Majority
In the statutory conditions indorsed on a policy of insurance against fire condition 11 provides that "the insurance may be terminated by the company by giving seven days' notice to that effect and * * * by tendering therewith a ratable proportion of the premium paid for the unexpired term calculated from the termination of the notice."
By condition 15 "any written notice to the assured may be by registered letter addressed to him, etc."
Held, that the notice of cancellation of the policy may be given by registered letter addressed to the assured as required by condition 15 and the terms of condition 11 as to rebate are complied with if the money for the unearned premium is enclosed with the notice in an envelope so properly addressed and registered.
Held, however, that the cancellation of the policy will not be effected unless the notice and money are actually received by the assured before a loss under the policy occurs.
Held, per Brodeur J., that the unearned premium must be personally tendered to the assured.
Judgment of the Appellate Division, 40 Ont. L.R. 619; 39 D.L.R. 221, affirmed.
APPEAL from a decision of the Appellate Division of the Supreme Court of Ontario (1), reversing the judgment on the trial in favour of the defendants.
The appellant by its policy dated 15th June, 1916, insured the respondent for one year from 17th June, 1916, to the amount of $1,500.00 against loss or damage by fire in respect of the stock of merchandise and store *PRESENT:-Sir Charles Fitzpatrick C.J., Idington, Anglin and Brodeur JJ. and Cassels J. ad hoc.
(1) 40 Ont..L.R. 619; 39 D.L.R. 221.
furniture and fixtures in the respondent's premises on Claremont street in the town of Thorold.
A cash LoNon payment of $22.50 was made.
The policy was by its express terms subject to the statutory conditions set forth in section 194 of the Ontario Insurance Act, R.S.O. 1914, ch. 183. Among these conditions are the following:- "11. The insurance may be terminated by the company by giving seven days' notice to that effect, and, if on the cash plan, by tendering therewith a ratable proportion of the premium paid, for the unexpired term, calculated from the termination of the notice, and the policy shall cease after such notice or notice and tender as the case may be, and the expiration of the seven days.
"15. Any written notice to the assured may be by letter delivered to the assured or by registered letter addressed to him at his last post office address notified to the company or where no address is notified and the address is not known, addressed to him at the post office of the agency, if any, from which the application was received."
On the 15th day of December, 1916, the appellant sent by registered letter addressed to the respondent at her proper street address at Thorold a notice in the following terms:
Enclosed with the notice was $11.34 in legal tender to cover the ratable proportion of the cash premium paid for the unexpired portion of the term.
On the 25th day of December, 1916, during the absence for some days of the respondent, a fire occurred by which the insured property was destroyed.
The respondent had not in fact received the notice of cancellation although it arrived at Thorold in due course of post.
The respondent'is an Italian married to one Sam Savino.
According, it is said, to the custom of her people, she retained after marriage her maiden name of Veltre but among the English-speaking people of Thorold, including the postmaster and his clerks, she was known only as Mrs. Savino. Letters are not delivered at Thorold but must be called for at the post office.
The respondent's husband had taken a box at the post office in his own name, although he himself was not in business, but, as the name of Veltre was not identified with him or his wife in the minds of the people at the post office, no notice was placed in his box of the arrival of the registered letter. Under these circumstances, knowledge of the letter did not reach the respondent or her husband until after the fire, when they were told by the insurance agent that such a letter had been sent.
The appellant claimed that the mailing of the notice with the money to be returned, operated as a cancellation of the policy according to its terms, relying upon the conditions hereinbefore set forth. Action was brought upon the policy and the trial judge gave effect to the appellant's contention and dismissed the action. The Appellate Division (Meredith C.J.O. dissenting), has reversed the judgment holding that the mailing of the notice and the enclosing of the money therewith did not effectually cancel the policy.
R. S. Robertson for the appellants. The notice and tender complied with the requirements of condition 11 and were effective from the date of mailing.
Mercantile Investment Co. v. International Co. of Mexico (1); Union Fire Insurance Co. v. Fitzsimmons (2); In re Simmons and Dalton (3); Bruner v. Moore (4). also Maldover v. Norwich Union Fire Ins. Co. (5). A. C. Kingstone for the respondent referred to Bank of Commerce v. British America Assur. Co. (6); May on Insurance (4th ed.) par. 67k.
THE CAIEF-JUSTICE.-I concur in the opinion stated by Mr. Justice Anglin.
J.-This appeal ought to turn upon the construction of two conditions indorsed upon the policy of insurance in question and the application of the -relevant facts.
The respondent, an Italian woman, whose maiden name was Franzesco Veltre, entirely ignorant of English, married one Savino, carried on with his assistance a shop in Thorold and obtained from appellant' an insurance against fire upon the contents thereof for a year from the 17th June, 1916, which were consumed by fire on the 25th December following.
The policy was issued to F. Veltre, Esq., and had indorsed amongst other conditions the following:- 15. Any written notice to the assured may be bj letter delivered to the assured or by registered letter addressed to him at his last post office address notified to the company or where no address is notified LANCSHIRE and the address is not known, addressed to him at the post office of the FnaE agency, if any, from which the application was received.
Co. V.
The appellant decided to avail itself of the said No. 11 condition and sent a registered letter enclosing Idington J. the money mentioned and addressed as set forth therein, which letter reads as follows- London & Lancashire Fire Insurance Co. Limited of Liverpool, England.
Canada Branch, Toronto, Ont.
Toronto, 15th December, 1916. F. Veltre, Esq.
82-84-86 Claremont St.,
Thorold, Ont.
Dear Sir.-I beg to hand you enclosed herewith in legal tender the sum of $11.34 being the unearned premium for balance of the current term of Policy No. 10514765 of this company issued to you dated June 17th, 1916, expiring June 17th, 1917, covering $1,200 on groceries, meats, cigars and tobacco and $300 on store furniture and fixtures, including refrigei ator, cheese-cutter, shelving, electric fans, clock, table and stove, all while contained in the three storey brick building, occupied as laundry, grocery store, hall and dwelling situate as above, which is hereby cancelled and this company will not be held liable should any loss occur after the 22nd December, 1916.
Yours truly,
Manager. The letter never was received by respondent till some time after the fire.
The appellant contends it was by such a letter so addressed, being so sent, relieved from any possible claim under the policy.
There never was any address notified to the company within the language of condition No. 15 and I cannot think that it was entitled to assume that such an address as used could be effective for such a purpose. If the sender had tried to have a letter miscarry he could hardly have done better.
Either the correct address was known or unknown. If known it should have been sent correctly addressed withtheaddiionof "sq. and not sent to a woman with the addition of "Esq. LN If unknown it should, in order to comply with the condition, if available to it, have been sent to Merritton.
. That might not have been any more successful in reaching the respondent. *
J. I do not feel called on to express any opinion upon the question of what the result might have been if the letter had been properly addressed within the meaning of any alternative in condition No. 15.
I should be the more reluctant to do so seeing there are no less than four other conditions indorsed on the policy each involving the question of how written notice from the company may in certain cases respectively affect the legal relations of insurer and insured. It may well be that condition No. 15 is intended to become operative only in regard to any one of three of these othei conditions and yet ineffective in the case of tendering money.
In confining myself to the narrow issue I have dealt with I am only adhering to an observance of the issue joined by the pleadings.
And I am by no means troubled over the suggestion of appellant's counsel that respondent is incorrectly described in the policy.
She is the person. insured, no matter how blunderingly described by appellant. The appeal should be dismissed with costs.
J.-This action is brought to recover on a fire insurance policy.
The issue on the appeal is as to the sufficiency of a notice of cancellation given under the 11th and 15th statutory conditions, prescribed by the Ontario Insurance Act, R.S.O., ch. 194, s. 183. It is stated in the principal judgment of the Appellate Division, delivered by Hodgins J.A., as follows -- The respondent company pleads that it validly cancelled the policy under statutory conditions Nos. 11 and 15. This was effected, as the company contends by mailing to the appellant in a registered letter addressed to her under the name, "F. Veltre, Esq., 82-84-86 Claremont St., Thorold, Ont.," a notice cancelling the policy, and by enclosing in this letter the respondent company's cheque for $11.34 or legal tender to that amount "being the unearned premium for balance of the current term of Policy No. 10514765."
The letter containing the notice and money was never delivered to, or recieved by, the appellant until after the fire.
The sole question raised is whether the method thus adopted was an effective compliance with the conditions which require a tender of the unearned premium to be made as well as-the giving of notice. It was held by the learned trial judge that if the notice putting an end to the policy, the distinct end aimed at, can be given in writing by registered letter, the tender of the unearned portion of the premium may be made in the same way.
The learned judge held the tender insufficient and that the notice would be effective only from the time of its receipt by the insured. Magee J.A. concurred as to the insufficiency of the notice and Maclaren and Ferguson JJ.A. agreed in the result. Meredith C.J.O. dissented, holding that a tender by letter was authorised and that the notice was effective from the time of posting, or, at all events, from the time when in the ordinary course the letter would reach the person to whom it was sent.
Mailed at Toronto on the 15th of December, 1915, the notice reached Thorold in the ordinary course of mail on the 16th, but was never actually received by the insured and only came to her knowledge after the loss, which occurred on the 25th. The $11.34 enclosed ($11.25 in legal tender and 9 cents in postage stamps) was admittedly more than sufficient to cover the unearned proportion of the premium.
The insured was the wife of one Sam Savino. It is customary with the peoples of countries where the civil law prevails, that a married woman should be designated by her maiden name in business transactions, legal documents, etc. The plaintiff was accordingly insured as "F. Veltre, Esq."-the Esq. being added through some unexplained mistake. That is her designation in the policy, which she accepted and retained and on which she now sues.
There is no local mail delivery in Thorold. Probably owing to the notice of cancellation having been addressed to "F. Veltre, Esq.," instead of to Mrs., Mde., or Signora Savino, it was not placed in Sam Savino's box at the local. post office, or otherwise delivered, although it seems probable that some inquiry was made for the Savino mail at the general delivery wicket. The Savinos left Thorold on the 24th December, apparently for the purpose of spending Christmas in Toronto. The fire occurred during their absence. The 11th and 15th statutory conditions indorsed on the policy read as follows:- For the assured it was contended that
(1) Condition 15 does not apply to a notice of cancellation:
(2) The notice of cancellation was not addressed as condition 15 prescribes;
(3) Tender of the proportion of the premium for the unexpired term cannot be made by post; it must be made personally;
(4) A notice given under condition 15 is effectual only from the date of its actual receipt;
If effectual from the time at which it would in the ordinary course of post have reached the insured, the notice given for cancellation on the 22nd would be insufficient: a date having been named it could not operate to effect cancellation at a later date on the expiry of seven days from the time at which it should have reached the insured in the ordinary course of post.
The company on the other hand asserts its right to give written notice of cancellation by registered post if the letter contains a sum of money at least equal to the proportion of the premium unearned, and that such a notice, if addressed as prescribed, should be deemed to have been given when deposited in the post office. (1) I have no doubt that a written notice of cancellation under the 11th statutory condition is within the. 15th condition and may be given by registered post. The literal terms of the 15th condition, taken in their ordinary acceptation, cover it. The collocation and history of the condition and a comparison with its counterpart, condition No. 7, seem to me to put the matter beyond doubt. The provision for sending written notice of cancellation by registered post, formerly itself part of the 19th statutory condition providing for cancellation by notice (R.S.C. 1897, ch. 203, sec. 168), was made the subject of a separate condition (No. 15) and extended to all written notices to be given by the company when the Ontario Insurance Act was re-enacted, preparatory to the revision of 1914, by 2 Geo. V., ch. 33. The obvious purpose was 'to have a general provision applicable to all notices in writing to be given by the company to the insured, precisely as condition No. 7-formerly condition No. 23, R.S.O. 1897, ch. 203, sec. 168-provides that all notices in writing to the company may be sent by registered post.
(2) In the policy the insured is designated as "F. Veltre, Esq." It is proved that the Savinos resided over their grocery shop (which contained the property insured) described in the policy as "Nos. 82-84 on the north side of Claremont St., in the town of Thorold." This was either the post office address notified to the company within the meaning of condition 15, or it was the known address of the insured. In either case the notice was rightly addressed to "82-84-86 Claremont St., Thorold, Ont."
The addition of the figures 86 to the 82-84 mentioned in the policy is immaterial. Suing as she does in the name of F.. Veltre on the policy issued to F. Veltre, Esq., and accepted by her on that name, the plaintiff cannot, in my opinion, successfully maintain that the address of the notice was insufficient. (3) For the reasons assigned by the learned Chief Justice of Ontario, I am satisfied that the tender provided for by the 11th condition is properly made if the amount of money to be tendered be enclosed with the notice of cancellation in a duly registered envelope, properly addressed to the insured. I cannot place any other reasonable construction on the word "therewith" in the 11th condition, if that condition contemplates, as I think it clearly does, that the notice of cancellation may be in writing, and the 15th condition applies to it. It certainly was not the purpose of the 11th condition, in my opinion, to impose compliance with the formalities of a strict legal tender on the company. "Tendering" is used in the sense of "offering presently to refund."
(4) In considering from what time the seven days which are to elapse between the notice of cancellation and the determination of the policy are to be computed, the nature of the condition and the purpose for which the seven days are allowed must be taken into account. Rights both of the insured and of the insurer are expressed in the eleventh condition. The latter is entitled to terminate its risk. The former is entitled to a reasonable period, fixed by the legislature at seven J. days, within which to protect himself, if he so desire, by procuring other insurance. The condition must, if at all possible, be so construed that these reciprocal rights shall be given fair and full effect. The insurer, solely for its own benefit, is allowed the option of giving the notice by making use of the post office as its agent to convey it in lieu of making a personal communication of it to the insurer. If it selects the latter, which may be regarded as the normal method, the policy is determined only on the expiry of seven full days from the moment of communication to the assured of the intention to cancel.
Can it have been intended that the company by choosing to make use of the alternative method of giving notice through the mail should be entitled in practically every case to lessen the comparatively short period which the legislature meant the insured should have in which to reinsure, and, in some cases, to deprive him of it entirely? That would be the necessary effect of holding that the seven days should be computed from the moment of depositing the notice in the post office.
I am satisfied that was not intended.
Strong J., in Caldwell v. Stadacona Fire and IUfe Ins. Co. (1), at p. 238, speaks of a condition as The cases cited by Mr. Robertson are all readily and clearly distinguishable. They were cases in which numerous persons, who might be scattered in many places, were to be notified of calls or meetings, etc. It would be impossible in such a case to any one definite date at which the term of the notice should expire unless that term should commence from the r. moment of deposit in the post office.
No such difficulty arises in the case of a notice to a single insured. On the other hand, it is said that if the notice was meant to be effective only from the moment of its* actual receipt by the insured, it is difficult to appreciate the object of the legislature in imposing the registration of it on the company, and it is therefore argued that the notice must have been intended to be operative at least from the time at which it would have reached the insured in the ordinary course of post. It seems to me to be a more reasonable explanation that the legislature directed that notice, if given by mail, should be by registered post in order to facilitate proof of the fact whether a notice so sent had or had not reached the insured. It would be a strong thing to hold that the insurer could extinguish the contractual rights of the insured under his policy without any prior actual notice being given to him. In the absence of an explicit statement that notice of cancellation should be deemed effectual from the time at which it would in the ordinary course of post have reached the insured, nothing short of an irresistible inference from the terms in which the condition providing for notice by post is couched that that was the purpose and intention of the legislature would suffice to justify a court in holding that the contractual rights could be thus extinguished. Dealing with a substantially identical provision made by what was then the 23rd statutory condition (R.S.O. 1897, ch. 203, sec. 168)-now the 7th-the Ontario Court of Appeal in Skilling8 v. Royal Ins.. Co. (1), affirming a judgment of Lount J (2), unanimously held that a letter from the insured to the insurance company notifying it of his intention to cancel his insurance would take effect only from the time of its actual receipt. Maclennan J.A. says, at p. 403:- Garrow J.A., citing with approval the unanimous decision of the New York Court of Appeal in Crown Point Iron Co. v. The AEtna Ins. Co (3), says, at p. 405:- It was argued that the Skillings Case (1), is distinguishable because the no*tice there sent was wrongly addressed.
But the decision turns on the fact that it was not received-not that it did not fulfil the requirement of the condition as to address.
Notwithstanding section 20 of the Ontario Interpretation Act (R.S.C., ch. 1) it may fairly be assumed that in making the 15th condition a counterpart of the 7th in the Act of 1912, ch. 33, the legislature was not unmindful of the construction which the Court of -Appeal had, as recently as 1903, put upon the 7th clause. There is no provision in the Ontario practice for the service of legal process or notice by registered post such as is found in the English 0. XLVII., R. 2. It is noteworthy that in that rule, in order to make a notice so sent operative not from its actual receipt but from the time at which it would be delivered in the ordinary course of post, an explicit provision to that effect was apparently deemed necessary.
A not unreasonable inference is that without it the service would be effectual only from the time of the actual receipt of the mailed document.
A provision in the English Interpretation Act of 1889, ch. 63, sec. 26, creates the like presumption in regard to any document which a statute authorises or requires to be served, given or sent by post-" unless the contrary is proved."
Here the contrary has been proved.
It would, no doubt, have been much more satisfactory had the statute explicitly declared from what time the seven days should be computed in the case of notices by registered post but, in the absence of some such provision as is found in the English rule cited, the terms of condition 15, in my opinion, do not warrant a holding that by resorting to it an insurance company can deprive an insured of the- benefit of the whole or any part of the seven days' notice upon giving which condition 11 enables the company to terminate its risk. Notice, unless the contrary be clearly provided, must mean actual notice.
(5) Although in view oi the conclusion that the 4th objection to the notice of cancellation must prevail it may be unnecessary to deal with the 5th, it is perhaps better that I should express the opinion I have formed upon it. Since a power of cancellation must, no doubt, be strictly exercised, I was at first much impressed with the view that because the company's letter expressed its intention to terminate the risk on the 22nd of December its notice could not be good for any subsequent date. But on further consideration I incline to think otherwise. Emmott v. Slater Mutual Fire Ins. Co. (1), was a very similar case.
A notice of intention to cancel on the 20th of February, mailed on the 13th was received by the insured on the 14th. The property covered was destroyed on the 22nd. Ames C.J., delivering the judgment of the Superior Court of Rhode Island, upholding the cancellation as effectual, said, at p. 565:- The notice received by the plaintiff on the 14th day of February, informed him, in substance, that from and after the 20th of that month, "no member of his class would be held insured," as the policy would be cancelled at noon on that day, under the power reserved by the bylaw, and in pursuance of the vote of the company. The purpose of the by-law, in requiring seven days' notice of the intent to cancel his policy, to be given to a member before the cancellation would become effectual, was, to give him seasonable warning, if he would be protected by insurance, to get it elsewhere.
This purpose seems to us to have been as fully answered by the notice given to the plaintiff, as if the 21st day of February, instead of the 20th, had been inserted in the notice as the day from and after which his policy would stand cancelled.
By warning him to procure other insurance earlier than the by-law, considering the time he received the notice, permitted, it could not mislead him to his injury; and when the seven days had expired after his receipt of the notice, he'had all the notice which the by-law either in its letter or spirit, required; that is, seven days' notice of the intent of the company to cancel his policy on a day subsequent to the giving of the notice. As the loss happened after the plaintiff had received the seven days' notice of the intent to cancel his policy, we hold that his policy was then cancelled, and order judgment to be entered up for the defendants, with costs.
I find in Philadelphia Linen Co. v. Manhattan Fire Fire Ins. Co. (1), cited in 19 Cyc. at p. 646, an authority to the same effect. I have unfortunately been unable to see the report itself. The notice of on which the risk is to come to an end.
When it is given the statutory condition applies and effects the cancellation on the expiry of seven days. The statement of the date on which the notice is to become effective is therefore superfluous.
The insured knows, or must be presumed to know, that he is entitled to seven days from the time at which he receives the notice. I therefore incline to the opinion that if the (1) 8 Pa. Dist. 261.
plaintiff had actually received the notice of cancellation seven days before the fire occurred she could not have recovered on the policy, which would have ceased to be in force, not upon the 22nd of December, but at the expiry of seven days after actual receipt of the notice. In the result the appeal fails and should be dismissed.
J.-The question is whether the insurance was terminated when the fire took place on the 25th of December, 1916.
The insurance was for a year from June, 1916, to June, 1917.
Section eleven of the statutory conditions gave power to the company to terminate it sooner The statutory condition No. 15 provided that any written notice could be given by a registered letter addressed to the assured
In this case the notice cancelling the policy was sent on the 15th of December, 1916, by registered letter to F. Veltre, Esq., 82-84-86 Claremont St., Thorold, Ont., and there was enclosed therein the sum of $11.34, representing the unearned premium for the balance of the current term of the policy.
The letter was not delivered to the insured and remained in the post office at Thorold until after the fire which took place on the 25th of December. The insured never had any intimation before the fire that the policy was cancelled or to be cancelled. Everything points to the good faith of the insured. 6SiPREME COURT OP CANADA.
!VOL. LVI. The insurance had been taken through the agency of the company at Merritton, a suburb of the town of Thorold.
The insured was an Italian lady married to a man named Savino
The application for the insurance was taken by the agent of the company on a stock of groceries and on fixtures situated in a store bearing Nos. 82-84-86 Claremoni St., in Thorold. By the mistake of the company or of the agents, the policy was issued in the maiden name of Mrs. Savino, "F. Veltre."
It is customary amongst Italians that the married women preserve and are called by their maiden names.
The company added, however, on the policy to the name of F. Veltre, "Esq."
Mr. Savino had a box in the post office at Thorold and he was well known there. But the name of F. Veltre Esq. was entirely unknown to the postmaster or the employees of the post office; and it does not appear by the evidence that the address of F. Veltre was known to be in Thorold. "F. Veltre, Esq." was certainly u known in Thorold. The address of the respondent was never notified to the company.
So the company, not knowing the address of the respondent and not having ' een notified of her address, its duty was, according to the statutory condition 15, to send the notice to its agency in Merritton.
Besides, I am of opinion that the tender of money should have been made personally to the insured or at least at her domicile or place of residence and that on that ground the alleged tender made in this case is not valid.
The statutory condition never contemplated that an insurance company could be at liberty to deposit legal tender money in the post office and that from that moment the notice of cancellation would have its effect. Sir Edward Coke (Co. Litt., p. 210,) says that tender must formally be made only to the creditor himself.
It is contended by the appellant that the use of the word "therewith" in statutory condition eleven en titled the company to enclose the money with the notice and that a personal tender is not required. I am unable to agree with that contention. right which the company possesses to cancel a valid contract is contrary to the ordinary rules affecting contractual relations.
If the legislature intended to avoid the necessity of a tender being made personally they would then have so provided in the clearest of language. I am unable to find such an intention in construing the conditions referred to. The company had no right to depart from the ordinary rule that the tender should be made to the creditor personally. (Harris, Law of Tender, p. 97.)
For those reasons the judgment a quo which niintained plaintiff's action should be maintained and the appeal dismissed with costs.
J.-As the majority of the court are in favour of dismissing this appeal, I concur.
Appeal dismissed with costs. Solicitors for the appellants: Fasken, Robertson, Chadwick & Sedgewick. Solicitors for the respondent: Ingersoll, Kingstone, & Hetherington. ACTION.-Irregularities-Parties .... 488
ADMIRALTY LAW.-Collision-Sale of vessel liable for damages-Distribution of insufficient fund-Priority between life and property claimants-Sec. 503 "Imperial
Merchants Shipping Act,"
1894.1
"S.S. Storstad," arrested and held liable at the suit of the appellant owner of the "B.S. Empress of Ireland" with which she collided, was sold under an order of the court and the proceeds of the sale were deposited in court for distribution between the claimants for loss of life and property according to their respective rights.- Held, Idington J. dissenting, that the distribution of the fund must be made in accordance with the provisions of sec. 503 of the "Imperial Merchants Shipping
Act." the claimants for loss of life or personal injury being entitled to of the fund and then ranking for the balance of their claims pari passu with the claimants for loss of property.-Per Idington J. dissenting:-Section 503 of the Act is'effective only upon the application of the owner of the ship to a competent court, invoking limitation of his liability. The appeal was allowed in part and the judgment of the Exchequer Court, quebec
Admiralty Division, was varied, Idington and Duff JJ. being of opinion to allow the appeal in full.
"5.S. .324
AGENT.
APPEAL. -Jurisdiction-Emphyteusis - "Supreme Court Act," setion 46 (b). .. 288
2-Leave to appeal-" Winding-up
........
......
.. 433
See WILL.
3-Jurisdiction-Construction of statute
-Legislation declared ultra vires-Amendment granting right to "maintain anew"
action-"Supreme Court Act," sec. 2, par.
(e)
.........................
ARBITRATION.
ASSESSMENT AND TAXES-Statute- Construction-Assessment -Rate - Value of propery-"Assessment Act," R.S.M., [1913] c. 134,8. 29.] The Manitoba "Assessment Act," R.S.M., [1913] c. 134, s. 29, provides that "in cities, towns and villages all real and personal property may be assessed at less than actual value or in some uniform and equitable proportion of actual value, so that the rate of taxation shall fall equally upon the same."- Held, that this legislation does not authorise the assessment of property at more than its actual value.
TowN TRANSCONA.........................56 2- Succession duties-Property in province...............................26 BAILEE.-Warehouseman-Defective piles -Negligence-Reasonable care ....... BANKS AND BANKING.-Security on crop
Lease of homestead- Family arrangement.........................220 2-Bill of exchange-Cheque-Payment -Presentment-Delay...............165 3-Contract-Guarantee-Illegal interest charged to principal debtor-Variation of contract-Liability of guarantor ....... 512 BY-LAW. - Publication - Directory mandatory provision ................ See 3.
CASES.
1-Arnold v. Dominion Trust Company (35 D.L.R. 145; 32 D.L.R. 301) affirmed 2--Barron v. Kelly (27 B.C. Rep. 283) CASES-continued.
3-Boulter v. Stocks (47 Can. S.C.R.
440) discussed. .. ... ! ..............
4--Calgary, City of, v. Canadian Western
Natural Gas Company (56 Can. S.C.R.
117) distinguished..................253
5----Campbell v. Fleming (1 A. & E. 40)
discussed..........................455
6--Elliott v. The Winnipeg Electric
Railway Company (28 Man. R. 363) re-.
versed............................560
7-Furness, Withy and Company v.
Ahlin (51 N.S. Rep. 291) affirmed... .. 553
8--Gauthier v. The King (15 Ex. C.R.
444) affirmed......................176
9--German v. The City of Ottawa (39
Ont. L.R. affirmed..............80
10--Hingston v. Benard (Q.R. 25 K.B.
512) affirmed .......... ....
........ 17
11-King, The, v. Power (10 Ex. C.R.
reversed......................499
12-Mayne v. Grand Trunk Railway
Company (39 Ont. L.R. 1) reversed... .95
See 1.
13--McKillop v. Royal Bank of Canada
(10 Alta. L.R. 304) reversed in part.. . .220
14---Ouimet v. Bazin (46 Can. S.C.R.
followed......................157
See 1.
15-Scown v. Herald Publishing Company (38 D.L.R. 43) affirmed........305
16-Shaw v. Hossack (40 Ont. L.R. 475;
39 Ont. L.R. 440) reversed in part .... 581
See 6.
17-Stahl v. Miller (37 D.L.R. 514)
reversed..........................312
See 3.
CASES-continued.
18- Toronto, City of, v, Toronto Railway Company, [19071 A.C. 315; 37 Can. S.C.R. 430) distinguished..................117 19- Union Natural Gas Company of Canada v. Chatham Gas Company (40 Ont. L.R. 148; 38 Ont. L.R. 488) reversed.. 253 20-Veltre v. London and Lancashire Insurance Company (40 Ont. L.R. 619; 39 D.L.R. 221) affirmed.............588 CAVEAT-Registration by assignee ...... 1 See 1.
CIVIL CODE
1-Art. 567 & seq. (Emphyteusis).. .288 2- Art. 1054 (Obligations) ......... 415 3- Art. 1614 (Lease)............17 4-Art.
2242 (Prescription) ........ 499 CIVIL CODE OF PROCEDURE 1- Art. 699 (Seisure).............246 2-Art.
1038, 1185 (Partition and licitation)..............................488 COMPANY-Subscription of stock-Mis- - Acquiescence - Delay Estoppel-Stock "to be issued"-Proof.] Held, Fitzpatrick C.J. dissenting, that in case of alleged misrepresentations made by the promoter of an incorporated company, a subscriber for stock must clearly prove that he has in fact been induced by such representations to buy shares, especially if he has kept silent after receiving numerous demands of payment and has failed to repudiate his contract for a considerable period of time after he had knowledge of the falsity of the representations.-Per Idington J. and semble per A mere statement, at the head of an underwriting agreement, as to the capital to be issued, does not imply that the subscriber will be under no liability to pay for his shares unless and until the amount so stated had been issued.-Per Delay in repudiation after COMPANY-continued.
knowledge of the falsity of an inducing representation, especially in the case of a subscription for shares, may give rise to a presumption of acquiescence or of an election not to rescind.-Per Fitzpatrick C.J.
dissenting. In the case of an agreement to take shares in an incorporated company, the capital issued, if not equal to that proposed, must not at least be so reduced as to render the company incapable of accomplishing the avowed object of its existence.
ROBERT V. MONTREAL TRUST
.....................
CONSTITUTIONAL
LAW - Municipal by-law-Sunday observance-Prohibiting opening of restaurants-"Lord's Day Act,"
R.S.C., 1906, c.
A municipal bylaw, forbidding the opening of restaurants and the sale therein of any merchandise on
Sundays, is ultra vires, as it deals with the observance of Sunday or the Lord's Day.
Ouimet Bazin, 46 Can. S.C.R. 502, followed.
v. RODRIGUE.......157
2- Provincial statute-Application to
Crown in right of Dominion-Arbitration
-Revocation of submission-"Ontario Arbitration Act," R.S.O., [19141 c. 65, as. 3 and 5.]
A reference to the Crown, without more, in a provincial statute means the Crown in right of the province only.
Sec. 5 of the "Ontario Arbitration Act"
making a submission to arbitration irrevocable except by leave of the court does not apply to a submission by the Crown in right of the Dominion notwithstanding
3 provides that the Act shall apply to an arbitration to which His Majesty is a party.-Per Fitzpatrick C.J. Where a liability is imposed on the Crown in right of the Dominion it must be ascertained according to the laws of the province in which the cause of action arose in force at the time it was so imposed and cannot be added to by subsequent provincial legislation.
Judgment of the Exchequer
Court of Canada (15 Ex.,C.R. 444) affirmed.
CONTRACT-Municipal la--Interpretation-Extension of city limits-Added area-Exclusive rights.] An agreement was made in 1905 between the city appellant and one D. the assignor of the company respondent, whereby D. was given the privilege of supplying natural gas
"throughout the said city."
In another agreement, made in 1911, amending the above, it was provided that the respond- CONTRACT-continued.
ent should be permitted to charge certain prices for gas supplied "to the inhabitants of the city."-Held, Davies and Idington JJ. dissenting, that the privilege granted to D. was not limited to the area of the city appellant as it existed at the date of the agreement, but extended to the various extensions of the city's boundaries which were subsequently made. City of Toronto v. Toronto Railway Company (1907), A.C. 315; 37 Can. S.C.R. 430 distinguished. The agreement contained a provision that "the city shall not grant to any person, firm or corporation" a privilege similar to that granted to D. and referred also to the "exclusive rights and privileges hereby granted."-Held, Fitzpatrick C.J. dissenting, that the grant to D. was not exclusive as against the city appellant itself.
CITY or WESTERN PANY...........................117 2-Supply of gas-Area-Extension of municipal limits-Parties.] The Union Natural Gas Co. are producers of gas and the Chatham Gas Co. is empowered to sell and distribute the commodity to consumers in the City of Chatham. By a contract between the two companies the Union Co. was to supply and the Chatham Co. to take all the gas required by the latter for such sale and distribution.- Held, Anglin J dissenting, that the Union Co. was not obliged to supply gas for distribution and sale by the Chatham Co. in territory annexed to the city after the contract was made. City of Calgary v. Canadian Western Natural Gas Co. (56 Can. S.C.R. 117), distinguished.-The Chatham Co. had contracted to supply gas to a sugar company operating in the territory so annexed to the city and the right of the latter to obtain the gas furnished by the Union Co. under its contract to supply the Chatham Co. only for use in the city depended on the construction of said contract as to the area to be served.-Held, per Anglin J., that the Sugar Co. is entitled to be a party to the action, and the order of the Appellate Division for a new trial with liberty to add it should be affirmed. The case is not one in which the power to give a declaratory judgment not accompanied by consequential relief should be exercised. Judgment of the Appellate Division (40 Ont. L.R. 148), reversing that at the trial (38 Ont. L.R. 488), reversed. Or V. COMPANY............253 CONTRACT-continued.
3-Sale
- Nullity - Rescission - Payment-Default-Mise en demeure.] Where in a deed of sale or promise of sale, it is stated that such deed would become null and void ipso facto without mise en demeure if the buyer failed to make any payment in capital or interest at the specified dates, such stipulation is exclusively in the interest of the seller, who has the right to choose between the rescission of the contract or its execution, the obligation of the buyer remaining absolute and without alternative.
LEMAY......365
4-Sale of land-Inducement to purchase
- Fraudulent misrepresentation - Rescission-Waiver-Action for deceit.] B. purchased some lots in land laid out for a town site having been assured by the agent of the real estate brokers who had charge of the sales that residents of an adjoining town had bought largely and a firm of railway contractors had also purchased lots. Having discovered that the first statement was untrue he, through his solicitor wrote to the brokers enclosing money for payment on his purchase, and stating that he was completing it in order not to lose what he had already paid but that he did not waive his right to reparation for deceit and intended to bring action therefor.
Later he discovered that the statement of purchase by the railway contractors was also false. In an action claiming rescission and, in the alternative, damages for deceit.-Held, Idington J.
dissenting, that by the above-mentioned letter, and by making subsequent payments, and offering to exchange some of the lots purchased for others B. had elected not to rescind and the discovery later of the second false representation did not entitle him to rescission as it was of the same nature as, and a fact of, the first.-Held, also, Fitzpatrick C.J. dissenting that he was entitled to damages for deceit.
Campbell v. Fleming (1 A. & E.
40) and Boulter v. Stocks (47 Can. S.C.R.
440), discussed.-Judgment of the Court of Appeal (24 B.C. Rep. 283) reversed.
KELLY.................. 455
5-Guarantee-Bank and banking-Illegal interest charged to principal debtor- Variation of contract-Liability of guarantor.] A director of an incorporated company gave a written guarantee that he would pay any indebtedness of the company to a bank up to the sum of $3,000.
The bank, in the course of its dealings with the company, charged in its books interest
CONTRACT-continued.
at 8% contrary to the provisions of the "Bank Act," but, so far as appears, without the knowledge of the company. The amount of the principal and interest legally due by the company to the bank exceeded the amount of the respondent's guarantee.-Held that, the charging of the illegal interest did not constitute a variation in the terms of the contract of guarantee; and the respondent was not thereby discharged from liability to the bank for the amount legally due.
Busu .......... 6-Loan of money-Interest at specified rate " until paid"-Maturity of loan-Payment of interest after maturity.] Where a contract is made for the loan of money "with interest at per cent. per month till paid" the borrower is not obliged to pay interest at said rate after maturity of the loan.-Payment of interest at such rate after maturity is voluntary and the excess over the statutory rate cannot be recovered back.-Judgment of the Appellate Division (40 Ont. L.R. 475), reversing that on the trial (39 Ont. L.R. 440), reversed in part.
SHAW... 581 7 - Emphyteusis -Lease-Sale-Intention of parties......................288 CRIMINAL CODE-Sections 69, 161. .22 2- Sections 825 & seq., 873......... 63 See LAw 2.
CRIMINAL LAW - Counselling to commit offence-Criminal common law of England-Criminal Code, ss. 69, 161.] Every one is guilty of an offence who counsels another to commit it, whether the person so counselled actually commits offence or not.-Demanding money from a contractor for aid in securing contracts from a municipal corporation is counselling the contractor to commit the offence mentioned in sec. 161 of the Criminal Code.-The criminal common law of England is still in force in Canada, except in so far as repealed, either expressly or by implication.
A bill of indictment was preferred to the grand jury against the appellant under s. 873 of the Criminal Code, and a CRIMINAL LAW-continued.
true bill was found. The appellant was arraigned and pleaded not guilty. On the day fixed for the trial, he moved to be allowed to elect for a speedy trial under the provisions of Part XVIII. of the
Criminal Code, and the presiding judge, with the consent of the Crown prosecutor, granted the motion. The appellant was subsequently arraigned in the Court of
Sessions of the Peace and found guilty.
-Held (Idington and Duff JJ. dissenting), that the judge of the Court of Sessions of the Peace had jurisdiction to try the offence.
Ginoux KING.......63
DEBTOR AND CREDITOR. - Security on crop - Lease of homestead - Family arrangement-Bills of Sale Ordinance,
Cons. Ord. N.W.T., c. 43, s. 15.]
G., an insolvent owing a considerable sum to the
Royal Bank, leased his homestead to his son, a minor, at a rental of half the crop to be grown thereon. The son took a lease of a neighbouring farm on similar terms and assigned both leases and his interest in the crops to the bank which agreed to advance money for putting in and harvesting the crops, the father and son undertaking that the proceeds from their sale would be applied first to payment of the advances and next of the father's original debt. Later, under a covenant for further assurances in the assignments, bills of sale of the severed crops were given the bank as additional security. Under executions against G.
which, to the knowledge of the bank, were in his hands when the lease was given to the son, the sheriff seized the two crops.
On appeal from the judgment of the Appellate Division in favour of the bank in an inter pleader .issue:-Held, per Fitzpatrick C.J., that the transactions with the bank were not fraudulent as against the creditors of G.; that as the bank had notice, before entering into these transactions, of the executions out against G.
the creditors were entitled to his share of the crop grown on the homestead; but the rest of the grain, in which G. had no interest, remained as security to the bank under the above mentioned agreements.
-Per Idington and Anglin JJ. That the son, to the knowledge of the bank, was acting throughout for his father with whom the bank was really dealing in taking security for its debt; that so far as the bils of sale of the crops were intended to secure the past debt to the bank they were fraudulent as against creditors and void and the assignments to the bank were void
DEBTOR AND CREDITOR-continued. under s. 15 of the Bills of Sale Ordinance (Cons. Ord. N.W.T. c. 43) which makes invalid any security not given for the purchase price of seed grain, which assumes to bind or affect a crop. There was a lawful seizure, therefore, of all the grain grown on the two farms.-Per Idington J. The security taken by the bank was a violation of the provisions of s. 76, s.s. 2 (e) of the Bank At.-Per Davies and Duff JJ. dissenting. The appeal should be dismissed. -Judgment of the Appellate Division (10 Alta. L.R. 304) reversed in part. McKiL- 2-Bank and banking-Bill of exchange - Cheque - Payment -Presentment-Delay.] The appellant sent to the respondent a cheque drAwn on the Estevan Security Company, and the Bank of Montreal, acting as agent for the respondent, sent the cheque direct to the drawee by post. Instead of insisting upon prompt payment of the cheque out of the funds which the appellant then had available with the Security Company, the Bank of Montreal gave to the latter almost one month's delay, and then accepted a draft of that company on another bank which was dishonoured;
and immediately after the Security Company*went into insolvency. -Held, that the appellant was discharged of his liability to the respondent for the amount of the cheque.-Davies J., though not dissenting formally, was of the opinion that the case should be sent back for a new trial, so that the cause of the delay might be explained and the responsibility thus determined.
EMPHYTEUSIS -Lease -Sale Intention of parties-Art. 567 and se Appeal-Jurisdiction-Supreme Court Act, s. 46 (b).]
By an agreement respecting the unexpired term of an emphyteutic lease, it was stipulated that the vendor should be obliged to give to the buyer a deed of sale of all -his rights and claims upon the lease when a sum of two hundred dollars had been wholly paid, and thereupon the buyer should enter into full proprietorship of the immovable (under the terms of art. 569 C.C.) subject to the payment of the emphyteutic rent.-Held, Anglin J. dissenting, that the intention of the parties was that the sale was to be deemed perfected by the payment of the sum stipulated, without it being necessary for the buyer to take out a title deed.- Per Anglin J.-When the payment was S.C.R. VOL. LVI.]
EMPHYTEUSIS-<:ontinued.
made, the buyer would become entitled to a transfer of the vendor's title and would enter into full proprietorship only after such transfer should have been made.- Held; Duff J. dissenting, that the existence or non-existence of proprietorship of a lot of land held under an emphyteutic lease
"relates * * * to * * * title to lands or tenements" within the clause (b) of s. 46 of the Supreme Court Act. CIr QUE- ESTOPPEL - Company -Suscription of stock-Misrepresentations-Acquiescence- Delay-Proof......................342
'EVIDENCE - Damages-Employer's liability-Accident due to a thing under his care-Presumption of fault-Onus probandi
-Art. 1054 C.C.]
Held, Idington J. (dissenting)
, that in an action claiming damages for the death by accident of an employee the sole fact that the death was caused by an inanimate thing under the care of the employer creates a presumption of fault against him which he must rebut.
-Per Idington J.
senting:-The effective cause of the accident was the negligence of the respondent's husband. Non- EXPROPRIATION-Fair market value - Generosity - Compulsory taking - 10% allowance.] The Assistant Judge of the
Exchequer Court, after reviewing the evidence, concluded: "Under all the circumstances of the case * * * a fair and generous market price for the area expropriated would be about eight to ten cents a foot, and to make it very generous compensation, I will make it ten cents a foot."- Held, that the element of "generosity" is not one which should enter into the arbitrator's or judge's consideration, when fixing the compensation to be allowed for compulsory purchase.-An allowance of ten per cent. of the award, for compulsory taking, cannot be claimed as of right for all kinds of property and under all circumstances.
KING v. LARIVPE..........376
2-Croton grant-Clause of resumption
-Extinction of right-Prescription.] The appeal from the judgment of the Exchequer Court of Canada (16 Ex. C.R.
104) was allowed, Davies and Idington
JJ. (dissenting)
.-In a grant from the Crown of a water-lot to the appellants' predecessor in title, it was provided for the
EXPROPRIATION-continued.
resumption of it by the Crown at any time for purposes of public improvement upon giving twelve months' notice in writing of its intention to exercise that right.-Per Anglin, Brodeur and Lavergne JJ. The Crown, by instituting expropriation proceedings in respect of this water-lot, elected not to exercise its right of resumption.-Such right, having been vested in the Quebec Harbour Commissioners under 22 Vict., c. 32, does not form part of the Crown domain, notwithstanding their public character and the nature of their trust.-Per Brodeur and Lavergne JJ. This right, not having been exercised for a period of over thirty years, was extinguished by prescription under art. 2242 C. C. Angin J. contra.-Per Davies and Idington JJ. dissenting.-The appeal should be dismissed as the appellants have no reason to complain of the amount of compensation allowed. Pow- . THE KiNo....................499 GUARANTEE.
INSURANCE-Fire-Condition of policy -Notice of cancellation-Return of unearned premium-Notice and tender by mail- Receipt by insured.] In the statutory conditions indorsed on a policy of insurance against fire condition 11 provides that "the insurance may be terminated by the company by giving seven days' notice to that effect and * * * by tendering therewith a rateable proportion of the premium paid for the unexpired term calculated from the termination of the notice." By condition 15 "any written notice to the assured may be by registered letter addressed to him, etc."-Held, that the notice of cancellation of the policy may be given by registered letter addressed to assured as required by condition 15 and the terms of condition 11 as to rebate are complied with if the money for the unearned premium is enclosed with the notice in an envelope so properly addressed and registered.-Held, however, that the cancellation of the policy will not be effected unless the notice and money are actually received by the assured before a loss under the policy occurs.-Held, per Brodeur J. that the unearned premium must be -personally tendered to the assured. Judgment of the Appellate Division, 40 Ont. L.R. 619; 39 D.L.R. 221, affirmed. LoN- FIRE VELTRE................ INSURANCF-continued.
- Life-Benet of wife-Declaration in writing-Will-Identifying policy--R.S.B.
C., [1911] c. 115, s. 7-" Winding-up Act"
-Leave to appeal.] By s. 7 of the "Life
Insurance Policies Act" of British Columbia a man may "by any writing identifying the policy by its number or otherwise"
cause a policy of insurance on his life to be deemed a trust for the benefit of his wife for her separate use.-Held, per
Davies and Anglin JJ., Fitzpatrick C.J.
dubitante, Idington J contra, that such declaration in writing may be made by will as the legislature of British Columbia, when enacting this provision, must be presumed to have adopted the judicial construction of similar legislation in the
Province of Ontario.-A. by his will bequeathed to his wife "the first seventyfive thousand dollars collected on account of policies of life insurance."-Held,
Davies J. contra, that said devise was not a writing "identifying the policy by its number or otherwise" as required by s. 7 of the Act and said sum of $75,000 did not enure to the benefit of- A.'s wife.-After the death of A. his wife brought action against the Trust Company, executor of his will, and said company's liquidator under a winding-up order to recover
$75,000 out of the proceeds of life policies collected b the executor.
On appeal from the ju gment of the Court of Appeal in said action.-Held, Idington and Brodeur JJ. dissenting, that the case was not one subject to the provisions of s. 106 of the " Winding-up Act" and leave to appeal was not necessary.-Judgment of the
Court of Appeal (35 D.L.R. 145) sustaining that at the trial (32 D.L.R. 301)
affirmed.
ComPANY........................433
INTEREST-Loan of money-Interest at specified rate "until paid"-Maturity of loan-Payment of interest after maturity
.
..........
See CoTRACT 6.
LANDLORD AND
TENANT-Lease- Liability of landord-Repairs-Damages
-Flood-Vis major-Art. 1614 C.C.] The appellant was about to go into occupation of premises leased by him frodi respondent when water inundated the basement, and a former lawsuit was in part decided in the appellant's favour.
The respondent executed some extensive repairs to the building, according to advice from experts, in order to prevent similar troubles and appellant took possession of the premises.
LANDLORD AND TENANT-continued. In the spring following, a second flood occurred, causing considerable damage, for which appellant took action against respondent, on the grounds that the respondent's contrivances for keeping away the water were defective and that the respondent was under obligation to protect him from river flooding.-The judgment appealed from (Q.R. 25 K.B. 512), reversing the judgment of the Superior Court and dismissing the appellant's action, was affirmed.-Per Davies J. It is not necessary, to bring an event within the scope and meaning of the words vis major or the Act of God, that such an event should never have happened before; it is sufficient that its happening could not have been reasonably expected.-Per Anglin J. Upon the evidence, appellant's action did not fall within art. 1614 C.C., as he is presumed to have been willing to take the premises in the condition in which they were after the repairs had been made with the risk of further trouble from inundation of whidh he was or should have been aware; or if the flood was so extraordinary that it could not have been anticipated, the defence of via major should prevail.
HINGSTON ....... 17 LEASE-Emphyteusi8-Sale-Intention of parties.......................... LIBEL-Newspaper-Proprietor and publisher-Address of publication-Libel and Slander Act, 4 Geo. V. (2 sess.), c. 12, s. 15. In an action claiming damages for a libel published in a newspaper the Alberta Libel and Slander Act by a. 15 requires for certain purposes of defence that "the name of the proprietor and publisher and address of publication" shall be stated at the head of the editorials or on the front page of the paper.
The "Calgary Herald" publishes at the head of the editorials: "The 'Herald' * * * published at Calgary, Canada, by the 'Herald' Publishing Co."
The "Herald" Publishing Co. is both proprietor and publisher of the newspaper, and in an action against it forlibel.-Held, Idington J. dissenting, that the requirements of s. 15 were substan-. tially complied with. Judgment of the. Ap pellate Division (38 D.L.R. 43 )affirmed.
ScowN V. LIEN-Mechanic's lien-Notice in writing. Verbal notice - Registration-"Alberta Mechanics' Lien Act," s. 32, as amended i.s LIEN--continucd.
1908.1-Held, Fitzpatrick C.J. and Idington J. dissenting, that, to enforce the mechanic's or the material man's lien, under the "Alberta Mechanics' Lien Act,"
a "notice in writing of such lien and of the amount thereof" must be given to "the owner or person having superintendence of the work on behalf of the owner,"
according to s. 32 of the Act, as amended in 1908.-Per Fitzpatrick C.J. dissenting.
Such notice in writing is not intended to affect the validity of the lien, but merely to determine the extent of the owner's
'liability.
COMPANY................141
MANDAMUS-ssue of licence-Municipal corporation. .. ..............
MORTGAGE - Foreign mortgagee-Property in province-Registration-Seal. .. 26
See SuccEssIoN DUTIEs.
MUNICIPAL CORPORATION - Statute
-Construction-Mandamus-" Nova Scotia Fishing Act"-Fishing licence-2 Geo.
V., c. 18 (N.S.), 6 & 7 Geo. V., c. 27 (N.S.)]
By s. 2 of he "Nova Scotia Fisheries Act"
of 1912 (2 Geo. V., c. 18), every resident of the province is given the right to go on foot along the banks of any river, stream or lake and to go on or across the same for the purpose of lawfully fishing therein except as to the land of an occupant licensed under the Act. From s. 3, the provision that such right should not apply
"to lands situate in a municipality where no by-laws imposing any licences are in force," was eliminated in 1916 (6 & 7
Geo. V., c. 27).
By s. 6 any municipality
"may by by-law provide for the issue of licences under this Act" and for regulation of the fees and by s. 7 the clerk is required to keep a record of the licences issued and the fees paid.-Held, that the provisions of s. 6 respecting the issue of municipal licences cannot be construed as imperative and on the neglect or refusal of a municipal council to pass the said by-law an "occupant" may obtain the issue of a licence by a writ of mandamus.-Held also, Davies
J. dissenting, that such writ may be directed to the clerk of the municipality.-Per
Davies J.-The writ should have been directed to the municipal council requiring it to pass the necessary by-law.
Acn- KING...................48
2- Negligence-"Groms negligence"-Ice and snow - Personal injuries - Weather
MUNICIPAL CORPORATION-cont. conditions-" Municipal Institutions Act," R.S.O. (1914), c. 192, s. 460 (3).] 8. 460 (3) of the "Ontario Municipal Institutions Act" provides that "except in cases of gross negligence a municipality shall not be liable for injury caused by ice or snow upon a sidewalk."
The City of Ottawa undertakes the work of removing snow from the sidewalks and keeping them safe for pedesirians.-Held, that failure to sand or harrow a sidewalk before 9 a.m. of February 2, when the conditions calling for it only arose on that morning, if negligence at all, is not "gross negligence," and the city is not liable for personal injury caused at that hour by ice on the sidewalk especially if it was not a place of special danger nor on a street of heavy traffic and did not call for immediate attention.- Held, also, that reducing the working staff on the day of the accident was probably not "gross negligence" in the absence of evidence that such reduction caused the injury.-Held, per Fitzpatrick C.J. and Idington J. dissenting, that after a thaw for some days the temperature fell on the afternoon of the day preceding the accident and the city officials should have realised that the sidewalks would be dangerous on the following morning. It was, therefore, "gross negligence" to reduce the working staff and to fail to ao work on the sidewalk where the accident occurred.
The judgment of the Appellate Division (39 Ont. L.R. 176) was affirmed. CITY 3-Contract-Municipal law-Interpretation -Extension of city limits -Added area-Exclusive rights.] An agreement was made in 1905 between the city appellant and one D. the assignor of the company respondent, whereby D given the privilege of suppyling natural gas "throughout the said city." In another agreement, made in 1911, amending the above, it was provided that the respondent should be permitted to charge certain prices for gas supplied "to the inhabitants of the city."-Held, Davies and Idington JJ. dissenting, that the privilege granted to D. was not limited to the area of the city appellant as it existed at the date of the agreement, but extended to the various extensions of the city's boundaries which were subsequently made. City of Toronto v. Toronto Railway Company (1907), A.C. 315; 37 Can. S.C.R. 430, distinguished.-The agreement contained a provision that "the city shall not grant to any person, firm or MUNICIPAL CORPORATION-cont.
corporation" a privilege similar to that granted to D. and referred also to the
"exclusive rights and privileges hereby granted."-Hed, Fitzpatrick C.J. dissenting, that the grant to D. was not exclusive as against the city apellant itself.
CITY
CoMPANY............117
4-Constitutional law-Municipal bylaw - Sunday observance - Prohibitig opening of restaurants-" Lord's Day Act,
R.S.C., 1906, c. 153.]
A municipal bylaw forbidding the opening of restaurants and the sale therein of any merchandise on Sundays, is ultra vires, as it deals with the observance of Sunday or the Lord's
Day. Ouimet v. Bazin, 46 Can. S.C.R.
502, followed.
PROSPER
5 - Assessment - Rate-Value of property-Construction of Statute ......... 56
6- By-law-Publication........... 524
See STATUTE 3.
7- Street railway-By-law-Removal of snow-Validating Act-Statutory duty.560
NEGLIGENCE - Municipal corporation
-"Gross negligence"-Ice and snow-Personal injuries - Weather conditions - "Municipal Institutions Act,"
R.S.O.
(1914), c. 192, s. 460 (3).]
Sec. 460 (3) of the "Ontario Municipal Institutions Act"
rovides that "except in cases of gross negligence a municipalty shall not be liabe for injury caused by ice or snow upon a sidewalk."
The City of Ottawa undertakes the work of removing snow from the sidewalks and keeping them safe for pedestrians.-Held, that failure to sand or harrow a sidewalk before 9 a.m. of
February 2, when the conditions calling for it only arose on that morning, if negligence at all, is not "gross negligence," and the city is not liable for personal injury caused at that hour by ice on the sidewalk especially if it was not a place of special danger nor on a street of heavy traffic and did not call for immediate attention.-Held, also, that reducing the working staff on the day of the accident was probably not "gross negligence" in the absence of evidence that such reduction caused the injury.- Held, per Fitzpatrick C.J. and Idington J.
dissenting, that after a thaw for some days the temperature fell on the afternoon of
NEGLIGENCE--continued.
the day preceding the accident and the city officials should have realised that the sidewalks would be dangerous on the following morning.
It was, therefore, "gross negligence" to reduce the working staff and to fail to do work on the sidewalk where the accident occurred.
The judgment of the Appellate Division (39 Ont. L.R. 176) was affirmed.
OTTAWA...................80 2-Railway company-Duty of conductor -Invitation to alight.] The conductor of a railway train, whose duty it is to see that passengers are carried "with due care and diligence" is entitled to assume that they will act with ordinary prudence and discretion.-The act of the conductor in opening the door guarding the steps at the end of a car and allowing a passenger to go down with these steps from which he stepped off while the car was still moving at a high rate of speed and was killed is not negligence on his part which makes the company liable in damages under the "Fatal Accidents Act."-Per Davies and Idington JJ. dissenting. As the passenger was not accustomed to travel, and had been told by the conductor, after he had called out the name of the station, "this is where you get the passenger had reason to believe that he could safely alight and the company liable. Judgment of Appellate Division (39 Ont. L.R. 1) reversed.
Davies and Idington JJ. (dissenting)
.
MAYNE................... - Damages - Employer's liability - Accident due to a thing under his care- Presumption of fault-Onus probandi- Art. 1054 C.C.]
Held, Idington J. (dissenting)
, that in an action claiming damages for the death by accident of an employee the sole fact that the death was caused by an inanimate thing under the care of the employer creates a presumption of fault against him, which he must rebut.-Per Idington J. dissenting. The effective cause of the accident was the negligence of the respondent's husband. NonRoss GOHIER.415 4- Bailee for hire-Warehouseman- Storage of goods on wharf-Defective piles -Reasonable care.] Goods stored under contract in a warehouse on a wharf built on piles in the harbour of Halifax were destroyed or damaged in the collapse of the wharf. In an action by the owners of NEGLIGENCE--continued.
the wharf and warehouse for wharfage and for work and labour performed in salving the goods there was a counterclaim for damages.-Held, affirnming the judgment of the Supreme Court of Nova Scotia (51
N.S. Rep. 291), that as it was proved that the collapse of the wharf was caused by the piles having become wormeaten and unable to support the superstructure, and that the life of a pile in Halifax harbour is about ten years; and as it was not proved that the piles had been properly inspected or renewed during the sixteen years of the existence of the wharf; the warehousemen had not exercised the reasonable care required of a bailee for hire and were responsible for the loss and injury to the.warehoused goods. Fun- 5---Street railkay-By-law-Removal of anow-Validating Act-Statutory duty.]
By the terms of the by-law authorizing the Electric Railway to operate over the streets of Winnipeg the company was obliged to keep the tracks and the roadway for eighteen inches on each side clear of ice and snow and cause the same to be spread over the rest of the street so as to afford a safe passage for vehicles. If the city engineer considered that the work was not properly done he could have it performed at the company's expense and could, at his discretion, order the company to remove the snow and ice entirely.
By a provincial statute this by-law was ratified and confirmed "in all respects as if (it) had been enacted by the legislature."
At a certain point on its line the company swept the snow four feet back from the track where it formed a bank sloping somewhat steeply down to the track, and
E., attempting to board a car, fell on this slippery surface and was severely injured.
The city engineer never objected to this method of removing the snow.-Held, re- Appeal (28 Man. R. 363), Davies J. dissenting, that the company had not performed its statutory duty of keeping the street safe for traffic and was hable in damages to E. for the injury so sustained.
-Held, per Anglin J., that the nature and extent of the statutory duty, the manner in which it should be performed and the correlative rights of the defendant company were not properly presented to the jury and there should be a new trial.
NEWSPAPER - Libel - Proprietor and publisher-Address of publication. PARTITION - - Licitation - Parties Irregularity-Second action in partition- Arts. 1038, 1185 C.P.Q.]
The father of the appellants, co-heir owner of a lot of land, was not made a party to a suit for partition, as prescribed by art. 1038 C.P.Q., apparently on account of his insanity and his absence from Canada. The respondent became the detenteur of the lot through sales following such licitation. The appellants, alleging the above nullity, took another action in partition against the respondent.-Hed, Idington J. dissenting, that the judgment entered in the first partition proceedings should have been first set aside on the ground of nullity before a second action in partition could be taken;
and such relief cannot be granted in the present action as all the Sarties to the first proceedings are not efore the court.
PAYMENT
Payment by instalments- Assignment of purchase moneys-Absence of notice to purchaser-Payment by purchaser to vendor......................1 PRACTICE AND PROCEDURE - Partition - Licitation - Parties - Irregularity-Second action in partition-Arts. 1038, 1185 C.P.Q................488 2-Sale of land-Vendor agent of purchaser-Rescission.................. 3-Amendment granting right to "maintain anew" action................... 539 PRESCRIPTION - Expropriation - Crown grant-Clause of resumption-Extinction of right.....................499 PRINCIPAL AND AGENT - Sale of land-Vendor agent of purchaser-Rescission.] W. M., a member of the firm of "J.J.M.," real estate brokers, was one of two trustees appointed by order of court to sell certain lands in Vancouver with liberty to employ "J.J.M." as agents. S. carried on real estate transactions through this firm or its other member and had PRINCIPAL AND AGENT--continued' given W. M. a power of attorney to buy and sell land for him in and around Vancouver. The other member of the firm of "J.J.M." purchased some land for S.
from the trustees and an agreement for sale was signed by the latter as vendors and by W. M. as attorney for S.
purchase price was paid with money of S.
in his agent's hands. The agreement was not sent to S. until five years after it was signed and he at once repudiated it and brought action for rescission.-Held, re- Appeal (37 D.L.R. 514), that as the evidence did not shew that S. was aware, until he received the agreement, that his attorney W. M. was one of the vendors, and as he acted promptly as soon as the fact came to his knowledge he was entitled to rescission of the agreement and repayment of the purchase price. The defendants were sued personally and not as trustees.-Held, per Fitzpatrick C.J. and
Anglin J., that as they purported to sell to S. as beneficial owners the proper parties are before the court. No application to amend has been made but as a matter of grace if they now elect to amend judgment can be entered against them in both capacities.
.
3......
RAILWAYS - Negligence-Railway company - Duty of conductor-Invitation to aight.] The conductor of a railway train, whose duty it is to see that passengers are carried "with due care and diligence" is entitled to assume that they will act with ordinary prudence and discretion.
act of the conductor in opening the door guarding the steps at the end of a car and allowing a passenger to go down these steps from which he stepped off while the car was still moving at a high rate of speed and was killed is not negligence on his part which makes the company liable in damages under the "Fatal Accidents Act."
-Per Davies and Idington JJ. dissenting.
As the passenger was not accustomed to travel, and had been told by the conductor after he had called out the name of the station, "this is where you get off," the passenger had reason to believe that he could safely alight and the company was liable. Judgment of the Appellate Division (39 Ont. L.R. 1) reversed, Davies and
Idington JJ. (dissenting)
.
TRUNK
........
2-Permission to enter land-Oral agreement-Statute of Frauds-Compensation- Company-Authority of president.] Arail- RAILWAYS-continued.
way company, without expropriating, ran its line through the yards of a tanning company and did work improving the yards and other work beyond the ordinary scope of a railway project.
Four years later the tanning company applied to a judge for the appointment of arbitrators under the "Railway Act" to determine the compensation for the right of way which the railway company, opposing the application, claimed to be entitled to without payment under an oral agreement with the president of the tanning company since deceased.
The judge ordered the trial of an issue, with the railway company as. plaintiff, to determine the rights of the parties and on appeal from the judgment of the Appellate Division.-Held, Idington J. dissenting, that the evidence established that such an agreement was entered into.-Held, also, Idington J. dissenting, that the agreement was binding on the tanning company, that said company was owned and controlled by a commercial firm of which the president was the head and the partnership articles and evidence at the trial shewed that he had authority to bind the company; and that the Statute of Frauds could not be relied on to defeat the action as it was not brought to charge the defendants on a contract for the sale of land or of an interest in land. If applicable it was taken out of the statute by part performance.-Duff J. also dissented from the judgment pronounced. COMPANY.......196 3-Negligence-Street railway-By-law -Removal of snow..................560 SALE-Sale of land-Payment by instalments-Assignment of purchase moneys- Absence of notice to purchaser-Payment by purchaser to vendor-Registration of caveat by assignee.] Under the provisions of the Land Titles Act of Alberta, the payment by a purchaser to his vendor of the purchase moneys, without notice of an assignment from the vendor to a third person, is. valid. The registration of a caveat by the transferee does not amount to such notice. GRACE v. KUEBLER................... I 2-Sherif's salo-Evidence-Valid title -Possession animo domini-Seizure-Art. 699 C.P.Q.1
V. successfully defended an action brought by one S. to recover the balance of the purchase money of property SALE-continued.
sold, the court holding that the transaction was immoral and void. The sale was not formally set aside and V. retained possession of the property. A judgment creditor of S. caused the property to be sold to himself by the sheriff; and V. by her action to annul the sale attacked the validity of the respondent's title.-Held,
Fitzpatrick C.J. (dissenting)
, that V., however defective her title, was in fact in possession of the property animo domini, and that its seizure under a judgment against who was not in, or entitled to, possession, was in contravention of art.
699 of the Code of Civil Procedure.-Per
Fitzpatrick C.J. (dissenting)
.
It was for V.
to establish that she was in possession animo domini at the time of the seizure, which was not done.
VEZINA v. LAroruNE ................
...... 246
3-Sale of land-Principal and agent- Vendor agent of purchaser-Rescission. W.
M., a member of the firm of "J.J.M.,"
real estate brokers, was one of two trustees appointed by the order of court to sell certain lands in Vancouver with liberty to employ "J.J.M." as agents.
S. carried on real estate transactions through this firm or its other member and had given W. M.
a power of attorney to buy and sell land for him in and around Vancouver.
other member of the firm of "J.J.M,"
purchased some land for S. from the trustees and an agreement for sale was signed by the latter as vendors and by
W. M. as attorney for S.
The purchase price was paid with money of S. in his agent's hands. The agreement was not sent to S. until five years after it was signed and he at once repudiated it and brought action for rescission.-Held, re- Appeal (37 D.L.R. 514), that as the evidence did not shew that S. was aware, until he received the agreement, that his attorney W. M. was one of the vendors, and as he acted promptly as soon as the fact came to his knowledge he was entitled to rescission of the agreement and repayment of the purchase price. The defendants were sued personally and not as trustees.-Held, per Fitzpatrick C.J. and
Anglin J., that as they purported to sell to S. as beneficial owners the proper parties are before the court. No application to amend has been made but as a matter of grace if they now elect to amend judgment can be entered against them in both capacities.
SALE-continued.
4- Contract-Nullity-Rescission-Payment-Default-Mise en demeure.] Where in a deed of sale or promise of sale, it is stated that such deed would become null and void ipso facto without mise en demeure if the buyer failed to make any payment in capital or interest at the specified dates, such stipulation is exclusively in the interest of the seller, who has the right to choose between the rescission of the contract or its execution, the obligation of the buyer remaining absolute and without alternative.
5--Sale of land-Foreign vendor-Agreement for sale-Place of completion-Time essence of agreement-Extension of time- Waiver.] Y., residing in Ireland, through an agent in Calgary listed land there for sale with a real estate broker. An agreement by S. to purchase this land, signed by the broker for Y., provided for a part payment in cash to be forfeited to the vendor, and the contract to be null and void if the balance was not paid in one year, time to be of the essence of the contract. When the balance became due, March, 1914, S. went to the broker to complete the purchase but was told that the conveyance had to be sent to Ireland for execution and to return in six weeks which he did and found the situation the same. Subsequent inquiries succeeded no better and in December, 1914, he formally tendered the money to the broker and shortly after wrote to Y. at Belfast repudiating the agreement and demanding the return of the money paid under it. Receiving no reply, in January, 1915, he took an action for rescission and repayment of the money in which Y. by counterclaim asked for specific performance. In February, Y. tendered a conveyance of the land to S.-Held, that while no place was named in the agreement for completion of the purchase it was to take place at Calgary, and asY. was to prepare the conveyance it was her duty to have it there for delivery to S. at the appointed time.- Held, also, that the assent by S. to the request of the broker to wait after the time of completion for the conveyance could not be considered an agreement for extension nor evidence of an intention not to rescind. In the agreement the address of the vendor was given as Belfast Ireland, instead of Dublin where she lived, and the vendee's letter of repudiation sent to Belfast was not delivered.-Held, Fitzpatrick SALE-continued.
C.J. dissenting, that this and other circumstances absolved the vendee from the duty of giving notice fixing a reasonable time within which the purchase must be completed or the contract be at an end.- Held, per AnglinJ. The stipulation in the agreement that "time shall be the essence of this agreement" was binding on both parties though the vendee alone was to be penalized for its non-observance.
Smsow
6- Emphyteusis - Lease - Intention parties............................288
See EMPHYTEUSIS.
7-Sale of land-Contract-Inducement to purchase-Fraudulent misrepresentations
-Rescission-Waiver-Action for deceit
.
.................
STATUTE - Construction - Mandamus
-"Nova
Scotia Fishing Act"-Fishing licence-Municipal corporation-2 Geo. V., c. 18 (N.S.), 6 & 7 Geo. V., c. 27 (N.S.).] By s. 2 of the "Nova Scotia Fisheries Act" of
1912 (2 Geo. V., c. 18), every resident of the province is given the right to go on foot along the banks of any river, stream or lake and to go on or across the same for the purpose of lawfully fishing therein except as to the land of an occupant licensed under the Act. From s. 3, the provision that such right should not apply
"to lands situate in a municipality where no by-laws imposing any licences are in force," was eliminated in*1916 (6 & 7 Geo.
V., c. 27).
By s. 6 any municipality "may by by-law provide for the issue of licences under this Act" and for regulation of the fees and by s. 7 the clerk is required to keep a record of the licences issued and the fees paid.-Held, that the provisions of s. 6 respecting the issue of municipal licences cannot be construed as imperative and on the neglect or refusal of a municipal council to pass the said by-law an
"occupant" may obtain the issue of a licence by a writ of mandamus.-Held, also, Davies J. dissenting that such writi may be directed to the clerk of the municipality.-Per Davies J. The writ should have been directed to the municipal council requiring it to pass the necessary by-law.
v. THE KING.....48
2 - Construction - Assessment - Rate
-Value of property-"Assessment Act,"
R.S.M., [1913] c. 134, s. 29.]
The Manitoba "Assessment Act," R.S.M., [1913]
STATUTE-continued.
c. 134, a. 29, provides that "in cities, towns and villages all real and personal property may be assessed at less than actual value or in some uniform and equitable proportion of actual value, so that the rate of taxation shall fall equally upon the same." -Held, that this legislation does not authorize the assessment of pro erty at more than its actual value.
COR- ST. v. THE TOWN or TRANSCONA...................56 3- Interpretation-Directory or mandatory provision-By-lau-Publication.] By s.s. 142, s. 50, of the "Municipal Clauses Act" of British Columbia, it is stipulated that "every by-law passed under the provisions of this sub-section shall, before coming into effect, be published in the British Columbia Gazette and in some newspaper published in the municipality."- Held, Fitzpatrick C.J. and Brodeur J. dissenting, that this provision is mandatory and not merely directory and the publication of the by-law is a necessary condition to its validity.-Per Fitzpatrick C.J. and Brodeur J. The by-law is valid whether published or not, but it shall be published before coming into effect.
Vic- MACKAY..................524 4 - Construction - Legislatiorv declared ultra vires-Amendment granting right to " maintain anew" action-Jurisdiction- "Supreme Court Act," s. 2, par. (e).] An action brought by the appellant was dismissed by the trial court upon the merits and by the Court of Appeal for British Columbia on the pround that the appel-. lant, being an unlicensed extra-provincial company, had been prohibited by the "Companies Act" of 1897 from making the contract sued upon. Later on this legislation was held by the Judicial Committee of the Privy Council to be ultra vires of the provincial legislature. "Companies subsequently amended by enacting the following provision: "Where an action, suit or other proceeding has been dismissed or otherwise decided against an extra-provincial company on the ground that any act or transaction of such company was invalid or prohibited, by reason of such company not having been licensed or registered pursuant to this or some former Act, the company may, if it is licensed or registered as required by this Act and upon such terms as to costs as the court may order, maintain anew such action, suit or STATUTE-continued.
other proceeding as if no judgment had therein been rendered or entered."-Held, that the appellant was not obliged to bring an action de novo, but had the right to ask for a reinstatement or revivor of the dismissed action at the stage at which it was when the judgment based upon the statute subsequently held ultra vires was pronounced.
The judgment appealed from holding that the action must be begun de novo is a final judgment within the meaning of par. (e) of s. 2 of the "Supreme
Court Act."
KOMNICK
B.C. . .. .. 539
5--Municipal by-law--Validating Act- Statutory duty......................560
STATUTE OF FRAUDS..........196
STATUTES-57 & 58 Vict. c. 60 ("Imperial Merchants Shipping Act") ...... 324
2-R.S.C. [1906] c. 153 ("Lord's Day
3- R.S.C. [1906] c. 139, e. 2, par. (e)
("Supreme Court Act") ............. 539
4-R.S.C. [1906] c. 139, s. 46 (b) "(Supreme Court Act")...................288
5- R.S.O. c. 65,
3 and 5
("Ontario Arbitration Act").........176
6- R.S.O.
c. 192, s. 460 (3)
("Municipal Institutions Act") ....... 80
7-(Alta.) 4 Geo. V. (2 sess.) c. 12, 8. 15
"(Libel and Slander Act")...........305
8- (Alta.) 5 Geo. V. c. 5 (" The Succession Duties Act")...................26
9-R.S.B.C. c. 115, s. 7 ("Life
Insurance Policies Act") ............ 433
10-R.S.B.C. c. 32, s. 50, 142
("Municipal Clauses Act")..........524
STATUTES-continued.
11- R.S.M. [1913] c. 134, s. 29 ("Assessment Act").........................56 12-(N.S.) 2 Geo. V. c. 18, s. 2 ("Nova Scotia Fisheries Act") as amended by 6 & 7Geo. V. c. 27......................48 See 1. 13-(N.W.T.) Cons. Ord. c. 43, s. 15 ("Bills of Sale Ordinance") .......... 220 SUCCESSION DUTIES - Taxation - Property in province-Mortgage-Foreign mortgagee.] The debt secured by a mortgage on lands in Alberta, registered under the provisions of "The Land Titles Act," is property in the province within the meaning of s. 7 of "The Succession Duties Act" (5 Geo. V. 5 [Alta.]), though the domicile of the mortgagee is out of the province and the debt is a specialty debt. Anglin J. dissenting.-By the Act the mortgage after registration, is to remain in possession of the Registrar of Titles. The mortgage in this case was executed in duplicate the registrar and the mortgagee each retaining one. That retained by the mortgagee was in his possession when he died at Ottawa, Ont.-Held, Anglin J. dissenting, that such possession by the mortgagee did not make the mortgage "property out of the province."- Per Davies J. The duplicate retained by the registrar is the original mortgage.- Per Anglin J. The mortgage' executed under the seal of the mortgagor is the evidence of the debt independently of registration and is conspicuous at the domicile of the mortgagee. Though a seal is not essential to the validity of a mortgage in Alberta, if it is executed under seal the debt is a specialty.
Idington J. dubitante.-Held, per Duff J. In the sense of international law a mortgage on land is an immovable.
v. THE KING .... TENDER-Fire Insurancd-Condition of policy-Notice of cancellation-Return of unearned premium-Notice and tender by mail-Receipt by insured ........... 588 VIS MAJOR-Flood-Libaility of landlord...............................17 WILL-Life insurance-Benefit of wife- Declaration in writing-dentifying policy
-R.S.B.C.
c. 115, s. 7-" Windingup Act"-Leave to appeal.] Bys. 7 of the
"Life Insurance Policies Act" of British
Columbia a man may "by any writing identifying the policy by its number or otherwise" cause a policy of insurance on his life to be deemed a trust for the benefit of his wife for her separate use.-Held, per
Davies and Anglin JJ., Fitzpatrick CJ.
dubitante, Idington J. contra, that such declaration in writing may be made by will as the legislature of British Columbia, when enacting this provision, must be presumed to have adopted the judicial construction of ^similar legislation in the
Province of Ontario.-A. by his will bequeathed to his wife "the first seventyfive thousand dollars collected on account of policies of life insurance."-Held Davies
J. contra, that said devise was not a writing
"identifying the policy by its number or otherwise" as required by s. 7 of the Act and said sum of $75,000 did not enure to the benefit of A.'s wife.-After the death of A. his wife brought action against the
Trust Company, executor of his will, and
WILL-continued.
said company's liquidator under a winding-up order to recover $75,000 out of the proceeds of life policies collected by the executor.
On appeal frdm the judgment of the Court of Appeal in said action.- Held, Idington and Bordeur JJ. dissenting, that the case was not one subject to the provisions of s. 106 of the "Winding-up Act" and leave to appeal was not necessary. Judgment of the Court of Appeal (35 D.L.R. 145) sustaining that at the trial (32 D.L.R. 301) affirmed. ARNOLD v. DomINox ....... 433 "WINDING-UP ACT"-Leave to appeal ....... 43 3 WORDS AND PHRASES
1- " " Maintain anew".. ....... 2- "Stocktobeissued"..........342 3- " Until paid" .................
See 6.
Cases cited
- City of Toronto v. Toronto Railway Company A.C. 315
Statutes and regulations cited
-
Unresolved citations
- section 194 of the Ontario Insurance Act
- s. 183
- section 20 of the Ontario Interpretation Act
- (e)