Majority
.- RICHARD
WEBB
BURNETT
*Feb.
r APPELLANT; *Feb. 19.
(DEFENDANT).....................
THE HUTCHINS CAR ROOFING
COMPANY
ROBERT E. RESPONDENTS. FRAME (PLAINTIFFS) .......
...
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA. Per Anglin J.-In exercising the jurisdiction conferred by section 23(a) the "Exchequer Court Act" the court does not act as the substitute for the arbitrators who are given the same jurisdiction by section 20 the "Patent Act" but acts in discharge its ordinary curial functions and its judgment is appealable to the Supreme Court Canada.
The appeal to the Supreme Court Canada provided for by section 82 the "Exchequer Court Act" is not confined to cases where the action is brought to recover a sum money but extends to those seeking to establish a claim to property or rights. MOTION fo quash an appeal from the judgment of the Exchequer Court in favour of the plaintiffs (respondents).
Conflicting applications for a patent were filed with the Patent Office by the parties.
The defendant started proceedings for arbitration under section 20 of "The Patent Act" and the plaintiff5 took action in the Exchequer Court.
To the said action defendant pleaded, inter alia, want of jurisdiction which plea was overruled and *PRESENT:-Sir Charles Fitzpatrick C.J. and Davies, Idington, Duff and Anglin JJ.
judgment was given on the merits for the plaintiffs. Defendant appealed and plaintiffs moved to quash on the grounds that the exercise of the power conferred on the Court below by section 23(a) was only in substitution of that given to arbitrators by "The Patent Act," and the judgment of the court was final and not susceptible of appeal just as that of the arbitrators would be; that the appeal to the Supreme Court allowed by "The Exchequer Court Act" lies only in cases where a sum of money is demanded; and that it was not shewn that the sum of $500 was in controversy and no leave to appeal had been obtained. As to the last ground the court held that affidavits filed established the value of the patent in dispute at more than $500.
R. C. H. Cassels for the motion.
McMaster K.C. contra.
THE JUSTICE.-Two grounds are presented by Mr. Cassels in support of his motion to quash the above appeal for want of jurisdiction.
The first one, as I understand it, is that this court has no jurisdiction because the Exchequer Court has exclusive jurisdiction without appeal.
Section 20 of "The Patents Act," ch. 69 R.S.C., 1906, in cases of conflicting applications for patents provides that the matter in dispute shall be submitted to arbitration and no provision is made for an appeal.
This section of the Act comes from the R.S.C. 1886, ch. 61, sec. 19
The present "Exchequer Court Act " came into force in 1887 (50 & 51 Vict. ch. 16) and by a later amendment in 54 & 55 Vict. ch. 26, jurisdiction is conferred on the court in all cases of conflicting applications for any patent of invention. The contention of Mr. Cassels is that the Exchequer Court has at most concurrent jurisdiction but without appeal as in the case of an application made under section 20, "Patent Act."
He then urges that the court is curia designata.
Section 82 of the "Exchequer Court Act," R.S.C. ch. 140, provides for an appeal to the Supreme Court by any party dissatisfied with any final judgment of the Exchequer Court where the amount in controversy exceeds $500.
In other words, this provides for a review by the Supreme Court of all decisions of the Exchequer Court whatever may be the grounds of such decisions and I see no distinction between the case where the Exchequer Court assumes jurisdiction where it has none, and the case where the Exchequer Court has erred in its appreciation of any matter of law or fact.
The point has come up before this court where the court below has denied its own jurisdiction and a party dissatisfied with such judgment has appealed to the Supreme Court to reverse this view of the court below and to declare that such lower court had jurisdiction. In the case of Ste. Cunigonde v. Gougeon (1), an appeal had been taken from the Superior Court to the Court of Queen's Bench, and the plaintiff moved to have this appeal quashed for want of jurisdiction, and his motion was granted. The municipality then appealed to the Supreme Court of Canada whereupon plaintiff moved in this court to have the appeal quashed on the ground that there was no judgment of the Court of Queen's Bench and therefore no appeal lay to the Supreme Court.
Sir Henry Strong, who gave the judgment of the Supreme Court, there says that as the Court of* Queen's Bench properly refused to entertain jurisdiction, it followed that no appeal would lie to the Supreme Court.
It is clear therefore that this court quashed the appeal because it was of the opinion that the Court of Queen's Bench was correct in holding that it had no jurisdiction and therefore the merits of the appeal could not be considered by the Supreme Court.
In the case of Beck v. Valin (1), there was an appeal to this court from a judgment of the Court of Appeal for Ontario, affirming a judgment of the Divisional Court which sustained the refusal of a judge in chambers to issue a writ of mandamus.
In that case Mr. Justice Idington says:- In Hull Electric Co. v. Clement (2), a motion was made to affirm the jurisdiction of the Supreme Court to entertain an appeal from the judgment of the King's Bench, which quashed an appeal from the judgment of the Superior Court on the ground that the appeal was incompetent and that it (Court of King's Bench) had no jurisdiction to hear such an appeal. The motion therefore to the Supreme Court raised the question whether this court could review a judgment of the Court of King's Bench where the latter court had held it had no jurisdiction. The court in that case disposed of the appeal by reviewing the propriety of the judgment of the Court of King's Bench in holding it was without jurisdiction.
The Chief Justice, concluding his judgment said there:- In short, my view is that under the general power of appeal given from a lower court to the Supreme Court, if the court below has quashed an appeal to itself on the ground that is has no jurisdiction and the party dissatisfied with this judgment appeals to the Supreme Court, this court, on a motion to quash, may affirm the judgment below by granting the order. If the court below holds it has jurisdiction and proceeds to dispose of the case on its merits, this court has jurisdiction to review on appeal the decision below and if it is of opinion that the court below was without jurisdiction, it can so determine without considering anything with respect to the merits of the case. I am, therefore, of opinion that there is an appeal from a judgment rendered in a patent case where the court exercises the jurisdiction conferred by section The appeal is given by section 82
These words are broad enough to cover a case of conflicting applications for a patent of invention like this. The other ground presented by Mr. Cassels is that the amount involved was not shewn to be over $500.00. The practice is well settled that in patent cases the value of the patent can be established by affidavit and where the appellant neglects to have this shewn in chambers, he may be penalized by way of costs. This was done in the case of Dreschel v. Auer Light Co., I am, therefore, of the opinion that the motion to quash should be refused, but without costs.
J.-Two objections were raised on this motion to our jurisdiction to hear this appeal from the Exchequer Court and, in my opinion, they must both fail.
The judgment of the Exchequer Court proceeds on the ground that jurisdiction to hear and determine the action was vested in that court.
Whether such jurisdiction exists or not can more properly be decided when the merits of the appeal come to be considered. Certainly an appeal lies to this court from any judgment of the Exchequer Court otherwise appealable under the statute which court has either improperly assumed jurisdiction or, improperly, expressly decided that such jurisdiction exists.
On the second point, I am of opinion that section 82 of the "Exchequer Court Act" gives a right of appeal to this court in cases such as the present. words of the section "sum or value" clearly indicate that an appeal lies as well from a judgment in an action brought to recover a sum of money as from one brought to establish a claim to property or rights. In the latter cases the "value"
of such property or rights claimed and in controversy may be established by affidavits and need not necessarily appear in the record.
I would dismiss the motion with costs.
J.-I think the motion to quash the appeal herein should be dismissed with costs.
DUFF J.-This is a motion to quash an appeal from a judgment delivered by the learned judge Exchequer dismissing an action brought by one of two applicants for a patent. Steps had been taken by one of the applicants to have the controversy determined by resort to the procedure provided by section 20 of the "Patent Act," when an action was brought by the other applicant in the Exchequer Court under section 23a of the "Exchequer Among other pleas the defendants (the appellants) denied the jurisdiction of the Exchequer Court to deal with a controversy in respect of which the procedure prescribed by section 20 of the "Patent is available.
The application to the learned judge of the Exchequer Court to dismiss the action as brought without jurisdiction was at the suggestion of the learned judge turned into an application for a stay of proceedings and this application was eventually dismissed.
At the trial judgment was given favour of the plaintiff.
The first objection which is now raised is that the jurisdiction of the "Exchequer Court" in cases conflicting applications for patents is an exclusive jurisdiction; this is to say, that a judgment of the Exchequer Court given in exercise of this jurisdiction is not appealable.
I do not find it necessary for the purposes of the present motion to consider whether or not in respect of some matters the judgment of the learned judge of the Exchequer Court in an action such as that out of which this appeal arises is final in the sense of being non-appealable;
that is a question which may be much more conveniently dealt with when the appeal comes on for hearing on the merits.
It is sufficient to say in regard to the matter I am now considering that the appellants having denied the jurisdiction of the Exchequer Court to entertain the action and the learned judge of the Exchequer Court having by entertaining the action and giving judgment affirmed judicially that' such jurisdiction exists, his decision as a decision on the point of jurisdiction or no jurisdiction is appealable to this court provided the other conditions of appealability indicated by sees. 82 and 83 are present. In re Padstow Total Loss and Collision Assur. Assoc. (1); Cornwall v. Ottawa and New York Railway Co. (2).
The next objection is that the condition laid down in sec. 82 in the words "action,
*
*
* matter or other judicial proceeding in which the actual amount in controversy exceeds 8500 is not fulfilled because, first, the action raises no question with regard to any pecuniary demand by either plaintiff or defendant, and, secondly, it is not satisfactorily shewn that the value of the thing in controversy, the right to receive a patent, reaches the sun of $500.
As to the second of these grounds, it is unnecessary to say more than that the affidavits filed taken together with the agreement which is in evidence in the cause are sufficient to dispose of it.
As to the first ground the words "amount in controversy exceeds $500 " do undoubtedly point to a controversy in relation to a pecuniary demand or in relation to a sum of money as being the kind of controversy contemplated by sec. 82, s.s. 1.
I am satisfied, however, that this is not the necessary meaning these words.
The first of the meanings attributable -to the word "amount" in the Oxford dictionary is " The sum total to which anything mounts up or reaches" and to construe these words one must ask the question: "Amount of what?"
Amount exceeding 8500 of course does pointedly indicate that the answer to the question must be amount of money. But the words are not altogether intractable;
"exceeding $500 " may be read as exceeding $500 in value, in other words, the phrase undoubtedly is susceptible of being paraphrased thus: "in which the sum total of the thing in controversy exceeds the value of $500."
That, I say, is a possible construction; and I am far from satisfied that if I had to pass upon this section standing alone this construction ought not to be preferred to that advanced on behalf of the respondent in order to avoid the quite absurd result that the Legislature, in conferring jurisdiction on the Exchequer Court with respect to various matters enumerated in sections 19 to 24, provided that it is only in respect of matters mentioned in sec. 83 that an appeal lies to this court as of right.
There is no doubt that the exceptional class of cases intended to be described by the clause "actual amount
* * or value of $500" is co-extensive with the class of cases described in the words of sec. 82, and by this legislative interpretation supplied by sec. 83 all doubt and difficulty are removed.
Since writing the above I have considered the point and have concluded that there is no solid reason for holding that a judgment pronounced in an action brought under sec. 23a is excluded from the operation of sec. 82.
The motion to quash should be dismissed with costs.
J.-I am of the opinion that in exercising the jurisdiction conferred by sec. 23(a) of the "Exchequer Court Act" the Exchequer Court acts not a mere locum tenens or substitute for the arbitrators under see. 20 of the "Patent Act," but in the discharge of its ordinary curial functions and that a proceeding under sec. 23(a) is a judicial proceeding in which its judgment is appealable to this court under ss. 82 et seq. of the Exchequer Court Act. Mr. Cassels's forceful argument failed to raise any doubt in my mind on this point.
. I am equally clearly of the opinion that the fact that the learned judge of the Exchequer Court affirmed his own jurisdiction to deal with the matter in controversy, which was challenged, far from casting doubt on the appealability of his judgment only serves to make it more certain.
As to the value of the matter in controversy the affidavits and the agreement in evidence sufficiently establish that it exceeds the requisite $500.
A construction of section 83 which would confine the right of appeal to proceedings in which there is an actual pecuniary demand before the court, thus excluding most important cases in which the right asserted or the matter in controversy, though not presented in the form of a claim to recover money, far exceeds in value $500 would, in my opinion, be too narrow and would frustrate the purpose of Parliament. Section 83 is not happily phrased.
"Amount in controversy" is, no doubt, an ill-chosen expression calculated to lend colour to the contention of the respondent.
But the use of the words by which it is followed, "sum or value," makes it reasonably certain that it is not intended to restrict the right of appeal to cases in which the controversy is as to the right to recover a sum of money.
If so, the addition of the words "or value" would be meaningless.
I would dismiss the motion.
Motion dismissed with costs. ACTION-Parties-Contract idera tion-Settlement of action-Statute
Frauds-Trade agreement-Restraint trade-Crim. Code In M. and his two brothers entered into a contract with R. by which they gave him exclusive control their salt works with some reservations as to local trade. R. assigned the contract to the Dominion Salt Agency, a partnership consisting of his firm and two salt manufacturing companies, which agenthereafter controlled about ninety per cent. of the output manufacturers in
Canada. In 1914, as administrator his father's estate, brought action against the estate C. who, in his lifetime, had been president of the Dominion Salt Agenand president of and largest shareholder in one the companies composing it. This action was based on an alleged agreement by in connection with the settlement a prior action against the three partners in the Agency, which he promised to pay five-sixteenths the difference between the amount claimed and that paid on settlement. Evidence the agreement was given by the plaintiff's solicitor in the former action and by defendants' solicitor also. The original agreement transferring the salt business to R. was executed the three brothers ."as representing the estate M. deceased."
The action which was settled was brought by the same three persons.
After the settlement letters administration to M.'s estate were taken out.-Held, that the present action was properly brought in the name the administrator but, necessary for defendants' protection, his two brothers might be added as plaintiffs.
v. Ton- 2--Broker-Contracts of Sale-Evidence
C.C... . ...
See 1.
ADMIRALTY LAW-Navigation of canal
-"Narrow channel" - Marine Department Regulations, rule - Starboard course - Fairways and mid-channels - " Canada Shipping Act," R.S.C.
s. 916-Collision -Liability for damages-Canal Regulations, rule 22-Right
ADMIRALTY LAW-continued. of way.
The steamboat "Honoreva" was under way going up the Soulanges Canal and appoaching bridge across the channel which was swung open when she was about 300 feet below it.
The steam tug "Jackman"
was then observed descending the canal, with the current, at a greater distance above the bridge and also under way. The Honoreva," in attempting to pass first through the abutments the bridge (a space about feet width), and keeping a course in mid-channel, came into collision with the barge "Maggie," which was being towed by the "Jackman,"
and the barge was injured and sunk.
In an action for damages against the "Honoreva"
she counterclaimed for damages sustained by her owing, as alleged, to the negligent navigation of the tug-and-tow.-Held, that the vessels thus navigating the canal were, at the place where the collision occurred, in a "narrow channel;" that article the rules the Marine Depar ment respecting the passage of vessels, which requires them when safe and practicable to keep to the starboard in fairways and midchannels, applied to the navigation of the vessels in question, and that the "IHonoreva," having failed to obey that rule, was in fault within the meaning of section the "Canada Shipping Act," R.S.C., ch. that there was no negligence proven on the part the tug-andtow, and that the "Honoreva" was, therefore, solely liable for the damages resulting from the coilsi on.-Per Davies and Anglin JJ.-Under sub-section b of article the rules the Marine Department, the down-going tug-and-tow had the right way, notwithstanding that the up-going vessel may have been closer to the bridge when it was opened, and that the tug-andtow were not obl ged to stop and make fast to posts until the up-going vessel had passed, as is required by the 22nd rule the "Canal Regulations" in regard to vessels "HoNoREVA"....................... APPEAL- The Registrar in Chambers- Appeal-Jurisdiction--Assessment and taxation-Adjudication authorised provincial authority-"Supreme Court Act," APPEAL-continued.
R.S.C., -Finality of provincial decision-"Court of last resort."] provincial statute, providing that judgments of courts in the province on appeal from decisions courts revision in respect assessments for taxation purposes shall be final and conclusive on the matters adjudicated upon thereby, does not circumscribe the appellate jurisdiction given to the Supreme Court Canada in such matters by section the "Supreme Court
Act," R.S.C., ch. Crown Grain v. Day ((1908) A.C. 504) applieddistrict court judge, in the Province
Alberta, adjudicating in matters concerning the assessment property for municipal purposes under the provisions the
North-West Territories Ordinance No.
as amended by the statutes
Alberta, ch. and ch. 27 1913, is a "court of last resort created under provincial legislation" within the meaning section the "Supreme
Court Act," R.S.C., 1906, ch. and, consequen'ly, an appeal from his decision lies to the Supreme Court Canada when it involves the assessment property at a value not less than ten thousand dollars.
City of Toronto v. Toronto Railway
Can. S.C.R. 640) referred to as effete, Canadian Niagara Power v.
Township of Stamford Can. S.C.R.
and Re Heintze, Fleitman v. The King
Can. S.C.R. referred to.
2--Jurisdiction-Action in county court jurisdiction with superior court-Construction of statute-R.S.C., ss. "Supreme Court
Act"-R.S.B.C., "Court
Appeal Act"-R.S.B.C.,
"County Courts Act"-Motion for new trial-Re-hearing on appeal.] An action county court in British Columbia to recover $578, damages for injuries sustained, alleged to have been caused through negligence, was dismissed by the county court judge after the evidence for the plaintiff had been put in; the defendants offered no evidence, but asked for dismissal on the evidence as it stood. The plaintiff appealed to have judgment entered in his favour or, alternatively, to have the case remitted to the county court to have damages assessed, or for such further order as might be deemed proper by the Court of Appeal.
The appeal was dismissed and the judgment appealed from affirmed. The British
Columbia "Court of Appeal Act" (R.S.
APPEAL-continued.
B.C., ch. sec. subsec. provides that every appeal shall include a motion for a new trial unless otherwise stated in the notice appeal. On motion to quash an appeal to the Supreme Court Canada on the grounds that the notice prescribed by section 70 of the "Supreme Court Act," R.S.C., ch. had not been given within days from the date the judgment appealed from and that the action was not the class in which a county court had concurrent jurisdiction with a superior court, under section the "Supreme
Court Act" limiting appeals to the Supreme Court Canada. -Held, Duff J. dissenting, that no appeal could lie to the Supreme Court Canada. -Per Fitzpatrick C.J. and IdingtonJ. (Duff and Anglin JJ. contra).-As the case was not one in which a county court is given concurrent jurisdiction with a superior court, under section 40 the "County Courts Act," R.S.B.C., the Supreme Court Canada had no jurisdiction to entertain the appeal. Champion v. The World Building Co. Can. S.C.R. referred to.-Per Anglin J.: In the circumstances the case the judgment the Court Appeal for British Columbia should be regarded as a judgment upon a motion for a new trial, within the meaning of section 70 of the "Supreme Court Act," R.S.C., and, notice not havin, been given thereby provided, there could be no appeal to the Supreme Court Canada. Sedgewick v. Montreal Light, Heat and Power Can. S.C.R. and Jones v. Toronto and York Radial Railway Co. (Cam. S.C. Prac. 432), referred to.-Per Duff dissenting. judgment from which the appeal asserted was not a judgment upon a motion for a new trial but a decision on the merits the case upon an appeal by way re-hearing by the Court Appeal for British Columbia which had before it all the evidence necessary for that purpose. There being no ground on which either party could have demanded a new trial, section the "Supreme Court Act" had no application to the appeal to the Supreme Court Canada. Sedgewick v. Montreal Light, Heat, and Power Co. Can. S.C.R. followed. Further, the County Court derived its jurisdiction in the case question from the provisions section 30. sub-sec. 1, of the "County Courts Act" (R.S.B.C., ch. and section that Act shews that this jurisdiction consequently, the County APPEAL-continued.
Court possessed "concurrent jurisdiction"
with the Supreme Court of British Columbia within the meaning of section the "Supreme Court Act," R.S.C., ch.
notwithstanding that the word " concurrent" not employed in either of those sections the "County Courts Act."
3-A., by order of a master, was allowed to prosecute one action against three insurance companies on three separate policies and obtained from the Appellate Division judgment agaiiLt each for an amount less than $1,000 though the amounts the aggregate exceeded that sum.-Held, following Bennett v.
Havelock Electric
Light Co. (46 Can. S.C.R. that the defendants were in the same position as a separate action had been brought against each and as none them was made liable for a sum exceeding no appeal would lie to the Supreme Court of Canada.
4-Jurisdiction-M!
atter in controversy
-"Supreme
Court Act," 46 (b) and (c)
-Action remove cloud on title-Discharge of mortgage-Deferment of payment of accruing instalments-Title to land-Future rights.]
The judgment appealed from maintained the plaintiff's action brought to obtain an order that it should not be obliged to pay certain deferred instalments of the price land sold to it by the defendants with warranty against all hypothecs, save one for $2,000, until the discharge certain other incumbrances alleged to be registered as affecting the said lands, and for costs protest, etc., amounting to
$33.90.
On a motion to quash an appeal taken from this judgment to the Supreme
Court of Canada.-Held (Duff J. taking no part in the judgment), that, as there was no amount in controversy of the sum or value $2,000, nor any matter controversy relating .to the title to the lands or to matters wherein future rights thereto might be bound, the Supreme
Court Canada had no jurisdiction to entertain the appeal under the provisions of section 46, sub-sections b and c the
"Supreme Court Act," R.S.C., ch.
Carrier v. Sirois (36 Can. S.C.R.
EcoNoeIC CO.............
Exchequer Court-Patent-Conflict- -ing claims-Amount in controversy.] An
APPEAL-continued.
appeal lies to the Supreme Court of Canada from the judgment of the Exchequer Court overruling an objection to its jurisdiction.-Per Anglin J. In exercising the jurisdiction conferred by section 23(a) the "Exchequer Court Act" the court does not act as the substitute for the arbitrators who are given the same jurisdiction by section 20 of the "Patent Act" but acts in discharge its ordinary curial functions and its judgment appealable to the Supreme Court of Canada. appeal to the Supreme Court of Canada provided for by section 82 the "Exchequer Court Act" is not confined to cases where the action is brought to recover a sum of money but extends to those seeking to establish a claim to property or rights.
ARBITRATION - Municipal Expropriation-Statutory powers-Appointment arbitrator-Towns Corporation Act-Charter of Fraserville-Quebec Expropriation ASSESSMENT AND TAXES-Statute- Taxation Exemption-Railway property-Frontage lots-Locol improvements, & V. 22 (Man.)-R.S.M., 1902, Edw. VII., c. 74 (Man.).] By the "Railway Taxation Act," ch. sec. & Vict. (Man.), it was provided that every railway company subject to the Act should be free and exempt from all taxation of every nature and kind within the province except that imposed under its provisions. By ch. of the same session the legislature, was amended adding section thereto which provided that nothing therein should deprive any city corporation of any power it had to levy taxes on the real property a railway company fronting on any street local improvements.
The two Acts were assented to and into force on the same day. In aa agreement, confirmed by statute, was entered into between the Manitoba Government and the Canadian Northern Ry. Co. by which the Government agreed to guarantee the company's bonds, the company to pay a percentage of its gross earnings to the Government and to be exempt from taxation provided for by section of The "Railway Taxation Act" of became 166 ASSESSMENT TAXES-continued.
the Revised Statutes Manitoba, sees. and being identical with sec. 18 ch. and sec. 22 respectively.
In the Act Edw. VII., ch. 74, was passed.
Sec. 1 provided "sec. of
R.S.M., being 'The Railway
Taxation Act' hereby further amended by adding, etc.;" sec. "for the removal doubt respecting the exemption from taxation granted under clause of the agreement"
above mentioned)
"it is declared that the exemption granted was and is the exemption specified section the said 'Railway Taxation
Act' existing at the date the passage such last mentioned Act and is unaffected by any amending Act or Acts passed concurrently therewith or subsequently there- Under the foregoing legislation the
City Winnipeg assessed frontage lots the Canadian Northern Ry. Co. for local improvements. -Held, per Fitzpatrick C.J.
that though it reasonably clear that the reference to sec. in the Act of was intended for sec. passed yet the language used will not admit a doubt that R.S.M. sec.
is really referred to and under that Act the company is not exempt from taxation for local improvements.-Duff and Anglin
JJ. contra. -Per
Davies and Idington JJ.
and sec. ch. must be read together and as the latter had been made a part sec. 57; so construing them the exemption the company from taxation does not cover taxes for local improvements the right to impose which preserved by sec. 22.-Per Duff dissenting.
The "Railway Taxation Act"
R.S.M. referred to in the
Act was passed in 1900 and not repealed and re-enacted in
Ch. the Act was an amendment passed concurrently with or subsequently to and does not affect the exemption given by the agreement and, therefore, by the express terms of the
Act the principle of Salmon v.
Duncombe App. Cas. 627) applied.
-Per Anglin dissenting. The reference in sec. the Act to sec. the
"Railway Taxation Act" meant sec. 18 the original Act and the exemption given by the agreement was not effected by the provisions amending same. In a special survey, under the "Special
Survey Act,"
made certain lots, including those question, belonging to the railway company and each lot was charged with a pro- ASSESSMENT AND TAXES-continued. portionate share of the cost the survey. -Held, Duff J., dissenting, that the charge made was taxation and not being a tax for a local improvement the company was exempt from payment. Judgment appealed from Man. R. affirmed. 2-Court of revision-District Court judge-Court of last resort- "Supreme Court Act," 41..................
Carrier Bill lading-Perishable cargo-Climatic conditions-Exemption from liability for negligence-Parties.] consignment of fruit was shipped during the winter season at a port in. Italy from London, Eng., to be transhipped thence by another line to St. John, N.B.
The bill lading for the voyage to St. John provided that the fruit would be delivered there in the like good order and condition as when received subject to exceptions and stipulations including injury from "effects climate" from negligence.
The ship stopped some hours at Halifax, opened the hatches and discharged other cargo, and, either while at Halifax or before arriving at St. John, the whole consignment was frozen. affirming the judgment appealed from (Q.R. 25 K.B. that the injury to the fruit was due to the effects mate and the terms the bill lading relieved the shipowners from liability therefor even though they may have been guilty negligence. The consignee of the fruit, who alone brought action against the carriers, had a dormant partner entitled to share with him the profits the transaction.-Held, per Fitzpatrick C.J., that the proper parties were not before the & o.........................
.... .. CARRIER
1-Algoma Steel Corporation v. Dubd Can. S.C.R. ............... 2-Attorney-General of Ontario v. Mercer Cas. followed........ CASES-continued.
Bateman v. Poplar District Board of
Works Ch.
4-Bennett v. Harelock Electric Light Co.
Can. S.C.R. followed .......
5-Berglint v. Western Canada Power
Co. B.C. Rep. reversed.
Booth v. The King Can. S.C.R.
7-Campbell v. Douglas (34 Ont. L.R.
580) affirm ed......................
Canadian Niagara Power Co. v.
Township of Stamford Can. S.C.R.
9-Canadian Northern Ry. v. City of Winnipeg Man. R. affirmed..
10-Canning and County Council
Middlesex, in
1 K.B.
11-Carrier v. Sirois Can. S.C.R.
12-Carruthers & Co. v. Schmidt (Q.R.
24 K.B. reversed...............
13-Champion v. World Building Co.
Can. S.C.R. 382) referred to.....
14-Crown Grain Co. v. Day
A.C. 504) followed.................
Furness, Withy & Co. v. Vipond
(Q.R. K.B. 325) affirmed.........
CASES-continued.
16---Grand Trunk Ry. Co. v. Attorney- General for Canada
Greer v. Canadian Pac. Ry. Co. Can. S.C.R. 338) followed....... 18-Hammond v. of Pancras (L.R. C.P. 316) applied ............ in re, Fleitman v. The King Can. S.C.R. referred to...... 20-Hochberger v. (Q.R. K.B.) affirmed................ 21-Holditch v. Canadian Northern Ry. Co. (50 Can. S.C.R. 1 A.C. 536) distinguished................. 22-Institute of Patent Agents v. Lock- A.C. applied....... 23-Jamieson v. City of Edmonton (9 West. W.R. West L.R. reversed.......................... Johnson v. Laflamme (Q.R. K.B. 25-Jones v. Toronto and York Radial Ry. Co. (Cam. S.C. Prac. referred 26-King, The, v. Hamilton Ex. C.R. reversed.................. 27-King, The, v. Justices of Middlesex & 818) followed......... 28-King, The, v. Trusts and Guarantee Co. Ex. C.R. 403) affirmed...... CASES-continued.
29-Lake Champlain and St. Lawrence
Ship Canal Co. v. The King Ex. C.R.
30-Lambert v. City of Toronto (36 Ont.
L.R. affirmed .................
31-Latham v. R. Johnson & Nephew
1 K.B. 398) referred to ......
32-Leamy v. The King Ex. C.R.
35-Lowery v. Booth (37 Ont. L.R.
See 4.
34-MacEwan v. Toronto General Trusts
Corp. Ont. L.R. 244) reversed. ..
35-Pszenicnzy v. Canadian Northern
Ry Co. Man. R. 655) reversed. ..
36-Queen, The, v. Gorbet (1 P.E.I. Rep.
37-Queen, The, v. Inhabitants of ton St. Leonards Q.B. 827) referred
38-Reg. v. Justices of Hertfordshire
753) referred to............
39-Reg. v. London County Council
1 Q.B. referred to ......
40-Reg. v. Meyer (1 Q.B. referred
41-Reg. v. McGuire (4 Can. Cr. C.
Rex. v. Hayes Can. Cr. C.
disapproved.......................
CASES-continued.
43-Rex. v. Kelly 1 W.W.R. 44- Rex. v. Lancashire Justices L.J.K.B. referred to........... 45-Sedgwick v. Montreal Light, Heat and Power Co. Can. S.C.R. 46-Sharkey v. Yorkshire Ins. Co. Ont. L.R. 344) affirmed............ Small v. Thompson Can. S.C.R. distinguished................. Toronto, City of v Toronto Railway Co. Can. S.C.R. referred .. .. Trenholme v. McLennan (24 L.C. Jur. overruled................ 50-Veronneau v. The King (Q.R. K.B. affirmed................ - Wentworth, County of, v. Hamilton Radial Electric Ry. Co. Ont. L.R. 434) reversed ..........................
Wilson v. Merry (L.R. 1 H.L. CODE-Art. 400 (Crown domain) ..... Arts. (Proof) . . Art. 1550 (Right of redemption) COMMON EMPLOYMENT
Debtor and
Creditor-Agreement for Extension-Advantage to one Creditor-Security-Endorsement of non resident-Lex loci.......
CONSTITUTIONAL
- Act-R.S.C.(1906) s. 306-Power
Parliament to enact-Limitation of action.]
The enactment section 306 the "Railway Act" providing a limitation one year for commencement an action against a railway company to recover damages injury by reason of the construction operation of the railway was within the competence of the Parliament of Canada.
Grand Trunk Ry. Co. v. Attorney General for Canada applied.
Ry. V.
Devolution of estates - Intestacy- Failure of heirs-Escheat-Royalty-Bona vacantia-Dominion lands-Constitutional law-Surrender of Hudson Bay Company's lands-Construction of statute-" B.N.A.
Act. 18f)7"-"Dominion Lands At"- "Land
Titles Act"-"Alberta Act"- (.4lta.) 5, Intestate estates.]
In certain lands the Dominion
Canada, situate in the Province Alberta, were granted in to a person who died, in intestate and without heirs, being still seized in fee simple the lands.-Held,
Idington and Brodeur JJ. (dissenting)
, that the right of escheat arising in consequence of the intestacy and failure heirs was a royalty reserved to the Dominion of Canada by virtue of the 21st section the
" Alberta Act," 4 & Edw. VII., and belonged to the Crown for the purposes
Attorney-General of Ontario v.
Mercer App. Cas. followed.-Per
Davies and Anglin JJ.
It was not coinpetent for the Legislature the Province of Alberta, by the statute Geo.
V., relating to the property intestates dying without next kin, to affect the rights so reserved to the Dominion
Canada.-Per Idington and Brodeur JJ.
Upon the grant the lands in question the Dominion Government they ceased to be Crown lands the Dominion and royalties reserved to the Dominion could not attach thereto. Further, the effect of section the Dominion statute, Vict.
amending the "Territories Real
Property Act," R.S.C., and declaring that lands in the North-West
Territories should go to the personal rep- CONSTITUTIONAL LAW-continued. resentatives the deceased owner thereof in the same manner as personal estate, constituted an absolute renunciation of all such claims to royalties by the Crown the right the Dominion Canada. The appeal from the judgment the Exchequer Court Canada Ex. C.R. 403), was dismissed.
3-Succession duties-Partnership property-Owners not domiciled in province- Interest of deceased partner-H.S. B.C. s. s.-s. la-Taxation-Legislative jurisdicton- B.N.A. Act, s. By section the "Succession Duties Act" of British Columbia (R.S.B.C. on the death of any person his property the passing by will or intestacy" subject to succession duty whether such person was domiciled in the province or elsewhere at the time his death.-Held, that the imposition the duty, taxation, was "dirtaxation the within the competence of the Legislature British Columbia.
-Government railways-Governor in Statutory provisions ...........................
CONTRACT-Municipal
Corporation- Annexation of territory-Portion of county road-Railway franchise-Annual payments-Divisibility after annexation--Ontario Railway and Municipal Board-Order for annexation.] In the County road on paying annually to the county a road. In territory of the county, ineluding part of said road, was annexed to the City Hamilton.-Held, dissenting, that the agreement with the railway company remained in force respect to the portion of road so annexed and the county was entitled to the whole annual payment as the annexation had taken by agreement in writing. accepted the said by-law the county and covenanted with the latter "their successors and assigns" to perform all the conditions thereof.-Held Brodeur J. dissenting, that the City CONTRACT-continued.
Hamilton did not, as a consequence the annexation of county territory, become the "successor" of the county under said agreement and by-law so as to be entitled to proportion of the payments to be made by the railway company thereunder.-Per
Fitzpatrick C.J. and Idington and Duff
JJ.-The Ontario Railway and Municipal
Board was not invested with authority to provide, in its order extending the boundaries the city, that such rights as those reserved by section of the county bylaw should, on such extension of the boundaries, pass to the city in whole or in part. Judgment of the Appellate Division Ont. L.R. 434) reversed and that of the trial judge Ont. L.R. restored.
RY. Co.
Negligence-Action against two fendants-Joint liability-Agreement tween defendants-Right to indemnity.]
an agreement between the Interurban
Electric Co. and the City of Toronto, operating the Hydro-Electric System, the former undertook to "save harmless and fault or omission the company or otherwise howsoever."
An employee of the company was killed in course his employment and in an action by his personal representative the jury found that the city and the company were each guilty of negligence which caused the accident.-Held, that the agreement did not apply to the case damages which the city would have to pay as a consequence its own negligence and neither relieved it from liability nor entitled it to indemnity. Judgment the Appellate Division Ont. L.R.
Consideration-Settlement of action- Statute of Frauds-Trade agreement-Restraint of trade-Crim. Code s. 498.]
M. and his two brothers entered into a contract with R. by they gave him some reservations as to local trade.
R.
assigned the contract to the Dominion
Salt Agency, a partnership consisting his firm and two salt manufacturing companies, which agency thereafter controlled about ninety per cent. the output of manufacturers in Canada.-Held, that
CONTRACT-continued.
the contract was not ex facio illegal and as the Canadian output was exceeded by the quantity imported which may have competed with it, and the price was not enhanced by reason this control by the Agency, the Court should not hold that had the effect of unduly restraining the trade in salt or that it contravened the provisions of section 498 the Criminal Code. In 1914, M., as administrator his father's estate, brought action against the estate who, in his lifetime, had been president of the Dominion Salt Agenand president of and largest shareholder in one the companies composing it. This action was based on an alleged agreement by in connection with the settlement a prior action against the three partners in the Agency, by which he promised to pay five-sixteenths the difference tween the amount claimed and that paid on settlement.
Evidence of the agreement was given by the plaintiff's solicitor in the former action and by defendants' solicitor also.-Held, reversing the judgment the Appellate Division Ont. L.R. Fitzpatrick C.J. and Duff J. dissenting, that the settlement the action was good consideration for C.'s contract; that his agreement was not a promise to answer for the debt another and did not need to be in writing; that was sufficiently proved; and that the evidence the plaintiffs' solicitor in the former action was corroborated (R.S.O., by that of the solicitor the defendants.-Per Anglin and Brodeur JJ.-The solicitor was not an interested party and corroboration was not required for that reason; if required for any other was furnished.
The original agreement transferring the salt business to R. was executed by the three brothers "as representing the estate deceased." action which was settled was brought the same three persons. After the settlement letters of administration to M.'s estate were taken out.-Held, that the present action was properly brought in the name of the administrator but, if necessary for defendants' protection, his two brothers might be added as plaintiffs.
CRIMINAL LAW-Criminal law-Constitution of grand jury - Bias - Presentment of true bill-Presence of accuser grand jury
Prejudice
Criminal 899-Evidence.] The appellant was indicted for perjury.
The complainant had CRIMINAL LAW-continued.
been summoned to act as a grand juror the assizes at which the trial took place.
The complainant was present with the grand jury when it was charged and when the presentment of a true bill was made.
While the bill was under consideration the grand jury one of the jurymen to whom the complainant had stated that it was a deplorable case, but it had come to the pass that either he or the accused would have to leave the town, repeated this statement to other grand jurors.
In the reserved case it was stated by the trial judge that the complainant had in no manner taken any part in the deliberations the grand jury on the indictment.-Held,
(Q.R. K.B. Anglin and Brodeur
JJ. (dissenting)
, that, in the circumstances stated in the reserved case, neither the fact the presence of the complainant as a member of the grand jury nor the statement made by him constituted a wellfounded objection to the constitution the grand jury which had passed upon the indictment which therefore could not be quashed under the provisions of section
899 the Criminal Code.-Per Davies,
Anglin and Brodeur JJ.:-An indictment preferred after consideration in which a grand juror disqualified by interest had participated should be quashed.
Rex v.
Hayes Can. Crim. Cas. disapproved.
-PerAnglin and BrodeurJJ.:-The reasonable inference from the facts stated in the special case that the complainant was present with the grand jury during their deliberation upon the bill against the accused.
The statement made by the complainant to the juryman B., and him repeated to his fellow-jurymen, was calculated to influence them. It impossible to know whether the complainant's presence and his statement, so repeated, did or did not affect the grand jury adversely to the accused. He entitled to have it assumed that they did.
He was thereby deprived of his right to have his case passed upon by a duly qualified grand jury which was not improperly biased, and he thereby suffered prejudice within section of the Criminal Code which warrants the quashing the indictment.
Reg. v. Justices of Hertfordshire Q.B.
753); The Queen v. Inhabitants of Upton
St Leonards Q.B. 827); The Queen v.
Gorbet al. (1 P.E.I. Rep. and Reg.
v. McGuire Can. Crim. Cas. referred to. Per Anglin J.-On a motion to quash an indictment found by grand jury it
CRIMINAL LAW-continued.
improper to admit evidence.of what took place in the grand jury-room during the inquiry in regard to the indictment. Reg. Justices of Hertfordshire Q.B. 753); Rex Lancashire Justices L.J.K.B. Reg. v. Meyer (1 and v. London Council 1 Q.B. referred to. Indictment-Separate counts-lerdict- Conspiracy- Extraditable Inadmissible evidence-Conriction-Inconsiistency-Jrregularity procedure-Charge jury-Address of counsel-Substantial wrong or miscarriage-New trial-" Criminal Code," 1019-Penalty.] On an indictment containing several counts, including charges for theft, receiving stolen property and obtaining money under false pretences, in respect which the person accused had been extradited from the United States America, evidence was admitted on behalf the Crown, for the purpose of shewing mens rea, which involved participation the accused in an alleged conspiracy.
The principal objections urged against a conviction upon the charges mentioned were (a) that by the manner in which the trial had been conducted the jury may have been given the impression that the accused was on trial for conspiracy, a non-extraditable offence; (b) that misstatements and inflammatory observations had been made by counsel for the Crown in addressing the jury; and that, in his charge, the trial judge had failed to correct impressions which may have-been thus made on the minds of the jury or to instruct them that portions the evidence admitted in regard to other counts ought not to be considered by them in disposing the charge obtaining money under false pretences.
Held, that, as there was sufficient evidence to support the verdict the jury on the charge obtaining money under pretences, quite apart from the irregularities alleged to have taken place at the trial, no substantial wrong or miscarriage had been occasioned and there could be no ground for setting aside the conviction or directing new trial under the provisions section the Criminal Code. Judgment appealed from, 1 W.W.R. 3-Restraint of trade-Contract-Consideration-Crim. Code 498.......... 381 CROWN-Public work-Incorporation company-Construction of canal -Governorin-Council-Approval of plans-Discretion
-Refusal
Approve-Right of action.]
The statute Viet incorporated a company for the purpose constructing and operating a canal betweer the St. Lawrence and Richelieu Rivers.
Section provided that before the work constructing the canal was begun, the plans, etc., were to be approved by the
Governor-in-Council--Held, affirming the judgment appealed from Ex. C.R.
Fitzpatrick C.J. and Brodeur J. (dissenting)
, that the refusal of the Governorin-Council to approve plans submitted did not give the company a claim for damages which could be enforced against the Crown.
-Per Duff J. that the refusal to consider the plans did not give birth to a claim which a petition right lies.-Held, per
Fitzpatrick C.J. and Anglin and Brodeur
JJ. that the Governor-in-Council had no discretionarypower to refuse approval the plans on the ground that the undertaking authorized by Parliament was opposed to public policy.
2-Information of intrusion-Adverse possession-Interruption-Nullun Tempus
Act-Acknowledgment of title. .. .. ..
CROWN LANDS - Navigable waters- Floatability-Ownership of beds-Grant- Conveyance of bed-Title to land-Art.
Without express terms to that effect a Crown grant, made in township lands in territory now comprised in the Province of Quebec did not pass title to the grantee in the bed navigable waters within the area described in the letters patent grant. Idington J. dissented on the ground that the language the letters patent in question was intended and was sufficiently explicit and comprehensive to convey to the grantee the bed the navigable waters included within the limits the description of the lands granted.
The judgment appealed from Ex.
C.R. was affirmed, Idington J. disenting.
Escheat-5 V. (Alta.). .
DEBTOR
CREDITOR - Agreement for extension of time-Preference- DEBTOR CREDITOR-continued. Public order-Advantage to creditor- Security for debt-Conflict of laws-Lex loci.] Where a debtor obtains the assent in Writing his creditors to an extension of time for payment of their respective debts, upon an undertaking that he will not "give a preference" without their consent, a prior secret arrangement which one of such creditors obtains security and more favourable terms payment than that provided in the agreement is void as a fraud against the other creditors and as against public order. The debtor carried on his business in Toronto where the deed granting the extensioii of time was drawn and executed. H., a New York creditor, obtained security by means the debtor's promissory note, drawn up and made payable in Toronto and indorsed by the defendant, residing in Montreal. The action on the notes was brought, Quebec, against the indorser.-Held, per Idington and Anglin JJ., that the case should be decided according to the law Ontario if there any difference between it and the Quebec law on the subjectmatter.
Judgment appealed from (Q.R. K.B. 421), affirmed.
RITTENBERG...................... DEVOLUTION OF ESTATES Escheat -Dominion 'or provincial land-5 V . (A lta.) ......................
ESCHEAT
Principal and agent-Parol testimony- An action respect sales and purchases goods not the or purchase in which evidence in writing required by clause four of Art. the the transactions as provided by Art. Trenholme v. McLennan (24 L.C. Jur. 305) overruled.
Judgment appealed (Q.R. K.B. SCHMIDT.................. 2-Criminal case-Proceedings before grandjury......................... EVIDENCE-continued.
3-Sale of land-Purchase of equity- Indemnity against mortgage-Parol evidence of relations..................
Expropriation of land-Compensation
- Sales in vicinity.................
EXPROPRIATION OF LAND-Expropriation-Railways-Date for valuation laids-Deposit of plan-Notice-Benefit to lands tnk.en-Set-off-Excessive compensation-Appeal-6 Edw. VII. (Ont.)
& V. (Ont.).] Where the expropriation of land governed by the provisions the Ontario "Railway Act"
of the date for valuation is that the notice required by see. 68(1).
effect is the same under the Act of the land has not been acquired by the railway company within one year from the date filing the plan, etc. The compensation for the land expropriated should not be diminished by an allowance benefit by reason of the railway to the lands not taken, the Ontario "Railway
Acts" making no provision therefor.
appeal in a matter expropriation the award should be treated as the judgment a subordinate court subject to rehearing.
The amount awarded should not be interfered with unless the appeal court is satisfied that it clearly wrong, that it does not represent the honest opinion of the arbitrators, or that their basis of valuation was erroneous. Where the land expropriated an important and useful part one holding and is so connected with the remainder that the owner hampered in the use or disposal thereof by the severance he entitled to compensation for the sequential injury to the part not taken:
Holditch v. Canadian Northern Railway
Co. Can. S.C.R. 265; 1 A.C.
536) distinguished. To estimate the compensation for lands expropriated the arbitrators are justified in basing it on a subdivision the property if its situation and the evidence respecting it shew that the same probable.-Held, per Fitzpatrick C.J. and Anglin that to prove the value of the lands expropriated evidence of sales between the date filing the plans and that the notice to the owner admissible and also sales subsequent to the latter date if it is proved that no material change has taken place in the interval.
Brodeur dissenting, held
EXPROPRIATION OF LAND-con. that the damages should be reduced; that the arbitrators should have considered only the market value of the lands established by evidence recent sales in the vicinity.
Ry. Co. v. EVERSON......................... Municipal Corporation - Statutory powers - Appointment of arbitrators - 'Towns Corporation Act"- "Expropriation Act," 54 V. (Que.)-Town charter 3 Edw. VII.c. 6Edw.
GRAND JURY-Inquiry on indictment- Complainant on panel-Bias-Prejudice- Criminal Code s. 899.............. Maintenance
Damage trespasser-Nuisance .... INDICTMENT
- Proceedings before Grand Jury-Complainant on panel- Criminal Code s. 899.............. Stallion disease-Conditions-Attachment of risk.] applied for insurance on stallion the season" the application in a marginal note stating "term mos." and, in the body the document, that the insurers would not be liable until the premium was paid and the policy delivered. The policy as issued stated that the insurance would at against the death the stallion, after premium paid and policy delivered, from accident or disease "occurring or contractafter the commencement the company's liability."
The policy was delivered and premium paid before four o'clock p.m. 8th June; the horse had become sick early that morning and died before six o'clock p.m.-Held, affirming the judgment the Appellate Division Ont. L.R. that the statement in the application "term mos." coupled with that the policy "date expiry 7th Sept." did not override the express provision as to commencement liability and make the attach that the liability did not commence until the INSURANCE-continued.
policy was delivered on June 8th; and as the horse died an illness contracted before such delivery could not recover.
LIEN - Mechanic's lien-Loan company- Agreement for sale-Advances for building
-"Owner"-Request-Privity and consent
-Mortgagee-R.S.O., ss. 2 and -"Mechanics' Lien
Act."] The owner four lots land
Toronto executed an agreement to sell them to one who was to make a cash deposit and undertake to build four houses on the lots, the vendors to advance $6,400 for building purposes.
On completion the houses and on receipt the balance price and amount advances, the vendors to execute a deed of the lots. I.
gave contracts for the building which was partly completed, and $3,400 was advanced by the vendors when I. became insolvent and the vendors, under the terms their agreement, gave notice forfeiture and took possessoin of the property.
Prior to this liens had been filed for labour and materials supplied and the lien-holders brought action for enforcement thereof against the vendors.-Held, affirming the judgment the Appellate
Division
Ont. L.R.
Davies and Brodeur JJ. (dissenting)
, that the vendors were not owners of the property according to the definition the term in section
"Mechanics Lien therefore, were not liable to pay for the labour and materials supplied for the building the houses by I.-Per Anglin
J.-To make the vendors "owners"
because the work was done with their privity and consent a direct dealing between them and the materialmen was requisite and of this there was no evidence. By section 14 said Act, the vendors, under the agreement for sale, became mortgagees the land sold with their rights as such postponed to those the liet-holders respect to any "increased value" given to the land erection the houses thereon.-Held, that though they had refused it at former stage the proceedings, the lien-holders should, if they wish, have a reference to permit revision their claims on the basis the vendors being mortgagees, any amount found due to them on such reference to be set-off against the costs payable by them in the Appellate
Division and on this appeal.
LIEN-continued.
Co.
judgment by default, on information of intrusion against persons possession of Crown lands, which was never enforced did not interrupt such possession and prevent it ripening into title under the "Nullum Tempus Act." "The Real Property Limitations Act" Ontario (C.S.U.C. ch. 88, sec. R.S.O. ch. sec. providing that an acknowledgment title in writing shall interrupt the adverse possession does not apply to possession Crown lands and such acknowledgment not an interruption under the "Nullum Tempus Act." The provision in the "Ontario Limitation Actions Act"
making an acknowledgment apply to interrupt possession Crown lands not retroactive or, if it is, it cannot apply to a case in which the adverse possession had ripened into title before it was passed.-Per Duff J.- As intrusion does not, in itself, deprive the Crown possession, the occupation required to attract the benefit the first section the "Nullum Tempus Act," Geo. III., ch. is not technically possession; but lands are "held or enjoyed" within the meaning that section where facts are proved which, in litigation between subject and subject, would constitute civil possession as against the subject owner. The judgment the Exchequer Court Ex. C.R. in favour the Crown on information intrusion was reversed, Fitzpatrick C.J. holding that the Crown had failed to prove title, Idington, J., that the claim was barred by the negative clause the first section the "Nullum Tempus Act," and the other judges that the defendants had obtained title operation the "Nullum Tempus Act." 2--Railway company-Dominion railway-R.S.C. (1906) 306-Conflict of laws-Operation of railway-Constitutional law.........................
MASTER AND SERVANT - -Employer's liability-Competent superin- [S.C.R. VOL. LIV. MASTER SERVANT-continued.
tendence-Common employment-Contributory negligence.] was employed by the company as labourer in preparing a site for a power house, and was working on a narrow ledge on a hillside preparing a place on which to erect a drilling machine.
Stones or earth falling from above struck him and he fell the ledge to the bottom the excavation sustaining severe injuries. In an action against the company damages under the common law it was contended that failure to protect the workmen by a barrier above the ledge was negligence for which defendants were responsible.-Held, per Davies and Anglin
JJ., that such negligence was that of the company's superintendent, a fellow servant of B., and the company was not responsible.-Per Duff and Anglin JJ., following Wilson v. Merry (L.R. 1 H.L. Sc.
that, as it was proved that the company had appointed a competent engineer to take charge the work, invested him with the requisite authority and responsibility for protecting the workmen and supplied him with the materials necessary for the purpose, they had discharged their duty towards their employees and were not responsible for the injury to B. Judgment the Court of Appeal B.C. Rep.
reversed, Idington and Brodeur JJ.
Co. BERGLINT..................
MECHANICS LIEN
MORTGAGE-Sale of land-Consideration-Exchange of properties-Iortgage- Indemnity vendor-Eidence.] In
D. advanced money to P., who conveyed to him certain properties, in Ottawa, Ont., including one on LeBreton Street.
P. entered into an agreement with to exchange the LeBreton Street property for lots on Lisgar Street, which was carried out by conveyances between C.
and D.
In Hs deed C. stated that the consideration "an exchange lands and and conveyed the lots on Lisgar
Street, subject to certain mortgages, the description.being followed by the words,
"the assumption of which mortgages part of the consideration herein."
C. was obliged to pay these mortgages, and brought suit against D. to recover the amount so paid.-Held, affirming the judgment of the Appellate Division Ont.
L.R. that the case was not within the rule of equity whereby the purchaser an
MORTGAGE-continued.
equity of redemption may be obliged to indemnify his vendor against liability the mortgage.
Small v. Thompson Can. S.C.R. 219)
distinguished.-Held, also, that parol evidence was properly received to shew the relations between P. and D.; that D. received the conveyance from merely as P.'s nominee, and held it afterwards only as security for his advances to P.; that he never claimed to be owner and never went into possession except as P.'s agent; and that he was not a purchaser the property, but only a 2--Mechanic's lien-Loan company- Agreement for sale-Advances for building -"Owner"-Request-Privity and consent Mortgagee -R.S.O.,
140. ss. and (2)-"Mechanics' Lien Act."] The owners four lots land them to one who was to make a cash deposit and undertake to build four houses on the lots, the vendors to advance 86,400 for building purposes.
On completion the houses and on receipt the balance price and anfount advances, the vendors to execute a deed of the lots. gave contracts for the building which was partly completed, and $3,400 was advanced by the vendors when became insolvent and the vendors, under the terms their agreement, gave notice forfeiture and took possession the property. Prior to this liens had been filed for labour and materials supplied and the lien-holders brought action for enforcement thereof against the vendors. By section the "Mechanics Lien Act," the vendors, under the agreement for sale, became mortgagees the land sold with their rights as such postponed to those tle lien-holders in respect to any "increased value" given to the land by erection the houses thereon.-Held, that though they had refused it at a former stage the proceedings, the lien-holders should, they wish, have reference to permit revision of their claims the basis the vendors being mortgagees, any amount found due to them on such reference to be set-off against the costs payable by them in the Appellate Division and on this appeal.
Co. YORK MUNICIPAL CORPORATION-Annexation of territory-Portion of county road Railway franchise
Annual MUNICIPAL CORPORATION-con.
- Divisibility after annexation - Ontario
Railway and Municipal Board - Order for annexation.] In the County
Wentworth passed a by-law by which an electric railway company was given the privilege of running cars over a county road on paying annually to the county a certain sum for each mile the operated road. In 1909, territory of the county, including part said road, was annexed to the City of Hamilton.-leld,
Brodeur J. (dissenting)
, that the agreement with the railway company remained force in respect to the portion of road annexed and the county was entitled to the whole annual payment as the annexation had not taken place. The railway company, by agreement in writing, accepted the said by-law the county and covenanted with the latter "their successors and assigns" to perform all the conditions thereof.-Ileld, Brodeur J. dissenting, that the City Hamilton did not, as a consequence of the annexation county territory, become the "successor" the county under said agreement and by-law so as to be entitled to a proportion the payments to be made by the railway company thereunder.-Per Fitzpatrick C.J. and Idington and Duff JJ.-The Ontario Railway and
Municipal Board was not invested with authority to provide, in its order extending the boundaries of the city, that such rights as those reserved by section of the county by-law should, on such extension of the boundaries, pass to the city in whole or in part.
Judgment the Appellate
Division Ont. L.R. 434) reversed and that the trial judge Ont. L.R. 659)
restored.
.........................
2--Expropriation-Statutory powers- Lands outside municipality-Appointment
Award
"Towns Corporations Act," R.S.Q., arts. 4561-4569-Charter of Town of Fraserville, Edw. VII., 69; Edw. VII.,
"Expropriation Act," 54 Vict.
38-Words and phrases-"Avoisinant"
-"Adjoining."]
The statutes incorporating the Town Fraserville Edw. VII., ch. Edw. VII., ch. (Que.)), section gave power to expropriate lands both within and outside the limits of the municipality and section 193 substituted a new section to replace article the Revised Statutes Quebec, in regard to expropriations.
In ex- MUNICIPAL CORPORATION-con. propriating lands outside its limits for an electric lighting system the town proceeded under articles 4562 to 4569 the "Towns Corporations Act," R.S.Q., incorporated as part the charter by force article 4178, R.S.Q., and obtained an order appointing an arbitrator on behalf of the owner from a judge the Superior Court. Notwithstanding objection by the owner, an award was made and he brought action to set it aside on the ground that, by section the application articles 4562 to 4569 was confined, in the case the Town Fraserville, to expropriations within its limits and, as to expropriations beyond that area, nominations of arbitrators could be made only by the Attorney- General as provided by the "Expropria- 38.-Held, J. dissenting.-That the sixth section the Act, Edw. VII., ch 50, specifically authorizing the municipality to expropriate lands outside its limits enacted provisions incompatible with those of article 4561, R.S.Q., 1888, as so replaced by section and it was, therefore, repealed as the repugnant provisions the later statute prevailed.
The King v. The Justices Middlesex B. & Ad. and In re Cannings and County Council of Middlesex 1 K.B. followed. Consequently, the procedure adopted for the appointment arbitrators was proper and the award was valid.
The statute, Edw. VII., ch. 50, by section authorizing expropriations outside the town, in the French version made use the phrase "dans ou en dehors la ville et les municipaliths avoisinantes," while the English version used the term "adjoining municipalities." The 297th section the charter provided that in the event discrepancy preference should be given to the French version.-Held, that the statute should be interpreted according to the meaning of the broader term "avoisinantes," used in the French version and, consequently, in exercising such powers expropriation, the municipality was not limited to taking lands in contiguous municipalities.-Per Anglin J. By section of the charter the application the provisions of the "Towns Corporations Act," arts. 4165 seq. R.S.Q., expressly confined to expropriations within the town; section was not excluded from the charter nor impliedly repealed the amendment of 1906 to section and the appointment of arbitrators by the judge was an usurpation the jurisdiction MUNICIPAL CORPORATION-con.
conferred by articles and 5754e,
R.S.Q., 1888 Vict. ch. sec. upon the Attorney-General the province.
3--Maintenance of highways-Improper use of sidewalk-Damage trespasser- Notice of disrepair-Nuisance-Negligence
-Injury to pedestrian -Liability for dam'ages.]
The municipal corporation was obliged, and given power, to maintain its highways in a reasonable state repair, having regard to the character of the streets and the locality in which they were situated, and regulations had been enacted to prohibit vehicular traffic over the sidewalks except at crossings specially constructed in a manner to sustain such traffic. At a place where no such crossing had been provided vehicles had been, for over a year, habitually driven across a wooden sidewalk and no action to prevent such trespasses had been taken by the mumcipal authorities.
During the afternoon of the day before the accident, a plank was broken by a heavy vehicle crossing the sidewalk and it continued in this condition until the evening of the following day when a pedestrian tripped in the hole and sustained injuries for which he brought action to recover damages.-Held, reversing the judgment appealed from West. W.R.
1287; West. L.R. Davies J. dissenting, that, in these circumstances, the municipal corporation was charged with notice the condition disrepair its public sidewalk and, having failed to remedy the nuisance within a reasonable time, it was guilty negligence involving liability in damages.-Per Duff J.
Section the charter the City
Edmonton does not impose upon the municipality an absolute responsibility for harm suffered by individuals in consequence a street being in a state disrepair constituting a dangerous nuisance; but the municipality is responsible for the consequences such a state disrepair through the observance proper precautions, it could have prevented the nuisance coming into existence: Hammond v. Vestry of St.
Pancras (L.R. C.P. and Bateman v. Poplar District Board of Works Ch.
D. applied. Proof of the existence such a nuisance and resulting damage is, in itself, sufficient to create a primd facie cause action against the municipality under section 507 of the charter. JAIIE- EDNIONTON.........
NARROW CHANNEL - Admirality law -Navigation of canal-" Narrow channel" -Marine Department Regulations, rule -Starboard course-Fairways and midchannels-" Canadian Shipping Act," R. S.C.
s. 916-Collision - Liability for damages-Canal Regulations, rule 22-Right of way.]
The steamboat "lonoreva"
was under way going up the Soulanges Canal and approaching a bridge across the channel which was swung open when she was about 300 feet below it. The steam tug "Jackman" was then observed descending the canal, with the current, at a greater distance above the bridge and also under way. The "Honoreva," in attempting to pass first through the abutments the bridge (a space about feet in width), and keeping a course in mid-channel, came into collision with the barge "Maggie," which was being towed by the "Jackman," and the barge was injured and sunk. In an action damages against the "Honoreva" she counterclaimed for damages sustained her owing, as alleged, to the negligent navigation of the tug-and-tow. that the vessels thus navigating the canal were, at the place where the collision occurred, in a "narrow channel;" that article of the rules the Marine Department respecting the passage vessels, which requires them when safe and practicable to keep to the starboard in fairways and mid-channels, applied to the navigation the vessels in question, and that the "Ilonoreva," having failed to obey that rule, was in fault within the meaning section 916 the "Canada Shipping Act," R.S.C., 1906, chap. that there was no negligence proven on the part the tug-and-tow, and that the "Honoreva" was, therefore, solely liable for the damages resulting from the collision.-Per Davies and Anglin JJ.-Under sub-section article of the rules the Marine Department, the down-going tug-and-tow had the right way, notwithstanding that the up-going vessel may have been closer to the bridge when it was opened, and that the tug-and-tow were not obliged to stop and make fast to posts until the up-going vessel had passed, as required by the 22nd rule the "Canal Regulations" in regard to vessels approaching a lock. NAVIGATION in river- Navigable in part-Crown domain.] the Province of Quebec, a river which, NAVIGATION-continued.
owing to natural obstructions, is capable only floating loose timber. (flottables a bdches perdues), in portions its course may, at least from its mouth upwards until some such obstruction reached be navigable and subject to the rule law applicable to navigable waters.
river in question for several miles from its mouth upwards to a point where its course is obstructed by rapids is in fact capable being utilized for the purposes navigation the bed the stream for that distance forms part the Crown domain.
(Art. 400 C.C.)
Electric shock-Action against defendants-Findings of jury- Joint liability-Agreement between defendants-Right indemnity.] In an action against two parties claiming from them jointly and severally compensation for the death plaintiff's son from electric shock caused by negligence, where there no contributory negligence both defendants may be held liable if the negligence each was a real cause the, accident.
Cf.
Algoma Steel Corporation v. Dube Can.
S.C.R.
By an agreement between the Interurban Electric Co. and the City
Toronto, operating the Hydro-Electric
System, the former undertook to "save harmless and indemnify the said corporathe r ition any act, default or omission the company or otherwise howsoever."
An employee the company was killed in course his employment and in an action by his personal representative the jury found that the city and the company were each guilty negligence which caused the accident.-Held, that the agreement did not apply to the case of damages which the city would have to pay as a consequence its own negligence and neither relieved it from liability nor entitled it to indemnity.
Judgment the Appellate
Division
Ont. L.R.
2--Government railway-Height of rails
-Statutory rule-Act of third person.] A level crossing the Intercolonial Railway had planking between the rails which raised the roadbed so that the tracks did not rise more than an inch above the surface the highway. Under a regulation the guidance trackmasters and trackmen, made by the railway authorities, the planks were removed during the winter season to permit safe operation of snowploughs and flangers, during this season the space occupied by the planking-being filled by snow and ice. In April, before the use of snowploughs and flangers had been discontinued, the ice and snow melted and left the tracks about six inches above the roadbed.
After the usual inspection by the trackmen, some unknown person placed a fence-rail against one the tracks to assist sleighs over the obstruction and, later in the day, suppliant in driving his sleigh along the highway had his foot crushed between the fence-rail and the track and sought damages from the Crown for the injuries sustained:- Held, that the condition the crossing constituted negligence officers and servants the Crown while acting within the scope their duties and employment the construction and maintenance of the railway in consequence which the Crown was liable in damages notwithstanding that the resulting injury might not have occurred but for the intervening act some unknown third person:
Latham v. R. Johnson & Nephew 1 K.B. 3-- Employer's liability - Competent superintendence-Common employment-Contributory negligence.] was employed by the company as a labourer in preparing a site for a power house, and was working on a narrow ledge on a hillside preparing a place on which to erect a drilling machine. Stones or earth falling from above struck him and he the ledge to the bottom of the excavation sustaining severe injuries. In an action against the company for damages under the common law it was contended that failure to protect the workmen by a barrier above the ledge was negligence which defendants were responsible.-Held, per Davies and Anglin JJ., that such negligence was that the company's superintendent, a fellow servant of B., and the company was not responsible.-Per Duff and Anglin JJ., following Wilson v. Merry (L.R. H.L. that, as it was proved that the company had appointed a competent engineer to take .charge of the work, invested him with the requisite authority and responsibility for protecting the workmen and supplied him with the materials necessary for the purpose, they had discharged their duty towards their employees and were not responsible the injury to B. Judgment the Court of Appeal B.C. Rep. reversed,
Idington and Brodeur JJ. (dissenting)
.
4--Driving lumber-Rights in navigable waters-River improvements-Contract with
Crown-Rights of contractor-Reckless driving-"Rivers and Streams Act"
(Ont.)- "B.N.A. Act, ss. 92
In Parliament voted money
"Montreal
River Improvements above
Latchford" and the Crown, through the
Minister of Public Works, gave a contract to L. in connection with the work.
performance the work L. placed a cofferdam on each side the river leaving an opening between them some feet wide.
In the spring the cofferdam the north side was covered by three of water and the logs of B., being driven through the opening, were allowed to rest against a pier a few hundred below and formed a jam the rear which was over the cofferdam. Either by weight the jam or increased pressure by breaking it, in the ordinary mode, the destruction the cofferdam was caused.-Held,
Fitzpatrick C.J. and Duff J. (dissenting)
, that was responsible for the injury caused; that with more care in driving the formation the jam might have been avoided; that, breaking the jam in the ordinary way was likely to cause damage, another mode should have been adopted even it would cause delay and greater expense: and that the employees acted with a wilful disregard the contractors' rights and caused "unnecessary damage."-Held, per Davies, Anglin and
Brodeur JJ., that, in the absence Dominion legislation to the contrary, the rights lumbermen under the Ontario "Rivers
Streams Act"
(pre-Confederation legislation) are not subordinate but equal to those of persons acting for the Doinion Government in matters respecting navigation.-Per Davies and
JJ.,
Anglin J. dubitante.-The cofferdam was
"structure" and subject to the provisions section of the "Rivers and Streams
Act."-Per Davies and Anglin JJ. Even if not a "structure" as it was placed in the river under sanction Dominion legislation B.'s rights were restricted practically as they would be under section 4.-Held, per Fitzpatrick C.J. and Duff J.-A vote for "River Improvements" (oes not itselfi.authorize an interference with the rights lumbermen under the "Rivers and Streams Act."
These rights were exercised in the usual and proper manner and as no breach of duty by B. to avoid "unnecessary damage" was proved could not be held liable for the damage to the cofferdam. Judgment the Appellate Division Ont. L.R. reversing that at the trial Ont. L.R. affirmed. 5--lunicipal corporation-Maintenance of highways-Improper use of sidewalk- Damage trespasser-Notice of disrepair -Nuisance-Injury to pedestrian.] The municipal corporation was obliged, and given power, to maintain its highways a reasonable state repair, having regard to the character the streets and the locality in which they were situated, and regulations had been enacted to prohibit vehicular traffic over the sidewalks except at crossings specially constructed in manner to sustain such traffic.
At a place where no such crossing had been provided vehicles had been, for over a year, habitually driven across a wooden sidewalk and no action to prevent such trespasses had been taken by the municipal authorities. During the afternoon the day before the accident, a plank was broken a heavy vehicle crossing the sidewalk and it continued in this condition until the evening the following day when a pedestrian tripped in the hole and sustained injuries for which he brought action to recover damages.-Held, reversing the judgment appealed from West. W.R. West. L.R. Davies J. dissenting, that, in these circumstances, the municipal corporation was charged with notice of the condition disrepair of its public sidewalk and, having failed to remedy the nuisance within a reasonable time, it was guilty negligence involving liability damages.-Per Duff J. Section 307 the charter the City Edmonton does not impose upon the municipality an absolute responsibility for harm suffered by individuals in consequence street being in a state disrepair constituting dangerous nuisance: but the municipality responsible for the consequences such state disrepair through the observance proper precautions, it could have prevented the nuisance coming into existence: Hammond Vestry of St. Pancras (L.R. C.P. and Bateman v. Poplar District Board of Works Ch. D. 272),
Proof of the existence of such a nuisance and resulting damage in itself, sufficient to create a primd facie cause action against the municipality under section 507 the charter.
6--Railway compa Unloading Cars
-Limitation of action-Operation of railway-R.S.C. 306
See 1.
7--Carrier-Bill of lading-Exemption from liability-Climatic conditions-Frost
. . . . . ... . . . . . . . . . . . . . .. . . . . . . . . . . . 1
8--Admiralty Law-Collision-Narrow channel-Departmental rules .........
NEW TRIAL -R.S.B.C.,
Motion foi Judgment-Re-hearing ....
NUISANCE - Highway-Use of sidewalk
-Municipal responsibility ..........
PARTIES- Carrier-Bill of lading-Loss of goods-Action-Dormant partner. .
PARTNERSHIP
Duties - Partnership property-Owners not doniciled in Province-Interest of deceased partner-R.S.B.C. s. s.-s.
la-Taxation-Legislative jurisdiction- "B.N.A. s. By section 5 the "Succession Duties Act" British
Columbia (R.S.B.C. ch.
the death any person his property in the province "and any intercst therein or inor intestacy" subject to succession duty whether such person was domiciled in the province or elsewhere at the time his death. M. and his brother were partners doing business in Ontario and owning timber limits in British Columbia.
firm had no place business nor man business in that province and never workthe limits.
The partnership articles provided: If either partner shall die during the continuance the partnership his executors and administrators shall be entitled to the value his share in the
PARTNERSHIP-continued.
partnership assets.
On the expiration or other determination of the said partnership a valuation the assets shall made and after providing for payment of liabilities the value of such property stock and credits shall be divided equally between the partners, etc."
M. having died while the partnership existed his share the partnership assets passed his will to executors.
The Province British Columbia claimed that his interest in the timber limits was subject to succession duty.-Held, Davies and Anglin JJ. dissenting, that under the terms of the articles partnership M. B. at the time of his death had an interest in the timber limits in British Columbia which passed by his such interest was subject to duty under section five the B.C. "Succession Duty Act."-Held, also, that the imposition the duty, taxation, was "direct taxation within the province" and within the competence the Legislature
British
Columbia.
PATENT -Conflicting claims-Judgment of Exchequer Court-Appeal Supreme PRACTICE PROCEDURE - Appeal-Jurisdiction-Action in county court jurisdiction with superior Construction of statute ss. 70, "Supreme Court Act"-R.S.B.C., "Court Appeal Act"-R.S.B.C.,
"County Courts Act"-Motion for new trial -Re-hearing on appeal.] An action in a county court in British Columbia to recover 8578, damages for injuries sustained, alleged to have been caused through negligence, was dismissed by the county court judge after the evidence for the plaintiff had been put in; the defendants offered no evidence, but asked for dismissal the evidence as it stood.
The plaintiff appealed to have judgment entered in his favour or, alternatively, to have the case remitted to the county court to have damages assessed, or for such further order as might be deemed proper by the Court Appeal. The appeal was dismissed and the judgment apper led from affirmed. The British Columbia "Court Appeal Act" (R.S.B.C., ch. sec. sub-sec. provides that every appeal shall include PRACTICE PROCEDURE-con.
a motion for a new trial unless otherwise stated in the notice appeal.
On motion to quash an appeal to the Supreme Court
Canada on the grounds that the notice prescribed by section the "Supreme
Court Act," R.S.C., ch. had not been given within days from the date the judgment appealed from and that the action was not the class which a county court had concurrent jurisdiction with a superior court, under section the "Supreme Court Act" limiting appeals to the Supreme Court of Canada.
Duff J. (dissenting)
, that no appeal could to the Supreme Court Canada.
-Per Fitzpatrick C.J. and Idington J.,
(Duff and Anglin JJ. contra).-As the case was not one in which a county court given concurrent jurisdiction with a superior court, under section 40 the "County
Courts Act," R.S.B.C., ch. the
Supreme Court Canada had no jurisdiction to entertain the appeal. Champion v.
The World Building Co. Can. S.C.R.
referred to.-Per Anglin J.-In the circumstances the case the judgment the Court Appeal for British Columbia should be regarded as a judgment upon a motion for a new trial, within the meaning section 70 the "Supreme Court Act,"
R.S.C., and, notice not having been given as thereby provided, there could be no appeal to the Supreme Court
Sedqwick v. Montreal Light,
Heat and Power Co. Can. S.C.R.
and Jones v. Toronto and York Radial Railway Co. (Cam. S.C. Prac. referred to.
Per Duff dissenting,-The judgment from which the appeal asserted was not a judgment upon a motion for a new trial but a decision on the merits the case upon an appeal by way re-hearing the Court Appeal for British Columbia which had before it all the evidence necessary for that purpose. There being no ground on which either party could have demanded a new trial, section 70 the
"Supreme Court Act" had no application to the appeal to the Supreme Court
Sedgwick Montreal Light,
Heat, and Power Co. Can. S.C.R. 639)
Further, the County Court derived its jurisdiction in the case in question from the provisions section 30, sub-sec.
1, the "County Courts Act" (R.S.B.C., ch. and section that shews that this jurisdiction concurrent;
consequently, the County Court possessed jurisdiction" with the Supreme Court British Columbia within
PRACTICE PROCEDURE-con. the meaning section of the "Supreme notwithstanding that the word "concurrent" is not employed in either those sections the "County Courts Act."
BRIT- 2-Expropriation of land-Award-Rehearing-Amount of award.] On appeal in matter expropriation the award should treated as the judgment a subordinate court subject to re-hearing. amount awarded should not be interfered with unless the appeal court satisfied that it clearly wrong, that it does represent the honest opinion of the arbitrators, or that their basis of valuation 3-Criminal Law-False pretences- Charge jury -Conspiracy-Inflammatory address counsel-New trial.. PREFERENCE - Debtor and creditor- Agreement for extension-Advantage to creditor ......................
PUBLIC WORK - Incorporation of company - Construction of canal - Governorin-Council - Approval of plans - Discretion - Refusal approve - Right action.] The statute Vict. ch. (D.) incorporated a company for the purpose constructing and operating canal between the St. Lawrence and Richelieu Rivers. Section provided that before the work constructing the canal begun, the plans, etc., were to be approved the Governor-in-Council.-Held, affirming the judgment appealed from Ex. C.R. Fitzpatrick C.J. and Brodeur J. dissenting, that the refusal the Governor-in- Council to approve plans submitted did not give the company a claim for damages which could be enforced against the Crown. -Per Duff J. that the refusal to consider the plans did not give birth to a claim which petition right lies.-Held, Fitzpatrick C.J. and Anglin and Brodeur JJ., that the Governor-in-Council had no discretionary power to refuse approval the plans on the ground that the undertaking authorized by Parliament opposed to public policy.
RAILWAYS-Negligence-Construction statute-" Railway Act," R.S.C. 1906,
306-Constitutional law-" Civil rights"-Jurisdiction of Dominion Parliament-Provincial legislation-"Employers'
Liability Act,"
R.S.M.,
Paramount authority-" Operation of railway"-Limitation of actions-Conflict laws.] An employee of Dominion railway company sustained injuries while engaged in unloading rails from a car alleged to have been unsuitably equipped for such purposes.
The unloading the rails was for the convenience the company in using them to replace other rails already in use on the constructed tracks. An action was brought to recover damages, under the Manitoba "Employers' Liability Act," R.S.M., ch.
within two years from the time the accident, the limitation provided by section that Act, but after the expiration the limitation one year provided, in respect actions against Dominion railway companies, by the first sub-section section the "Railway Act,"
R.S.C., ch.
The fourth subsection section 306 provides that such railway companies shall not be relieved from liability under laws in force in the province where responsibility arises.--Held,
Man. R. that, in the exercise authority in respect railways subject to -its jurisdiction, the Parliament
Canada had power to enact the first subsection section 306 the "Railway
Act," R.S.C., providing a limitation of one year for the commencement actions against Dominion railway companies for the recovery of damages injury sustained by reason the construction or operation of the railway.
Grand
Trunk Rway. Co. v. Attorney-General for
A.C. applied.-Per
Fitzpatrick, C.J. and Davies, Anglin and
Brodeur JJ. (Idington J. contra).-The fourth sub-section section 306 the
"Railway Act," R.S.C., ch. does not so qualify the limitation provided the first sub-section thereof as to admit the application, such cases, of a different limitation provided under provincial legislation.
Greer v. Canadian Pacific
Rway. Co. Can. S.CR. 338) followed.
The unloading of rails for the convenience railway company to be used in replacing those already in use on the constructed permanent way included
"operation railway"
under the first sub-section section 306 of the "Railway
Act," R.S.C., ch. 37.
Idington J. contra. The judgment appealed from Man. R. 655) was reversed, Idington J. dissenting.
PSZENIcNZY................ 2-Government railways-Construction and maintenance-Level crossings-Regulations Governor-in-Council-Construction of statute-" Government Railways Act," R.S.C., 1906, ss. 54-Negligence-Act of third person-Liability Crown for damages.] The right to construct Government railways across highways conferred by section of the "Government
Railways ch. 36, subject to the continuing duty imposed upon the Government railway authorities that, in regard to the relative levels of the railway tracks and the highways, so long as any such crossings are maintained on the level of the roads the railway tracks shall not rise sink more than one inch above or below the surface of the highways. Regulations made by the Governor-in-Council under the provisions of section and falling within section 54 the "Government Railways Act," R.S.C., 1906, ch. must not conflict with specific enactments the statute; a regulation which may be the cause of conditions existing which are inconsistent with explicit requirements the statute must be construed as subordinate to an implied proviso that nothing therein shall sanction a departure from any special requirement of the statute: Institute of Patent Agents v. Lockwood ((1894) A.C. and Booth v. The King Can. S.C.R. 20) applied. A level crossing the Intercolonial Railway had planking between the rails which raised the roadbed so that the tracks did not rise more than an inch above the surface the highway. Under a regulation for the guidance trackmasters and trackmen, made by the railway authorities, the planks were removed during the winter season to permit safe operation snowploughs and flangers, during this season the space occupied by the planking being filled by snow and
In April, before the of snowploughs and flangers had been discontinued, the ice and snow melted and left the tracks about six inches above the roadbed.
After the usual inspection by the trackmen, some unknown person placed a fence-rail against one of the tracks to assist sleighs over the obstruction and, later in the day, suppliant in driving his sleigh along the highway had his foot crushed between the fence-rail and the track and sought damages from the Crown for the injuries sustained:-Held, that the condition the crossing constituted negligence officers and servants of the
Crown while acting within the scope of their duties and employment in the construction and maintenance the railway in consequence which the Crown was liable in damages notwithstanding that the resulting injury might not have occurred but for the intervening act some unknown third person: Latham v. R.
Johnson & Nephew 1 K.B. 398), referred to. 265
Expropriation-Date for valuation lands-Deposit of plan-Notice-Benefit to lands not taken-Set-off-Excessive compensation-Appeal-6 Edw. VII. (Ont.)
& 4 V. 36 (Ont.).] Where the expropriation of land governed by the provisions the Ontario "Railway Act"
1906 the date for valuation that the notice required by sec. 68(1).
effect is the same under the Act if the land has not been acquired by the railway company within one year from the date filing the plan, etc. The compensation for the land expropriated should not be diminished by an allowance for benefit by reason of the railway to the lands not taken, the Ontario "Railway
Acts"
making no provision therefor.
EVERSON.........................
4-Statute
Applica- Taxation
Exemption property-Frontage lots-Local improvements, & V. s.
(Man.)-R.S.M., Edw.
VII., 74
By the "Railway
Taxation Act," ch. &
Vict. (Man.), it was provided that every railway company subject to the Act should be free and exempt from all taxation every nature and kind within the province except that imposed under its provisions.
By ch. of the same session of the legislature, was amended by adding section thereto which provided that nothing therein should deprive any city corporation of any power it had to levy taxes on the real property of a railway company fronting on any street for local improvements. The two Acts were assented to and came into force on the same day.
In an agreement, confirmed by statute, was entered into between the Manitoba Government and the Canadian Northern Ry. Co. by which the Government agreed to guarantee the company's bonds, the company to pay a percentage its gross earnings to the Government and to be exempt from taxation provided by section of The "Railway Taxation Act" became ch. the Revised Statutes Manitoba, sees. and being identical with sec. ch. and ch. respectively. In the Act Edw. VII., ch. 74 was passed.
1 provided R.S.M., 1902, 'The Railway Taxation Act' is hereby further amended by adding, etc.;" sec. "for the removal doubt respecting the exemption from taxation granted under clause the agreement" above mentioned) "it declared that the exemption granted was and the exemption specified in section of the said 'Railway Taxation Act' existing at the date the passage such last mentioned Act and unaffected by any amending Act or Acts passed concurrently therewith or subsequently thereto."
Under the foregoing legislation the City Winnipeg assessed frontage lots of the Canadian Northern Ry. Co. for local improvements-Held, per Fitzpatrick C.J., that though it reasonably clear that the reference to sec. the Act was intended for sec. 18 of ch. passed in yet the language used not admit a doubt that ch. R.S.M. 1902, is really referred to and under that Act the company not exempt from taxation for local improvements.-Duff and Anglin JJ. contra-Per Davies and Idington JJ. ch. and sec. 22 ch. must be read together and as if the latter had been made a part of 57; construing them the exemption of the company from taxation does not cover taxes for local improvements the right to impose which preserved by 22.-Per Duff dissenting. "Railway Taxation Act" R.S.M. ch. referred to in the Act 1910, was passed in (ch. and not repealed and re-enacted in 1902. Ch. of the Act was an amendment passed concurrently with or subsequently to ch. and does not affect the exemption given by the agreement 1901.- Per Anglin J., dissenting. The reference sec. of the Act to sec. of the "Railway Taxation Act" clearly meant the original Act of 1900, ch. and the exemption given by the agreement was not affected by the provisions amending same.
In 1910 a special survey, under the "Special Survey
Act," was made certain lots, including those in question, belonging to the railway company and each lot was charged with a proportionate share the cost the survey.-Held, Duff J., dissenting, that the charge so made was taxation and not being a tax for a local improvement the company was exempt from payment.
Judgment appealed from Man. R.
Ry. Co.
RIVERS
STREAMS-Navigable waters-Floatability-Ownership of beds- Grant of Crown lands-Conveyance of of navigable waters-Title to land-Art.
In the Province Quebec, a river which, owing to natural obstructions, capable only floating loose timber
(flottables d biches perdues), in portions its course may, at least from its mouth upwards until some such obstruction reached be navigable and subject to the rule of law applicable to navigable waters.
the river in question for several miles from its mouth upwards to a point where its course obstructed by rapids is in fact capable being utilized for the purposes navigation the bed the stream that distance part the Crown domain.
(Art. 400 C.C.)
Without express terms to that effect a Crown grant, made in township lands in the territory now comprised the Province
Quebec did not pass title to the grantee in the bed navigable waters within the area described in the letters patent grant. Idington J. dissented on the ground that the language the letters patent in question was intended and was sufficiently explicit and comprehensive to convey to the grantee the bed of the navigable waters included within the limits the description of the lands granted. The judgment appealed from Ex. C.R. was affirmed, Idington J. dissenting.
2-Driving lumber-Rights in navigable waters-River improvements-Rivers and
Streams Act (Ont.)-"B.N.A. Act,
91(10) 92(10)...................
SALE-Sale of land-Consideration-Exchange of properties-Mortgage-Indemnity
SALE-continued.
to vendor-Evidence.] In D. advanced money to P., who conveyed to him certain properties, in Ottawa, Ont., including one on LeBreton Street. In P. entered into an agreement with C. to exchange the LeBreton Street property for lots on Lisgar Street, which was carried out by conveyances between C. and D. In his deed C. stated that the consideration was "an exchange lands and 81.00," and conveyed the lots on Lisgar Street, subject to certain mortgages, the description being followed by the words, "the assumption which mortgages part of the consideration herein."
was obliged to pay these mortgages, and brought suit against D. to recover the amount so paid.-Held, affirming the judgment of the Appellate Division (34 Ont. L.R. that the case was not within the rule of equity whereby the purchaser of an equity redemption may be obliged to indemnify his vendor against liability for the mortgage. Small v. Thompson Can. S.C.R. distinguished. -Held, also, that parol evidence was properly received to shew the relations between P. and D.; that D. received the conveyance from merely as P.'s nominee, and held it afterwards only as security for his advances to P.; that he never claimed to be owner and never went into possession except as P.'s agent; and that he was not a purchaser the property, but only a mortgagee.
2-Sale of land-Vente a ruird- Redemption-Term-Judicial proceedings -Art. 1550C.C.]
Article 1550 the Civil- Code does not oblige the vendor, a a rimiri, to take judicial proceedings redemption within the time stipulated the deed. It sufficient that, within such time, he signifies to the vendee his intention to redeem.
Duff and Anglin JJ. dissented. Judgment appealed from (Q.R. 3-Sale of goods-Action broker- Proof-Arts. C.C... SHIPPING -Carrier-Bill of lading- Perishable cargo-Climatic conditions- Exemption from liability for negligence- Parties.] consignment fruit was shipped during the winter season at a port Italy for London, Eng., to be transhipped thence by another line to St. John, N.B. SHIPPING-continued.
The bill lading for the voyage to St.
John provided that the fruit would be delivered there in the like good order and condition as when received subject to exceptions and stipulations including injury from "effects of climate" or from negligence.
The ship stopped for some hours at Halifax, opened the hatches and discharged other cargo, and, either while at
Halifax or before arriving at St. John. the whole consignment was frozen.-Held,
(Q.R. K.B. that the injury to the fruit was due to the effects of climate and the terms the lading relieved the shipowners from liability therefor even though they may have been guilty
The consignee the fruit, who alone brought action against the carriers had dormant partner entitled to share with him the profits of the transaction.-Held, per Fitzpatrick C.J., that the proper parties were not before the court.
-Final Judgments.l provincial statute, providing that judgments courts in the province on appeal from decisions courts revision in respect assessments for taxation purposes shall final and conclusive on the matters adjudicated upon thereby, does not circumscribe the appellate jurisdiction given to the Supreme
Court Canada in such matters by section the "Supreme Court Act,"
R.S.C., ch.
Crown Grain Co.
v. Day ((1908) A.C. 504) applied.
Railways - Construction of statute-" Railway Act,"
1906, c. 306-Constitutional law- "Civil rights"-Jurisdiction of Dominion
Parliament-Provincial legislation-" Employers' Liability Act," R.S.M.,
-Paramount authority-" Operation railway"-Limitation of actions-Conflict of laws.]
An employee of Dominion railway company sustained injuries while engaged unloading rails from a car alleged to have been unsuitably equipped for such purposes. The unloading of the rails was for the convenience the company in using them to replace other rails already in use on the constructed tracks.
An action was brought to recover damages, under the Manitoba "Employers' Liability
Act, " R.S.M., ch. within two years from the time the accident, the limitation provided by section of that Act, but after the expiration the limitation of one year provided, in respect actions against Dominion railway companies, by the first sub-section of section 306 of the "Railway Act," R.S.C., ch. 37. The fourth sub-section of section 306 provides that such railway companies shall not be relieved from liability tinder laws in force in the province where responsibility arises.-Held, affirming the judgment appealed from Man. R. that, in the exercise authority in respect railways subject to its jurisdiction, the Parliament of Canada had power to enact the first sub-section section 306 the "Railway Act," R.S.C., providing limitation one year for the commencement of actions against Dominion railway companies for the recovery damages for injury sustained by reason of the construction or operation the railway. Grand Trunk Rway. v. Attorney-General for Canada A.C. applied.-Per Fitzpatrick, C.J. and Dav- Anglin and Brodeur JJ. (Idington J. contra).-The fourth sub-section of section 306 the "Railway Act," R.S.C., 1906, ch. does not so qualify the limitation provided by the first sub-section thereof as to admit the application, in such cases, a different limitation provided under provincial legislation.
Greer v. Canadian Pacific Rway. Co. Can. S.C.R. 338) The unloading rails for the convenience a railway company to be used in replacing those already in use the constructed permanent way included in "operation the railway" under the first sub-section of section 306 the "Railway Act," R.S.C., ch. 37. Idington J. contra. The judgment appealed from 'lan. R. 655) was reversed, Idington J. dissenting.
Ry. Co. v. ......... Government railways-Construction and maintenance-Level crossings- Regulations Gorernor-in-Council-Construction of statute-"Government Railways Act," R.S.C., 1906, 36, ss. 49, Negligence-Act of third person-Liability of Crown for damages.] The right to construct Government railways across highways conferred by section the "Government Railways Act,"
ch. 36. subject to the continuing duty imposed upon the Government railway authorities that, in regard to the relative levels the railway tracks and the highways, so long as any such crossings are maintained on the level of the roads the railway tracks shall not rise or sink more than one inch above or below the surface the highways. Regulations made by the
Governor-in-C under the provisions section and falling within section 54 the "Government Railways Act," R.S.C.,
36, must not conflict with specienactments the statute; a regulation which may be the cause of conditions existing which are inconsistent with explicit requirements the statute must be construed as subordinate to an implied proviso that nothing therein shall sanction a departure from any special requirement of the statute: Institute of Patent Agents v.
Lockwood ((1894) 347) and Booth v.
The King Can. S.C.R. referred to.
KING...........
4-Expropriation-Municipal corporation-Statutory powers-Lands outside municipality-Appointment of arbitrators
-Procedure-Award-" Towns
Corporations Act," R.S.Q., arts. 4561-4569- Charter of Town of Fraserville, Edw. VII.,
69; Edw. VII., 50-Quebec "Expropriation Act," 54 Vict. 38-Words and
"Avoisinant"
"Adjoining."]
The statute incorporating the Town
*Fraserville Edw. VII., ch. Edw.
VII., ch. 50 (Que.)), by section gave power to expropriate lands both within and outside the limits the municipality and section substituted a new section to replace article 4561 of the Revised
Statutes of Quebec, in regard to expropriations.
In expropriating lands outside its limits for an electric lighting system the town proceeded under articles
4562 to 4569 the "Towns Corporations
Act," incorporated as part the charter by force of article 4178, and obtained an order appointing an arbitrator on behalf the owner from a judge the Superior Court.
Notwithstanding objection by the owner, an award was made and he brought action to set it aside on the ground that, by section the application articles 4562 to 4569 was confined, in the case the
Town Fraserville, to expropriations within its limits and, as to expropriations beyond that area, nominations of arbitrators could be made only by the Attorney-General as provided by the "Expropriation Act,"
54 Vict. ch. 38.-Held,
Anglin J. (dissenting)
, that the sixth seation of the Act, Edw. VII., ch. 50, specifically authorizing the municipality to expropriate lands outside its limits enacted provisions incompatible with those of article R.S.Q., as replaced by section and it was, therefore, repealed as the repugnant provisiois the later statute prevailed.
The King v. The Justices of Middlesex B. & Ad. and In re Cannings and County Council of Middlesex 1 K.B. Consequently, the procedure adopted for the appointment of arbitrators was proper and the award was valid. The statute, Edw. VII., ch. 50, by section authorizing expropriations outside the town, in the French version made use the phrase "dans ou en dehors la ville et les municipalit6s avoisinantes," while the English version used the term "adjoining municipalities."
The 297th section the charter provided that in the event discrepancy preference should given to the French version.-Held, that the statute should interpreted according to the meaning the broader term "avoisinantes," used in the French version and, consequently, in exercising such powers of expropriation, the municipality was not limited to taking lands in contiguous municipalities.-Per Anglin J. By section of the charter the application of the provisions the "Towns Corporations Act," arts. 4165 seq. R.S.Q., expressly confined to expropriations within the town; section was not excluded from the charter nor impliedly repealed by the amendment of to section and the appointment arbitrators by the judge was an usurpation of the jurisdiction conferred by articles 5754d and R.S.Q. (54 Vict. ch. upon the Attorney-General the province. Negligence-Driving lumber-Rights in navigable waters-River improvements- Contract with Crown-Rights of contractor -Reckless driving-" Rivers and Streams Act" (Ont)-" B.N.A. Act, ss. In Parliament voted money for "'Montreal
River Improvements above Latchford" and the Crown, through the Minister of Public Works, gave a contract to L. in connection with the work. In performance of the work L. placed a cofferdam on each side the river leaving an opening between them some 200 feet wide. In the spring the cofferdam on the north side was covered by three feet water and the logs being driven down through the opening, were allowed to rest against a pier a few hundred feet below and formed a jam the rear which was over the cofferdam.
Either by weight the jam or increased pressure by breaking it, in the ordinary mode, the destruction of the cofferdam was caused.-Held, per Davies, Anglin and
Brodeur JJ., that, in the absence Dominion legislation to the contrary, the rights lumbermen under the Ontario "Rivers and Streams
(pre-Confederation legislation) are not subordinate but equal to those persons acting for the Dominion
G'overnment in matters respecting navigation.-Per Davies and Duff JJ., Anglin
J. dubitante. The cofferdam was a "structure" and subject to the provisions section 4 the "Rivers and Streams Act."
-Per Davies and Anglin JJ. Even if not a "structure" as it was placed in the river under sanction of Dominion legislation B.'s rights were restricted practically as they would be under section 4.-Held, per
Fitzpatrick C.J. and Duff J.
vote
"River Improvements"
does not itself authorize an interference with the rights of lumbermen under the "Rivers
Streams Act."
These rights were exercised in the usual and proper manner and as no breach of duty by B. to avoid
"unnecessary damage"
was proved he could not be held liable for the damage to the cofferdam. Judgment the Appellate
Division Ont. L.R. reversing that at the trial (34 Ont. L.R. affirmed.
ation
Exemption
Frontage lots-Local improvements, &
V. s. (Man.)-R.S.
166; Edw. VII.,
(Man.).] By the "Railway Taxation Act,"
ch. & Vict. (Man.), it was provided that every railway company subject to the Act should be free and exempt irom all taxation every nature and kind withinthe province except that imposed under its provisions.
By ch. the same session the legislature, amended by adding section thereto which provided that nothing therein should deprive any city corporation of any power it had to levy taxes on the real.
property a railway company fronting on any street for local improvements.
The two Acts were assented to and came into force on the same day.
In an agreement, confirmed by statute, was entered into between
Manitoba Government and the Canadian Northern Ry. Co. by which the Government agreed to guarantee the company's bonds, the company to pay a percentage its gross earnings to the Government and to be exempt from taxation provided for by section of ch. The "Railway Taxation Act" of 1900 became ch. the Revised Statutes of Manitoba, 1902, sees. and being identical with and sec. ch. respectively. In 1910 the Act Edw. VII., ch. 74 was passed.
1 provided of ch. R.S.M., being 'The Railway Taxation Act' is hereby further amended by adding, etc.;" sec. "for the removal doubt respecting the exemption from taxation granted under clause of the agreement"
(of above mentioned) "it declared that the exemption granted was and the exemption specified in section of the said 'Railway Taxation Act' existing at the date of the passage such last mentioned Act and unaffected by any amending Act or Acts passed concurrently therewith or subsequently there- Under the foregoing legislation the City of Winnipeg assessed frontage lots the Canadian Northern Ry. Co. for local improvements.-Held, per Fitzpatrick C.J., that though it reasonably clear that the reference to sec. in the Act 1910 was intended for sec. ch. passed 1900 yet the language used will not admit a doubt that ch. R.S.M. 1902, sec. is really referred to and under that the company not exempt from taxation for local improvements. Duff and Anglin JJ. contra.-Per Davies and Idington JJ. and 22 must be read together and as if the latter had been made a part of 57; so construing them the exemption the company from taxation does not cover taxes for local improvements the right to impose which preserved by see. 22.-Per Duff J., dissenting.
The "Railway Taxation Act" R.S.M. ch. referred to in the Act was passed in (ch. and not repealed and re-enacted in 1902. Ch. the Act of 1900 was an amendment passed concurrently with or subsequently to ch. and does not affect the exemption given by the agreement of -Per Anglin J., dissenting.
The reference in the Act of to sec. 18 the "Railway Taxation Act" meant the original Act of 1900, ch. and the exemption given by the agreement was not affected by the provisions of ch.
amending same.
STATUTES-(Imp.)
III., 16
(Nullum Tempus Act) .............
C.S.U.C., 88 R.S.O.
(Real Property Limitations
3-R.S.C. 36 ss.
(Government Railways) .............
4-R.S.C. 37 306 (Railway
A ...............
..............
5-R.S.C.
(Shipping
A ....
.. .. ....
....
....
.. .. .. ..
6-R.S.C. ss. 37
(Supreme Court Act ...............
R.S.C. (Supreme
8-R.S.C. s. 46 (b) and
(Supreme Court Act)...............
See 4.
R.S.C. 498 (Criminal
Code)...........................
10-R.S.C. 899 (Criminal
Code)............................
11-R.S.C. s. (Criminal Code) ........................
12-R.S.O. 140 ss. (1)
and (Mechanics Lien Act) .....
13-R.S.Q.,
4561-4569
(Towns Corporations Act).. .. .. ... . .
STATUTES-continued.
14- (Que.) 54 V.c. (Expropriation A .. ......... ..........
........ See 2. (Que.) Edw. VII., Edw. VII., See 2. 16-R.S.M., c. (Employers Liability A ct).....................
R.S.M., Edw. VII., 74 (Local Improvements) .......... (Man.) 64 & 22 (Local Improvements) .......... R.S.B.C.,
Appeal Act).................
..... 20- R.S.B.C., (County Courts .......... R.S.B.C., 217 s. ss. 1 (a) (Succession Duties Act) ............
(Alta.) (Intestate E states).......................... STATUTE OF FRAUDS - Contract - Settlement of action-Debt of another.. 381 SUCCESSION
DUTIES - Partnership property-Owners not domiciled in Province -Interest of deceased partner-R.S.B.C. s. s.-s. la-Taxation- Legislative jurisdiction - "B.N.A. British (R.S.B.C. ch. on the death any person his property in the province "and any interest therein or income theretacy" is subject to succession duty whether such person was domiciled in the provinceor elsewhere at the time of his death. and brother business in Ontario and owning timber limits in British Columbia. The firm had SUCCESSION DUTIES-continued.
no place of business nor man of business in that province and never worked the limits. The partnership articles provided:
If either partner shall die during the continuance of the partnership his executors and administrators shall be entitled to the value his share in the partnership assets.
On the expiration or other determination the said partnership a valuation of the assets shall be made and after providing for payment liabilities the value such property stock and credit shall be divided equally between the partners, etc."
M.B. having died while the partnership existed his share in the partnership assets passed by his will to executors.
The Province of British Columbia claimed that his interest in the timber limits was subject to succession duty.-Held, Davies and Anglin JJ. dissenting, that under the terms the articles partnership _M. B.
at the time his death had an interest the timber limits in British Columbia which passed by his will and such interest was subject to duty under section five of the
B.C. "Succession Duty Act."-Held, also, that the imposition the duty, taxation, was "direct taxation within the province"
and within the competence the Legislature British Columbia.
U.
TITLE TO LAND
Adverse possession against Crown-"Nullun Tempus Act"- - Interruption of possession-Information
Intrusion-Judgment default-Acknowledgement of title-"Real Property Limitations Act " (Ont.).] judgment by default, on information intrusion against persons in possession Crown lands, which was never enforced did not interrupt such possession and prevent it ripening into title under the "Nullum Tempus Act."
Real Property Limitations Act" Ontario
(C.S.U.C. ch. R.S.O.
ch. providing that an acknowledgment title in writing shall interrupt the adverse possession does not apply to possession
Crown lands and such acknowledgment is not an interruption under the "Nullum Tempus Act."
provision in the "Ontario Limitation
Actions Act" of making an ackknowledgment apply to interrupt possession Crown lands not retroactive or, if it it cannot apply to a case which the adverse possession had ripened into title before it was passed.-Per Duff
TITLE TO L4ND-continued.
J. intrusion does not, in itself, deprive the Crown of possession the occupation required to attract the benefit of the first section the "Nullum Tempus Act," Geo. III., ch. not technically possession; but lands are "held or enjoyed" within the meaning that section where facts are proved which, in litigation between subject and subject, would constitute civil possession as against the subject The judgment of the Exchequer Court Ex. C.R. in favour of the Crown on information of intrusion was reversed, Fitzpatrick C.J. holding that the Crown had failed to prove titl, Idingthat the claim was barred by the negative clause of the first section of the "Nullum Tempus Act," and the other judges that the defendants had obtained title by operation the "Nullum Tempus i Act."
Settlement of action->Statute of Frauds- Trade agreement-Restraint of trade- Crim. s. In and his two brothers entered into a contract with R. by which they gave him exclusive control of their salt works with some reservations as to local trade. R. assigned the contract to the Dominion Salt Agency, a partnership consisting his firm and two salt manufacturing companies, which agency thereafter controlled about ninety per cent. the output of manufacturers in Canada.-Held, that the contract was not facie illegal and as the Canadian output was exceeded by the quantity imported which may have competed with it, and the price was not enhanced reason this control by the Agency, the Court should not hold that it had the effect unduly restraining the trade in salt contravened the provisions section of the Criminal Code.
VENTE
REMERE-Sale of land- Judicial ings-Art. 1550
Article the Civil Code does not oblige the vendor, a i rinir6, to take judicial proceedings for redemption within the time stipulated in the deed.
It sufficient that, within such time, he signifies to the vendee his intention to redeem. Duff and Anglin JJ. dissented.
Judgment appealed from VENTE REMERE-continued.
(Q.R. K.B. 464), affirmed.
WORDS PHRASES-"Adjoining"
..........
i WORDS AND PHRASES-continued. "Avoisinant ".....................
Cases cited
- Crown Grain v. Day ( A.C. 504
Statutes and regulations cited
-
- section 20
- Section 20
- section 83
- Section 83
-
- section 23(a)
- section 193
- section 507
- ss. 37
-
- s. 916
- section 916
-
- ss. 92
- section 4
- Section 307
-
- section 70
- section 40
- section 30
- section 46
- s. 306
- section 306
- s. 498
- section 5
- ss. 70
- ss. 54
- section 54
- ss. 49
- s. 46
-
- section 498
- s. 899
- ss. 2
- section 14
-
Unresolved citations
- section 23(a)
- ss. (1)