy Council refused, 11th Dec.,
3--Railways - Ejecting trespasser from train for of servant.] As a train was moving away from a station, where it had stopped, the conductor ordered a brakesman to eject two trespassers from it.
On proceeding to do so the brakesman found a man stealing a ride upon the narrow ledge the engine-tender and, in a scuffle which ensued, the plaintiff, who was on the edge the ledge but was not seen by the brakesman owing to the darkness was pushed the train and injured.
In an action damages, the jury found that the brakesman had been at fault in attempting to eject the man whom he saw while the train was in motion and that it was "dubious" whether he was aware the presence the plaintiff in the dangerous position. -Held, per Fitzpatrick C.J. and Idington and Anglin JJ. (affirming judgment West. W.R. that the reckless indifference the brakesman, in circumstances in which he ought to have been aware the presence the plaintiff, was a negligent act for which the railway company was liable.-Per Davies and Brodeur JJ. dissenting. it was not shewn by the evidence nor found by the jury that the brakesman aware the presence the plaintiff in a dangerous position the plaintiff, being a trespasser, could not recover damages against the company for the RWAY. Co. 4--Public work - Damage adjacent Court Act," 20 - Litigious rights to action - "Rideau Canal 8 IV., 1 - Limitation of actions.] The Crown is not liable, under sec. 20, sub-sec. the "Exchequer Court Act" (R.S.C., ch. for injury to property by negligence of its servants unless the property on a public work when injured. Chamberlin v. The King (42 Can. S.C.R. and Paul v. The King (38 Can. S.C.R. 126) followed.-Per Fitzpatrick C.J.
Where property is purchased for the purpose enforcing a claim against the Crown for injury thereto, such purpose constitutes a bar to the prosecution the claim.-Per Brodeur J. Section the "Rideau Canal Act," Geo. IV., ch. 1 (U.C.), providing that any plaint brought against any person persons for anything done in pursuance said Act must be commenced within six months next after the act committed, applies to proceedings against the Crown though the Crown was not mentioned and no claim against it founded on tort could then be prosecuted.
Anglin J. dubitante.
v. THE K ...........................
5--Hire of machinery hirer - Negligence of owner - Master and The Steel Company hired from the Paper Company crane and crew two men, D. to run it and a fireman. In doing the work for which it was hired, the crane fell and D. was killed. In an action by his widow for damages, the jury found that the crane was a dangerous machine and that the Steel Coinpany was negligent in not having a rigger superintend its operation.-Held, affirming the judgment the Appellate
Division Ont. L.R. that the
Steel Company owed to D. the duty seeing that the crane was properly operated; that the evidence justified the finding the jury that a rigger was necessary for that purpose; and that the judgment against that company should stand.-The jury also found that the crane was defective when delivered to the Steel Company, and that the Paper Company was guilty negligence in not supplying proper equipment for it.-Held, reversing the the Appellate
Division,
Davies and Idington JJ. (dissenting)
, that the relation master and servant existed between the Paper Company and D.
up to the time the latter's death;
that the company, in sending D. to run a dangerous machine properly equipped, would be responsible for any injury caused by its operation; and that it was not relieved from responsibility by the fact that the injury might have been avoided if the Steel Company had provided proper superintendence over its v. SuPERioR
6-- Injury "property
Jurisdiction of Exchequer
Court -- R.S.C., 140, 20 (b),
To make the Crown liable, under sub-sec. section 20 the "Exchequer Court Act,"
R.S.C., ch.
for injury to property, such property must be on a public work when injured.
Chamberlin King (40 Can. S.C.R.
350) and Paul v. The King Can.
S.C.R. followed.
Letourneux v. The
King Can. S.C.R. 335) overruled.
Injury to property by an explosion dynamite on property adjoining a public work is not "damage to property injuriously affected by the construction a public work" under section 20 (b)
KING,...................
conditions - Conditions of application arts. 7034-7036 - Conditions indorsed on policy - Keeping and storing coal oil - Agent's knowledge Adjustment of claim of settlement adjuster - Esioppel - .... ... PARTNERSHIP-Shares in business - Associating third person - Godwill - Accounting between partners - Art. For a number years the defendants had carried on, in partnership, the business accountants and, as their operations expanded, they engaged assistants, who were called "junior partners," remunerating them by salaries and percentage rates on yearly profits and, in some years, with bonus additions. With the approval the "junior partners," the defendants associated P. in a onefourth share the business and the firm name changed for the new organization which was carried on according to terms mentioned in an agreement which recited that it had been agreed between the defendants "that those at present constituting the firm" and "those for the time being constituting the firm W. B. P. & Co." should arrange a partnership, etc. Upon making this arrangement the defendants received E20,000 from P. and, some time afterwards, in similar circumstances, E1,000 was received by them The defendants retained these sums, as their own, and did not inform the "junior partners" that they had been paid. In an action by a "junior partner" for an account and proportionate share this £21,000:
Held, affirming the judgment appealed from (Q.R. K.B. that the moneys so received by the defendants were not paid for share in the business to be taken wholly from their individual interests therein. but for share in the assets and goodwill the business itself; consequently, the plaintiff had interest in the moneys so paid and was entitled to an account and a proportionate share thereof.
.....
-Dissolution - Death of partner Surricor's right purchase share - Goodwill - Annual balance
If the intention that a surviving partner should have a right to take over the interest a deceased partner clearly appears from the terms the partnership
PARTNERSHIP-continued.
though it is not formally expressed, that right exists.
Brodeur J. dissented. Idington J. dissented on the ground that such intention was not clearly manifested.- The partnership articles provided that at the end cf each partnership year an account should be taken the stock, liabilities and assets the business and a balance sheet struck for that year; that in case one partner died the co-partnership should continue to the end the current financial year or, at the option the survivor, for not more than twelve months from such .death; that for twelve months from the death his partner the survivor should not required to pay over any part the latter's capital the business; and that any dispute between the survivor and representatives the deceased as to the amount debits against or credits to either in the balance sheet or the valuation the assets should referred to arbitration.-Held, Duff
J. dissenting, that the value the interest the deceased partner was not to be determined by the account taken and balance sheet struck at the end the financial year following his death, but the assets should be valued in the ordinary way.-Held, also, Davies and Duff JJ.
dissenting, that the goodwill the business was to be included in said assets, though it had never formed a part them in the annual balance sheets struck since the co-partnership began.-Judgment the Appellate Division (34 Out.
L.R. reversed in part.
Woon v.
PETITION OF RIGHTtration line
Plan of subdlivision subsequently filed - Dedication of highway - Rights of municipality - "IHailway Act,"
1903............
...........
PRACTICE AND
PROCEDURE- Matter originating in inferior court - Transfer superior
Extension of time for appealingaction commenced in the
District Court was, by consent of the par- PRACTICE AND PROCEDURE-con. ties, transferred carried on in the Supreme Court of Saskatchewan as a new writ had been issued therein; the statement claim, pleadings and proceedings being all and taken in the latter court.-Held, that, although the proceedings, after the issue the writ, had been carried on in the court superior jurisdiction, yet as the cause originated in a court inferior jurisdiction, an appeal plano would not to the Supreme Court Canada. Tucker v. Young Can. S.C.R. followed.- An order in the Supreme Court Saskatchewan was made extending the time for appealing beyond the sixty (lays limited for bringing the appeal by the "Supreme
Court Act,"
under sec. On an application, under section the "Supreme Court Act," for special leave to appeal,-Ield, also, following Goodison Thresher
Township McNab Can. S.C.R. that, notwithstanding the order extending the time for appealing made in the court appealed from, the Supreme Court Canada had no jurisdiction to grant special leave for an appeal after the expiration the sixty days limited bringing appeals by section the I- 2--Tille land
Vete t rdmird Security for loan - Time for redemption- Promise of re-sale - Equit- Pleading points on appeal - Practice - Where the right to redeem lands conveyed A rn6ir ity for a loan has not been exercised within the stipulated term, or an extension therethe purchaser becomes absolute owner and there is no power in the courts the Province Quebec under which an order may be made which could have the extending the time limited for redemption.-Per Fitzpatrick C.J. and Brodeur Questions which have been raised or brought to the attention the courts below ought not to considered on an appeal to the Supreme Court .. . stantive right - "Supreme Court (c) - & r.
Procedure - PRACTICE AND PROCEDURE-con.
out jurisdiction-Costs.] No appeal lies to the Supreme Court of Canada from judgment of the Supreme Court
New Brunswick affirming the decision
-a judge who refused to set aside order for service a writ out the jurisdiction.
Idington
J. dissenting.-Per
Davies and Anglin JJ. The judgment did not dispose any substantive
.
.
.
in controversy in the action and therefore was not a final judgment that term is defined in & 4 Geo. ch.
.51.-The appeal was quashed but respondent was only given the general costs appeal to the date of the motion to quash as he had not conformed to the requirements Supreme Court Rules and
Co. Roy .......
4--Procedure - Suit in P. E. I. - Winding-up in B.C.
- Leave of court in B.C. ss. 22 and Where a trust company incorporated by the Parliament Canada with headquarters in Vancouver is being wound up in British Columbia, leave the Supreme Court that province is necessary before suit can be brought
Prince Edward Island against the liquidator and the company to have the latter declared a trustee moneys deposited with it for investment, for its removal from and appointment a new trustee and for the vesting in such new trustee the securities representing said moneys. Davies J. dissenting.-Judgment appealed against
(24 D.L.R. 554) re- 5-- Appeal from Court of Revicw - Jurisdiction -- Amount in controversy - Addition of cost of exhibits.] The cost exhibits (claimed by the action), which may he taxable as costs the cause between party and party, cannot be added to the amount the demande order to increase the amount in controversy to the sum or value necessary to give the right appeal to the Supreme Court Canada. Dufresne 'v. Guivremont (26 Can.
ACGILL...............390
6--Appeal - Time for appealing - Amount in controversy - Affirming jurisdiction -Motion in court- Discretionary order judge.........
PRACTICE PROCEDURE-con. 7--Contract -Sale of lands - Jurisdiction of courts of equity - Mutuality
Discretionary
PRINCIPAL AGENT - Fire insurance - Statutory conditions arts. 7034, 7035, - Conditions of application - Conditions indorsed on policy - Keeping and storing Adjustment of claim -Offer of settlement by Per curiam.-Knowledge by agent soliciting insurance that coal in large quantities, was kept and stored upon the premises to be insured does not constitute notice of that fact to the company insuring them, nor does notice that coal in such quantities kept and stored upon the premises prior to the insurance involve knowledge that it would kept there afterwards in violation the conditions the policy. Fitzpatrick C.J. held that knowledge by the agent was knowledge of the company but was not equivalent to waiver the condition the policy respecting the keeping or storing coal oil.-In the absence proof that adjusting agents employed by the insurer had authority to dispose the matter, the offer settlement the by the adjuster does not eonstitute waiver the part the insurer objections which ruight urged against the claim. PRIVY COUNCIL - Appeal front Court of Review-Amiount Controversy-Jurisdiction of Supreme Court............ PUBLIC DOCUMENT -- - Lands vesting Crown -- Constitu- 109-117 - Title "Indian Sale Commissioner - Property in Canada and the R.S.C., 1906, c. 42-Evidence- Legal maxim...................... Damage adjacent lands-Negligence -Liability of Crown- PUBLIC WORK--continued.
"Exchequer Court Act," s. 20 - Litigious
"Rideau Canal
Act," IV., 1 - Limitation of actions ....................
2--Injury property "on public work"
- Liability of Crown ...
-Board of Railway Commissioners - Provincial crossgrade - Substitution of subway - Public protection and safety - Power order provincial railway share in payment of cost-" Railway Act," ss. (a), 59 and The visions the "Railway Act" empowering the Board Railway Commissioners to apportion among the persons interested the cost works or constructions which it orders to be done or made are intra vires.-On Avenue Road, Toronto, the tracks the Toronto Ry. Co. crossed those the C.P. Ry. Co. at rail level.
On report its chief engineer that this crossing was dangerous the Board, its own motion, ordered that the street be carried under the C.P. Ry. tracks. This change grade relieved the Toronto Ry.
Co. from the expense maintaining an interlocking plant and benefited it otherwise.-Held, that the order was made for the protection, safety and convenience of the public; that the Toronto Ry. Co.
was "company interested or affected such order;" and that the Board had jurisdiction to direct that it should pay a portion the cost the subway. British Columbia Electric Railway Co. Vancouver, Victoria and Eastern Railway Co.,
A.C.
distinguished.-The agreement between the Toronto Rv. Co.
and the City Toronto by which the former was given the right to lay its tracks on certain streets including Avenue
Road did not affect the power the Board to make said order.
2--Subsidy - Aid construction - Consiruclion of statute - Supplenientary agreement
- Rights of transferee - Obligation binding on Crown.] The suppliant company incorporated by Dominion statute,
Edw. VII., with power to hold, maintain and operate the railway the
Ry. Co. and became vested with the franchises and property that railway company which had been sold in virtue the statute, & Edw. VII., ch. The Ry. Co. had constructed 6Y miles its railway, between Yamaska and St. Francis River, for which it had not received subsidy aid as authorized by & 63 Vict., ch. 7, and, by & Edw. VII., 63, in lieu the aid provided the former statutes, subsidy was authorized to be paid- to any company completing the construction 70 miles the railway from Yamaska on a location which included the 6Y miles railway so constructed.
Under the authority this legislation the Crown and the appellant company entered into a supplementary agreement fixing the subsidy for the construction this 70 miles railway. completed unconstructed portion of the railway claimed subsidy for the whole length the line including the 6Y miles acquired in virtue of the sale authorized by 4 & 5 Edw. VII., ch. 158.-Held, reversing the judgment the Exchequer Court Canada Ex. C.R. Idington J. dissenting, that the undertaking the company to construct the railway was satisfied whether it actually constructed the whole line itself or purchased a constructed portion thereof to form part the subsidized line; that the statute & Edw. VII., authorizing the subsidy together with the supplementary contract with the Crown constituted an obligation binding on the Crown and the company was, consequently, entitled to the amount of the subsidy applicable to the V miles the railway in question.
3--System of construction - Exposed contrivance - Findings against evidence.] In accordance with what shewn to railway practice the tracks in the company's yards were provided with switch-rods which were left uncovered and elevated a slight distance above the ties. While in performance his work, during the day-time, an employee sustained injuries which, it was alleged, happened in consequence tripping on switch-rods while a car was being moved over the seitch. In an action by him for damages, the jury based their verdict in his favour on a finding that the railway company had been negligent permitting the switch-rods to remain in an exposed condition.-Ield, per curiam, affirming the judgment appealed from (8
West. W.R. that the finding negligence by the jury in regard to the switch-rods in question was against the evidence as to proper method conand could not be upheld.
Idington and Brodeur JJ. dissented on the view that evidence respecting the unsafe condition the switch-rods had been properly submitted to the jury and their findings thereon ought not to be questioned. (Leave to appeal to Privy Council refused, 11th Dec.
4--Negligence -Ejecting trespasser from train
Imprudence for act of servant.] As a train was moving away from a station, where it had stopped, the conductor ordered a brakesman to eject two trespassers from it.
On proceeding to do so the brakesman found a man stealing a ride upon the narrow ledge the engine-tender and, in a scuffle which ensued, the plaintiff, who was the edge of the ledge but was not seen the brakesman owing to the darkness, was pushed the train and injured. In an action for damages, the jury found that the brakesman had been at fault in attempting to eject the man whom he saw while the train was in motion and that it was "dubious" whether he was aware of the presence the plaintiff in the dangerous position.-feld, per Fitzpatrick C.J. and Idington and Anglin JJ.
(affirming judgment appealed from (9
West. W.R. that the reckless indifference of the brakesman, in circumstances in which he ought to have been aware of the presence the plaintiff, was a negligent act for which the railway company was liable. -Per Davies and Brodeur
JJ. (dissenting)
.
As it was not shewn the evidence nor found by the jury that the brakesman was aware of the presence the plaintiff in a dangerous position the plaintiff, being a trespasser, could not recover damages against the company for the injuries he sustained.
5--Location - Registration of plans - Construction of line - Plan of subdivision subsequently filed - Dedication of highways - Rights of municipality - - "Railway R.S.C., c. Dominion "Railway Act,"
filing location plans by a railway company in the proper registry after such plans have been approved by the Board Railway Coimmissioners under the provisions the Dominion "Railway Act," is sufficient and effective, after the railway company has constructed its line upon the location indicated, to establish the seniority of the right of the rqilway company over that of the municipality at points where highways were not dedicated by the filing plans subdivision by the owner or otherwise, actually used, constructed or accepted the municipal corporation at the time the registration of the location plans the railway company. ............ 6--Expropriation - Business premises - Special value - Mode of estimating compensation.] Where property expropriated is, owing to its location and adaptability worth to the than its intrinsic value, he is not entitled to have the capital amount representing the excess added to the market value the property.
His proper compensation is the amount which a prudent man in the position the owner would be willing to Brodeur J. dissenting. Judgment appealed against (34 Ont. L.R. varied.
ERIE
-Expropriation of lands - Arbitra- Jurisdiction of court Reference back arbitrators - Proceedings arbitrators - Receiving opinion testimony - Number of witnesses examined - "Alberta Evidence Act," 1910-Alberta "Arbitration Act," Alberta "Railway
1907-Setting aside award-Evidence - Admission in prior affidavit - Ascertaining value The provisions the Alberta "Arbitration Act" in relation to references to arbitration, apply to proceedings on arbitrations under the Alberta "Railway Act" of and give power to the court or a judge, on an appeal from the award made, to remit the matters referred to the arbitrators for reconsideration. Anglin, J. inclined to the contrary opinion.-Per Davies, Idington and Anglin JJ. (Fitzpatrick C.J. contra). When arbitrators have violated the provisions section the "Alberta Evidence
Act" by receiving the testimony a greater number expert witnesses than three, as thereby limited, upon either side the controversy, their award should he set aside by the court upon an appeal.-Per Fitzpatrick C.J. and Idington J. (Davies J. contra). An affidavit the party whose property has been expropriated, made for different purposes several years prior to the expropriation proceedings, cannot properly be taken into consideration by arbitrators evidence establishing the value the property at the time its expropriation.-Per
Idington and Brodeur JJ. In the circumstances the case the arbitrators were not functi ofliciis, as their -award had been invalidly made.-The appeal from the judgment the Appellate Division of the Supreme Court Alberta Alta.
L.R. and the cross-appeal therefrom were dismissed with costs.
Registration of plans - Construction of line
Plan of subdivision subsequently filed
Dedication of highway - Rights of municipality - R.S.C., 37- Dominion Act," 1903..... . 406
2--Sale for delinquent taxes
Eviment - Certificate of title (B.C.) ......
Arts. and 69 C.P.Q. - "S upreme Court Act," R.S.C.
By article the Quebec Code
Civil Procedure and the third clause article as amended by Edw. VII., an appeal lies to the Judicial Committee the Privy Council, in certain cases, from judgments the Court
Review, where the amount or value of the thing demanded exceeds $5,000. Section
40 the "Supreme Court Act," R.S.C., provides for appeals from the Court Review to the Supreme Court of Canada, in cases which are not appealable to the Court King's Bench, but the Privy
REVIEW, COURT OF-continued. Held, Anglin J. dissenting, that the words "the thing demanded" in the third clause article the Code Civil Procedure refer to the demande in the action, and not to the amount recovered by the judgment, if they are different; consequently, an appeal lies, in such cases, from the judgments the Court Review to the Supreme Court Canada where the amount or value claimed in the declaration exceeds five thousand dollars. Allan v. Pratt App. Cas. 780); Dufresne v. Guivremont Can. S.C.R. 216); and Citizens Light and Power Co. v. Parent Can. S.C.R. 316) -discussed; Town Outremont v. Joyce Can. S.C.R. and Dominion Salvage and Wrecking Co. v. Brown (20 Can. S.C.R. 203) referred to. 2--Appeal to Supreme Court of Canada Amount in controversy- Addition of cost of exhibits ........... RULES-Compliance with-Costs See CosTs 1.
SALE-Crown lands - Constitutional
Commissioner.] Per curiam.-The "Indian Act," Vict., does not prohibit the sale by the Crown to an " Indian" public lands which have, surrender to the Crown, ceased to be part an Indian "reserve,"
nor prevent an individual Indian blood, who is a member a band or tribe Indians, from the word "person" in the provisions the "Indian Act" Vict., ch. sec. 31; R.S.C., ch. 43, 42), relating to sales Indian lands, has not the excluding Indians from the class entitled to become purchasers such lands on account of the definition of that word in the interpretation clauses the statutes in question.
2--Vente rird&
- Security for loan- Extension of time for redemption-Promise of re-sale-Condition.] After the expiration the time limited for redemption lands conveyed droit rgmird, as secur- SALE-continued.
ity for a loan, the purchaser in letter written to the vendor, requested payment the loan before a date mentioned therein and, in default such payment, insisted upon the rights granted by the conveyance.-Held, that the letter might be considered as a promise re-sale the lands to the vendor which lapsed failure to make the payment within the time therein stipulated.
Duff J. took no part in the decision of the appeal.
Axe
3---Foreign lands
Specific performance - Jurisdiction of courts of equity - Mutuality remedy - Relief in personam - Discretionary
- "Supreme Court
Act," R.S.C. 1906, T., resident in the State of Iowa, brought suit in Saskatchewan for specific performance a contract by which J., resident in Saskatchewan, agreed to sell him lands in Saskatchewan, part the price being the conveyance to J. lands in Iowa by T. The trial judge decreed specific performance the contract
J., and, on appeal, the court varied the judgment by ordering that there should be reference for inquiry and report upon T.'s title to the lands in Iowa, and that, upon the filing such report, either party should be at liberty to apply for such judgment as he might he entitled to Sask. L.R.
On the appeal to the Supreme Court Canada the material questions were whether or not the fact that the lands to be exchanged were situated outside the province precluded the courts Saskatchewan from decreeing specific performance for want mutuality relief, and whether not there was error in making the order of reference, which, in effect, gave the plaintiff a second opportunity of proving his title.-Held, Idington J. lissenting, that the courts of Saskatchewan, courts equity acting in personain, have jurisdiction to decree specific performance contracts for the sale lands situate within the province where the person against whom relief is sought resides within their jurisdiction; that, in the suit instituted by the foreign plaintiff in Saskatchewan, mutuality of relief existed between the parties, and that the discretion the court appealed from in ordering
SALE-continued.
the reference before the entry the formal decree ought not to be interfered with on the appeal.-The jurisdiction the Supreme Court Canada to entertain the appeal was questioned by the Chief Justice and Idington on the was not "final judgment."
Davies .1. was of opinion that, as the suit was euty," an appeal lay to the Suiremne Court Canada in virtue (f sub-sec. 38 the "Supreme Court Act. R.S.C., ch. Anglin J. thought that, as a matter discretion, the court might decline to hear such an appeaL.- Judgment appealed from Sask. L.R. Idington J. dissenting. TUCKER................. 4--Contract ment in company stock
Unorgan ized Time for delin ry........ 3--Sale for delinquent taxes StOufory Condition precedent - Eri- Curatire - Certificate of title (B.C.) ...... See TAx 3--Guarantee bank - Sale of goods - Payment of draft - Bill of lading - Goods at disposal of consignor........ SERVITUDE- Payment in company stock
Unorganized company -- Time for delivery........ SHIPS
SHIPPING - ('harftrcd Suitability for
- L, chartered the ship "lelen" carry a full and complete cargo resawn yellow pine lumber from port in Florida to St. John, N.B.
At the port loading the lumber dimensions cus- I tomary in the trade at that port, was furnished in quantity sufficient to a ship the "Helen's" tonnage, but it could not all be stowed in that ship, which was built for the fruit trade, and could not take a SHIPS AND SHIPPING-continued.
full cargo lumber that size.
quantity loaded was delivered at St.
John, and the shipowner brought action for the freight on the deficiency.-Held, reversing the judgment appealed against
N.B. Rep. that it was the duty the owners to provide a ship capable carrying tle cargo called for by the charterparty; that the evidence established that the "Helen"
was not capable; that the charterer, having furnished lumber the dimensions customary at the port for loading ships the size the "Helen,"
had discharged his duty under the contract, and was not liable to the owner for the dead freight.- Under the demurrage clause the charterparty, the owners claimed damages for delay in loading and discharging the cargo.-Held, that the manner in which the ship was constructed prevented the work loading and discharging the lumber from proceeding as fast as it otherwise would have done; the delay was, therefore, imputable to the owners themselves and the charterer was not liable.
W.
...................
SPECIFIC PERFORMANCE -Contract
-Foreign lands-Sale of lands-E xchange
- Specific performance court of equity - Mutuality of remedy - Relief on personam - Discretionary order ment" - " Supreme Court Act," R.S.C.
c. s. (c).] T., resident the State Iowa, U.S.A., brought suit in Saskatchewan for specific performance of a contract which resident
Saskatchewan, agreed to sell him lands
Saskatchewan, part the price being the conveyance to J. lands in Iowa by T.
The trial judge decreed specific performance the contract by J., and, on appeal, the full court varied the judgment ordering that there should be a reference for inquiry and report upon T.'s title to the lands in Iowa, and that, upon the filing of such report, either party should be at liberty to apply for such judgment as might be entitled to Sask. L.R. 387).
On the appeal to the Supreme Court
Canada the material questions were whether or not the fact that the lands to be exchanged were situated outside the province precluded the courts Saskatchewan from decreeing specific performance for want mutuality relief, and whether or not there was error in making
SPECIFIC PERFORMANCE-con. the order reference, which, in effect, gave the plaintiff a second opportunity proving his title.-Held, Idington J. dissenting, that the courts Saskatchewan, as courts of equity acting in personam, have jurisdiction to decree specific performance contracts for the sale lands situate within the province where the person against whom relief is sought resides within their jurisdiction; that, the suit instituted by the foreign plaintiff in Saskatchewah, mutuality relief existed between the parties, and that the discretion the court appealed from ordering the reference before the entry the formal decree ought not to be interfered with on the appeal.-The jurisdiction the Supreme Court Canada to entertain the appeal was questioned the Chief Justice and Idington J. on the was not a "final judgment."
Davies J. was opinion that, as the suit was equity," an appeal lay to the Supreme Court of Canada in virtue of sub-sec. see. 38 of the "Supreme Court Act " R.S.C., ch. Anglin J. thought that, as a matter discretion, the court might decline to hear such an appeal.-Judgment appealed from Sask. L.R. 387) affirmed, Idington 431 Municipal corporation - Exemptions for irrigation purposes-Ungranted concession - Words and phrases-"Land" - - - "B.N.A. Act, s. - - Under sections 250 and the Alberta "Rural
Municipality Act," Geo. V., ch. as amended by section of the statutes of Alberta, Geo. ch. a purchaser lands for irrigation purposes, under the "Irrigation R.S.C., ch. entitled to possession and to complete the purchase and take title thereof (such lands remaining in the meantime, Crown lands the Dominion of Canada), is an "occupant" "lands" within the meaning those terms as defined by the interpretation clauses the "Rural Municipality Act," and has therein a beneficial and equitable interest respect of which municipal taxation may be imposed and levied.
Such interest is not exempt from taxation under sub-section 1 section 250 the "Rural Municipality Act," not under section the
"British North America Act, Calgary and Edmonton Land Co. v. Attorney- General of Alberta Can. S.C.R.
and Smith v. Rural Municipality of Vermilion Hills Can. S.C.R. applied.
The Chief Justice and Duff J.
dissented.-Per
C.J. Seetions 250 and the Alberta "Rural
Municipality Act" make no provision the assessment and taxation an interest held in lands exempted from taxation.- Per Anglin J. The provisions the berta "Rural Municipality Act" relating to assessment and taxation which could affect such lands as those in question deal only with interests therein other than those the Crown and their value.- Judgment appealed from, D.L.R. 88;
West. L.R. affirmed, Fitzpatrick
C.J. and Duff J. dissenting.
(Leave to appeal to Privy Council refused, 30th
Oct.,
Co. McLEAN.
........
2--Jurisdiction - Winding-up proceedings for appealing in controversy - R.S.C., c. ss. 106-Practice - Affirming jurisdiction - Motion in
Discretionary order judge.] Per
Fitzpatrick C.J. and Idington and Brodeur JJ. (Duff and Anglin JJ. contra).
The appeal to the Supreme Court
Canada given by section
"Winding-up ch.
must be brought sixty days from the date the judgment appealed from, as provided by section the "Supreme Court Act,"
ch. After the expiration the sixty days so limited neither the Supreme
Court Canada nor a judge thereof can grant leave to appeal. Goodison Thresher
Co. v. Township of McNab (42 Can.
S.C.R. 694), and Hillman v. Imperial Elevator and Lumber Co. Can. S.C.R followed; Grand Trunk Railway v.
partment of Agriculture of Ontario (42
Can. S.C.R.
distinguished.-Per of the " Winding-up Act," the application for leave to appeal may be made after the expiration sixty days from the date the judgment from which the appeal sought and, whether it be made before lapse time should be considered by the judge applied to and acted on by him, in the exercise discretion, according to the circumstances the case.-Ptr Anglin J. (dissenting).
On such an application for leave to appeal, the provisions section of the "Supreme Court Act" apply and an extension the time for appealing may be obtained thereunder.- Per Idington J. There is no authority under which an application for an order affirming the jurisdiction the Supreme Court Canada to entertain an appeal can be made to the court; the proper and only. course by application to the registrar acting as judge in chambers.-Per Duff J. Although not strictly the proper procedure, the objection to such an application may be waived.- Per Duff J. Section 106 of the "Wifiding-up imposes a further condition the right appeal over and above those imposed by sections 69 and the "Supreme Court Act;" an applicant, having obtained leave after the expiration the time limited for appealing, still obliged to satisfy the judge of the court appealed from that special circumstances justify an extension time, and it the duty that judge to exercise proper discretion making such an order on his own responsibility.
Attorney-General v. Emerson Q.B.D. and Banner v. Johnston (L.R. ILL. referred to.-Per Brodeur J. In the case appeals from judgments rendered under the "Winding-up Act" the jurisdiction the Supreme Court of Canada is determined by section the "Winding-up Act" and is dependent solely upon the amount involved in the judgment appealed from and not upon amount demanded the proceedings on which that judgment was rendered.
GIEAT Co., RE, Ross Ross, cR .........................
3-Crown lands - Act, ss. 109-117-Title to "Indian lands"
Commissioner - Property of Canada and 18-R.S.C., 1886, 43, s. 42 - Words and phrases - "Reserve"
- "'Person" - "Located Indian"
Public docume!' Legal maxim.] Per curiam.-The "Indian Act," Vict., ch. does not prohibit the sale by the Crown to an "Indian"
of public lands which have, on surrender to the Crown, ceased to be part of an
Indian "reserve,"
nor prevent an individual Indian blood, who is a ber a band or tribe Indians, from the word "person"
in the provisions the "Indian Act"
Viet. ch.
sec. 31; R.S.C., ch. 43, see. relating to sales Indian lands, has not the effect excluding Indians from the class entitled to become purchasers such lands on account the definition that word in the interpretation clauses the statutes in question.-Per Idington
J. Crown lands the Province of Canada, situate in Lower Canada,. which had not provided by the statute 14 and 15
Vict., been surveyed and set apart, as intended to be vested in the
Commissioner Indian Lands for Lower
Canada, and appropriated to the use of Indians prior to the 1st July, do not fall within the definition "Lands reserved for the Indians" in the 24th item enumerated in section of the
"British North America Act, and, trol the Government the Dominion
Canada at the time Confederation.
tion the presumption is that they then became vested in the Crown in the right the Province Quebec, and, in the absence evidence to the contrary, the
Attorney - General for Canada cannot now enforce any claim title to such lands in the right the Dominion.-Per
Duff and Anglin JJ. The order-in-council of authorizing the acceptance a surrender, and the surrender pursuant thereto by the Indians of the "reserve"
within which the lands in question are situate are public documents the recitals which are pritnd facie evidence the facts stated therein (Sturla v. Freccia (5
App. Cas. at 643-4, referred to).
Evidence thereby afforded that the band Indians occupied the tract land in question as a "reserve" and the principle "omnia prwsumuntur rite esse acta" sufficient to justify, primd facie, the conclusion that the order-in-council of respecting the constitution of the reserve, was carried out and that the occupation thereof by the Indians was legal. Consequently, the rights acquired by the Indians constituted ownership, the surrender by them to the Crown was validly made and the lands passed under the control the Government Canada, at the time Confederation, in virtue the provisions as to "Lands reserved the Indians" in section the "British North America Act,
St. Catherines Milling and Lumber Co. v. The Queen App. Cas. distinguished.- Judgment appealed from (Q.R. K.B. ................
4--Board of Railway Commissioners - Provincial crossing - Change of grade - Substitution of subway - Public protection and safety - Power order provincial railway to share ss. 8a, The provisions the "Railway Act" empowering the Board of Railway Commissioners to apportion among the persons interested the cost of works or constructions which it orders to be done or made are intra vires. Co. v. or TORONTO........... see 1.
5.--Railway subsidies - Aid to con- Supplementary Rights of transferee - Obligation binding on the Crown.] The suppliant company was incorporated by Dominion statute, Edw. VII., ch. with power to hold, maintain and operate the railway the Ry. Co. and became vested with the franchises and property of that railway company which had been sold virtue the statute, 4 & Edw. VII., ch. The Ry. Co. had constructed miles its railway, between Yamaska and St. Francis River, for which it had not received subsidy aid as authorized by 62 & Vict., and, by & 8 Edw. VII., ch. in lieu the aid provided by the former statutes, subsidy was authorized to be paid to any company completing the construction of miles the railway from Yamaska on a location which included the miles of railway so constructed. Under the authority of this legislation the Crown and the appellant company entered into a supplementary agreement fixing the subsidy for the construction of this 70 miles of railway. The company completed the unconstructed portion of the railway and claimed subsidy for the whole length of the line including the 6/2 miles acquired in virtue the sale authorized by 4 & 5
Edw. VII., ch. 158.-Held, reversing the judgment the Exchequer Court
Canada Ex. C.R. Idington J.
dissenting, that the undertaking of the company to construct the railway was satisfied whether it actually constructed the whole line itself or purchased a constructed portion thereof to form part the subsidized line; that the statute & 8
Edw. VII., authorizing the subsidy together with the supplementary contract with the Crown constituted an obligation binding on the Crown. and the company was, consequently, entitled to the amount the subsidy applicable to the 62 miles the railway in question.
Kix
.
...................
6--Fire insurance - Statuory condiarts. 7034, 7035,
7036-Notice - Conditions of applicaknowledge - Estoppel.] As required article 7034 the Revised Statutes the statutory conditions were printed upon the policy insurance.
The application for the insurance did not refer to them but contained a condition that the insured should not use coal oil stoves on the premises insured.
At the time the premises were destroyed by fire coal oil was kept and stored there excess the quantity permitted by clause the statutory conditions, without written permission the insurance company. The company had given no written notice to the insured pointing out particulars wherein the policy might differ from the application as provided by the second clause of the conditions. -Held,
Brodeur
J. dissenting, that the law did not require the statutory conditions to referred to in applications for insurance;
that all applications for insurance to which the Quebec legislation applies must be deemed to be made subject to those conditions, except as varied under articles
7035 and 7036. Revised Statutes Quebec. and that there was no necessity for the insurance company to give notice, as mentioned in the second clause the conditions, calling the attention of the insured to the conditions indorsed upon the policy of insurance.
INs. Co................
7--Assessment and taxation - Sale for delinquent taxes - Tax sale deed - Premature delivery - Presumption
"Assessment Act," B.C. Con. Acts, 1888, s. 92 - B. "Assessment & Edw. VII., c. ss. - Certificate of title (B.C.).] The British Columbia "Assessment Act" (Con. Acts, ch. sec. provides that the owner shall have the right to redeem land sold "at any time within two years from the date of the tax sale or before delivery of the conveyance to the purchaser at the tax The tax sale deed in question was dated on the day before the expiration of two years from the date the tax sale. The B.C. "Assessment Act, & 4 Edw. VII., ch. sees. and declares that all proceedings which may have been heretofore taken for the recovery delinquent taxes under any Act of the province, by public sale or otherwise, should be valid and full force and effect; that tax sale deeds should be conelusive evidence the validity all proceedings in the sale up to the execution such deed, and that such sale and the official deed to the purchaser any such lands shall be final and binding upon the former owners the said lands and upon all persons claiming by, through or under them.-Held, per Fitzpatrick C.J. and Idingtoh and Anglin JJ. (reversing the judgment appealed from West. W.R. 440; 24 D.L.R. 851)), Davies and Brodeur JJ. dissenting, that, in the absence evidence to the contrary, it must be presumed that the delivery the conveyance to the tax sale purchaser took place on the date the tax sale deed; that the execution and delivery thereof were premature, and, therefore, the conveyance was ineffectual and insufficient to justify the issue a certificate title under the provisions the "Land Registry Act" or the "Torrens Registry Act, nor could the curative clauses sections and the "Assessment Act. be applied so as to have the effect validating the void conveyance.
Lalonde .........................
Railway Board
"Railway Act" and amendments - Bell Telephone Co. - Use of long distance lines- Compensation - Loss of local business - Special toll.] Under the provisions the "Railway Act"
and its amendment by & Edw. VII., the Railway Board has power to authorize a charge in addition to the established rates the Bell Telephone as compensation for the use its long distance lines.
Idington J. contra.-By said Acts the Board authorized to provide compensation to the Bell Telephone
Co. for loss in its local exchange business occasioned by giving independent companies long distance connection.
Davies and Idington JJ. contra.-The Board has power also to authorize payment a special rate by companies competing with the Bell Co. who obtain the long distance connection, though non-competing companies are not subjected thereto. Idington contra. CO.
9--Crown
Injury
"property on public work"
tion of Exchequer Court s. 20 To make the Crown liable, under sub-sec. section the "Exchequer Court Act," R.S.C., ch. for injury to property, such property must be on a public work when injured. Chamberlin v. The King Can.
S.C.R. and Paul v. The King
Can. S.C.R. followed. Letourneux v.
King Can. S.C.R. 335) overruled.
Injury to property by an explosion dynamite on property adjoining a public work is not "damage to property injuriously affected by the construction of a public work" under section 20 (b) the
KING....................
10--Electric transmission - Character of installations - System
Grounding transformers - Defective fittings - Responsibility without fault - Art. 1054 C....
STATUTE OF ELIZABETH - Fraudulent conveyance...................
STATUTE FRAUDS - Debtor and
-Third party's promise repay.] a director a mining company, advanced money for the company's purposes,
STATUTE OF FRAUDS-continued. which the president and largest shareholder, orally agreed to repay.-Held, affirming the decision the Appellate Division Ont. L.R. which reversed the judgment for the defendant at the trial Ont. L.R. 210), Fitzpatrick C.J. and Idington J. dissenting, that this was not a promise to pay a debt the company and void as a contract by virtue the fourth section the Statute Frauds; that G. was a primary debtor for the monies advanced by B. and liable to the latter for their repayment. v. BRowN....................... 2--Purchase of bonds - Memorandum in writing - Correspondence - Relation of documents- Parol evidence.] In an action against D., claiming damages for breach a contract to purchase bonds, a telegram from D. to his partner was produced saying, "I absolutely bought them yesterday after our 'phone conversation, they agreeing to our terms. "-Held, that parol evidence was properly received to shew that terms had been stated by D., over his signature, that they were the only terms and were those referred to in the telegram and the two constituted a sufficient memorandum the Statute Ridgeway Wharton H.L. Cas. and Baumann James (3 Ch. App. 508) followed.
Duff J. dissented.-Judgment the Appellate Division Ont. L.R. 349) affirming that at the trial (34 Ont. L.R. affirmed. STATUTES- 1---(Imp.) "B.N.A.
109-117 (Crown property) ........ 2--(Imp.) "B.N.A. Act, s. (Taxation) ......................
3--R.S.C., 1906, ss. 288 (Railways) .......................
4-R.S.C., ("Railway Act") .. .. ....
.. .. .. .. .. ......
R.S.C., 43, (Indians) STATUTES -rontinued.
6--R.S.C.,
("Irrigation
151 1
7--R.S.C., ss. 46, 69,
8--R.S.C.,
48a ("Supreme Court Act") .................
9--R.S.C., 1906,
("Supreme Court Act")................
See 4.
10--R.S.C., 1906, s. 40 ("Supreme Court Act") ...............
11--R.S.C., 1906, 38c ("Supreme Court Act") .................
See 7.
12--R.S.C., 1906, 140, g. 20 ("Exchequer Court Act") ...............
13--R.S.C., 1906, ("Exchequer Court Act") ...............
14--R.S.C., 144, 104,
15--R.S.C., 144, ss. 22,
.337
See 4.
16--(D.) ("Indian Act")
....................
16a-58 & 59 (Quebec Railway,
Light, Heat and Power .........
17-- & 63 (Railway subsidies) ........................
18--(D.)
& Edw. VII.,
(South Shore Railway, Etc.) .........
STATUTES-continu-d.
19--(D.) Edw. III., (Quebec Montreal and Southern Railway). .. 275 20--7 & Edw. VII., ("Railway subsidies") ......................
& Edw. VII., ("Railway Act").......................
22--(D.) & 4 (Supreme 23--(U.C.)
IV., 1 ("Rideau 24--R.S.Q., 1909, arts. 7034, 7036 (Insurance).................. 296 24a-(Que.) 44 & 45 (Quebec Railway, Light, Heat and Power Co.).. 25--B.C. Con. Acts, s. ("Assessment Act") ................
26--R.S.B.C., s. ("M unicipal Act")................ 27--(B.C.)
& Edw. VII., ("Assessment Act")............... 28--(Alta.) 7 Edw. VII., ("Railway A ct")........................
29--(Ala.) Edw. VII., ("Arbitration A ct")........................
30--(Alta.) 1 ("Alberta Evidence Act").................... 31--(Alta.) ss. 249, STATUTES-continued.
32--(Alta.) (Rural
M unicipalities) ............
.......
SURETYSHIP - Debtor and creditor - Surety - Statute of Frauds - Advances
..........
.........
vesting in Crown - "B.N.A. Act, 109-117
"Indian lands"
Commissioner
Property in Canada and the provinces
"Indian Act," V.,
18; R.S.C., 43, s. 42 - Public document - Legal maxim.. . .
TAXES- Railway Board
Powers - "Railway Act" and amendlong distance lines - Compensation-Loss of local business - Special toll.] Under the provisions of the
"Railway
Act" and its amendment
& Edw. VII., the Railway
Board has power to authorize a charge in addition to the established rates of the
Bell Telephone Co. as compensation the use its long distance lines. Idington J. contra.-By said Acts the Board is authorized to provide compensation to the Bell Telephone Co. for loss in its iocal exchange business occasioned by giving independent companies long distance connection.
Davies and Idington JJ.
contra.-The Board has power also to authorize payment a special rate companies competing with the Bell Co.
who obtain the long distance connection though non-competing companies are not subjected thereto.
TITLE TO -Lands vesting in
"Indian lands"
Sale Commissioner statute.] Per Idington J. Crown lands of the Province of Canada, situate in
Lower Canada, which had not (as provided by the statute 14 and 15 Vict., ch.
106), been surveyed and set apart, as intended to be vested in the Commis- TITLE TO LAND-continued. sioner of Indian Lands for Lower Canada, and appropriated to the use Indians prior to the 1st July, do not fall within the definition "Lands reserved for the Indians" in the 24th item enumerated in section the "British North America Act, and, consequently, did not pass under the control of the Governnment the Dominion of Canada at the time Confederation.
In regard, therefore, to the lands in question the presumption is that they then became vested in the Crown in the right of the Province of Quebec, and, in the absence evidence to the contrary, the Attorney- General for Canada cannot now enforce any claim title to such lands in the right the Dominion.
GIRoux ......... 2--Vente a rimird-Security for loan- Time for redemption - Promise of re-sale relief Plead- Practice the right to redeem lands conveyed a droit rimir6 as security for a loan has not been exercised within the stipulated term, or an extension thereof, the purchaser becomes absolute owner and there is no power in the courts the Province of Quebec under which an order may be made which could have the effect extending the time limited or redemption. -After the expiration the time limited for redemption conveyed d droit rimirg, as security for a loan, the purchaser in a letter written to the vendor, requested payment the loan before a date mentioned therein and, in default such payment, insisted upon the rights granted by the conveyance.-Held, that the letter might be considered as a promise of re-sale of the lands to the vendor which lapsed on failure to make the payment within the time therein stipulated. -Duff
J. took no part in the decision of the appeal.-Per Fitzpatrick C.J.. and Brodeur J. Questions which have not been raised or brought to the attention the courts below ought not to be considered on an appeal to the Supreme Court of Canada. Fraudulent conveyance - Statute of Elizabeth. 145 See 3.
TITLE TO LAND-continued.
4--Deed - Reservation passage - Changed conditions conveyance .......................
"TORRENS REGISTRY ACT"
for delinquent taxes - Tax sale deed - Premature delivery sumption - Cerlificafe of title (B.C.) ..................
- Statutory conditions
Conditions of application
R.S.Q., arts.
7034-7036
- Conditions indorsed policy - Agent's knowledge - Adjustment of claim-Offer of settlement adjuster - See FIRE.
TRUSTS
- Estate for life - Power of appointment.]
devised all the testator's real and personal property to his two daughters (naming them) upon trust as follows:- -To make certain payments and then "to hold my property in lots eight and nine * * * for my said daughters for themselves and to make such disposition thereof from time to time among children or otherwise as my said daughters decide to make, they my said daughters in the meantime to have all the rents and profits therefrom." -Held, affinning the judgment the Appellate Division Ont. L.R. 33),
Fitzpatrick C.J. and Idington J. (dissenting)
, that the said two daughters took a beneficial life interest in the property;
and that the words "or otherwise" where they occur gave an unfettered power disposition which they could exercise in favour of any person, including them- ......
Railways - Systen of con- Exposed switch-rods - Negligence - Dangerous contrivance - Findings against evidence ..............
VIS MAJOR - Electric transomission - Special Act - Negligence - Character of installations - System of operation - Grounding transformers
- Defective fittings - Responsibility without fault - Art. 1054
After heavy
VIS MAJOR-continued.
rains, in cold weather, had coated trees and electric wires with icicles, a violent wind tore a branch from a tree, growing on provate grounds, and blew it a distance feet on to a highway where it fell across the defendants' electric transmission wire, causing a high-tension current to escape to secondary housesupply wires, used only for low-tension currents, and resulting in the destruction of the buildings by fire. The high-tension current, 2,200 volts, was stepped down from the primary wire to about 110 volts on the secondary wires by means a transformer which was not grounded, owing to doubts then existing as to doing so being safe practice. The secondary wires were used by the defendant to supply electric light to consumers, the owners the buildings destroyed, but these buildings were not fitted with "modern" installations for electric lighting nor with cut-offs to intercept hightension currents.-V.'s action was to recover damages for the destruction his building, alleged to have been occasioned by the defendants' defective system.
The insurance companies, being subrogated in the rights owners buildings insured by them, brought actions to recover the amounts the policies which had been paid.-Held. per Idington, Anglin and Brodeur JJ. (Davies and Duff contra.) Under the provisions article the Civil Code, the defendants were liable for the damages claimed as they had failed to establish that they were unable, in the circumstances, to prevent the escape the high-tension electric current, a dangerous thing under their care, which had been the cause the injuries, that the injuries thus caused hai resulted the fault the buildings themselves. The defence ris major was not open as the circumstances in which the injuries occurred could have been foreseen and provided against by the installation safer system for transmission electricity. (Q.R. K.B. 214) reversed, Davies and Duff JJ. dissenting. -Per
Anglin
Brodeur JJ. As the special Acts under which the defendants carried on their operations provide that the shall be "responsible for all damages which its agents, servants, or workmen cause to individuals or property in carrying out or maintaining any its said works" VIS MAJOR-continued.
& Vict. ch. sec. and that the company "shall be responsible for all damages which it cause in carrying out its works" (44 & Vict. (Que.) ch.
sec. they are liable for damages resulting from the operation of their constructed works, without regard to any consideration fault or negligence on their part.-Per Davies and Duff JJ.
dissenting.
Under article 1054 the
Civil Code, the onus lies upon the plaintiff to prove that the injury complained resulted from the fault the thing which the defendant had under his care;
in the absence such proof there is no liability on the part the defendant.
In the circumstances the case the defendants are entitled to succeed on the ground that the damages were the result of major. Canadian Pacific Ry. Co. v.
Roy ((1902) A.C. 220); Dumphy v. Montreal Light, Heat and Power ((1907)
A.C. 454); McArthur v. Dominion Cartridge Co. ((1905) A.C. 72); Shawinigan
Carbide Co. v. Doucet (42 Can. S.C.R.
Q.R. K.B. 271); and Canadian Pacific
Railway v. Dionne Rev. de Jur.
474) referred to.
(Leave to appeal to
Privy Council granted, 9th May, 1916.)
application
1909, arts. 7034of settlement adjuster - WILL - Estate for life - Power of appointment - Trust.] will devised all the testator's real and personal property to his two daughters
(naming them) upon trust as follows:- To make certain payments and then
"to hold all my property in lots eight and daughters themselves and to make such disposition thereof from time to time among my children or otherwise as my said daughters decide to make, they my said daughters in the meantime to have all the rents and profits therefrom. "-Held, affirming the judgment the Appellate Division
Ont. L.R.
Fitzpatrick C.J. and
Idington J. (dissenting)
, that the said
WILL-continued.
two daughters took a beneficial life interest in the property;
and that the words "or otherwise" where they occur gave them an unfettered power disposition which they could exercise favour any person, including themselves.
"WINDING-UP
- Winding-up proceedings - Time for appealing - Amount in contro- "Supreme Court Act," R.S.C., 1906, ss. "Winding-up Act," R.S.C. 1906, c. 144, ss. 104, 106-Practice-Affirming jurisdiction-Motion in court-Discretionary order judge.] Per Fitzpatrick C.J. and Idington and Brodeur JJ. (Duff and Anglin JJ. contra.) The appeal to the Supreme Court of Canada given by section the " Winding-up Act, " R.S.C., 1906, ch. must be brought within sixty days from the date of the judgment appealed from, as provided by section the "Supreme Court Act," R.S.C., ch. After the expiration the sixty days so limited neither the Supreme Court of Canada nor a judge thereof can grant leave to appeal. Goodison Thresher Co. v Township of McNab (42 Can. S.C.R. 694), and Hillman v. Imperial Elevator and Lumber Co. (53 Can. S.C.R. followed; Grand Trunk Railway Co. v. Department of Agriculture of Ontario (42 Can. S.C.R. 557) distinguished.- Per Duff J. (dissenting).
106 of the "Winding-up Act," the application for leave to appeal may be made after the expiration sixty days from the date the judgment from which the appeal is sought and, whether it be made before or after the expiration of the sixty days, lapse time should be considered by the judge applied to and acted on by him, in the exercise of discretion, according to the circumstances of the case.-Per Anglin J. (dissenting). such an application for leave to appeal, the provisions of section of the "Supreme Court Act" apply and an extension of the time for appealing may be obtained thereunder.-Per Idington J. There no authority under which an application for an order affirming the jurisdiction the Supreme Court of Canada to entertain an appeal can be made to the court; the proper and only course is by application to the registrar acting as judge in chambers.-Per Duff J. Although not strictly the proper procedure, the objec- "WINDING-UP ACT"-continued.
tion to such an application may be waived.
-Per Duff J. Section the "Winding-up Act"
imposes a further condition the right appeal over and above those imposed by sections and the "Supreme Court Act;" an applicant, having obtained leave after the expiration the time limited for appealing, still obliged to satisfy a judge of the court appealed from that special circumstances justify an extension of time, and it is the duty that judge to exercise proper discretion in making such an order on his own responsibility.
Attorney-Ueneral v.
Emerson (24 Q.B.D. and Banner v.
Johnston (L.R. H.L. referred to.- Per Brodeur J. In the case of appeals from the judgments rendered under the
"Winding-up Act" the jurisdiction of the
Supreme Court Canada is determined by section the "Winding-up Act"
and is dependent solely upon the amount involved in the judgment appealed from and not upon the amount demanded the proceedings on which that judgment was rendered.
CONSTN. Co., RE Ross v. Ross,
&
2--Procedure
Suit in P.E.I.
Winding-up in B.C. - Leave of court of B.C. - R.S.C., c. 144, ss. and Where a trust company incorporated by the Pariament Canada with headquarters in Vancouver is being wound up in British Columbia, leave the Supreme Court of that province necessary before suit can be brought
Prince Edward Island against the liquidator and the company to have the latter declared a trustee of moneys deposited with it for investment, for its removal from and appointment of a new trustee and for the vesting in such new trustee of the securities representing said moneys.
Davies J. (dissenting)
.-Judgment appealed against D.L.R. 554)
......
WORDS AND PHRASES- 1--"Damage to property injuriously affected by the construction of a public 2--"Indian" ................. 172 3--"Indian lands".............. 172 4- "Interested or affected".......... 222 5- - "Land" .. .................. 6--"Located Indian" ............. 7--"Occupant"
............... 8--"Or otherwise"............. 9--"Owner" .................
10--"Person" ................
11--" Property on public work" .450,626 12--"Reserve" ................ 172 13--"Right to pass over for cattle 14--"Thing demanded" .........
Cases cited
- 172 4--Banner v. Johnston (L.R. H.L. Baumann v. James Ch. App. 508) British Columbia Electric Rway. Co. v. Stewart ( A.C. 816
- A.C. 1067 A.C. 1067
- A.C. 454 A.C. 454
- A.C. 72 A.C. 72
- A.C. 220 A.C. 220
Statutes and regulations cited
-
- section 20
- section 8
- section 19
- section 2
- sections 249
- s. 20
- ss. 288
- ss. 46
- ss. 249
-
- ss. 71
- Section 40
- sections 250
- section 250
- section 125
- s. 92
- sections 125
- 153
- 156
- 250
- Sections 250
- ss. 109
- ss. 22
- section 1
- sections 69
- s. 42
- 69
- s. 40
-
Unresolved citations
- section 20
- Paragraphs (a)
- (b)
- paragraph (b)
- paragraph (c)