Lavigne v. Nault

The question of representation presents more difficulty.

The selection for that purpose of the six individual defendants before the court was not happy. Four of them are admittedly persons of no importance in the Local Union and cannot fairly or properly be said to represent it. The remaining two were Young and Stefanucci.

Young was an ex-secretary and both he and Stefanucci had "represented"

the Union in discussions with the Rose-Deer management on several occasions and also had had interviews with the plaintiffs on its behalf. These are the only grounds on which it can be claimed that they would be proper representative defendants. Neither of them appears to have been an officer of the Union at the time the action was begun. Whatever funds or other property the Local Union may possess, there is nothing to shew in whose name or names such funds or other property stand; and if, as is probable, these are held by trustees, the trustees are not before the court; nor is it sought to add them as defendants. Yet the avowed purpose of suing the Local Union is to reach its funds.

If the case were otherwise one in which an order might be made for representation of the members of the Local Union by properly selected defendants, I strongly incline to the view that in the exercise of a sound judicial discretion the six individual defendants now before the Court, whom it is asked to approve for that purpose and to authorize to defend the action on behalf of the membership, should be held not to be proper representatives.

(See observations of Lord Macnaghten in the Taff Vale Case(1)), and that on that ground, strengthened as it is by the fact that it was sought only at the close of the trial, the suggested amendment should be refused.

Moreover, notwithstanding what was said obiter in Duke of Bedford v. Ellis(1), (a case of representative of Rly. Servants(2), (where a Union was successfully sued in its registered name) and in Cotter v. Osborne(3), and Cumberland Coal & R. W. Co. v. McDougal (4), to which I refer in order to make it clear that they have not been overlooked, I am with respect, of the opinion that in two recent cases, Walker v. Sur(5) and Mercantile Marine Service Association v. Toms(6) the English Court of Appeal has made it clear that the rule of practice invoked in support of the application for an order for representation cannot properly be applied in such an action as this. Rule 20 of the Alberta Rules is an adoption, substantially in ipsissimis verbis, of English Order XVI., r. 9.

All the objections to the applicability of that rule indicated by the Lords Justices in the Walker Case(5), exist here, notably those mentioned by Kennedy L.J. on page 937. As is pointed out by Swinfen Eady L.J. in the Toms Case(6), many members of Local Union 1562 might have defences not open to the proposed representative defendants, and there are many other reasons against applying the rule in cases of tort such as this. Lord Parker of Waddington, whose authority in regard to the scope and purview of an equity rule such as 0. XVI., r. 9, is of the highest, in his speech in London Association for Protection of Trade v. Greenlands Limited(7), points out some of the serious difficulties which must be encountered in seeking to apply it to such a case as this. Fully as I rea'ize the desirability of finding some method whereby bodies such as Local Union 1562 may be made answerable in the courts for wrongs similar to that done to the plaintiffs, the two authorities to which I have referred seem to me to afford sound reasons for the conclusion that that desirable end cannot be attained by an application of Rule 20. Nor does the other rule invoked, No. 31(2), corresponding to English Order XVI., r. 32 (b), appear to advance the plaintiffs' case.

Any attempt to apply it here is open to the same objections which preclude an application of Rule 20. The caution with which Rule 31(2) should be applied is shewn by the course taken by Buckley J. in Morgan's Brewery Co. v. Crosskill(1). Moreover, not a little may be said in favour of restricting the meaning of the word "class" in that rule by reason of its collocation with "heirs or next of kin."

I cannot think it was ever intended to provide by it for such a case as that at bar.

In view of the fact that Rule 20 is a reproduction of English Order XVI., r. 9, I am unable to accept the ingenious suggestion of Mr. Justice Beck that because law and equity have always been concurrently administered by the same court in the Province of Alberta, Rule 20 may be extended to a case held not to fall within its prototype in England. I should add that I have not overlooked Lord Atkinson's comprehensive observation in London Association, etc. v. Greenlands, Limited(2), Neither the Walker Case(3), nor the Toms Case(4), however, appears to have been cited at their Lordships' bar.

In the result I am of the opinion that the action fails and must be dismissed except as against the defendants Young and Stefanucci, as to whom the appeal should be dismissed.

J.-I concur with my brother Anglin. The appeal should be allowed and the action dismissed, L cL except as to the defendants Young and Stefanucci. excep as t theNo.

There should be no costs here or in the Court of Appeal. J. (dissenting). -After carefully reading the evidence and considering the authorities, I can see no sufficient reason for disturbing the judgment of the learned trial judge as to which the learned judges J. of the Appellate Division were equally divided. The defence of the defendants that the acts done by them with reference to the plaintiffs were is not, in my opinion, made out.

On the contrary, the defendants twice refused to admit the plaintiffs into their Union, and then notified the mine operator that they declined to work with them, so that the mine operator, who was told that he could choose between operating his mine with the two plaintiffs alone or with the members of the Union without the plaintiffs, considered it good business to choose the latter alternative and to refuse to employ the plaintiffs. It is unnecessary, under the circumstances of this case, to decide whether the conduct of the defendants would have been actionable had they allowed the plaintiffs to join their Union and refused to work with them if they did not join.

But here the door was closed on the plaintiffs when they claimed admission to the Union and under the circumstances the refusal of the defendants to work with then-and no sufficient reason is shewn for refusing to admit them in the Union or to work with them -was in my opinion a wrongful act and a deliberate and successful attempt to obtain their dismissal from the mine.

I feel some doubt whether the Local Union No. 1562, not being an incorporated body or a registered labour union, could be sued as has been done in this case. But throughout this litigation the local Union has acted as if it had been validly sued, has joined with the other defendants in contesting the action by one and the same plea and has also united with the J. other defendants in appealing by one appeal from the judgments of the trial court and the Appellate Division. I consider therefore that it should not now be heard to urge the objection that it could not be sued. Further, this is a matter of procedure on which I would not interfere with the judgment of the trial court. Appeal allowed in part. Solicitor for the appellants: H. Ostlund.

E.

t. 15 *Oct. *Oct. 20. AND

NELLIE F. DUNPHY (PLAINTIFF).

. RESPONDENT. ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA.

Negligence-Contributory-Collision-Automobile and street car-Jury's findings-Sufficiency.

The jury, after having found the appellant guilty of negligence, specifiea such negligence in the following terms: "Insufficient precaution on account of approaching crossing and conditions existing on morning in question." Held, that the jury's findings, if read with and construed in the light of the issues presented by the pleadings, the evidence and the charge of the trial judge, were justified both as to appellant's negligence and as to absence of respondent's contributory negligence and were not too vague to support a judgment for respondent. Per Duff J.-The practice in jury cases in British Columbia is that the jurors are not bound to believe the evidence of any witness; and they are not bound to believe the whole of the evidence of any witness; they may believe that part of a witness' evidence which makes for the party who calls him, and disbelieve that part of his evidence which makes against the party who calls him, unless there is an express or tacit admission that the whole of his account is to be taken as accurate.

Dublin, Wicklow, and Wexford Ry. Co. v. Slattery (3 App. Cas. 1155), followed.

Judgment of the Court of Appeal ((1919), 48 D.L.R. 38, 3 W.W.R. 201), affirmed.

APPEAL from the judgment of the Court of Appeal for British Columbia (1) affirming the judgment of *PRESENT:-Sir Louis Davies C.J. and Idington, Duff, Anglin, Brodeur and Mignault JJ.

(1) (1919) 48 D.L.R. 38; [1919] 3 W.W.R. 201.

the trial court with a jury and maintaining the respondent's, plaintiff's, action.

The material facts of the case and the questions in issue are fully stated in the above head-note and in the judgments now reported.

(No evidence was given challenging or qualifying Cross's evidence as to his having given the warning or to the effect that it had not been heard by Dunphy), and secondly, that the jury had failed to find in answer to the question put to them as to what the negligence of the defendant company consisted ofanything definite or certain-and that their finding was altogether too vague and uncertain to uphold the verdict entered against the defendant.

However, after reading the evidence over and the judge's charge to the jury, which was very clear, and considering that in appreciating the weight to be given to Cross's evidence the jury had the advantage of having had a "view " of the locality where the collision occurred and of seeing and deciding as to the extent the alleged growing trees between the motor and the car would have prevented Clarke seeing from the motor the approaching electric car, I am, but with some doubt, of the opinion that we would not be justified in allowing the appeal and either dismissing the action or granting a new trial.

Read in connection with the judge's charge to them, the jury's findings as to the defendant's negligence may be held to be definite enough and the evidence of Cross with respect to the warning shouted by him when he says he saw the electric car approaching would be much better understood and appreciated by the jurymen who had a view of the locality than it can possibly be by the judges of this court on the printed evidence and the conflicting contentions of counsel upon that evidence.

Not being convinced, therefore, that the judgment appealed from is clearly wrong, I will not dissent from the judgment dismissing the appeal.

J.

I find the answers of the jury quite intelligible when read in light of the evidence and the learned trial judge's charge to the jury.

The question of contributory negligence was one for the jury and their answer leaves no reason to rest the appeal thereon.

J.-Mr. Tilley bases his appeal upon two grounds: First, he argues that the admissions made by a witness called on behalf of the plaintiff, and indeed admissions brought out by the plaintiff's counsel in examination-in-chief, conclusively establish the defence of contributory negligence.

The passages relied upon are as follows:- Q. I suppose, 30 or 40 feet away from the B.C. Electric tracks. I am not BrriTn saying this definitely, but approximately, I glanced up to the track towards the east, and I saw the street car coming, and I shouted then to Mr. Dunphy: "Look out, look out, the car."

Q. And you saw the car coming? A. And I saw the car coming, yes.

Q. It would have been then about how far away? A. About three Duff j car lengths I should think. I could see the top of the car and not the bottom of it. It was the trolley pole I saw first.

Q. Well, how long after you shouted was it that you were struck by the other car? A. Well, it was so quick I could not say. It was not more than a second or a couple of seconds.

Q. From the time you shouted to Dunphy until the time you were struck? A. Yes.

The evidence as it stands affords no doubt very powerful support to the contention of the defendants that the plaintiff, if his attention had been reasonably alert to the situation as he was coming up to the railway track, must have had sufficient notice of the approach of the car in time to avoid a collision, and coupled with the observations of Mr. Taylor on the following page and with the fact that the plaintiff was not called to explain the failure to act upon Cross's attempt to warn him, it must, I think, be held to have established for all the purposes of the trial, the fact that Cross did shout to the plaintiff as he says he did. The discussion of the law to be found in the books on the effect of a statement made by a witness damaging to the party who calls him, is not entirely satisfactory. The Common Law Procedure Act of 1854, sec. 22, which is the parent of the corresponding statute in British Columbia, provides that a party may in case the witness produced by him shall, in the opinion of the judge prove adverse, contradict him by other evidence, seeming, as Mr. Justice Stephens (Digest Note XLVII.) points out, to imply that the right to .contradict his own witness in such circumstances rests upon the condition that the trial judge shall consider and hold the witness to be adverse.

This, however, Mr. Justice Stephens remarks "is not and never was law": Green- Bnrnsn p rearksCOLUMBIA ough v. Eccles(1). And the generally accepted rule RwAy. appears to be that it is always open to a party to adduce evidence inconsistent with statements made DUNPHY. by one of his witnesses, which, of course, is a very DuffJ. different thing from discrediting him by general evi- dence as to character.

There is a passage, however, in the judgment of Lord Sumner then Hamilton J. in Sumner v. Brown(2), which seems to enunciate a somewhat stricter rule:- Upon the question of the plaintiff Leivesley's evidence, Mr. Keogh had called him with his eyes open and with full knowledge of what he was likely to say, and that it was not competent for the defendants to contradict him on the vital point of contract or no contract. It was not as if unexpected evidence had been given or there had been some contradiction in details. When two equally credible witnesses called by the same side flatly contradicted each other, it was not competent for the persons calling them to pick and choose between them. They could not discredit one and accredit the other. That, in his opinion, although no decision might have been reported, had been the practice for some time.

Hamilton J. was, of course, speaking not only as a judge who had the responsibility of giving directions as to the law to be applied but as the tribunal of fact as well, and it may be doubted whether he meant to lay down a rule absolutely controlling the discretion of a jury.

The practice at all events in British Columbia in jury cases has followed the rule enunciated by Lord Blackburn in Dublin, Wicklow, and Wexford Ry. Co. v. Slattery(3), as follows:- The jurors are not bound to believe the evidence of any witness; and they are not bound to believe the whole of the evidence of any (1) 5 C.B.N.S. 786.

(2) 25 Times L.R. 745. (3) 3 App. Cas. 1155, at page. 1201.

and the view expressed by Sir James F. Stephens. Cross's evidence, however, as to locality and point of time--where and when the incident which he relates occurred-is vague and of course naturally so; what he says about the position of the motor car with reference to the track at the time he shouted is couched in language quite consistent with the conclusion that, although he was quite certain that the motor car was quite close to the track and that the collision followed very quickly, he had nevertheless no very precise notion of the exact position of the car. I think effect must be given to Mr. Mayers' contention that the evidence of the plaintiff and Hammond describing the occurrences accompanying the accident and the succession of events as the motor car approached the track, was evidence which it is impossible to say it was the duty of a jury to disregard and from that point of view I am unable to assent to the conclusion that the defence of contributory negligence was established with such certainty as to necessitate setting aside the verdict.

The onus of proving contributory negligence in the first instance lies on the defendant and it would be the duty of the jury to find the issue in favour of the plaintiff unless satisfied that the defence had been affirmatively proved.

. Mr. Tilley's second contention was that the findings were insufficient to support the judgment. I concur with the opinion of the learned trial judge, Macdonald J. that the verdict presents no difficulty.

It is quite true that the jury did not respond to an invitation by the learned trial judge to particularize the charges of negligence which they found to be proved. But as the learned trial judge observed in pronouncing judgment upon the motion for judgment, when the answer to the second question is read with the charge, it becomes perfectly intelligible.

There can be no practical difficulty in giving effect to this as a general verdict because the instructions in the charge were quite sufficient to enable the jury intelligently to return a general verdict.

Had the answers been objected to as insufficient at the time they were given, the trial judge, no doubt, could have presented to the jury the alternative of specifying their findings of negligence more particularly, or returning a general verdict in the usual form.

No such exception having been taken, it is not, I think, open to the defendants to take exception to the form-albeit an unusual form--in which the jury have expressed their findings.

It contends that the evidence of the witness Cross called by the plaintiff established contributory negligence on his part and that upon it the judge should have withdrawn the case from the jury. Accepting Cross's statement that he shouted a warning to the plaintiff, it is not clear that he did so in time Duwrar.

to enable the plaintiff to avoid the collision; nor is it J. quite certain that the plaintiff heard the warning. Passages in the plaintiff's evidence as well as in that of Hammond rather indicate that he did not. The question of contributory negligence was in my opinion by no means concluded against the plaintiff by Cross's testimony and was therefore properly submitted to the jury and their verdict negativing it cannot be impeached.

The second point made by Mr. Tilley is that the jury, having found the defendant guilty of negligence which caused the accident, failed, in answer to the second question-"If so, in what did such negligence consist? "-to specify the negligence.

They said- "Insufficient precaution on account of approaching crossing and conditions on morning in question." As Mr. Mayers very properly pointed out the words "in approaching crossing" make it clear that it was negligence on the part of the motorman which the jury had in mind. Only two faults on his part were charged-failure to sound the air-whistle and excessive speed-both of them matters of more than usual importance in view of the "conditions on the morning in question," by which the jury, no doubt, meant the failure of the automatic warning signals at the crossing known to the motorman.

The learned trial judge in his charge distinctly warned the jury that they must confine themselves to the negligence charged and should not import matter "in the nature of a suggestion *

*

* that some other precaution could have been taken."

We may not assume that the jury ignored this direction and unless we do so it would seem reasonably certain that the motorman's failure to sound his air-whistle and to moderate the speed of his car was the "insufficient precaution" which, in the jury's opinion, constituted the "negligence which was the cause of the accident."

Meticulous criticisms of a jury's findings are not admissible and they must always be read with and construed in the light of the issues presented by the pleadings, the evidence and the charge of the trial judge. While it might have been more satisfactory had the second finding been more specific, if dealt with in the manner I have indicated it seems to be sufficiently certain what the jury meant by it.

I would dismiss the appeal.

J.-This is a street railway accident, and a jury trial found the appellant company guilty of negligence.

There is some evidence given by the plaintiff's own witness which would shew that the victim had been guilty of contributory negligence. But the evidence of that witness is somewhat conflicting and the jury were properly charged as to its consideration. It was for the jury to determine in those circumstances whether there was contributory negligence or not; and their finding in that regard is not such that we would consider it as perverse.

J.-Mr. Tilley attacked the judgment of the Court of Appeal and the judgment thereby affirmed of Mr. Justice Macdonald giving effect to the verdict of the jury on two grounds:

Further on Cross states that after shouting it was not more than a second or two before they were struck by the car.

Although Dunphy and Hammond were not asked whether they had heard this shout, they both swear that the first thing they knew was that the car struck them.

The latter was running, on approaching the crossing, at a speed of 18 to 20 miles an hour, and at the best from Cross's own story it is impossible to say whether his warning was given in time to be of any avail.

Under these circumstances, after the learned trial judge had fairly left to the jury the question of the warning received from Cross, the latter found that the accident was the result of the appellant's negligence, the majority stating that Dunphy was not guilty of contributory negligence.

I cannot say that this finding is clearly wrong, and, on this first ground, I would not disturb the verdict.

Second ground. This objection is at first sight more serious. The jury, after answering that the appellant was guilty of negligence which caused the accident, were asked in what such negligence consisted. They replied:

"Insufficient precaution on account of approaching crossing and conditions existing on morn- ELEcmc ing in question."

This answer seems very vague, but taken in con- DuNraY. nection with the judge's charge, I think it sufficiently ignault J. assigns the lack of sufficient precautions which in the jury's opinion caused the accident.

The learned trial judge fairly placed the matter before the jury and explained the conditions which, according to the evidence, prevailed on that morning at the crossing. He said:- Then you have to consider whether the rate of speed which would not have been too great ordinarily, was upon the morning in question too high a rate of speed, and whether this rate of speed is one subject to the surroundings. You have had pictured to you, and probably you have vizualized yourselves the condition of affairs that morning. There seems to be no question that the British Columbia Electric had, as an extra precaution for the safety of those using that highway, installed not only bells that would ring automatically on the approach of a street car, but also a light which would give evidence of the approach of a street car. On this particular morning, to the knowledge, however, of the motorman, those safeguards were not in operation; so that it left a condition of affairs which it may well be argued, and you may conclude, that required a precaution on the part of the imotorman different from that he would have required to pursue, say, the day before.

Then, again, you have the question of the bushes growing up in that locality, and obstructing, more or less, the view of the approaching street car. I instruct you, as far as the question of crossing is concerned, there is no law resting on the railway company to clear its right of way. That is a matter that pertains, and has to do with another branchof the duties placed upon a railway company operating in the country; but it is a fact that you can take into consideration when you determine whether or-not, at that point, the motorman, upon the occasion in question, having in view that situation, was acting with due regard to those entitled to use the highway.

When, therefore, the jury found that the appellant had not taken sufficient precautions on account of the approaching crossing and the conditions existing on the morning in question, I think that their answer clearly means that in view of the fact that, to the knowledge of the motorman, the bell and the light at the crossing were not in working order that morning and cosn okn onn that the bushes obstructed the view, the motorman ar. had not taken sufficient precautions for the protection j. of persons entitled to use the highway. I would therefore conclude that Mr. Tilley's attack on this answer is not a reason for setting aside the verdict.

My opinion consequently is that the appeal fails and should be dismissed with costs.

Taylor, Mayers, Stockton & Smith. *Oct.17. *Oct. 21. AND

W. H. R. COLLISTER AND OTHERS

(PLAINTIFFS) ..................

.

.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA.

Mines and mining-Certificate of improvements-Application for- Affidavit-Cessation of work-"Mineral Act," R.S.B.C. 1911, 49, 52, 6, 57.

The respondents, owners of mining claims under the "Mineral Act," complied with all the requirements of section 57 except the filing of the affidavit required by sub-section which they were deterred from doing by the statement of the mining recorder that an adverse action had been begun and notice thereof had been filed with him, and this being so, the respondents were not in a position to swear that they were "in undisputed possession" of the claim. The respondents waited for such adverse claimants to proceed with their action and allowed two or three years to elapse without doing further work or making further payment on the claim. Section 49 provides that "if such work (annual work) shall not be done,

* the claim shall be deemed vacant and abandoned, any rule or law of equity to the contrary notwithstanding."

Held, that, under the circumstances of this case, the respondents were relieved from the necessity of doing further work on the claims pending the issue of the certificate of improvements and that they were not subject to section 49.

Judgment of the Court of Appeal ((1919), 47 D.L.R. 509; [1919] 3 W.W.R. 229), affirmed.

APPEAL from the judgment of the Court of Appeal for British Columbia (1), reversing the judgment of the trial judge, Gregory J. and maintaining the respondent's, plaintiff's, action.

The material facts of the case and the questions in *PRESENT:-Idington, Duff, Anglin, Brodeur and Mignault JJ. (1) (1919), 47 D.L.R. 509; 3 W.W.R. 229.

issue are fully stated in the above head-note and in the EID judgments now reported.

J.---Not without some doubts but largely because of such, I am unable to assent to the allowance of this appeal.

It seems to me that, on the evidence adduced, the curative sections of the Act relevant to the several questions raised, as to all but one question, which I am about to refer to, meet and answer them effectively. The one question about which I have doubts is whether the learned trial judge was right in holding that because the respondents failed to meet the formal requirements of the "Mineral Act," they forfeited all their rights, and their claims are to be ipso facto deemed vacant and abandoned.

1 agree so far with the learned trial judge that the language of section 49 is so plain and expressive that it requires a very exceptional case (such as this I fancy is) to render it possible to hold otherwise than he does.

It seems to me that having regard to a consideration of the purview of the statute, whilst it may be possible rightly to hold as the judgment of the learned trial judge does, that when there has in fact arisen default in a literal compliance with the requirements of the Act, no matter how induced, forfeiture must ensue. Yet the Act should not be so construed, when the omission to comply with its terms has been brought about, (through no fault of the claimant, who has had done everything to entitle him to a grant, save in the mere formal requirements of application therefor, being compiled with, and the acts necessary therefor have been prevented), by the wrongdoing of some malicious person rendering it impossible to make the necessary affidavit in its entirety.

When we find, as herein, that the mere issue of a J. writ setting up an adverse claim, but never served though made to appear of record in the office of ther Mining Recorder, is virtually held to suffice to frustrate an honest claim, I think we must pause and consider, as the Court of Appeal has done, whether the purpose and scope of the Act imperatively requires a declaration of forfeiture instead of any other alternative.

Indeed, the learned trial judge suggests other alternative courses were open to the respondents, but either of those suggested involved a possible, and probable, loss of time that would work a forfeiture if the section is to be taken in the sense declared or an expenditure never contemplated as part of the policy of the legislature before the claimants' right to a grant was recognized.

I cannot think the legislature ever in fact desired to produce such grossly unjust and absurd results and they should be averted if a more reasonable construction is open to us.

I am inclined rather to adopt one or other of the alternative views presented in the opinion judgments delivered in appeal and now called in question, and hence must refuse to allow this appeal.

Indeed my doubts, to put the matter no higher, preclude my assenting thereto.

I think there is, for the respective reasons assigned by Mr. Justice Martin, nothing in the other objections taken in support of the appeal herein.

In some of such objections which are taken I do not agree with appellants' view of the facts.

I would dismiss the appeal with costs.

J.-The question of substance presented for determination on this appeal is by no means free from difficulty; but after a full examination of the considerations presented by the appellant I think the better view is that expressed in the judgment of the Chief Justice in the court below. With his reasons I concur. J.-I concur in the opinion of the majority of the learned judges of the Court of Appeal as to the construction and effect of section 52 of the "Mineral Act " and as to the sufficiency of what was done by the plaintiffs as a compliance with its requirements. But, without further consideration, I am not prepared to accede to Mr. Justice Martin's view as to the scope and effect of section 56, which, if correct, would seem to render section 52 quite superfluous.

The presence in the Act of the latter section indicates that the existence of the conditions which render section 56 operative does not per se suspend the obligations imposed by section 48. On the other questions in issue between the parties I accept Mr. Justice Martin's conclusions.

J.-The plaintiffs, respondents, were the recorded owners of the claim in question; and if they have not filed with the Mining Recorder an affidavit shewing the performance of the conditions required by the " Mineral Act," it is due to the fact that an adverse action had been instituted against them by the appellants and that they had to swear in that affidavit that their possession was not disputed.

The appellants, however, did not proceed with their action before the courts; but they located mineral claims upon the same land of which the respondents were the recorded owners.

The present action has been instituted by the respondents to restrain the defendants, appellants, from interfering with their rights.

I entirely agree with the view expressed by the learned Chief Justice of the Court below.

J.-The only serious question in this case is whether, in view of section 49 of the "British Columbia Mineral Act"

(R.S.B.C. 1911, ch. 157), the mineral claims of the respondents must be deemed to have been vacant and abandoned.

The learned trial judge considered this section as being conclusive against the respondents and expressed his regret at having to dismiss their action, the more so as in his opinion, and in this opinion Mr. Justice Martin of the Court of Appeal fully concurred, the appellants had simply "jumped" the respondents' claims. In the Court of Appeal, however, the objection based on section 49 did not prevail with the majority of the court and the learned trial judge's judgment was reversed. The whole question is as to the effect of the "Mineral Act."

And if section 49 does not stand in the way of the respondents, the appeal must be dismissed.

After consideration, I have come to the firm conclusion that section 49 does not deprive the respondents of their claims, for I cannot doubt that they had applied, which they could do verbally, to the Mining Recorder for a certificate of improvements.

They were fully entitled to this certificate, having done and recorded work or made payments to the amount of $500.00 on each claim.

And when they applied for the certificate of improvements, the Mining Recorder informed them that an adverse claim had been filed and that the filing of that adverse claim stopped all j. proceedings in the matter of obtaining a certificate of improvements. The respondents had complied with all the requirements of section 57, with the single exception of the affidavit required by sub-section (g) of that section.

The result is that section 49 does not apply and the respondents' claims are not to be deemed vacant and abandoned. Had I any doubt as to this result I would not, in the words of Chief Justice Macdonald, give the appellants, whose conduct places them in a somewhat unenviable position, the benefit of this doubt, but I really can feel no doubt after reading the judgment of the learned Chief Justice and the very complete and convincing opinion of Mr. Justice Martin.

Appeal dismissed with costs.