Majority
An appeal from the court of final resort in any province except Quebec in a case of prohibition under sec. 39 (c) of the "Supreme Court Act" will not lie unless the case comes within some of the provisions of sec. 48 as amended by 8 & 9 Geo. V. ch. 7, sec. 3.
Sec. 39 (c) allows an appeal from the judgment in any case of proceedings for or upon a writ of prohibition "not arising out of acriminal charge."
Held, per Davies C.J. and Anglin and Mignault JJ. that application for writ prohibition to restrain a magistrate from proceeding on a prosecution for violating the provisions of the "Nova Scotia Temperance Act" arises out of a criminal charge and no appeal lies from the judgment thereon.
Per Mignault J. in Chambers.-An order to stay proceedings on a judgment of the Supreme Court of Canada for purposes of a proposed appeal to the Privy Council will not be granted in a case in which the Court has determined that it is without jurisdiction to hear the appeal.
APPEAL from an order of the Acting Registrar refusing to affirm the jurisdiction of the court and approve the security.
The reasons given by the Acting Registrar for refusing the order are the following:- AcTING REGISTRAR.-"Application before me as Acting Registrar to affirm jurisdiction and approve of bond filed as security for costs. The applicant, a licensed vendor of liquor in Halifax under the 'Nova Scotia Temperance Act,' was charged before a magistrate *PRESENT:-Sir Louis Davies C.J. and Idington, Anglin, Brodeur and Mignault JJ.
with unlawful selling of liquor contrary to the provisions of the Act.
The charge was heard but judgment was stayed pending an application for a writ of prohibition to restrain the magistrate from convict'ng.
The writ was refused and from such refusal the applicant seeks to appeal to this court. "Two questions are raised affecting the right to appeal to this court.
The 'Supreme Court Act,' section 39 allows an appeal in a case of habeas corpus or prohibition not arising out of a criminal charge. The first question then is whether or not the charge in this case was a 'criminal charge'. within the meaning of section 39 (c).
"This question came before the Supreme Court in the case of In re McNutt
In that case the appellant, Mrs. McNutt, had applied for discharge by habeas corpus from imprisonment on conviction for an offence under the same Act as in this case, the 'Nova Scotia Temperance Act.'
The case was heard by the six judges of the court. Three of them held that the application for the writ arose 'out of a criminal charge;' one held that it did not and one seriously doubted that it did; the remaining judge expressed no opinion on the point but quashed the appeal on another ground. "Sir Charles Fitzpatrick, one of the three who held that it was criminal, is no longer a member of the If this case, then, should come before the present bench of judges the position would be that two of them are on record as holding that the charge was criminal, practically two that it was not, and two whose views are entirely unknown.
I consider, therefore, that the question is at large and my personal opinion being in accord with that of Mr. Justice Duff, I would be prepared to affirm the jurisdiction so far as this first question is concerned.
"The second question is one of greater difficulty for the applicant.
At the last session of Parliament, section 48 of the 'Supreme Court Act,' which had previously been confined to appeals from Ontario, was extended to cover appeals from all the provinces except Quebec.
It is necessary, therefore, to decide whether or not the case before us is governed by that section.
"It is settled by authority that it is so governed. Not only has the court held, before the amendment, that an appeal in an Ontario case of mandamus must comply with the requirements of section 48 (Attorney- General v. Scully (1)), and also in the case of a municipal by-law (Town of Aurora v. Markham (2)), as to both of which the appeal is allowed by section 39, but it has lately held that an appeal in a case of prohibition from the Province of Quebec must comply with the requirements of section 46, the counterpart, for Quebec, of section 48.
(Desormeaux v. Village Ste. Thirdse (3).
"As the case before me does not come within the terms of section 48 there is no appeal as of right, and the motion to affirm jurisdiction must be dismissed. No costs.
If the jurisdiction was affirmed the bond filed is sufficient.
"C. H.
"Acting Registrar." The applicant appeals from this decision to the Supreme Court.
Power K.C. for the appellant.
Bethune for the respondent.
to the meaning of the language "not arising out of a criminal charge" in sub-section section 39 of the " Supreme Court Act," I adhere to the opinion I expressed in In re McNutt (1).
And as to the appellant's right of appeal to this court de plano as taken in this appeal and which right the appellant sought to have affirmed by the Assistant Registrar, I am of opinion that this officer was right in refusing to affirm our jurisdiction to hear the appeal. That jurisdiction is defined and limited by section 48 of the " Supreme Court Act" and appellant failed to bring himself within its provisions, Aurora v. Markham Sections 37, 38 and 39 must be read and construed together with section 48 and subject to it. In the present case there is no amount involved in the appeal or other ground which could possibly give a right of appeal under that section.
J.-I do not think this appeal should be allowed inasmuch as the amendment of the " Supreme Court Act" contained in 8 & 9 Geo. V. ch. 7, seems to forbid it.
As to leave to appeal the application is too late for this court to grant and can only be given now by the court sought to be appealed from.
J.-I have seen no reason to change the view which I expressed in In re McNutt as to the construction of the phrase "not arising out of a criminal charge" in section 39 (c) of the "Supreme Court Act." Section 48 of the "Supreme. Court Act," made applicable by the legislation of 1918 to al'. the provinces other than Quebec, is, in my opinion, conclusive against a right of appeal de plano in this case.
Sections 37, 38 and 39 are subject to section 48 just as they are subject, in Quebec appeals, to section 46. Desormeaux v. Ste. Thirdse (1); Bouchard v. Sorgius (2).
That would be so without the introductory words "except as hereinafter otherwise provided" found in each of these sections.
But the presence of that phrase leaves no room for argument.
In Trusts and Guarantee Co. v. Rundle (3), very much relied upon by Mr. Power, section 48 was not and could not have been invoked, the. amount involved in the appeal being over $1,000, viz., $1,068.27, expenditure allowed in the Surrogate Court and disallowed by the Court of Appeal, and $100 of the guardian's remuneration fixed by the Surrogate Court, likewise disallowed.
The appeal from the order of the Acting Registrar fails on both grounds and should be dismissed with costs.
The application for special leave to appeal is too late. Goodison Thresher Co. v. Township of McNab (4). J -This is a motion by way of appeal from an order of the Registrar declaring that the court has no jurisdiction to hear this case.
The court below refused a writ of prohibition in a prosecution against the appellant for selling liquor contrary to the "Nova Scotia Temperance Act" and he now wants to appeal to this court.
One of the objections made to his right to appeal is that section 48 of the "Supreme Court Act," as amended in 1918, precludes him from entering this appeal.
By section 39 of the " Supreme Court Act" an appeal to the Supreme Court in cases of prohibition is given but that appeal is limited and controlled by section 48 of the same Act which declares that no appeal will lie unless the judgment a quo relates to title to real estate, affects the validity of a patent, puts in controversy a matter exceeding $1,000,. or relates to an annuity. None of these conditions are to be found in that Applying the decisions rendered by this court in Attorney-General v. Scully (1);
Desormeaux v. Ste. Thirdse (2); and in Bouchard v. Sorgius (3), I am strongly of the view that the appellant has no right to ask this court to adjudicate on his writ of prohibition. Another ground urged against this appeal s that under section 39 the appeal lies in proceedings for a writ of prohibition not arising out of a criminal charge" and that the writ of prohibition in this case has reference to a criminal charge.
The statute in violation of which the appellant has been prosecuted is a provincial statute; and in deciding the point raised we might curtail the legislative powers of the provinces without giving an opportunity to the provinces to be heard.
In view of the conclusions I have reached on the first point above mentioned, I do not see any reason for me to express my views upon the second point. The appellant asks also in the alternative that he should be granted leave to appeal.
was decided in Goodison Thresher Co. v. McNab ta
V. that after the expiration of sixty days from the pronouncing of the judgment a quo this court is without jurisdiction to grant special leave.
The motion should be dismissed with costs.
J.-Two questions arise under this appeal from the decision of the Acting Registrar refusing to affirm jurisdiction in favour of the appellant: 1. Do the appellant's proceedings for a writ of prohibition arise out of a " criminal charge?"
2. Assuming that this first question be answered in the negative, has the appellant a right of appeal to this court, in view of the provisions of section 48 of the First question.-In the case of In re McNutt (2), in which six judges sat, three judges, Fitzpatrick C.J. Davies and Anglin JJ. expressed the opinion that a trial and conviction for keeping liquor for sale contrary to the provisions of the same Act, the "Nova Scotia Temperance Act," were proceedings on a "criminal charge" within the meaning of section 39 (c) of the Mr. Justice Duff was of the opinion that the proceedings did not arise out of a "criminal charge," within the meaning of that subsection, and Mr. Justice Idington and Mr. Justice Brodeur expressed no opinion on this point. The learned Acting Registrar, therefore, considered the question as being an open one, although he rejected the motion of the appellant to affirm jufisdiction upon the second ground above referred to.
Under the circumstances, I think it is incumbent on me to express my opinion upon both these questions which were fully argued by the learned counsel for the appellant.
It is almost unnecessary to say that the jurisdiction of this court is statutory, that is to say, that it must appear in any case brought before this court that the statute properly construed confers jurisdiction, and if this is not shewn jurisdiction is negatived.
The "Supreme Court Act" refers several times to "criminal charges" and to "criminal cases," and the answer to the question I am considering depends upon the construction to be placed upon these words. will refer very briefly to some of the provisions of the In the first place, the introductory section states that this court has "civil and criminal jurisdiction" within and throughout Canada.
As the words "civil"
and "criminal"
are here employed in contradistinction to each other, they must certainly be understood as being used lato sensu, and, therefore, "criminal"
matters comprise all matters which can come under the general term according to the well-known test that
When, there'ore, in the next section, section 36, we find the general right of appeal granted by section restricted by the proviso that no appeal lies from a the ordinary rules of construction would give to the word "criminal" the same meaning as in section 35, and, therefore, I would say that it is here used in the wide sense, according to the test I have indicated above.
Sub-section (b) of section 36 further states, as a part of the same proviso, that
This is a reference to sec. 1024 of the Criminal Code by the terms of which the right of appeal is restricted to convictions for indictable offences affirmed on an appeal taken under sec. 1013 of the Code, to the Court of Appeal, where the latter court is not unanimous in affirming the conviction.
Whatever restricted meaning, therefore, might be given to the words "criminal case " in sub-section (b) by reason of the reference to the Criminal Code, cannot, in my opinion affect the construction of the words "criminal charge" as used in sub-section (a).
Coming then to the words "criminal charge" in sub-section (c) of section 39, where it is said that an appeal shall lie to the Supreme Court there can be no doubt whatever that the words ."criminal charge" must receive the same construction as in sub-section (a) of section 36, and, therefore, my opinion is that they are used in the wide sense as allow ng an appeal in matters of prohibition merely when they arise out of "civil" as distinguished from "criminal" proceedings.
We next find the words "criminal case," already met with in sub-section (b) of section 36, in section 62 which says that
It is to be observed that the words "criminal case," which otherwise would be of general application, are qualified here by the addition of the words
Mignault J. It would not appear to me that because we have an express qualification here, we should read that qualification into the previous sections where the expression "criminal" is used without any qualifying words On the contrary, I find that when it was desired to qualify or restrict the generality of the term "criminal," parliament has used apt words to express the qualification, and I know of no rule of construction that would authorize me to mply that qualification in cases where it is not expressed.
In section 67, sub-section 4, there is a provision that this section-which governs the removal of cases from the provincial courts to the Supreme Court where the constitutionality of an Act of Parliament or of a legislature is in question- The word "civil" is here used lato sensu and excludes anything that can come under the description of "criminal" matters, which seems to me to harmonize w:th the restriction expressed in sub-section (a) of section 36, and in sub-section (c) of section 39. The only remaining provision of the "Supreme Court Act " where the word " criminal' is used is section 75 with reference to security for costs which is not required, inter alia, as to appeals "in criminal cases."
These criminal cases are obviously those referred to in sub-section (b) of section 36, and in section 1024 of the Criminal Code.
I would, therefore, conclude-and I also rely on the reasoning of Fitzpatrick C.J. and of Davies and Anglin JJ. in the McNutt Case (1)-that the words "criminal charge" in sub-section (a) of section 36, and in sub- J. section of section 39, are used in a wide and not a restricted sense.
No question whatever as to the power to legislate with respect to criminal law under the "British North America Act" arises here, and no consideration of the respective powers of parliament and of the legislatures with regard to criminal or penal matters can be of any assistance in the construction of the sections of the "Supreme Court Act" to which I have referred and which undoubtedly, however wide may be their application, are intra vires of the Canadian Parliament.
- I, therefore, answer the first question in the affirmative, and consequently I hold that this court has no jurisdiction to pass on the appeal which the appellant seeks to bring before it, for the proceedings he has taken arise out of a criminal charge.
Second question. There can be absolutely no doubt, under the previous decisions of this court, that even assuming that I could answer question 1 in the negative, the appellant cannot appeal to this court inasmuch as his case does not come within the ambit of section 48. This section was amended in 1918 by 8 & 9 Geo. V., ch. 7, and now applies to all the provinces, with the exception of Quebec.
It is the counterpart of section 46 with respect to Quebec appeals, and this court held in Desormeaux v. Ste. Thirdse (2), and more recently in Montreal Abattoire, Limited v. City of Montreal (unreported, 14th November, 1918), that no appeal lies to the Supreme Court from a judgment of a court in the Province of Quebec in any case of proceedings for or upon a writ of prohibition, unless the matter in controversy falls within some of the classes of cases provided for by section 46.
Similarly an appeal in the case of proceedings for or upon a writ of prohibition Mignault in Nova Scotia does not lie to this court unless the matter in controversy, even though it were not excluded by sub-section (a) of section 36, or sub-section (c) of section 39, falls within some of the classes of cases provided for by section 48, which, since the amendment of 1918, applies to that province.
The second question should be answered in the negative.
I think, therefore, that the appeal from the decision of the Acting Registrar should be dismissed with costs. The appellant asked that should this court be of opinion that he cannot appeal as of right, he be granted special leave to appeal under sub-section (e) of section I think the answer I have given to the first question would preclude me from granting leave to appeal in a case where, in my opinion, the right of appeal is expressly taken away by the statute. But for another reason the prayer of the appellant cannot be granted by this court inasmuch as more than sixty days have elapsed since the judgment a quo was rendered. Goodison Thresher Co. v. Corporation of McNab (1). Appeal dismissed with costs. MOTION FOR STAY OF PROCEEDINGS. The appellant then applied to Mr. Justice Mignault in chambers for an order staying further proceedings in this court until an application could be made to the Judicial Committee of the Privy Council for leave to appeal to that Board.
The order was refused for the V. -following reasons:
J.-In this matter I am of the opinion that inasmuch as this court has declared that it has no jurisdiction to entertain the appeal of the appellant : rom the judgment of the Supreme Court of Nova Scotia, Crown side, herein, and has dismissed the appeal taken by the appellant from the decision of the Acting Registrar refusing to affirm jurisdiction, I cannot grant the stay of proceedings asked for by the appellant.
Moreover, the affidavit of the appellant does not shew whether he intends to take a direct appeal to the Judicial Committee of the Privy Council from the judgment of the Supreme Court of Nova Scotia, or whether he purposes to apply to the Judicial Coinmittee for leave to appeal from the judgment of this court dismissing his appeal from the decision of the Acting Registrar refusing to affirm jurisdiction, and under these circumstances I am of the opinion that a proper case has not been made out for granting a stay of proceedings.
The motion of the appellant is dismissed with costs. APPEAL -J urisdiction-Assessmaent and taxation - "Grossly" excessive-Statutory tribunals-"
Supreme Court Act," R.S.C.
41-(Alta.) V. c. Upon evidence that an assessment "grossly"
excessive it should be varied by the
Supreme Court Canada, to which on appeal lies from the judgnent the final tribunal created under the charter city respondent.-Pearce Calgary. 54
Can. S.C.R. W.W.R. followed.- Judgment the District Court the
District Edmonton reversed.
Jurisdiction coniroversy-Retraxit.] An action was brought to recover $3,616.35 as the value of timber cut on limits, which boundaries were in dispute; and at the trial the claim was reduced by consent to $1.367.45.-Held,
Fitzpatrick C.J. and Idington .1. dissenting. that there was jurisdiction the
Supreme Court of Canada to entertain an
BitorHEnS Co.................
Prohibition - R.S.C., ss. and 48 "Supreme
Act"-8 & V. c. 7.
appeal from the court final resort any province except Quebec in a ease prohibition under sec.
(c) the
"Supreme Court Act" not unless the case comes within some of the provisions sec. as amended by & 9
Geo. ch. 3.-Sec. allows an appeal from the judgment in any case proceedings for or upon writ of prohibition "not arising out criminal charge.'"-Held, per
Davies
Anglin and Mignault JJ. that application for writ of prohibition to restrain a magistrate from proceeding on prosecution for violating the provisions of the
"Nova Scotia Temperance Act" arises out of criminal charge and no appeal from thereon.-Per
Mignault J. in Chambers.
An order to stay proceedings on a judgment the
Supreme Court Canada for purposes a proposed appeal to the Privy Council not be granted in a case in which the
Court has determined that it without
APPE AL-continued.
jurisdiction to hear the appeal. Finding of facts trial judge.. ASSESSMENT
TAXES-Appeal -Jurisdiction-Assessment taxationtribunals- "Supreme R.S.C. s. - (Alta.) V. c. 23............ BANKS
BANKING - Principal and agent-Trust-Money agent-Cheque payee-Right payee fund.] C.
bought from assignor of a parcel land, the purchase price being payable in instalments and transferred half of his interest to E.
Later E. sent to 1is accepted cheque for half the amount an instalment falling due, which cheque was dep:sited to th credit of C.'s account in the Bank of Montreal.
'then C. drew a cheque the same amount on the above account and sent it to with a statement that it was for his own share the instalnent.
Payment the cheque was refused by the Bank of Montreal on the ground that was the hands a receiver.
brought an action asking that it declared that the money standing to the credit in the Bank Montreal was the property of as being trust money in the possession C. for the specific purpose paying E.'s indebtedness to M.-Held, Davies
Idington J. (dissenting)
, that the transaction was not impressed with a trust in favour of M.-Per Anglin and Brodeur JJ. merely assiumed, as agent of a personal liability towards whose right action one of damages against C. for breach contract.-Per Anglin and Brodeur JJ. The receipt of C.'s cheque by and its presentation, upon which it should have been accepted and paid, not equivalent to a payment of the money itself to M.- Per Mignault .1. 'I money paid by E., being due by him to C. and not to was the property and was not trust money in the possession of for a specific purpose.-Judgment of the
Appellate BANKS BANKING-continued.
Division, D.L.R. 664; 1 W.W.R.
972, reversed. Davies C.J. and Idington
section of the "Bank Act" a bank may lend money to manufacturer on security his goods or raw material and by sect it shall not acquire any such security unless the liability contracted " (a) at the time the acquisition therdof the bank; or (b) upon the written promise would given to the bank."-Held,
Anglin J. (dissenting)
, that subsection (b)
does not contemplate a general promise agreement to give security for future advances but it must have reference to a specific loan negotiated at the time the security of specific goods.-A facturing company, by application writing, obtained a line credit from a bank and agreed to give security under the
"Bank Act" on its stock and material each advance thereunder.
vances were made and security given agreed.
By similar application the credit was renewed from time to time, and after each renewal the bank took security not only for the present advance but for the total indebtedness the company to that date.-Held, Anglin dissenting, that this security taken for the whole debt was only valid for the amount of the loan made at the time it was acquired; but-Held, the security acquired for each individual advance was never released and did not merge in the general security so taken; the bank, thefefore, was entitled to the benefit all the securities so acquired.-In May, the company agreed to give to the bank, as further security, a mortgage its factory site in St. Thomas, Ont., and also a mortgage on land in Montreal.
former was not executed until Nov., nor the latter until Jan.,
In March, the bank filed a petition for windingup the company.-Held, that in Ontario it the date of the promise to give the mortgage that governs and as the mortgagor was solvent at that date the mortgage on land in Ontario was valid; but- Held, that in Quebec the (late when the mortgage was executed can alone be
BANKS BANKING-continued. considered, and as the mortgagor was insolvent to the knowledge of the bank when the Quebec mortgage was given it must be set aside.- Per Anglin J. Insolvency to the knowledge of the bank at that date was not established; and- Qu.-Can an Ontario Court set aside a mortgage on land in Quebec?-After the petition for winding-up the company had been filed the bank advanced $17,600 security the stock in trade and material on hand.-Held, Idington and Brodeur JJ. dissenting, that this advance was made, under the terms of section "Winding-up Act," with the sanction the liquidator and for the beneficial winding-up of the estate the bank was entitled to the benefit the security.- Judgment the Appellate Division Ont. L.R. and of the trial Judge .Ont. L.R. reversed in part. 3-Succession duties - Bank stock - Head of bank-Local registry-Situs of property....................... CASES- ]
Adolph Lumber Co. Meadow Creek Lumber B.C. Rep. reversed. . ......
. . .. .. . . . . . . . . . . . . . . . . . . . . 6 2-Alberta Rolling Mills Co. v. Christie Alta. L.R. 445) reversed ........ 3-Alexandre Brassard A.C. 4- Bank of Hamilton v. Hartery Banque du Peuple v. Laporte (19 L.C. Jur. 66) followed............. 6-Bissillon The City of Montreal (Q.R. K.B. 1) affirmed .......... 7 -Boulevard
Heights
Veilleux Can. S.C.R. distinguished...... 8-Canadian Pacific Railway v. Hay Sask. L.R. reversed ........ 9---Central Vernont Railway Bain 10-Clarkson v. Dominion Bank (40 Ont. L.R; Ont. L.R. reversed in part.............................
CASES-continued.
Derry v. Peek App. Cas.
discussed.........................
De Vall v. Gorman Alta. L.R.
13-Dominion Chain McKinnon
Ex. C.R. affirmed .........
Dussault and Pageau King
Ex. C.R. affirmed ........
Entwisic Len: Rep.
distinguished.........
............
16-Findlay
Howard
17-Gavin v. Kettle Valley Railway
W.W.R. 385) affirmed as merits, but reversed as to costs.....
18---Gervais v.
McCarthy Can.
R.C.R. followed................
19--Godson W.W.R.
587) affirm ed......................
20-Grnd
Trunk Railiway ain
(Q.R. K.B. reversed .........
21-Jellett v. Wilkie Can. S.C.R.
282) distinguished ....
............
22-Larson v. Boyd Sask. L.R. 324)
23-Logan v. Lee Can. S.C.R.
24- London Assur. Corp. v.
Great
Northern Tranxit Can. S.C.R.
.
............
See FIRE,
25-Matthew v. Guardian Assurance Co.
((1918) W.W.R. reversed.. ..
26-McCarthy v. City of Regina
W.W.R. 1013) reversed ..........
See 4.
27-Morrow Screw and Nut Co. v.
Hankin (Q.R. 54 S.C. 208) affirmed.
28-Parkes v. St. George Ont. App.
R. 496) overruled..................
29-Pearce v. Calgary Can. S.C.R.
W.W.R. 668) followed.........
See 1.
CASES-continued.
30- Pesant v. Robin (Q.R. K.B. 31-Ross v. Scottish Union and National Ins. Co. Ont. L.R. affirmed. See FIRE,
32-Schwersenski Vineberg Can. S.C.R. followed............... 33-Security Trust Co. v. Stewart (12 Alta. L.R. 420) overruled .......... 34-Shepard
British Dominions General Ins. and Glens.Falls Ins. Sask. L.R. reversed....... 35-Smith v. The Provincial Treasurer of Nova Scotia D.L.R. 468) affirmed. ........ 36- Thomson v. The Merchants Bank Canada 1 W.W.R. 972) reversed. 37-Union Bank of Canada v. Boulter Waugh Limited
Sask.
L.R. 38-United States Playing Card Co. v. Hurst Out. L.R. 249) reversed in part Ont. L.R. restored in part. .. 39-Weiss v. Silverman R.L. n.s. 204) reversed..................... -Statute-Construction-Agreement for sale-Assignment-Assignor giving mortgage-Caveat assignee-Lapse -Knowledge mortgagee-Priorities- "The Land Titles Act," Sask. 2nd sess., R.S. Sask., s. In April, the owner made an agreement to sell a lot of land to P. for a price payable by instalments, and in May, P. assigned to B. his interest in this agreement.
This assignment was riot registered, but in June, B. a caveat.
In September, P., having paid the purchase price, was registered owner the land subject to the caveat. Subsequently P. executed a mortgage In June, the registiar, under section of "The Land Titles Act".of Saskatat the expiration a certain delay, unless continued by order of the court; and, by a subsequent order, B.'s caveat was con- CAVEAT-continued.
tinued for from the 8th of October, no action had been taken within that time, the caveat was vacated.-Held, that, under section
"The Land Titles Act" of Saskatchewan and in the absence of fraud, B., having allowed his caveat to be vacated, could not invoke the knowledge by the mortgagee of the existence of the caveat in order to maintain its priority of claim.
of the Court of Appeal (11
Sask. L.R. 297; 42 D.L.R. 548; 3
CODE - Arts.
(Marriage)........................
Art. 405 (Property)...........
Art. 479 (Usufruct) ...........
Art. 763 (Donation) ............
Arts. and (Contracts). 363
Art. 1054 (Contract) ...........
Art. 1234 (Testimony) .........
Art. (Testimony) .........
(Legal community property).........................
Art. (Sale) ..............
11- Arts. and (Privilege).
......................
Art. 2127 (Registration) ......
Art. 2172 (Registration) ......
CODE OF PROCEDURE-Art.
2-Art.
(Appeal Court of King's
Bench)..........................
Art. (Arbitrations) .......
Subscription precedent or subsequent-Collateral agreement-Surrender of shares-Ultra vires company.] C.'s action is for the rescission
COMPANY-continued.
of an agreement to take shares of the capital stock of the appellant company and for the return of the purchase price on the ground of non-fulfilment of a term of his subscription.
The sale of the shares was authorized by the directors, but no formal allotment was made to C.; no notice allotment was given to him, but notices meetings were sent. His name was not entered in the register shareholders but appeared in a ledger account.
Four months after full payment shares, certificates were issued and sent to C. during his absence, which were retained by him for two years. C. never attended any meeting the company, but filled and sent proxies to the president and promoter the company who had obtained his subscription.-Held, Idington J. dissenting, that, under these circumstances, C. must be regarded as having become a facto shareholder.-Held also, that, even if the term alleged by C. had been precedent to his subscription, he would have waived it by becoming, and exercising rights of, a shareholder; but, upon the evidence, it was a condition subsequent or a collateral agreement and its fulfilment was ultra vires of the appellant company as involving an unlawful reduction its capital.-Judgment of the Appellate Division Alta. L.R. 445, D.L.R. 488) reversed, Idington J. 1ILLS CONSTITUTIONAL
- Retrospective legislation - Ins urance-Fire - Dominion and provincial licences - Action against agent-"Dominion Insurance Act," & V. c. ss. "British Columbia Fire Insurance Act," R.S.B.C. c. ss. The appellant, being appointed to act as attorney the Guardian Fire Insurance Company of Utah in the event of its obtaining a licence under the "British Columbia Fire Insurance Act," made proceedings, by way injunction, to by & Geo. and sections and provided that a foreign insurance a licence from the Minister of Finance CONSTITUTIONAL LAW-continued.
the Dominion of Canada.-Held, that the
Court of Appeal should have taken judicial notice of the amendments to the the Guardian Fire Insurance Company of a provincial licence to transact any business in British Columbia before having obtained a Dominion licence, the proceedings by way of injunction taken the respondent were premature.
Boulevard Heights v. Veilleux Can. S.CR.
D.L.R. 333) distinguished.-Per
Idington, Anglin and Cassels JJ.-An application for injunction should not be entertained against the agent of an insurance company to restrain him from the principal as a party to this action, of the Court
Appeal D.L.R. 455; W.W.R.
405) reversed.
AssUa. Co...................
...
Succession duties - Bank stock - Mobilia sequuntur personarn-Head of bank-Local registry-Situs of property
-"Bank Act," & 4 V.
To determine the situs personal property liable to succession duties on the death of the owner the rule to be applied that expressed in the maxim mobilia sequuntur personam.-The head the Royal Bank is in Montreal, but under
43 of the "Bank Act" a share registry has been established in Halifax, where shares owned by persons residing in Nova Scotia must be registered and all transfers made.-Held, per Davies C.J.
and Idington and Brodeur JJ., Mignault
J. contra; that if the maxim mobilia sequuntur personam cannot be applied, the situs of shares of the stock the bank transmitted by death the owner, a resident Halifax, in Halifax, the place registration, rather than in the place where the head is located.
v. NOVA
ScoTIA...........................
CONTRACT-Default-Completion at a
Security tractor, who abandons the execution his contract, which is completed at a saving, cannot claim difference between his contract price and the final cost the works.-When a separate contract stipulates that money deposited by the contractor as security should be returned upon the full performance the works or, in case the contractor's default, might be employed for its completion, such money must nevertheless be paid back to the defaulting contractor if the work is completed under a second contract for a less sum than the original price,
Fitzpatrick dissenting.-Per Fitzpatrick
(dissenting): As the respondent has paid for the completion of the contract larger sum than the amount the security, the appellant not entitled to its recovery.- Judgment of the Exchequer Court Canada Ex. C.R. 228; D.L.R. 76) 2-Memorandum in writing-Conditions missing-Parol evidence-Relation of documents-Statute of Frauds-Usage of trade -Option-Provincial laws in Canada- Judicial notice respondent agreed by contract in the form a letter to appellant and "approved" by him, to purchase steel drills, without mentioning any "prices"
but merely quoting the sizes and rate discount. It was stipulated that "the value of this would "be from $25,000 to $35,000," and that "our shipping instructions, invoicing instructions, etc., given on July 10th, would "hold good." The letter July 10th, 1915, contained an express reference to a standard drill price list, in use by the whole drill trade North America.-Held, that the respondent had the right to establish by parol evidence that the discount mentioned in his letter meant, according to the usage trade, discount off the standard drill prices land so to prove that the contract in writing contained all essential terms.- Held, also, that, according to the terms the agreement, the respondent was bound to purchase goods to an amount of $25,000, with the right to order an additional amount $10,000 which the appellant could not refuse to supply, the option being entirely with the respondent.-Per Davies C.J. and Anglin, Brodeur and Mignault JJ. The written agreement between the parties was intended not to be a mere option revocable until acted upon, but an actual agreement entailing mutual obligations.-Per Anglin, Brodeur and Mignault JJ. While the proof of a contract, within Art."1235 C.C., must as a matter of procedure be made according to the lex fori, its validity depends lex loci contractus.-Per Anglin,
Brodeur and Mignault JJ. The laws of the Province of Ontario and those of the
Province of Quebec as to the requirement of writing in the case of contracts such as in this case differ in their effect.-Per
Anglin, Brodeur and Mignault JJ. The
Supreme Court takes judicial notice of the statutory or other laws prevailing in
Provinces of Canada other than that in which the action or proceeding under appeal to it has been instituted.
Logan v. Lee (39 Can. S.C.R. 311) followed.- Judgment of the Court of Review (Q.R.
54 S.C. 208) affirmed.
SCREW
NUT CO.
Shareholder-Subscription-Condition precedent or subsequent-Collateral agreement-Surrender-of shares-Ultra vires of company.]
C.'s action is for the rescision of an agreement to take shares of the capital stock of the appellant company and for the return of the purchase price on the ground of non-fulfilment of a term of his subscription.
The sale of the shares was authorized by the directors, but no formal allotment was made to C.; no notice of allotment was given to him, but notices of meetings were sent. His name was not entered in the register of shareholders but appeared in a ledger account. Four months after full payment of shares, certificates were issued and sent to C.
during his absence, which were retained by him for two years.
C. never attended any meeting of the company, but filled and sent proxies to the president and promoter of the company who had obtained his subscription.-Held, Idington
J. dissenting, that, under these circumstances, C. must be regarded as having become a de facto shareholder.-Held also, that, even if the term alleged by C. had been precedent to his subscription, he would have waived it by becoming, and exercising rights of, a shareholder; but, upon the evidence, it was a condition subsequent or a collateral agreement and its fulfilment was ultra vires of the appellant company as involving an unlawful reduction of its capital.-Judgment of the Appellate Division (12 Alta. L.R. 445;
38 D.L.R. 488) reversed, Idington J.
Co. CHRISTIE..................
4- Deceit-Ingredients of-Finding of trial judge-Principal and agent-Total purchase price paid into bank-Right agent money.] finding by the trial judge, that "the misrepresentations as to condition and capacity" of a log-hauler "which induced the plaintiff to purchase were at least made with reckless carelessness as to their truth" is a finding of fraud sufficient to sustain an action of deceit; and such finding brings this case within the rule laid down in Derry v. Peek (14 App. Cas. 337).
Brodeur J. (dissenting)
.
G., as agent of C., sold to D. a loghauler for $750 more than the price fixed by C. D. deposited the total purchase price in a bank to be paid to C. who disclaimed all right to the $750.-Held, that the $750 were the property of D. Brodeur J. dissenting.-Judgment of the Appellate Division (13 Alta. L.R. 557; 42 D.L.R. 573; [1918] 3 W.W.R. 221) DE V. & ..........................
5-Construction
Ambiguity Cancellation-Acquiescence.] M., respondent, contracted to supply lumber to A., appellant, and to make "shipping regular- Owing to slow shipments, wrote cancelling merely acknowledged receipt of the letter; but its manager, later on during a visit to A.'s mill, made no protest, according to 6vidence accepted by the trial judge.- Held, Idington J. dissenting, that the cancellation of the contract by A. was accepted by M.-Judgment of the Court of Appeal (25 B.C. Rep. 298) reversed, Co. LUMBER Co. 306 6-Sale of Land-Right of resale-Sales at stated periods-Power to cancel contract- Waiver - Estoppel.] land company agreed to sell and D. agreed to buy cqrtain lots of land at a specified price per lot. By clause six of the contract D. had the right to sell said lots, remitting to the company half of every payment by a sub-purchaser until the whole price of his purchase was paid and the balance due on any sale when a deed was demanded by the subtpurohaser; the company to have the right, each month, to examine D.'s books.
By cjause nine, if D. did not sell fifty lots every six months from December 1st, 1914, the company could cancel the agreement and then neither party would have any recourse against the other except that D. would be liable for the balance due on any of his sales which a deed was demanded.
In the months ending 31st May, 1916, D. did not sell fifty lots.
On 4th July the company wrote him demanding payment arrears due on sales and threatening to cancel if adjustment was not made by the
15th.
On 5th July they wrote saying that by D.'s statement for June which included sales made in that month should be added to the amount demanded.
On 19th July they gave notice cancellation.-Held, Davies C.J. and Brodeur
J. dissenting, that the notice cancellation was invalid.-Per Idington and
Mignault JJ., Davies C.J. and Brodeur J.
contra, that the company, by demanding in July payment moneys due knowing that a part of the same was for sales made in June, had elected not to cancel the agreement for default in the six months ending 31st May.-Per Anglin J. The company having in July intentionally demanded payment of monies received in
June in the exercise their rights under clause six, which rights could be exercised only while the contract was in force, that unequivocal act was , an election recognize it as still subsisting which precluded cancellation for default
May 31st.
REALTY CO.................
.: 620
Mixed jury
Proceedings in one language only-New trial- Substantial wrong-Art. 1019 Cr. The appellant, being tried on an indictment for murder, made a statement, by counsel, that the language of the defence was
French; and the trial judge directed the impanelling of a mixed jury.
Each of the six French-speaking jurors stated to the court at the time of their selection that they understood and spoke both English and French.
The trial proceedings were carried on in the English language.
questions submitted in a reserved case, and on which there was a dissent in the
Court of King's Bench, are: (1) The trial judge had not summed up the case to the jury in the French language; the trial judge had commented "upon the failure the prisoner" (who was a witness on his own behalf) "to testify that he had not actually committed the murder."
-Held, Brodeur J. dissenting, that, even assuming these grounds to be errors law constituting, "something not accordat the trial
CRIMINAL LAW-continued.
some misdirection given," the conviction should not be set aside, as "in the opinion of the court" no "substantial wrong or miscarriage" has been "thereby occasioned" to the appellant.
(Sec. 1019 Cr. C.) -Per Anglin and Mignault JJ. Though the terms of the trial judge's charge may be open to criticism, the prisoner's evidence was open to comment by him as that of any other witness.-Per Idington, Anglin, Brodeur and Mignault JJ. After the election by the accused for and the empanelling of a mixed jury, he had a right to have the case conducted in both English and French.-Per Brodeur J. The failure by the trial judge to have summed tip the case in French constituted a "substantial wrong" to the appellant: the conviction should be set aside and a new trial ordered. v. THE KING..................... Prohibition
Charge"-R.S.C., ss. and & Held, Per Davies C.J. and Anglin and Mignault JJ. that application for a writ prohibition to restrain a magistrate from proceeding on a prosecution for violating the provisions of the "Nova Scotia Temperance Act" arises out of a criminal charge and no appeal lies from the judgment thereon. DEBTOR
CREDITOR-Statute- Construction - Chattel mortgage-Ordinary Execution under seizure but not sold-Priority mortgagee and creditor-The Bills of Sales Ordinance, (N.W.T. Cons. Ord. 43).] The mortgagee, under a chattel mortgage given by E., failed to renew its registration within the delay mentioned in section of the Bills of Sales Ordinance (N.W.T. Cons. Ord. c. 43).
The mortgage, therefore, as provided in that section, "ceased to be valid as against the creditors" of E.
G. obtained judgment against E. and caused a writ of execution to be placed in the sheriff's hands against his goods.
A month before, a distress warrant was placed by the mortgagee the hands of the same sheriff with instructions to take possession of and sell the goods covered by the mortgage. Pursuant thereto, the sheriff's officer, after taking an inventory of the goods, left them on the premises in charge of the tenant.-Held, Idington and Anglin JJ. DEBTOR CREDITOR-continued.
dissenting, that the word "creditors,"
used in section of the Bills of Sales
Ordinance, means all creditors of the mortgagor and not merely the execution creditors.
Parkes v. St. George Ont.
R. 496) and Security Trust Co. v.
Stewart Alta. L.R. 420; D.L.R. 518;
1 W.W.R. 709) overruled.-Per
Davies C.J., Anglin and Mignault JJ.
The goods, being only under seizure and not yet sold when the writ of execution was placed in the hands of the sheriff, were still held under a mortgage which had become invalid as against the execution ,creditor; and the latter acquired a right to have the goods seized and disposed of for his benefit in priority to that the
Mortgage
Registration
Priority
"Land
R.S.B.C. c. ss. 104,
"Execution R.S.B.C. c.
judgment, registered in the Land
Registry on an application made after the date the execution of a mortgage by the judgment debtor but before the application for the registration the mortgage, takes priority over the mortgage by virtue section of the "Land
Registry Act."
Jellett v. Wilkie Can.
S.C.R. 282) and Entwistle v. Lenz (14
B.C. Rep. 51; W.L.R. distinguished.
Idington J. (dissenting)
.-Per Idington J.
dissenting. The only charge a judgment creditor gets by virtue of his judgment upon such interest as the debtor may have at the time of registration or issue execution; and, in this case, that subject to whatever rights the mortgagee may have acquired by virtue of its mortgage.-Judgment of the Court of
Appeal (43 D.L.R. W.W.R.
DONATION-Husband, and Wife-Donation the wife-Acceptance-Absence iaritai authorisation-Wife acting as mandatary-Evidence-Comnunity not a juridical person-Authentic deed-Arts.
1272 C.C.-Art. 933 C.N.]
The appellant, by deed of cession, gave
"pour bonnes et valables consid6rations"
a sum of money to his daughter, the respondent's wife, common as to property, and she accepted without the authorisation of her husband.
Some years later,
.the appellant took an action to set aside
DONATION-continued.
the deed as null and void.-Held, that the deed of transfer was really one gratuitous donation.-Held, also, Davies C.J. and Brodeur J. dissenting, that the donation, being made to the wife herself and accepted by her alone, without marital authorisation never had any legal existence and the sum given did not fall into the community.
The donation could not be treated as made to the community, which not a juridical person apart from the persons of the two spouses, and the wife therefore could not be deemed to have acted as mandatary of her husband, head of the community.-Per Anglin J. The requirement the law, in the Province Quebec, that an instrument should be in authentic form does not import that the authority of an agent to execute it must be evidenced in the same manner.-Per Davies C.J., Anglin and Brcdeur JJ. The proof of a mandate, made by parol testimony at the trial without objection, cannot subsequently be set aside in a court of appeal. Schwersenski v. Vineberg Can. S.C.R. 243; Gervais v. McCarthy, Can. S.C.R. followed.-Per Davies C.J. and
Brodeur J. (dissenting)
. A donation made to a wife common as to property can be accepted by her alone mandatary her husband, head of the community.-Judgment of the Court King's Bench (Q.R. K.B. reversed, Davies C.J. and Brodeur J. dissenting. EVIDENCE-Coniract-Meiorand umin in writing missing Parol evidence-Relation of documoents-Statute of Frauds-Usage of trade-Option- Provincial laws in Canada-Judicial notice The respondent agreed by contract in the form of a letter to appellant, and "ipproved"
by him, to purchase steel drills, without mentioning any "prices"
but merely quoting the sizes and a rate of discount. It was stipulated that "the value this contract"
would
"be from
825,000 835,000," and that "our shipping instructions, invoicing instructions, etc., given on July 10th, would "hold good." The letter of July 10th, contained an express reference to a standard drill price list, in use by the whole drill trade North America.-Held, that respondent had the right to establish parol evidence that the discount mentioned in his letter meant, according to the usage of trade, discount off the standard EVIDENCE-contin ued.
drill prices and so to prove that the contract in writing contained all essential terms.-Held, also, that, according to the terms the agreement, the respondent was bound to purchase goods to an amount $25,000, with the right to order an additional amount of $10,000 which the appellant could not refuse to supply, the option being entirely with the respondent.-Per Davies C.J. and Anglin, Brodeur and Mignault JJ. The written agreement between the parties was intended not to be a mere option revocable until acted upon. but an actual agreement entailing mutual obligations.-Per Anglin, Brodeur and Mignault JJ. While the proof of a contract, within Art. C.C., must a matter of procedure be made according to the lex fori, its validity depends upon lex loci contractus.-Per Anglin,
Brodeur and Mignault JJ. The laws the Province of Ontario and those of the
Province Quebec as to the requirement writing in the case of contracts such as in this case differ in their effect.-Per
Anglin, Brodeur and Mignault JJ. The
Supreme Court takes judicial notice of the statutory or other laws prevailing in
Provinces Canada other than that in which the action or proceeding under appeal to it has been instituted.
Logan v. Lee Can. S.C.R. followed.- Judgment the Court Review (Q.R.
S.C. affirmed.
Moitow
2-Ambiguity - New trial - Parol evidence-Admissibility-Art.
art. The action was for the recovery damages for wood cut by upon timber limits which boundary lines were in dispute between and P.
The Quebec Wood and Forest Regulation
No. provides that the survey Crown timber limits, to be valid, must made according instructions
"previously approved by the Minister" Lands and
Forests, and when the survey completed, the reports, plans and field notes of the surveyor must submitted to the
Minister" and "approved by him."
this case, the instructions, after being issued, were modified by the Chief Superintendent of Surveys, who, being called upon to explain these changes, made a report to the Minister containing his reasons for making them and also annexed to it a plan of the survey operations which had been carried out on those amended instructions.
Deputy
Minister,
EVIDENCE-continued.
whose approval was equivalent to that the Minister, then placed his initials the report with the letters "Appd."-Held, Davies C.J. and Mignault J. dissenting, that a new trial should be had to determine whether the Deputy Minister Lands and Forests had merely approved the explanations given by the Superintendent Surveys or whether he meant to give his approval to the survey operations as required by Regulation No. 24.- Per Idington, Anglin and Brodeur JJ. Parol evidence is admissible to remove such a latent ambiguity.-Per Brodeur and Mignault JJ. The requirements Regulation No. are the nature rules of procedure, and the approval the Minister covers any previous informality in the fulfillment these requirements.
Alexandre v. Brassard followed.-Per Davies C.J. and Mignault J. dissenting.
Upon evidence, the intention of the Deputy Minister in approving the report of the Superintendent Surveys was to give the approval required by Regulation No. BROS. & 3-Procedure
Proper trial.] irrelevant evidence has been received by the trial judge, though subject to objection, if he has not disclaimed its having had any influence his mind, a new trial must be had, because such evidence may have adversely influenced. his opinion.
Idington J. (dissenting)
.-Per Idington
J.
Under the circumstances of this case, the failure by the respondent to object to the evidence promptly and at the proper time fatal to any application for a new trial.-Judgment the Court Appeal Sask. L.R. 42 D.L.R. 516; W.W.R. affirmed, Idington J. 4-Finding of facts trial judge- Appeal-Mortgage-Given as security payment-Parol evidence-Time of payment not fixed - Reasonable time.] B., having bought from a four-fifths interest in a yacht, gave him a mortgage on real estate for the amount of the purchase-price.
The deed provided that "the principal should be paid out of the first proceeds of the sale the equity the mortgagee," and there was no covenant of the mortgagor to pay the debt. [S.C.i. VOL. Ij\II. EVIDENCE-contin ued.
The evidence both parties was direct conflict as to whether the mortgage had been given in payment the purchaseprice or merely as security.-Held, that under the circumstances the Court
Appeal was not justified in reversing the finding of fact of the trial judge, who had declared the mortgage to have been given security only.-Per Davies C.J. The absence in the deed a covenant as to the personal liability of the mortgagor to pay the debt not material.-Per
Idington and Anglin JJ. The result the failure to fix a time for payment is that the debt became payable within a reasonable time according to the intentions of both parties and having regard to all the circumstances.-Judgment the Court Appeal reversed.
BRYDON-JACK...................
5-Admissibility-Breach of contract- Action in damages-Facts posterior institution of action.] In an action damages for loss future profits arising out a wrongful breach partnership contract, events which happened between the date of the commission of the wrong and the time of the trial must be taken into account in estimating the loss for which the plaintiff is entitled to compensation determining what actually was the value the contract to him at the date the breach.
6-Mandate-Parol evidence-No objection-Authentic deed-Proof of agency.
EXPROPRIATION-Error notice- Right desist-Articles 275 and C.P.
(Que.)-2 V. s. 33-R.S.Q.
articles Held, Idington
J. dissenting, that the party expropriating has the right to desist from expropriation proceedings or to amend same, if a serious error found in the notice of expropriation, such error being a cause of nullity to the substance of the object the expropriation.-Per Davies C.J. Under the special terms Geo. ch. sec.
it ultra vires of the city respondent to expropriate more lands than required the extension of the mentioned street, and, therefore, the city had not only the right but the duty to desist from the expropriation lands not necessary for such extension.-Per Idington J. dissenting.
landowner, served with a notice
EXPROPRIATION-continued. to treat by any legal entity upon which the legislature has conferred the right expropriation, can apply for a mandamus, and it is his only proper remedy, to compel that party so asserting its power to proby the appointed means given, to determine the amount of compensation the landowner may entitled to.-Per Brodeur and Mignault JJ. As the general law governing expropriations in Quebec (R.S.Q.
Articles referred to in the special statute governing the present proceedings, is designated a "Matter relating the Code of Civil Procedure" (R.S.Q. Title XII.), the absence of any provision in the said general law regarding discontinuance expropriations reference may be made to the Code Civil Procedure; and under the terms of Articles and C.P., the respondent had the right to discontinue its expropriation proceedings.- Judgment of the Court of King's Bench (Q.R. 26 K.B. 1) affirmed, Idington J. .......................
2-Municipal Corporation - Construction-Public work-Land not taken Injuriously
"Date at which damages are ascertained"- Sask. R.S. c. Under section the "City Act" (Sask. R.S. ch. when any land, though not taken for some public work, injuriously fifteen days after the publication in a local newspaper a notice the completion of the work; and sub-section provides that "the (late of publication of such notice shall be the date in respect which the damages shall be ascertained." -Held,
Davies C.J. (dissenting)
, that, in determining the compensation to be awarded under the statute, the court has only to consider tl'e depreciation in value which the claimant's property, as it stood at the date the publication the notice, had suffered as a necessary result of the work by the municipality, and the fact that since the commencement the work, but before the notice its completion, the claimant's buildings had been destroyed by fire and rebuilt by him, cannot effect the right the claimant to their value by reason this work.-Per buildings erected by the owner after the I NDEX4.
EXPROPRIATION-contin ued.
"work"
has been commenced are not
"necessarily incurred by tl'c construction of the work," within the meaning of the statute.-Judgment of
Appeal (42 D.L.R. 792; (1918) 2 W.W.R.
reversed, Davies C.J. (dissenting)
1013) .
FISHING
RIGHT-Riparian owner- Personal servitude-Real right-Perpetual or temporary-" Profit d prendre "-Registration-Artcles 405, 479,
Under Quebec law, the grant of fishing rights by a riparian owner confers no title to the bed of the river in which this right is exercised.
Such right is one of enjoyment only, essentially temporary in its nature and does not endure beyond the life of the grantee.
Idington and Cassels
JJ. (dissenting)
.-The right to catch fish in alieno solo cannot be assimilated to the
"profit A prendre," a term found in the common law of England but unknown to the civil law of France. and Quebec.
Idington and Cassels JJ. (dissenting)
.-Per
Anglin and Mignault JJ. The renewal of the registration of a right to fish after the official cadastre was put in force, was not required by article 2172 C.C.: La
Banque du Peuple v. Laporte L.C.
Jur. 66) followed.
Brodeur J. contra.
HUSBAND
WIFE - Donation the wife-Acceptance-Absence of marital authorisation-Wife acting as mandataryjuridical person-Authentic deed-Arts. 177,
763,
C.C.-Art. 933
C.N.] The appellant, by deed of cession, gave "pour bonnes et valables considrations" a sum of money to his daughter, the respondent's wife, common as to property, and she accepted without the authorisation of her husband. Some years later, the appellant took an action to set aside the deed as null and void.-Held, that the deed of transfer was really one of gratuitous donation.- Held, also, Davies C.J. and Brodeur J.
dissenting, that the donation, being made to the wife herself and accepted by her
'alone, without marital authorization never had any legal existence and the sum given did not fall into the community.
donation could not be treated as made to the community, which is not a juridical person apart from the persons of the two spouses, and the wife therefore could not be deemed to have acted as mandatary of
HUSBAND AND WIFE-continued. her husband, head of the community. Per Anglin J. The requirement of the law, in the Province of Quebec, that an instrument should be in authentic form does not import that the authority of an agent to execute it must be evidenced in the same manner.-Per Davies C.J., Anglin and Brodeur JJ. The proof of a mandate, made by parol testimony at the trial without objection, cannot subsequently be set aside in a court of appeal. Schwersenski v. Vineberg Can. S.C.R. 243; Gervais v. McCarthy Can. S.C.R. followed.-Per Davies
C.J. and Brodeur J. dissenting.
A donation made to a wife common as to property can be accepted by her alone as mandatary of her husband, head of the community. Judgment of the Court of King's Bench (Q.R. 27 K.B. 88) reversed, Davies C.J. and Brodeur J. dissenting.
ROBIN........................... INSURANCE, FIRE-Constitutional law - Retrospective legislation - Insurance-Fire-Dominion and provincial licences-Action against agent-" Dominion Insurance Act," & 8 V. ss. 11-"British Columbia Fire Insurance Act," R.S.B.C. ss. 4, The appellant, being appointed to act as attorney of the Guardian Fire Insurance Company of Utah in the event of its obtaing a licence under the "British Columbia Fire Insurance Act," proceedings, by way of injunction, to by 7 & 8 Geo. V. c. 29, and sections 4 and 11 provided that a foreign insurance a licence from the Minister of Finance for the Dominion of Canada.-Held, that the Court of Appeal should have taken judicial notice of the amendments to the the Guardian Fire Insurance Company of of a provincial licence to transact any business in British
Columbia before having obtained a Dominion licence, the proceedings by way of injunction taken the respondent were premature. Boulevard Heights v. Veilleux (52 Can. S.C.R. 185; 26 D.L.R. 333) distinguished. RD I X.
INSURANCE, FIRE-continued.
-Per Idington, Anglin and Cassels JJ.
application for injunction should not be entertained against the agent an insurance company to restrain him from the principal as a party to this action,
Appeal (40 D.L.R. 455; W.W.R.
AssUn. Co.......................
2-Subject matter-Occupied dwelling houses - Suspension of risk - Change material risk.] Several buildings were insured against fire by separate policies each which expressed the risk to on the building "while occupied by.........
a dwelling."-Held, affirming judginent the Appellate Division
Ont. L.R. D.L.R. 528) that a building used as a combined store and dwelling was not insured.-Held, also, the contract was intended to insure occupied dwellings only; that the failure the insurance agent to insert the name description the occupant immaterial; and that the word "by"
the restrictive description quoted could deleted as not required to express the intention and make the contract sensible.
London Assur. Corp. v. Great Northern
Transit Co. Can. S.C.R. 577) followed.
the knowledge of insurer and insured the buildings were not completed when the policies issued and could not be expected to be occupied for some time.- Held, Idington and Brodeur JJ. dissenting, that, though the risk might presently attach to the unoccupied buildings, yet after they were once occupied the insurance would be suspended on any becoming vacant, and loss occurring during such vacancy would not be covered.-The
Appellate Division held that the insured entitled to recover $1,200 on each building actually occupied as a dwelling at the time the fire, and ordered a reference to ascertain the amount due.- Held, per Davies
Anglin
Mignault JJ., that as the basis the claim was certain and the amount, once the facts were established, ascertainable a nere arithmetical computation, the
INSURANCE, FIRE-continued. insured was entitled to interest on the sum eventually found due from the expiration of sixty days after the proofs of loss were furnished.-Held, further, that the Supreme Court of Canada should not interfere with the discretion a provincial appellate court in allowing issues of law arising on the documents and facts in the record to be raised though not pressed at the trial. Ross Policy-Conditions-Notice of loss- Irregularity
Specified delay begin action-Action premature-" The Fire Insurance Policy Act," R.S. Sask., 1909, 80, s. 2-" Saskatchewan Insurance Act," Sask. S., Insurance policies against fire were issued by the companies respondent on buildings owned by the appellant Shepard with loss, if any, payable to the appellant bank, assignee of a mortgage on the property.
The buildings were subsequently destroyed by fire occurring on the 1st or 2nd April, which the agent of the bank informed the companies respondent.
In the course their investigation they suspected some incendiary origin and declined payment for a considerable period.
The proofs loss were furnished on the 29th February, The statutory condition No. 13 required that the assured should "forthwith" give notice in writing to the companies, soon afterwards practicable," deliver a detailed account the loss accompanied by a statutory declaration as to the truth of his statements.
According to another condition, no action could be brought after the expiration one year from the date the loss.
The statutory condition No. 17 also provided that "the loss shall not be payable until thirty days" in the case one policy and sixty days in the case the other policy "after completion of the proofs of loss."
The present actions were commenced on the 22nd March, before the lapse the required period, order that they might be instituted within one year from the date the fire.-Held, that this court should not interfere with the discretion exercised by the trial judge in deciding that the non-performance of condition No. had been due to mistake and that relief should be granted to the assured under sec. of "The Fire Insurance Policy Act."-Per Idington J. the notice was not given "forthwith after INSURANCE, FIRE-continued.
loss" and the proofs were not delivered as soon afterwards "as practicable," they cannot be regarded as made in compliance with the terms the policy and, therefore, cannot be used to fix the time when the actions should be brought.-Per Anglin and Cassels JJ. The proofs loss became value and were "completed"
only when the trial court exercised its statutory power to give relief; -and the effect of granting it was to put the assured in the same position for all purposes as if the proofs had been furnished as required by the statutory condition
No.
Accordingly, the respective periods, prescribed by statutory condition No.
should be deemed to have elapsed and the loss under each of the policies to have been payable before the action upon was begun.-Per Mignault J. (dissenting).
Sec. of "The Fire Insurance Policy Act"
did not give power to the courts to relieve against the requirements statutory condition
No.
17.-Judgment
Court of Appeal Sask. L.R. 259;
D.L.R. 746) reversed, Davies C.J. and
Mignault J. (dissenting)
.
Conditional renewal - Mutual agreement- Liability of lessor-Trade fixtures-Removal When a lease provides for a renewal thereof "upon such terms as may be mutually agreed upon"
further provides that "in the event a renewal this lease not being granted, alterations and additions" made by the lessee to the premises, the lessor liable if no agreement is reached between the lessee, it being immaterial whether both. or either of them, were unreasonable the discussion of terms and conditions renewal.-It was also provided that "all improvements, alterations and fixtures constructed or made to be constructed or made in and upon the said premises shall become absolute property of the lessor" at the expiration of the lease.-Held, that the lessee was entitled to remove his trade fixtures.-Judgment
Appeal W.W.R. affirmed.
v. BuaNs................
MAXIMS-"Mobilia sequuntur personam" ........................
Builder
Renunciationtration is-en-cause - Absence of notice-Res judicata-Articles 2127 C.C.-Article supplied the materials and executed the work necessary for the plumbing and heating system included in the construction a building. Within the delay during which he had a lien the property without registration (article 2013b. C.C.), signed and delivered to with whom the owner the property was negotiating a loan, a document which he declared that renounced all legal privilege. Later on, registered claim against the property and afterwards transferred the greater part it. a mortgage creditor, then took.an action to set aside S.'s lien and, asking that the transfer be declared null and void, summoned the transferee, as In the trial court, 0. appeared through counsel, but did not fyle any plea; and judgment was rendered, dismissing the action, upon the contestation produced W. then appealed to the Court King's Bench and to the Supreme Court without giving any notice to G.-Held, that the privilege had ceased to exist at thi date its registration.-Per 'Idington J.
having failed to enforce his privilege within the delay mentioned in article 2013b.
C.C.. his right was extinguished.-Per Anglin, Brodeur and Mignault JJ. The document signed absolute unqualified renunciation of his privilege and not a mere undertaking not to register it.-Per Anglin, Brodeur and \Iignault JJ. this appeal, cannot set up a plea res judicata to which'the transferee may be entitled.-Per Anglin and Mignault JJ. The judgment of the trial court, so far as it affects the transferee, cannot be disturbed by the Supreme Court.-Per Brodeur and Mignault JJ. though not a party to the document signed by has a right to take advantage of it, because as creditor the owner who failed to do it, can exercise the latter's right to have the registration declared illegal.- Per Brodeur J.
judgment pronouncing the extinction of a claim, rendered before the notification the transfer, can be opposed to the transferee.-Judgment the Court of King's 3ench R.L.N.S. MORTGAGE - Debtor and Creditor - Stat ate-Construction-Chatiet mortgage- MORTGAGE-continued.
Ordinary creditor-Execution creditor- Goods under seizure but not sold-Priority between mortgagee and creditor-The Bills of (N.W.T. Cons.
The mortgagee, under a chattel mortgage given by E., failed to renew its registration within the delay mentioned in section the Bills of Sales
Ordinance (N.W.T. Cons. Ord.
The mortgage, therefore, as provided in that section, "ceased to be valid as against the creditors" E.
obtained judgment against E. and caused a writ of execution to be placed in the sheriff's hands against his goods.
month before, a distress warrant was placed by the mortgagee the hands the same sheriff with instructions to take possession of and sell the goods covered by the mortgage.
Pursuant thereto, the sheriff's officer, after taking an inventory the goods, left them on the premises in charge of the tenant.-Held, Idington and Anglin JJ.
dissenting, that the word "creditors," as used in section the Bills Sales
Ordinance, means all creditors the mortgagor and not merely the execution creditors.
Parkes v. St. George Ont.
R. 496) and Security Trust Co. v.
Stewart Alta. L.R. 420; D.L.R. 518;.
1 W.W.R. overruled.-Per
Davies C.J., Anglin and Mignault JJ.
The goods, being only under seizure and not yet sold when the writ of execution was placed in the hands of the sheriff, were still held under a mortgage which had become invalid as against the execution creditor; and the latter acquired a right to have the goods seized and disposed for his benefit in priority to that the mortgagee.
2-Debtor and Creditor-Judginent- Priority
"Land Registry Act,"
R.S.B.C.
ss.
137-"Execution
R.S.B.C.
s.
judgment, registered in the Land
Registry on an application made after the date of the execution of a mortgage by the judgment debtor but before the application for the registration the mortgage, takes priority over the mortgage by virtue section 73 the "Land
Registry Act."
Jellett v. Wilkie Can.
S.C.R. and Entwistle v. Lenz B.C.
Rep. W.L.R.
distinguished.
Idington J. (dissenting)
.-Per Idington J.
The only charge a judgment
MORTGAGE-continued.
creditor gets by virtue of his judgment is upon such interest as the debtor may have at the time registration or issue execution; and, in this case, that subject to whatever rights the mortgagee may have acquired by virtue of its mortgage.- Judgment of the Court of Appeal D.L.R. W.W.R. affirmed, Idington
J.
3-Loan to manufacturer-Security- Written promise-Advance for prior "Bank Act,"
ss. 88, 90-Mortgage as security-Insolvency-Knowledge of bank- Mortgage on land outside province.] * section 88 of the "Bank Act" a bank may lend money to a manufacturer on security of his goods or raw material and by section it shall not acquire any such security unless the liability contracted "(a) at the time the acquisition thereof by the bank; or (b) upon the written promise security would be given to the bank."-Held, Anglin J. dissenting, that subsection (b) does not contemplate a general promise agreement to give security for future advances but it must have reference to a specific loan negotiated, at the time the security specific goods.-A manufacturing company, by application in writing, obtained a line credit from a bank and agreed to give security under the "Bank Act" on its stock and material each advance made thereunder. vances were made and security given as agreed.
By similar application the credit was renewed from time to time, and after each renewal the bank took security not only for the present advance but for the total indebtedness of the company to that date.-Held, Anglin J. dissenting, that this security taken for the whole debt was only valid for the amount the loan made at the time it was acquired; but-Held, the security acquired for each individual advance was never released and did not merge in the general security so taken; the bank, therefore, was entitled to the benefit of all the securities so acquired.-In May, the company agreed to give to the bank, as further security, a mortgage its factory site in St. Thomas, Ont., and also a mortgage on land in Montreal. former was not executed until Nov., nor the latter until Jan.,
In March, the bank filed a petition for windingup the company.-Held, that in Ontario 666*
MORTGAGE-continued.
it is the date of the promise to give the mortgage that governs and as the mortgagor was solvent at that date the mortgage on land in Ontario was valid; but- Held, that in Quebec the date when the mortgage was executed can alone be considered, and as the mortgagor was insolvent to the knowledge of the bank when the Quebec mortgage was given it must be set aside.-Per
Anglin
J.
Insolvency to the knowledge of the bank at that date was not established; and- Qu.--Can an Ontario Court set aside a mortgage on-land in Quebec?-After the petition for winding-up the company had been filed the bank advanced $17,600 security the stock in trade and material on hand.-Held, Idington and Brodeur
JJ. (dissenting)
, that if this advance was made, under the terms of section
"Winding-up Act," with the sanction the liquidator and for the beneficial winding-up the estate the bank was entitled to the benefit the security.- Judgment of the Appellate Division
Ont. L.R. and the trial Judge
Ont. L.R. reversed in part.
4-Evidence-Finding of facts trial security or payment-Parol evidence- Time of payment not fixed-Reasonable time.] B., having bought from a fourfifths interest in a yacht, gave him a mortgage on real estate for the amount the purchase-price.
The deed provided that "the principal (should) be paid out of the first proceeds the sale the equity the nortgagee," and there was no covenant of the mortgagor to pay the debt.
The evidence both parties was in direct conflict as to whether the mortgage had been given in payment of the purchase-price or merely as security.- Held, that under the circumstances the
Court Appeal was not justified in reversing the finding fact the trial judge, who had declared the mortgage to have been given as security only.-Per
Davies C.J. The absence in the deed a covenant as to the personal liability of the mortgagor to pay the debt is not material.
-Per
Idington and Anglin
JJ. The result the failure to fix a time payment is that the debt became payable within a reasonable time according to the intentions of both parties and having regard to all the circumstances.
..................
MUNICIPAL CORPORATION - -Construction-Public work-Land not taken-Injuriously affected-Comperisation -"Date at which damages are ascertained" -Sask. R.S. 84, s.. Under section 247 of the "City Act" (Sask. R.S. ch. 84) when any land, though not taken for some public work, is injuriously fifteen days after the publication in a local newspaper a notice of the completion the work; and sub-section provides that "the date publication such notice shall the date in respect which the damages shall be ascertained." Davies C.J. dissenting, that, determining the compensation to be awarded under the statute, the court has only to consider the depreciation in value which the claimant's property, as it stood at the date of the publication the notice, had suffered as a necessary result the work done by the municipality, and the fact that since the commencement of the work, but before the notice of its coinpletion, the claimant's buildings had been destroyed by fire and rebuilt by him, cannot effect the right the claimant to recover compensation for depreciation their value by reason of this work.-Per Davies
Damages buildings erected by the owner after the "work"
has been commenced are not "necessarily incurred by the construction of the work," within the meaning the statute.-Judgment
Appeal (42 D.L.R. W.W.R. reversed, Davies C.J. dissenting. Liability Injury
Moving train-Jumping off-Under guidance of brakeman.] The plaintiff, experienced traveller, wishing to alight at a flag station, instead of insisting on the train being stopped, assented to a suggestion of a brakeman that, if it should merely slowed (own, he might jump and he was injured in doing so.-Held. that he took all the risks alighting from the moving train and could not recover.- Judgment the Court of Appeal Sask. L.R. 40 D.L.R. W.W.R. Ry. 2-Master and servant-Railway companies
"Joint operation"
Limited liability of each company-Art. NEGLIGENCE-continued.
1054 C.C.-Art. C.N.] The c.T.R.
Co. was operating a line railway between Montreal and St. Johns, P.Q., and the C.V.R. Co. was also operating a line between St. Johns, P.Q., and St.
Albans, Vt.
An agreement was entered into between the companies "to operate jointly, and as one line, the railway from
Montreal to St. Albans."
The same train crew was to remain in charge during the trip; but it was provided "that each party should pay the train and enginemen employed in the joint service for the service performed by them on its line," and "that
* * * the rules and regulations either company "shall apply while the trains are upon the lines of that company."
through train, thus operated between St. Albans and Montreal, met with a collision, on the C.T.R.
Co.'s line, caused by the negligence of an engineer charge the train from the starting point; and the . respondent's husband was killed.-Held, that, at the time the collision, the engineer was in the employment and under the sole control the G.T.R. Co.. and the
Co. could not be held liable for the accident.-Held, also, that "the service," referred to in the agreement, could only be construed as joint in the sense being continuous service, one part being controlled by one company and the other part by the other.-Per Brodeur and Mignault JJ. The agreement between both companies not res inter alios acta with regard to the respondent her husband.-Judgment
Court King's Bench (Q.R. 28 K.B. 45)
Ry.
3-Joint negligence-Proper direction to jury-Practice procedure-New on appeal - Costs against appellant - Statutory right-Question of costs-Duty
Supreme Court to interfere-"Supreme
Court Act" of British Columbia, R.S.B.C.
c. s. In an action damages, the jury found negligence on the part both of the respondent's employees and of the appellant's who was driving his automobile; and also found that, after these employees became aware, should have become aware, that the automobile was in danger of being injured, they could have prevented such injury the speedy application of the brakes.- Held, that the jury should also have been required to find whether or not the appellant's wife could herself have avoided
NEGLIGENCE-continued.
the accident by the exercise reasonable care, and therefore the Court of Appeal was justified in ordering new trial.- Brodeur J. dissenting on the ground that, upon the evidence, the accident entirely due to the negligence appellant's wife; but-Held, ldington and Brodeur JJ. dissenting, that, as the "ground objection" before the Court Appeal had not been "taken at the trial," the order should have been granted with costs against the then appellant, now respondent, purstiant to section of the "Supreme Court Act" British Columbia.-Per Davies C.J., Anglin and lignault JJ. It within the jurisdiction and duty the Supreme Court Canada to reverse an order as to costs, when a party, having a statutory right to receive his costs certain proceedings from opponent. has, on the contrary, been ordered to pay that opponent's costs, especially when the appeal to this court, its merits being arguable, was evidently not brought merely for the purpose introducing question costs.- Judgment the Court Appeal D.L.R. 47; W.W.I. affirmed as to merits, but reversed as to costs, Idington and
Brodeur JJ. (dissenting)
. New invention-Manufacture in Canada- Inportation of parts.] application patent on "'New and useful improvements Grip Treads for Pneumatic Tires" contained fourteen claims respecting what the applicant desired to patent. In an action instituted for infringement a disclaimer was filed as to nine the fourteen claims, the plaintiff relying the one feature of placing at right angles, instead of diagonally as in other grip treads patented, the chains connecting the side chains of the grip treads.-Held, Mignault J. dissenting, that the remaining claims shewed that the invention was intended to consist the entire grip tread and not the right-angled feature only; that all the elements of this invention were old and well known and it had been anticipated by prior patents and prior user; and that the patent was properly declared void.-All parts the plaintiffs' grip tread were imported, the only work (lone in Canada being to put them together by a simple operation that could be performed by any person.-Held, lignault J. dissenting. that tLis was INDIEX.
PATENT OF INVENTION-continued.
importation the invention forbidden section of "The Patent Act" and the work done in Canada not the manufacture required by that section.-Per
Mignault J. Placing the cross chains at right angles was a combination, previously unknown, of old elements and, as such, was a patentable invention.-Judgment of the Exchequer Court Ex. C.R.
D.L.R.
DonmsoN
PRACTICE AND PROCEDURE- Motion-Special inscribe-Suprene
Court Rule motion for special leave to inscribe an appeal made necessary the appellant's default should not granted, if, in the opinion the, court, the judgment appealed from so clearly right that an appeal from it would be hopeless.
THE KINo............
2-Constitutional Law - - Statute - Retrospective legislation-Insurance-Fire
- Dominion and provincial licences - Action against agent-"Dominion Insurance Act," & V. 29, ss.
"British Columbia Fire Insurance Act."
R.S.B.C. ss. 4, The appellant, being appointed to act as attorney of the Guardian Fire Insurance
Company Utah in the event of its obtaining a licence under the "British
Columbia Fire Insurance Act,"
proceedings, by way injunction, to by & Geo. c. and sections 4 and provided that a foreign insurance a licence from the Minister of Finance the Dominion Canada.-Held, that the
Appeal should have taken judicial notice the amendments to the the Guardian Fire Insurance Company a provincial licence to transact any business in British Columbia before having obtained a Dominion licence, the proceedings by way injunction taken the respondent were premature.
Boulevard Heights v. Veilleux Can. S.C.R.
D.L.R. distinguished.-Per
Idington, Anglin and Cassels JJ.-An
PRACTICE PROCEDURE-conid. application for injunction should not entertained against the agent of the principal as a party to this action, Appeal D.L.R. 455; W.W.R. 405) reversed.
Asson. Co.........
..... 3-Procedure -- Evidence -Irrelevancy - Objection - Proper time - New trial.] irrelevant evidence has been received by the trial judge, though subject to objection, he has not disclaimed its having had any influence on his mind, a new trial must be had, because such evidence may have adversely influenced his opinion.
Idington J. (dissenting)
.-Per Under the circumstances this case, the failure by the respondent to object to the evidence promptly and at the proper time is fatal to any application for a new trial.- Judgment of the Court of Appeal Sask. L.R. 324; 42 D.L.R. 516; W.W.R. affirmed. Idington J. dissenting.
C.P.Q.]
supplied materials and executed the work necessary for the plumbing and heating system included in the construction a building. Within the delay during which he had a lien on the property without registration (article
2013b. C.C.), signed and delivered to B., with whom the owner the property was negotiating a loan, a document by which he declared that he renounced all legal privilege. Later on, registered his claim against the property and afterwards transferred the greater part of it.
W., a mortgage creditor, then took an action to set aside S.'s lien and, asking that the transfer be declared null and void, summoned the transferee, as mis-en-cause, In the trial court, appeared through counsel, but did not fyle any plea; and judgment was rendered, PRACTICE AND PROCEDURE-contd.
dismissing the action, upon the contestation produced by S.
W. then appealed to the Court of King's Bench and to the
Supreme Court without giving any notice to G.-Held, that the privilege had ceased to exist at the date of its registration.-Per Idington
J.
having failed to enforce his privilege within the delay mentioned in article 2013b. C.C., his right was extinguished.-Per Anglin,
Brodeur and Mignault JJ. The document signed by S. was an absolute and unqualified renunciation of his privilege and not a mere undertaking not to register it.-Per Anglin, Brodeur and Mignault
JJ. On this appeal, cannot set up a plea of res judicata to which the transferee may be entitled.-Per Anglin and Mignault
JJ.
The judgment of the trial court, so far as it affects the transferee, cannot be disturbed by the Supreme Court.-Per
Brodeur and Mignault JJ. W., though not a party to the document signed by S., has a right to take advantage it, because as creditor of the owner who failed to do it, W. can exercise the latter's right to have the registration declared illegal.-Per Brodeur
J.
pronouncing the extinction of a claim, if rendered before the notification the transfer, can be opposed to the transferee.
of the Court of King's Bench
R.L. N.S. 204) reversed.
5--Negligence negligence - Proper direction jury-Practice and procedure-New ground on appeal-Costs against appellant-Statutory right-Question of costs-Duty of the Supreme Court interfere-"Supreme Court Act" of British
Columbia, R.S.B.C. 1911, c. 58, s. In an action for damages, the jury found negligence on the part both of the respond ent's employees and of the appellant's who was driving his automobile; and also found that, after these employees became aware, or should have become aware, that the automobile was in danger being injured, they could have prevented such injury by the speedy application of the brakes.-Held, that the jury should also have been required to find whether or not the appellant's wife could herself have avoided the accident by the exercise of reasonable care, and therefore the Court of Appeal was justified ordering a new trial.-Brodeur J. dissenting on the ground that, upon the evidence, the accident was entirely due to the
PRACTICE AND PROCEDURE-ronid. negligence appellant's wife; but-Held, Idington and Broduer JJ. dissenting, that, as the "ground of objection" before the Court of Appeal had not been "taken at the trial," the order should have been granted with costs against the then appellant, now respondent, pursuant to section of the "Supreme Court Act" British Columbia.-Per Davies C.J., Anglin and Mignault JJ. It is within the jurisdiction and duty the Supreme Court of Canada to reverse an order as to costs, when a party, having a statutory right to receive his costs of certain proceedings from his opponent, has, on the contrary, been ordered to pay that opponent's costs, especially when the appeal to this court, its merits being arguable, evidently not brought merely for the purpose introducing the question costs.-Judgment Court of Appeal (43 D.L.R. 47; W.W.R. affirmed as to merits, but reversed as to costs, Idington and Brodeur JJ. dissenting.
.. PRINCIPAL AND
AGENT - -Deceit-Ingredients of-Finding of trial judge-Principal and agent-Total purchase-price paid into bank-Right of agent to money.] A finding by the trial judge, that "the misrepresentations as to condition and capacity" of a log-hauler "which induced the plaintiff to purchase were at least made with reckless carelessness as to their truth" is a finding of fraud sufficient to sustain an action of deceit; and such finding brings this case within the rule laid down in Derry v. Peek (14 App. Cas. Brodeur J. dissenting.-G., agent of C., sold to D. a log-hauler for $750 more than the price fixed by C. D. deposited the total purchase-price in a bank to be paid to C. who disclaimed all right to the $750.-Held, that the $750 were the property of D.
Brodeur J. (dissenting)
.-Judgment of the Appellate Division (13 Alta. L.R.. 557; 42 D.L.R. 573;
3 W.W.R. 221) reversed. J. dissenting. DE
2-Trust-Money deposited agent- Cheque sent to payee-Right of payee to fund.] C. bought from the assignor of M. a parcel of land, the purchase price being payable in instalments and transferred half of his interest to E. Later E. sent to C. his accepted cheque for half of PRINCIPAL AGENT-continued.
the amount of an instalment falling due, which cheque was deposited to the credit
C.'s account in the Bank Montreal.
Then C. drew a cheque of the same amount on the above account and sent it to M. with a statement that it was his own share of the instalment.
Payment the cheque was refused by the
Bank Montreal on the ground that C.
was in the hands of a receiver.
brought an action asking that it be declared that the money standing to the credit of C. in the Bank Montreal was the property as being trust money in the possession C. for the specific purpose of paying E.'s indebtedness to
M.-Held, Davies C.J. and Idington J.
dissenting, that the transaction was not impressed with a trust in favour M.- Per Anglin and Brodeur JJ. C. merely assumed, as agent of E., a personal liability towards M. whose right action is one of damages against for breach of contract.-Per Anglin and Brodeur JJ.
The receipt C.'s cheque by M. and its presentation, upon which it should have been accepted and paid, is not equivalent to a payment of the money itself to M.- Per Mignault J. The money paid by E., being due by him to C. and not to M., was the property of C. and was not trust money in the possession of C. for a specific purpose.-Judgment of the
Appellate
Division D.L.R. 664: 1 W.W.R.
972) reversed, Davies C.J. and Idington charge"-R.S.C., and
48 "Supreme Court Act"-8 & V.
An appeal from the court final resort in any province except Quebec in a case of prohibition under sec.
the "Supreme Court Act" will not lie unless the case comes within some the provisions of see. 48 as amended
& Geo. ch. sec.
TRACEY........................
Ad proximum antecedens fiat relatio-59
Vict. (Ont.)-Railway crossing-Maintenance-Seniority.] An order-in-council passed by the Government of Canada for survey of lands on the northerly shore Lakes Huron and Superior, and to provide for roads while the district was unorganised, directed that "an allowance of of the acreage be reserved for roads the right the
RAILWAYS-continued.
Crown to lay out roads when necessary." By the Ontario Act, Vict. ch. the Government was authorised to transfer to the Dominion of. Canada, by order-incouncil, certain lands occupied by the Canadian Pacific Railway, and in the lands were so transferred and afterwards granted to the railway company subject to the condition in section of the above Act, namely, that the order-incouncil should not be deemed "to affect or prejudice the rights of the public with respect to common and public highways existing at the date hereof" in said lands. In the Board Railway Commissioners made order allowing the Ontario Government to carry a highway across the railway on a part said lands, finding as a fact that there were no highways in the district prior to and ordered a crossing to be constructed and maintained at the expense the company. On appeal from this latter part of the order:-Held, Brodeur and Mignault JJ. dissenting, that in view of the finding that there were no highways in the district company acquired title the condition in section 2 the Act must be construed as meaning 'the rights the public existing at the date hereof in common and public highways," and as including rights in highways to laid out under the reservation roads by the order-in-council of Therefore, as these potential highways existed before the crossing the company being the junior occupant was properly charged with the expense.
2-Liability - Injury to passenger - Negligence-Moving train-Jumping off- Under guidance of brakeman.] The plaintiff, an experienced traveller, wishing to alight at a flag station, instead of insisting on the train being stopped, assented to a suggestion of a brakeman that, if it should be merely slowed down, he might jump and he was injured in doing so.- Held, that he took all the risks of alighting from the moving train and could not recover.-Judgment
Appeal Sask. L.R. 40 D.L.R. 292: Negligence-Master and servant- Railway companies-" Joint operation"- Control-Limited liability of each company 1054 C.C.-Art. C.N.] The [S.C.R. VOL. LViiI. RAILWAYS-continued.
(;.T.R. Co. was operating a line railway
Montreal and St. Johns, P.Q., and the C.V.R. Co. was also operating a line between St. Johns, P.Q., and St.
Albans, Vt.
An agreement was entered into between the companies "to operate jointly, and as one line, the railway from
Montreal to St. Albans."
The same train crew was to remain in charge during the trip; but it was provided "that each party should pay the train and engine men employed in the joint service for the service performed by them on its regulations either company "shall apply while the trains are upon the lines that company."
through train, thus operated between St. Albans and Montreal, met with a collision, on the G.T.R.
Co.'s line, caused by the negligence an engineer in charge the train from the starting point; and the respondent's husband was killed.-Held that, at the time the collision, the engineer was the employment and under the sole control the G.T.R. Co., and the C.V.R.
Co. could not be held liable for the accident.-Held, also, that "the service," referred to in the agreement, could only be construed as joint in the sense being a continuous service, one part being controlled by one company and the other part by the other.-Per
Brodeur and Mignault JJ. The agreement between both companies is not res inter alios acta with regard to the respondent and her husband.--Judgment the
Court King's Bench (Q.R. 28 K.B. 45)
RIPARIAN OWNER -Fishing
Right- Personal servitude-Real right-Perpetual or temporary-"Profit a prendre"-Registration-Articles 405,
479,
Under Quebec law, the grant fishing rights by a riparian owner confers no title to the the river in which this right exercised.
Such right is one enjoyment only, essentially temporary in its nature and does not endure beyond the life the grantee.
Idington and Cassels
JJ. (dissenting)
.-The right to catch fish in alieno solo cannot assimilated to the
'profit A prendre." a term found in the common law of England but. unknown to the civil law France and Quebec.
Idington and Cassels JJ. (dissenting)
.-Per
Anglin and Mignault JJ. The renewal of the registration a right to fish after the official cadastre was put in force, was
RIPARIAN OWNER-continued. not required by article 2172 C.C.: La Banque du Peuple v. Laporte L.C. Jur.
Brodeur J. contra. SALE-Contract-Sale of land-Right resale-Sales at stated periods-Power cancel contract-Waiver-Estoppel. . pletion at a saving-Security-Recovery. .................................
STATUTE-Construction-Ad proximun antecedens flat relatio-59 Vict. (Ont.) crossing-Maintenance-Seniority.] An order-in-council passed by the Government Canada in for survey lands on the northerly shore of Lakes Huron and Superior, and to provide for roads while the district was unorganised, directed that "an allowance the also reserving the right of the Crown to lay out roads when necessary." By the Ontario Act, Vict. ch. the Government was authorised to transfer to the Dominion of Canada, by order-in-council, certain lands occupied by the Canadian Pacific Railway, and in the lands were so transferred and afterwards granted to the railway company subject to the condition in section the above Act, namely, that the order-in-council should not be deemed "to affect or prejudice the rights of the public. with respect to common and public highways existing at the date the Board Railway Commissioners made an order allowing the Ontario Government to carry a highway across the railway on a part said lands, finding as a fact that there were no highways in the district prior to and ordered a crossing to be constructed and maintained at the expense of the company. appeal from this latter part the order:- Held, Brodeur and Mignault JJ. dissenting, that in view of the finding that there were no highways in the district when the title the the must construed as meaning "the rights the public existing at the date hereof common and public highways," and as including rights in highways to be out under the reservation for roads the order-in-council
Therefore, STATUTE-continued.
as these potential highways existed before the crossing the company being the junior occupant was properly charged with the expense.
PACIFIC Ry.
2---Construction - Chattel mortgage - Ordinary creditor-Execution creditor- Goods under seizure but not sold-Priority between mortgagee and creditor-The Bills of Sales Ordinance, s. 17 (N.W.T. Cons.
Ord. c. 43).] The mortgagee, under a chattel mortgage given by E., failed to renew its registration within the delay mentioned in section 17 of the Bills of
Sales Ordinance (N.W.T. Cons. Ord. c.
The mortgage, therefore, as provided in that section, "ceased to be valid as against the creditors" of E. G. obtained judgment against E. and caused a writ of execution to be placed in the sheriff's hands against his goods.
A month before, a distress warrant was placed by the mortgagee in the hands of the same sheriff with instructions to take possession of and sell the goods covered by the mortgage. Pursuant thereto, the sheriff's officer, after taking an inventory of the goods, left them on the premises in charge of the tenant.-Held,
Idington
Anglin JJ. (dissenting)
, that the word
"creditors," as used in section 17 of the
Bills of Sales Ordinance, means all creditors of the mortgagor and not merely the execution creditors.
Parkes v. St.
George (10 Oat. App. R. 496) and Security
Trust Co. v. Stewart (12 Alta. L.R. 420;
39 D.L.R. 518; [1918] 1 W.W.R. 709)
overruled.-Per Davies C.J., Anglin and
Mignault JJ. The goods, being only under seizure and not yet sold when the writ of execution was placed in the hands of the sheriff, were still held under a mortgage which had become invalid as against the execution creditor; and the latter acquired a right to have the goods seized and disposed of for his benefit in priority to that of the mortgagee.
3-Construction-Municipal corporation
-Public work-Land not taken-Injuriously affected-Compensation-" Date at which damages are ascertained"-Sask.
R.S. 1909, c. 84, s. 247.] Under section
247 of the "City Act" (Sask. R.S. 1909, ch. 84) when any land, though not taken for some public work, is injuriously
STATUTE-continued.
fifteen days after the publication in a local newspaper of a notice of the completion of the work; and sub-section 3 provides that "the date of publication of such notice shall be the date in respect of which the damagcs shall be ascertained."-eld, Davies C.J. dissenting, that, in determining the compensation to be awarded under the statute, the court has only to consider the depreciation in value which the claimant's property, as it stood at the date of the publication of the notice, had suffered as a necessary. result of the work done by the municipality, and the fact that since the commencement of the work, but before the notice of its completion, the claimant's buildings had been destroyed by fire and rebuilt by him, cannot effect the right of the claimant to recover compensation for depreciation in their value by reason of this work.-Per Davies C.J. dissenting. Damages to buildings erected by the owner after the "work" has been commenced are not "necessarily incurred by the construction of the work," within the meaning of the statute.-Judgment of the Court of Appeal (42 D.L.R. 792; (1918) 2 W.W.R. 1013) reversed, Davies C.J. dissenting.
4-Construction-Agreement for sale- Assignment-Assignor giving mortgage- Caveat by assignee-Lapse of-Knowledge mortgagee - Priorities - " The Land Titles Act," Sask. S., 1917, 2nd sess., c. 18, s. 194. R.S. Sask., 1909, c. 41, s. 162.] In April, 1912, the owner made an agreement to sell a lot of land to P. for a price payable by instalments, and in May, 1913, P. assigned to B. his interest in this agreement.
This assignment was not registered, but in June, 1913, B. filed a caveat.
In September, 1914, P., having paid the purchase price, was registered as owner of the land subject to the caveat. Subsequently P. executed a mortgage of In June, 1915, the registrar, under section 136 of "The Land Titles Act" of Saskatat the expiration of a certain delay, unless continued by order of the court; and, by a subsequent order, B.'s caveat was continued for 35 days from the 8th of STATUTE-continued.
October, 1915.
As no action had been taken by B. within that time, the caveat was vacated.-Held that, under section
194 of the "Land Titles Act" of Saskatchewan and in the absence of fraud, B., having allowed his caveat to be vacated, could not invoke the knowledge by the mortgagee of the existence of the caveat in order to maintain its priority of claim.- Judgment of the Court of Appeal Sask.
L.R. 297; 42 D.L.R. 548; (1918) 3 W.W.R.
27,
5- Restrospective legislation....... 47
STATUTES-R.S.C.,
2- R.S.C., [1906] c. 61, s. 38 (" The
Patent Act")........
........
....
3-lR.S.C., [1906 c. 139, s. 37 ("Supreme
Court Act").......................
5-R.S.C., [1906] c. 139, ss. 39 (c) and
48 ("Supreme Court Act")..........
See 4.
6-R.S.C., [1906] c. 139, s. 41 ("Supreme
Court A ct").......................
(" Winding-up Act") ...............
8-R.S.C., c. 147, s.
("Criminal Code") .................
9-(D.) 8 & 9 Vict. c. 7, s. 3 ("Supreme
Court Act" amended) ...............
See 4.
10-(D.) 3 & 4 Geo. V. c. 9, a. 43
("Bank Act").....................
("Bank Act")......... .. ....
...
12- (Ont.) 59 Vict. c. 11.........
13--R.S.Q. Arts. et seq.
14- (Que.) 2 Geo. V. c. 56, s. 33 ...
15- (Alta.) 3 Geo. V. c. 23 ........
16- R.S.B.C.,
[1911] c. 58, s. 55
See 4.
STATUTES-continued.
17- R.S.B.C., c. 79, s. ("Execution Act") ................. 18-.S.B.C., [1911] c. 127, as. 73, 104, 137 ("Land Registry Act") ......... 19-R.S.
Sask., ("Land Titles Act")............. 20-R.S. Sask., [1909] c. 80, s. 2 ("The Fire Insurance Policy Act")... 551 21- R.S. Sask., [1909] c. 84, s. 247 ("City Act")...................... 22-(Sask.) 86 (" The Saskatchewan Insurance Act") ...... 23-(Sask.) [1917-2nd sess.] c. 18, s. 194 (" The Land Titles Act"). See 5.
24-(N.W.T.) Cons. Ord. c. 43, s. 17 ("Bills of Sale Ordinance") ......... TITLE TO LAND tion-Agreement for sale-Assignment- Assignor giving mortgage-Caveat assignee-Lapse of-Knowledge mortgagee -Priorities-" The
Land
Titles Sask. S., 1917, 2nd sess., R.S. Sask., 1909, c. 41, s. 162.] In April, 1912, the owner made an agreement to sell a lot of land to P. for a price payable by instalments, and in May,. 1913, P. assigned to B. his interest in this agreement. This assignment was not registered, but in June, 1913, B. filed a caveat. September, 1914, P., having paid the purchase price, was registered as owner of the land subject to the caveat. Subsequently P. executed a mortgage of In June, 1915, the registrar, under section 136 of "The Land Titles Act" of Saskatat the expiration of a certain delay, unless continued by order of the court; and, by a subsequent order, B.'s caveat was continued for 35 days from the 8th of October, As no action had been taken by B. within that time, the caveat was vacated.-Held, that, under section 194 of "The Land Titles Act" of Saskatchewan and in the absence of fraud, B., having allowed his caveat to be vacated, could not invoke the knowledge by the mortgagee of the existence of the caveat TITLE TO LAND-coninued.
of the Court of Appeal (11
Sask. L.R. 297; 42 D.L.R. 548; (1918) 3
UNioN
TRADE
MARK - Playing cards - "Bicycle" design-Infringement-Passing off - Intent - Damages.] The word
"Bicycle," as the name given to a certain class of playing cards, may become a valid trade mark.-The sale by other manufacturers of cards described
"Bicycle Series" with the word "Bicycle"
occupying a line in letters larger than
"Series" is an infringement of the right in the trade mark. Idington J. dissenting.-The finding of the trial judge that a foreign manufacturer and its agent in Canada conspired to defraud the owner of its trade name, and the profits to be derived therefrom, should not be interfered with on appeal.
Idington J.
dissenting on the ground that the evidence did not justify such finding.-In an action asking for an injunction to restrain the defendant from passing off its cards for
TRADE MARK-continued.
those of the plaintiff.-Held, that though there is no evidence of actual passing off by the defendant the injunction should be granted if the defendant has offered for sale cards which could be passed off for those of the plaintiff, and there is sufficient evidence of an intention to do so.-The plaintiff's relief in such case would be a -judgment for nominal damages with an inquiry at its own risk if it claimed to be entitled to substantial damages. A. G. Spalding Bros. v. A. G. Gamage Co. L.T. 198) followed.-Judgment of the Appellate Division (39 Ont. L.R. 249; 34 D.L.R. 745) reversed in part and that of the trial judge (37 Ont. L.R. 85; 31 D.L.R. 596) restored in part.
PHRASES - "Grossly excessive" .........................
"Joint operation" ...................
"Profit ( prendre" ...................
Cases cited
- 3 W.W.R. 221 3 W.W.R. 221
- 1 W.W.R. 709 1 W.W.R. 709
- 2 W.W.R. 1013 2 W.W.R. 1013
Statutes and regulations cited
-
- section 39
- section 48
- section 46
- Sections 37
- 38
- 39
- Section 48
- section 36
- section 35
- section 75
- ss. 88
- 90
- section 88
- s. 17
- section 17
- section 3
- s. 194
- s. 162
- section 136
- s. 38
- s. 37
- ss. 37
- 46
- ss. 39
- s. 41
- ss. 5
- 20
- s. 3
- section 194
-
- section 62
- section 67
- section 4
- section 36
- section 1024
- ss. 4
- sections 4