Majority
for British Columbia affirming the judgment of the trial court (2), and confirming the order for the winding-up of the Dominion Trust Co.
Under an agreement, ratified by legislation, between two companies called "The Dominion Trust Co.," the "old"
and the "new,"
the assets of the "old" company were vested in the "new;" the shareholders in the "old" were entitled to exchange their shares for shares in the "new."
A shareholder in the "old" company, who had not made such application, was placed upon the list of contributories on the assumption that he had exchanged his shares.
The shares of that shareholder were not fully paid up and he petitioned, under the B.C. "Companies Act," for the winding-up of the "old" company.
The trial court and the Court of Appeal held that, even if the "old" company had no assets, it was "just and equitable" within the meaning of the Act that the "old" company should be wound up and that the petitioner had a status to present the petition. The Supreme Court of Canada, after hearing counsel and reserving judgment, dismissed the appeal. the judgment of the Appellate Division
(45 Ont. L.R. 550; 49 D.L..R. 216) that his right of action was not barred.-Per
Anglin J. H. should have obtained an order from the Board authorizing him to bring the action and the proceedings on the appeal should be stayed until such order is filed.
Ry. Co. v.
HUTTON..........................
2-Company-Foreign contract-Comity
- R.S.O., [1914] c. 179..............
ADMIRALTY
- Collision - Man- Signals
"IMO"...................
ships ing course-Evidence.
"HARLEM"..........................
Narrow
S.S. Co.
Amount - Apportionment damages-Findings of fact-Inferences- R.S.O., [1914] c. 151.] An action brought under the "Fatal Accidents Act" (R.S.O.,
APPEAL-continued.
[1914] ch. 151) by a father and mother to recover compensation for the death of their son by defendant's negligence resulted in a judgment against defendants for $1,500 apportioned as follows: $500 to the father and $1,000 to the mother. . This judgment was reversed by the Appellate Division and the action dismissed.
On appeal to the Supreme Court of Canada.-Held, that as the "Fatal Accidents Act" permits but one action to be brought for the entire damages sustained by the class entitled to compensation and the appeal must be from the judgment as a whole the full amount of $1,500 is in controversy in this appeal and the court has jurisdiction to entertain it.
L'Autoriti, Ltd. v. Ibbotson (57 Can. S.C.R. 340) dist.-Where the determination of an action depends on inferences to be drawn from established facts and the credibility of the witnesses is not in question an appellate court should review the inferences drawn by the lower courts and draw inferences for itself.- Idington and Mignault JJ. dissented, holding that the inferences drawn by the trial judge were correct and that his judgment should be restored.-Judgment of the Appellate Division (43 Ont. L.R. 372; 44 D.L.R. 489) reversing that at the trial (41 Ont. L.R. 375; 41 D.L.R. 78), affirmed. 2-Jurisdiction - Habeas corpus - "Criminal charge"-Person at large- R.S.C., ss. 39 and 48 "Supreme Court Act"-8 & V., s. A Board of Enquiry, proceeding under the "Immigration Act," ordered the deportation of the respondent, who thereupon applied for a writ of habeas corpus. The writ was refused by the trial judge; but the Court of Appeal granted it and ordered the respondent's discharge.-Held, that an appeal from the court of final resort in any province except Quebec in a case of habeas corpus 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. ch. sec.
Mitchell v. Tracey (58 Can. S.C.R. 640; 46 D.L.R. 520), followed. -Per
Duff and Anglin JJ. The words APPEAL-continued.
"criminal charge" in sec. 39 of the
"Supreme
Court Act"
mean a charge preferred before a tribunal authorized to ear such a charge either finally or by way preliminary investigation; and the
Board of Enquiry under the "Immigration is not a tribunal by which the respondent could have been convicted a criminal offence.-Per Duff and Anglin
JJ. The right of appeal given by in cases of habeas corpus, does not exist where the court below has ordered the release of the person, the legality of whose custody was in question in the court below, and that person is at large.
Cox v. Hakes
App. Cas. 506), followed.
Mignault
J. dubitante.
How.........................
3-Leave appeal-" Winding-up Act,"
R.S.C. 1906, s.
Leave to appeal to the Supreme Court of Canada from a judgment in proceedings under the
"Winding-up Act" will not be granted, though the amount in controversy exceeds
$2,000, if no important principle of law nor the construction of a public Act nor any question public interest involved.
Co.. 206
4-Jurisdiction - Abandonment
Fraudulent bilan
Imprisonment.
Jurisdiction
Prohibition.
ARBITRATION
AWARD-Railway construction-Injurious affection to land-Compensation-Loss of business profits-Railway Act, s. 155...........
2- Expropriation - Railway Act - Costs-Award less than costs.........
ASSESSMENT
TAXES-Designation of owner-Description of land- Sufficiency-Estoppel conduct-Appeal to the Court of Revision-Defect or error in assessment roll-" Municipal Ordinance of N.W.T.," Consolidated Ordinances ss.
seq.-" Wetaskiwin
Charter," Alta. S. 1906, s. The action is for arrears of taxes upon lands owned by the appellant and situate within the municipality-respondent.
When the property was assessed, the name "Townsite Trustees" was given in the column with the heading "name"
opposite the first parcel, and a blank was left in that
ASSESSMENT AND TAXES-cont. column opposite the other parcels, without any sign indicating the ownership of these parcels until another name appeared the column.
general assessment was also made for
"179.60 acres unsubdivided," which was the aggregate area several separate and distinct parcels. The appellant appealed from the assessment "on grounds of excessive valuation," to the Court of Revision which made some reduction.
Section of "The Municipal Ordinance" gives to that court jurisdiction to correct the roll in respect of any failure to observe the "provisions and requirements of" the statute; and section provides that the roll, "as finally passed by the court and certified * * shall
* * * be valid and binding all parties concerned notwithstanding any defect or error committed in or with regard to such roll."-Held, Idington J. dissenting, that, in the circumstances of the case, the assessments were sufficient to render the appellant liable for the payment the taxes.-Per Davies C.J., Duff and Anglin JJ. Inasmuch as there was jurisdiction to make the assessments in question, the essential constituents of an assessment, though defective and erroneous, were present in each case and the appellant had notice of them as assessments in respect of which it was intended to demand taxes from it, and since the matters now urged were all proper subjects of "complaints in regard to persons wrongfully placed on the roll or omitted therefrom or
* in regard to property
* which has been misdescribed" to the Court Revision, where they might have been easily rectified (sec. section of "The
Municipal Ordinance" precludes the appellant urging them in this action as objections to the validity of its assessments; and the appellant, being "one of the parties concerned, " is bound by the assessment rolls "notwithstanding (these) defect or error committed in, or with regard to such rolls." -Per Davies C.J. and Mignault J. Upon the evidence, the appellant, by its conduct and actions, estopped itself from urging the points raised by it before this court.- Judgment of the Appellate Division (14 Alta. L.R. 307, 45 D.L.R. 482, 1 W.W.R. 515), affirmed. C. & E. CITY ....... 2-Co-owners-Notice of assessment to one only-Sufficiency-" Town Act," Alta. S. 1911-12, 2, ss. 301, 302, 317. BILLS NOTES-Promissory note- Non-indorsement payee-Liability indorser-" Bills of Exchange Act," R.S.C., s.
The indorser of a promissory note before it indorsed the payee may be liable as an indorser to the latter.
Robinson v. Mann, Can.
S.C.R. 484, followed.-Judgment of the
Supreme Court of Nova Scotia (52 N.S.
Rep. 360) affirmed.
BROKER-Principal and agent-Stock
,broker-Dealing in margins-Failure to
Cover-Sale broker.]
Stock brokers having fallen they wired him for money to cover and receiving no answer they sold the corn at a loss to M.-Held, that according to the evidence M. must be deemed to have known of the rules governing the stock exchange authorizing brokers to sell for their own protection stock carried on margin; that though M., being beyond reach of communication by telegraph, only received the broker's wire two days after it was sent the latter had done all they reasonably could to notify him and he must submit to the loss.- Held, also, Brodeur J. expressing no opinion, that the transaction was
Jide and not within the prohibitions sec. 231 of the Criminal Code.
CASES- 1-Ackles v. Beatty N.S. Rep..
2-Albion Motor Express Co. v. City
New Westminster W.W.R.
3-Ashwell
Canadian Financiers
Trust Co. 1 W.W.R. 207) reversed
........................
See 7.
4- Bartlett v. Winnipeg Electric Ry. Co.
(29 Man. R. affirmed...........
5-Berg v. Carr (24 B.C. Rep. 422)
6- Bonanza Creek Gold Mining Co. v
The King 1 A.C. 566) followed. 281
7-Calgary and Edmonton Ry. Co. v. Saskatchewan Land and Homestead Co. Alta. L.R. 416) reversed........ 8-Canadian General Securities Co. v. George (42 Ont. L.R. reversed.. 9-Canadian Pacific Ry. Co. v. Albin (45 Ont. L.R. 1) reversed........... Canadian S.S. Lines v. Grain Growers Export Co. (43 Ont. L.R. 330) Case Threshing Machine Co. v. Mitten Sask. L.R. 1) reversed.... 12-Compagnie Generale Transatlantique v. The Ship "Imo"
Ex. C.R. 48) Collister v. Reid (47 D.L.R. 509) Cox v. Hakes App. Cas. 506) Crawford v. Bathurst Land Co. Currie v. Rural Municipality Wreford D.L.R. 516) affirmed... Davie v. Nova Scotia Tramway and Power Co. N.S. Rep. 316) affirmed See 8.
18- De Felice v. O'Brien (Q.R. 27 K.B. 19-Delorme v. Curson Can. S.C.R. 20- Dominion Reduction Co. v. Peterson Lake Silver Cobalt Mining Co. (44 Ont. L.R. affirmed................. 21-Dunphy v. British Columbia Electric Ry. Co. (48 D.L.R. 38) affirmed..... 22-Ettinger v. Atlantic Lumber Co.
N.S. Rep. 523) affirmed..........
23-Ferring v. Tarrabain (12 Alta. L.R.
24-Galibert v. Rawlings (Q.R. 55 S.C.
516) reversed.....................
25-Halifax Electric Ry. Co. v. The
King (17 Ex. C.R. 47) affirmed .....
26- Harmer v.
L.R. affirmed............
27- Herdman v. Maritime Coal, Railway and Power Co. N.S. Rep. 155) reversed
...............
.................
See 1.
28-Hutton v. Toronto Ry. Co. (45 Onte
L.R. 550) affirmed.............. 413
29-Isitt v. Grand Trunk Pacific Ry. Co.
([1918] 3 W.W.R. 500) affirmed... .. 686
30-Jacobsen v. The "Fort Morgan"
Ex. C.R. affirmed.........
31-Janse-Mitchell Construction Co. v*
City of Calgary (14 Alta. L.R. 214)
32-Jeu Jang How v. The King (47
D.L.R. 538) quashed...............
33-John Deere Plow Co. v. Wharton
([1915] A.C. 330) distinguished ....
19, 45
34-Jones & Lyttle v. Mackie ([1917]
3 W.W.R. 1021) reversed...........
See 7.
35-King, The, v. Anderson (18 Ex. C.R.
36--, v. Bonhomme
Ex.
C.R. 437) affirmed.................
-, v. British American Fish
Co. (18 Ex. C.R. 230) affirmed..
- -, v. The "Harlem". (19 Ex. C.R. affirmed.............. -,
-, v. Quebec Gas Co. (17 Ex. C.R. 386) affirmed............. See 3.
40- Keystone Logging and Mercantile Co. v. Wilson (25 B.C. Rep. 569) affirmed ........... .... .. .. .. .. ...... .. .. 685 41-Kizer v. Morse (52 N.S. Rep.- 42----Krauss v. Michaud (Q.R. 26 K.B. "01) quashed...................... 43- L'Autorite v. Ibbotson (57 Can. S.C.R. 340) distinguished........... 44- Lavigne v. Naull (Q.R. 28 K.B. 14) 45-Lefebvre v. The King (16 Ex. C.R. 241) affirm ed....................... 46- Lebrun v. Gruninger (Q.R. 27 K.B. 210) affirmed...................... 47-Macpherson v. Boyce (43 D.L.R. 538) affirmed...................... 48--Magill v. Moore (43 Ont. L.R. 372) affirm ed...................... See 1.
49- Malone v. The King (18 Ex. C.R. 1) 50- Martinello & Co. v. McCormick (45 D.L.R. 364) reversed........... 51-Merchants Bank v. Hagman (13 Alta. L.R. 293) affirmed.......... 52-Miller v. Stephen (25 B.C. Rep. 388) affirmed..................... 53-Mitchell v. Mortgage Co. (11 Sask. L.R. 449) affirmed................. 54- - - - 55-Montreal Abattoirs v. City of Montreal (Q.R. 27 K.B. quashed..
56-Montreal-Nord v. Guilmette (Q.R.
S.C. affirmed..................
McBratney v. McBratney (48 D.
L.R. 29) reversed..................
58-McCord v. Alberta and Great Waterways Ry. Co. Alta. L.R. 476) reversed
......................
59- Ocean Accident and Guarantee Corporation v. Larose Alta. L.R.
60- Palos Kladis (24 R.L.N.S. 432)
61--Quinn v. Leatham A.C. 495)
62-Raymond v. Bosanquet (45 Ont.
L.R. 28) affirmed..................
-v. The King Ex. C.R. 1)
64-Richards v. Baker D.L.R.
65-Robinson v. Mann Can. S.C.R.
484) followed.....................
66-Rutter v. Orde D.L.R. 456)
67-Schofield v. Emerson Brantingham
Implement Co.
Can. S.C.R. 203)
68-Scotland v. Canadian Cartridge Co.
Ont. L.R. 586) reversed.........
69-Scott v. Grant (52 N.S. Rep. 360)
70-Sharp Construction Co. v. Begin (Q.R. 26 K.B. 345) reversed.. ..... 71-Shilson v. Northern Ontario Light and Power Co. (45 Ont. L.R. 449) affirmed . 72-Skene v. Royal Bank W.W.R. 740) affirmed............. 73-Slaney v. City of Sydney (46 D.L.R. 74-Stewart v. Thorp Alta. L.R. 473) affirm ed.....................
Stowe v. Grand Trunk Pacific Ry. Co. 1 W.W.R. 546) affirmed.. 76- Temiskaming
Telephone Town of Cobalt (44 Ont. L.R. 366) reversed .. :.........................
77-Towers v. African Tug Co. ([1904] 1 Ch. 538) referred to ..............
78- United States Fidelity Co. v. Deisler B.C. Rep. 278) affirmed......... 79- "Wakena," The, v. Union S.S. D.L.R. 579) affirmed........... 80-Wetaskiwin v. & E. Townsites Alta. L.R. 307) affirmed ........ Weyburn Townsite Co. v. Honsberger (45 Ont. L.R. affirmed. .. 82-Wilding v. Sanderson 2 Ch. 534) followed...................... 83-Williams v. United Mine Workers Alta. L.R. reversed in part.. CIVIL CODE-Arts. and (Servitude)....................... Arts. (1) (Testimony) and (Suretyship)...................... Accommodation notes-Suretyship-Representations maker-Arts. (1) & 1965 C.C.
COMPANY-Constitutional law-Statute
-"Companies
Act," R.S. Sask., and 25-Licence business in province-Dominion companies.]
and 25 of the Saskatchewan "Companies
Act" requiring all foreign companies, as a condition for doing business in the province, to be registered and take out an annual licence is intra vires of the legislature and applies to, and may be enforced against, a company incorporated by the
Parliament of Canada to do business throughout the Dominion.
John Deere
Plow Co. v. Wharton A.C. 330, 18
D.L.R. distinguished.-Judgment the Supreme Court of Saskatchewan,
Harmer v. Macdonald Co. Sask.
L.R. D.L.R. 363) affirmed.
Co. A.
2-Constitutional
Man itoba "Companies Act," R.S.M., c
35-Licence carry on business in province
-Dominion companies.] The provisions of Part IV., Classes V. and VI., the
Manitoba
"Companies
(R.S.M., ch. 35) requiring companies incorporated by the Parliament Canada to be registered and take out an annual licence as a condition of doing business in the province intra vires of the legislature.
John Deere Plow Co. v. Wharton
A.C. 330, D.L.R. 353) distinguished.
Davies C.J. and Mignault J. (dissenting)
.
......
Ratification-Action shareholder-Disqualijication-Sale of company's land-Director
-Application-" Companies Act," R.S.O.
company formed to buy land for re-sale purchased a block on which W. held an option.
W. made a profit over $11,000 which he shared equally with F. and D. promoters and directors the company who did not disclose the fact to the other members several months.-Held, that F. and D. had received a secret profit to which the company was entitled.-The company passed a resolution purporting to refuse to allow its name to be used and a shareholder
COMPANY-continued.
and former partner of F., brought action, on behalf of himself and all other shareholders except the defendants, to recover this secret profit for the company.-Held, that the capacity of a single shareholder, against the will of the majority, to assert the right of the company to this money doubtful; Towers v. African Tug Co., 1 Ch. referred to; must succeed on his own merits alone; and, Davies C.J. and Duff J. dissenting, as was shewn that he was aware of the payment to F. and D. at an early date, and elected to treat F's portion as an asset the partnership between them by demanding his share of it he was disqualified from bringing the action in respect to these secret profits.-D., who was a land agent, sold the property purchased from at an advantageous price and was paid the usual broker's commission. At a meeting the shareholders a resolution was passed sanctioning this payment. claimed the return this money also.-Held, that as D. did not receive the money in his capacity of director, of the Ontario "Companies Act" did not apply and a by-law authorizing the payment was not necessary.-Held, also, that there was nothing to prevent D. from serving the company as an employee and receiving proper remuneration therefor. In re Matthew Guy Carriage and Automobile Co. (26 Ont. L.R. 377; D.L. R. 764)approved. -Per Davies C.J. and Duff J. *The payment of the commission could only legal if sanctioned by the shareholders. At the meeting when the resolution professing to sanction all the payments attacked was passed the capital of the company had been impaired by payment a dividend without the funds sufficient therefor.
The resolution, therefore, had no effect and the impugned transactions had no sanction. As to C's right to bring the action it was not pleaded nor raised in the Courts below and cannot be questioned on this appeal.-Judgment the Appellate Division Ont. L.R. 256; D.L.R. affirming that at the trial CutAwFoRD...................... 4-Winding-up - Assets transferred new company-Petition-Status of petition- 5-Doing business out of province- Enforcing foreign contracts-Comity.. - "Companies Act," R.S. Sask., c.
ss. and 25-Licence to business in province-Dominion companies.] Sees.
'and 25 of the Saskatchewan "Companies
Act" requiring all companies, as a condition for doing business in the province, to be registered and take out an annual licence are intra vires of the legislature and apply to, and may be enforced against, a company incorporated by the Parliament of Canada to do business throughout the
Dominion.
John Deere Plow v.
Wharton A.C. 330; D.L.R. 353), distinguished.-Judgment of the Supreme
Court Saskatchewan, Harmer v.
Macdonald Co. Sask. L.R.
D.L.R. 363)
PLOw Co.
Co. HARMER....................
2- Manitoba "Companies
Act," R.S.M., 35-Licence carry on business in province-Dominion companies.]
The provisions of Part IV.,
Classes and VI., of the Manitoba "Companies Act"
(R.S.M., ch.
requiring companies incorporated by the
Parliament of Canada to registered and take out an annual licence as a condition of doing business in the province are intra vires of the legislature. John Deere Plow
Co. v. Wharton A.C. 330; D.L.R.
353,
Davies
C.J.
Mignault J. (dissenting)
.
3-Provincial company-Status extra
"Extra-Provincial Corporations Act," R.
Item of sec.
"B.N.A.
empowering the legislature of any province to make laws in relation to "the incorporation of companies with provincial objects" does not preclude a legislature from creating a company with capacity to accept extraprovincial powers and rights.
Bonanza
Creek Gold Mining Co. v. The King,
1 A.C. 566, 26 D.L.R. 273, followed.- Such capacity need not be expressly conferred. It is sufficient if the intention the legislature to confer it can be gathered from the instruments creating the company.-A Saskatchewan company may, on obtaining a licence under the "Extraprovincial Corporations Act,"
(R.S.O., ch.
carry on business
Ontario.
It may enforce in the Ontario.
courts the performance of a contract entered into with a resident of that
CONSTITUTIONAL LAW-continued. province and the action may be maintained though the licence was not granted until after it was instituted.-Judgment of the Appellate Division (45 Ont. L.R. reversing that on the trial (43 Ont. L.R. 451) affirmed. TOWNSITE Co. v .HONSBERGER................ 4-"Nova
Scotia Temperance Act," V. c. 33-Seizure of liquor-Inter- Carrier
Application to Crown.]
Sec. of the "Nova Scotia Temperance Act" authorizes the seizure of liquor in transit course of delivery upon the premises any carrier etc.-Held, that neither expressly nor by necessary implication did this enactment apply to liquor custody of the Crown in right of the Dominion as a carrier.-Held, also, Duff J. expressing no opinion, that if it did purport to apply it would be ultra vires. CONTRACT-Construction of sewer- Delay in completion-Sem payable per day after contract's date of completion-Waiver or liquidated damages-"Extra work".]
The respondent contracted to construct for the appellant a sewer to be 12,000 feet long and to complete it by the first of July, 1912. The contract provided that the appellant's engineer might "at any time while the works are in hand, increase, alter, change or diminish the vary the part the work" (clause 7); and that "in the event of delay to the works" for certain reasons, including "extra work," "such additional time as may be deemed fair and reasonable shall be allowed by the" appellant notified in writing by the respondent: (clause
By clause it was also provided that "the time of beginning, rate of progress and time of completion are essential conditions of this contract; and if the contractor shall fail to complete the work by the time specified, the sum twenty-five dollars per day, for each and every day thereafter as liquidated damages, together with all sums which the corporation may be liable to pay during such delays until such completion, shall be deducted from the moneys payable under this contract, and the engineer's certificate as to the amount of this deduction shall be final.
This sum shall be in addition to any penalties otherwise specified, and shall be paid by the contractor CONTRACT-continued.
to the corporation, or deducted from any moneys due to the contractor in the event of a failure to complete said work as herein agreed, and in no event as a penalty, but to the full amount thereof, and in addition to any other damages sustained, or the amount may be recovered from the sureties."
Clause 13 provided that "any extra work, changes," etc., should not
"lengthen the delay within which the works were to be completed" and "shall be considered as if originally in (the)
contract."
The appellant, a few days after the contract was signed, authorized the construction of 700 additional feet of sewer.
On the first of July, 1912, the appellant notified the respondent that two months' extra time would be allowed for the completion of the work. The engineer's certificates as to the amounts due to the respondent were calculated, even after the first of September, 1912, without making any deductions for delay.
On the 12th of January, 1914, when the engineer delivered a "final"
certificate establishing as the date of the completion of the works the 21st of December, 1913, the appellant retained in its possession
20% of the contract price.-Held, Idington and Anglin JJ. dissenting, that, under the circumstances of this case, the conduct of the appellant and its engineer constitutes a waiver of the provisions making time the essence of the contract and of the clause fixing damages for delay in completion.-Per Idington, Duff and Anglin JJ.
The sums payable under clause 12 must be regarded as liquidated damages, and not as a penalty. Mignault J. contra.- Per Mignault J.
The retention by the appellant of 20% of the contract price could not be construed to cover the $25 per day for delay in completion. Anglin J.
contra.-Judgment of the Appellate Division Alta. L.R. 214; 45 D.L.R.
1 W.W.R. affirmed.
2-Sale-Principal and agent-Written
Verbal representations-Warranty-Return of goods.] The respondent ordered from the appellant "one Case 40 Horse Power
Case Gas
Engine."
agreement provided that "the purchaser"
could claim "the return of moneys paid * * * only
*
*
* after he has returned the to the received them"; and that "no repre- CONTRACT-continued.
sentations, warranty or conditions, expressed or implied, other than those herein nor collateral hereto be binding upon the vendor unless it is in writing." engine was delivered to the respondents, accepted by them in May, and never returned to the appellant.
A promissory note due in November, 1915, was paid by the respondents without any protest. The engine had two tanks, one labelled "kerosene"
and one "gasoline." agent of the appellant represented to the respondents that the engine would also operate on kerosene and promised to send experts; but it stopped whenever operated.-On an action by the appellant for the price of sale, the respondents alleged fraud misrepresentations.-Held Idington J. dissenting, that, upon the evidence the engine delivered was accepted by the respondents as the engine ordered in the written agreement of sale.- Per Duff J.
The written contract explicit, and its terms are not susceptible of modification by evidence of contemporary or antecedent negotiations.-Per Anglin J. The agreement contained no warranty that the engine would run kerosene, breach of which would support a claim for damages. Schofield v. Emerson Can. S.C.R. 203) distinguished.-Per Brodeur J. By paying their promissory note without protest and, per Brodeur and Mignault JJ. by not returning the engine to the appellant, the respondents waived any right they might have to rescission.- Judgment of the Court of Appeal 1 W.W.R. reversed, Idington J. 3-Master and servant-Wrongful dismissal-Hiring of shipmaster-Change voyage-Notice.] J. was hired in New York as master of a Norwegian ship for a voyage to Halifax and thence to the West Indies. On arriving at Halifax he found that the ship was to go to Newfoundland and from there to Italy. He was offered $400 a month for the new voyage and agreed to go for $450 or, at all events, more than was paid to the chief engineer. Without further notice the owner engaged a new master and chief engineer paying the latter $400 a month. J. left the ship and, the the owner refusing to pay the account he rendered, brought an action claiming damages for wrongful dismissal.-Held, affirming the judgment of the Local Judge CONTRACT-continued.
Ex. C.R. 165; 49 D.L.R. that he was entitled to recover; that not having been hired for a definite term he was entitled to reasonable notice before being dismissed; and that the assessment of his damages at three months' wages, the arrears due when he was suspended, and expenses of his trip to Norway after dismissal should not be disturbed.
......
4-Sale of land-Re-sale vendors- Collateral agreement-Evidence.
Mining
Co.-Deposit of tailings. RE- 6-Breach of - Performance - Impossibility.
CARR..............
7-Stoppage of work-Owner's lack funds-Contractor's claim for damages- Guarantee as to cost not exceeding estimate
-Fraud-Practice and procedure-Pleading-Amendment of defence on appeal- Allowance of.
8-Landlord and tenant-Agreement to build suitable house-Damages-Cancellation of lease. v.
9- Transfer of shares-Specific performance.
10-Agreement for lease - Frauds...........................
11-Stock broker-Dealing in margins- Failure cover-Notice-Sale.......
Arbitration less than costs-Limitation- " Railway Act," R.S.C. 37, s.
The taxable costs, incurred on an arbitration pursuant to the "Railway Act,"
are constituted by sec. a debt recoverable by action; and.the liability for these costs of the expropriated party is not limited to the amount of the compensation.
Idington and Duff JJ. (dissenting)
.-Per
Anglin, Brodeur and Mignault JJ. The judge, when taxing the costs under the statute, acts as persona designata and no appeal lies from his decision.-Per Anglin
J. So far as the right of the appellant to certain items allowed depended upon findings of fact, it was within the juris- COSTS-continued.
diction of the learned judge to make such findings and they cannot be reviewed the purpose of establishing that in making the allowances he exceeded his jurisdiction. Brodeur J.
dubitante and Mignault J. expressing no opinion.-Judgment of the Appellate Division Alta. L.R. 46 D.L.R. 357; W.W.R. reversed, Idington and Duff JJ. dissenting. Restraint of trade-Unduly lessening competition- Art. 498 Cr.
Stock transactions - Margins - Criminal Code, 231 ..............
Liquidated damages ................
2- Master and servant-Hiring of shipmaster-Wrongful dismissal ......... 404 DEBTOR CREDITOR-Judgment -Release-Bond.
2- Judgment creditor - Priority ......................
DEDICATION - Municipal road-User -Chemin tolirance ..............
EVIDENCE - Negligence-Repair of road-Findings trial caused, as alleged, by the negligence of the defendant corporation in failing to keep in proper repair the approach to a bridge which was by a curve in the road dangerous for automobiles the trial. judge held, that the approach was dangerous and awarded damages to the plaintiff (43 Ont. L.R.
The Appellate
Division reversed his judgment and dismissed the action.-Held, affirming the judgment of the Appellate Division (45 Ont. L.R. 28; 47 D.L.R. that the case is not one depending on the credibility of the witnesses or reliability of their testimony which great weight is attached to the. EVIDENCE-continued.
findings of the trial judge, but is one for weighing the evidence as a whole and of inferences to be drawn therefrom.
dealt with the weight of the evidence that the approach to the bridge was not dangerous and the judgment at the trial was properly set aside.
.. .......
Proof of title.
Special value. Co.
KING...........................
2-Identity of land-Metes and bounds- Plan. LEE...........
3-Compensation-Market value.
V. Co............
4-Public lands-Provincial grants- Compensation. v. 678
5-Compensation pulsory taking. THE
.....................
Privity.
7-"Railway Act"-Arbitration-Costs
-Award less than costs.............
Fishing
Void option for renewal-Severance.
ATION...........................
FRANCHISE - Telephone company - Use of streets-Municipal powers-3 Edw.
VII. ss. 330, and 559
Inhaling fumes
"Workmen's Compensation Act"-"Accident"...........................
See 9.
Immigrant
-Immigrant at large...............
HIGHWAY - Dedication- -Municipal road-User........................
HUSBAND WIFE-Will husband-Relief to wife-Discretion of the court-Intestacy-" The Married Women's Relief Act," Alta. S. 1910, 2nd sess., ss. & The discretion conferred on the court in favour the widow, who applies for relief under "The Married Worren's Relief Act," is restricted, by implication, to the portion of her deceased husband's estate which she would have received an intestacy. Idington contra.-Judgment of the Appellate Division 48 D.L.R. 29; W.W.R. 685, reversed. error of parties.
In a former action between the appellant and the respondents, the trial judge pronounced an oral judgmeit finding in favour of the appellant upon certain contested items and favour of the respondents upon certain other contested items and fixed the rate per foot upon which the sum for which judgment was to be finally given in favourof the appellant was to be calculated; and a reference to the registrar was directed to work out this judgment and express the result in figures.
The solicitors then substitute report architects. 'for this reference.
It had been expressly stated that it was the respondent's intention to appeal from the judgment. The order, drawn up by agreement initialled by the solicitors for both parties, apparently deprived the respondents that right. Subsequently, the respondents appealed but the appeal was dismissed the ground that it was a judgment then Held, that there had been common error in the expression of the intentions the parties and the judgment was properly aside. Wilding v. Sanderson, Ch. 534, followed.-Per Davies C.J. and Duff, Brodeur and Mignault JJ. The appellant, having that the judgment was drawn in a form which made it unappealable, cannot now be to that this not of the order.-Judgment the Court Appeal W.W.R. 740) affirmed. LANDLORD TENANT - Agreement to build suitable house-Damages- Cancellation of lease. LEASE-Landlqrd and tenant-Agreement for lease-Memorandim--Statute of Frauds
-Date when term begins.] The appellant, suing for the specific performance of an agreement for a lease, relied on the following memorandum:-Prince Albert, Sask.
Received from Mr. John D. Mitchell the sum of Fifty Dollars, being deposit rental of St. Regis ground floor, building taken at $100.00 per mo., for a term of five years to start from completion of repairs or when handed to Mitchell. $50.00.
Romeril, Fowlie & Co., Romeril."- Held, Idington and Brodeur JJ. dissenting, that the document was insufficient to satisfy the requirements the Statute
Frauds, it being impossible to determine from it the time of the beginning of the contemplated term.-Judgment of the
Court of Appeal Sask. L.R. 447; 43
D.L.R.
Idington
Brodeur JJ. (dissenting)
.
CANADA.........
Fishing rights-Void option for renewal-Severance.
.......
Description
Suiiciency
"Forest Act," B.C.S., s.
v. ..................
2-Business licence-Dominion company
-R.S.
Sask., ss. and
..................
See 1,
3-Telephone company-Use of streets- Powers of Municipality-Irrevocable licence
.......................
4- Railway premises-Use public- Increase of risk....................
Priorities-Cancellation of application registrar
Registry Act," R.S.B.C., ss. 35; and ss. and as amended (B.C.) 28-"Mechanics' Lien Act," R.S.B.C., ss. P., a beneficial but unregistered owner of land, agreed to sell the land-to B.
who never registered his agreement, J.
being then the registered owner.
P.
shortly afterwards let contracts to four contractors for the clearing of the land.
On May P. made an application for a certificate of indefeasible title which was granted.
report, dated May
LIEN-continued.
made upon a reference as to title ordered in a mechanics' lien action taken by the labourers who had cleared the land certified that "there are no charges of any kind whatsoever against the title" except the liens. On May P. conveyed the land to N.M. subject to the agreement with and also assigned to him this agreement. On May 20, N.M. applied to register the assignment as a charge, but, not until October did N.M. make any application to be registered under the grant. On January 1914, the sheriff all the right title and interest of P. to R. The Court of Appeal held that this sale was a sale of the fee in the lands charged only by the liens.-Per Fitzpatrick C.J. When N.M. acquired title from P. the land was already impressed with the liens.-Per application to the registrar has been cancelled under the provisions of the "Land Registry Act," the application must be deemed, for the purposes of the "Land Registry Act" and particularly the purpose of applying 28 of the Act to have been void initio; and it follows that when the lien affidavits were registered there was, in contemplation law, no application for registration the N.M. interest "pending."-Per Duff J.
N.M. was not in the position a mortgagee but of a person "claiming under" P. and a person "whose rights are acquired after the work of service, in respect of which the lien is claimed, is commenced."-Per Duff J.
N.M. lost its status with respect to the registered title by its acquiescence in the registrar's notice of cancellation, given on July 1913.-Per Anglin J.
N.M. had "no estate or interest either at law or equity" in the land in question which made it a proper or necessary party to the mechanics' lien action under the judgment in which R. derives his title; nor had it any estate or interest of which the plaintiffs in that action or R. should be deemed to have had "any notice express, implied or constructive." Registry Act," secs. 108.-Judgment of the Court Appeal (82 D.L.R. 1 W.W.R. 494) affirmed. MARRIED WOMAN- MASTER SERVANT - Wrongful dismissal-Hiring of shipmaster-Change MASTER SERVANT-continued.
of voyage-Notice.] J. was hired in New
York as master of a Norwegian ship for a voyage to Halifax and thence to the
Indies.
On arriving at Halifax he found that the ship was to go to Newfoundland and from there to Italy. He was offered
$400 a month for the new voyage and agreed to go for $450 or, at all events, more than was paid to the chief engineer.
Without further notice the owner engaged a new master and chief engineer paying the latter $400 a month. J. left the ship and, the owner refusing to pay the account he rendered, brought an action claiming damages for wrongful dismissal.-Held, affirming the judgment the Local Judge
Ex. C.R. 49 D.L.R. that he was entitled to recover; that not having been hired for a definite term he was entitled to reasonable notice before being dismissed; and that the assessment his damages at three months' wages, the arrears due when he was suspended, and expenses of his trip to Norway after dismissal should not be disturbed.
......
MINES MINERALS - Certificate of improvements-Application for-Affidavit-Cessation of work-"Mineral Act,"
R.S.B.C. 49, 52, 57.]
The respondents, owners mining claims under the "Mineral Act," complied with all the requirements of except the filing the affidavit required by sub-sec.
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" 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 making further payment on the claim.
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 contrary notwithstanding."-Held, that, under the circumstances this case, the respondents were relieved from the necessity of doing further work on the claims pending the issue the certificate improvements and that they were not subject to sec. 49.-Judgment
Court Appeal 47 D.L.R. 509;
MINES AND MINERALS-continued. W.W.R. affirmed. COLLISTER........................ Personal Title Mining tailings. tude of support-Conventional-"Destination de 7?re famille"-Common wall- "Pignon" or gable-Arts. 522, 560 The appellants are the owners of No. 694 of the City of Three Rivers, and the respondents are the owners of the adjoining lot No. 695.
These two lots formerly belonged to one Hart, who, sold lot No. 694 to one Woolsworth. One clause of the deed reads as follows: "Il est convenu et arr6t6 entre les parties que Erastus Woolsworth aura droit a perp6tuit6 de bAtir, accoter contre et sur le mur en pierres et en briques du pignon nord-ouest du magasin et maison du dit sieur vendant et drig6e sur l'autre partie du dit lot de terre, lequel pignon sera mitoyen entre les parties."-Held, that the right of mitoyennet claimed by the appellants is a conventional servitude and not a servitude par destination phre defamille. -Held, that in the clause quoted the word "pignon" means not merely the triangular gable at the top of the wall but the entire north-west gable end of the grantor's house, and the whole wall, including its foundation, has been declared mitoyen the deed sale. Duff and Mignault JJ. dissenting.-Judgment the Court King's Bench (Q.R. 28 K.B. reversed, Duff and Mignault JJ. dissenting. Delorme v. Cusson (28 Can. S.C.R. 66) distinguished. NAULT............ tion of mortgage-Notice of judgment- Priority-Nova Scotia "Registry Act," R.S.N.S.,
The mortgagee land in Nova Scotia who registers his mortgage with notice of a judgment against the mortgagor, afterwards registered, does not obtain priority over the judgment-creditor.
Idington J. dissents. the Supreme Court Nova Scotia N.S. Rep. 112; 39 D.L.R. 640) affirmed.
v. KIZER .... Registry-Priority-Lien ...... MUNICIPAL CODE-Arts. 749 and 750
(M unicipal roads)..................
Franchise-Telephone company-Use of streets
-Time limit-"Ontario Municipal Act,"
Edw. VII. ss. 330, (1)
and 559 (4).] The Legislature of Qntario has not given the municipalities of the province authority to permit telephone companies to occupy the streets and highways with their poles and wires for a longer period, at one time, than five years.-An agreement by a municipality to permit, by irrevocable licence, a telephone company to occupy the streets with poles and wires is ultra veres.-Judgment of the
Appellate Division (44 Ont. L.R. 366)
reversed; that on the trial (42 Ont. L.R.
385) restored.
2-Municipal corporation - Negligence
-Care of streets-Duty to repair-Ice sidewalk.] municipality under a statutory obligation to keep a street in repair fails to discharge such obligation if ice allowed to remain on the sidewalk in a condition dangerous to pedestrians, and liable in damages to a person injured by reason such condition.
...................
Prescription - " Chemin tolerance"
-Municipal road - Constitutional law- "Municipal and Road Act of Lower
Canada," 1855, Vict., ss. and 9-Arts. 749 and 750, Municipal
Per Davies, Idington and Anglin
JJ. The sub-sees. and 9 of Vict.
ch. sec. are still in force; but- Per Davies, Anglin and Brodeur JJ. These sub-sections are applicable only to roads which had been in existence and in public use for ten years before the first of July,
Fitzpatrick C.J. dubitante.-Per
Fitzpatrick C.J. and Brodeur J. The road in question in this case, being opened at its extremities and having a fence on one side and a sidewalk on the other, meets the requirements enumerated in article
749 of the Municipal Code in order to be declared a public road.
Davies and
Anglin JJ. contra.-Per Fitzpatrick C.J.
and semble, per Anglin J. public right way may be constituted in the Province
Quebec by direct or indirect dedication.
Brodeur J. dubitante.-Semble, per Brodeur that dedication, presuming a donation
MUNICIPAL CORPORATION-cont. of the soil, would be illegal in the absence of a deed.
(Art. 776 C.C.).
Anglin J. dubitante. Semble, per Anglin J. Even the road in this case was a municipal road within articles 749 and 750 of the Municipal Code, the owner, having retained -the property the soil, may exercise the right to close it or to forbid its use as a '.'chemin de tolerance." Brodeur J. contra. -Per Brodeur J. road may become the property of the municipal corporation when used by the public and the municipal corporation during thirty years (art. 2242 C.C.); and not only the right of way, but the fee itself in the soil becomes the property of the public (art. 752 C.M.).- Judgment of the Court of King's Bench affirmed on equal division of the court. 4- Principal and agent
Contract - Municipal corporation-Agent's signature "councilman" - Personal liability. v. 5-Municipal corporation - Promissory note-Practice and procedure-Evidence. 6-Negligence-Repair of road-Findings of trial judge-Weight of evidence.. 7-Assessment - Designation of rateof Revision .......................
of wreck-Owner-Liability for cost- Statutory requirements-" Navigable Waters Protection Act," ss. and By sec. of the "Navigable Waters Protection Act," navigation is obstructed by a wreck the Minister of Marine may cause same to be destroyed; by sec. may convey it to a convenient place and sell it at public auction, paying the surplus of proceeds over expenses to the owner who shall be liable for any deficiency. wreck obstructing navigation was by the owner on condition that it be removed.
This was not done and the Minister advertised for public tenders, the material after removal to belong to the tenderer. In an action against the original owner for the cost:-Held, per Davies C.J. Brodeur and Mignault JJ. that the owner was liable; that he had received the benefit NAVIGATION-continued.
the value the material in the reduced amount the tender; and that the Minister had exercised a wise discretion.-Per
Idington, Duff and Anglin JJ. that as the
Minister (lid not observe the statutory requirement conveying away the vessel and selling it by public auction the Crown.
could not recover notwithstanding that the course pursued may have been equally beneficial to the owner.-Judgment of the
Exchequer Court Ex. C.R. 401; 46
D.L.R. 275) affirmed, the court being equally divided. U.
. ............ .. . . . . .. .. . .
.I
. . . . . . . 9
NEGLIGENCE - Railway company - Trespasser - Licencee - Penalty for trespass-" Nova Scotia Railway Act" (R.S.N.
s. 264).]. By sec. 264 the
"Nova Scotia Railway Act" (R.S.N.S., ch. every person not connected with the railway who walks upon a railway track is liable to a penalty. H. was killed while walking along a track on a stormy night in winter and on the trial an action by his widow the jury found the railway company negligent in not having lights and having a defective whistle and that the public had, to the knowledge of the company, habitually travelled on the track at the place in question.
They refused to find that running the engine without lights and without sounding the whistle at this place was a reckless disregard human life but considered careless.-Held, Davies C.J. and Anglin J.
dissenting, that H. was a trespasser on the right way; that the only duty owed him by the c6mpany was not to run him down knowingly and recklessly which was not done and the jury so found; and that the company was, therefore, not liable.-Per
Davies C.J. and Anglin J. (dissenting)
.
Deceased was a licensee being on the track by permission and consent of the company which owed him the duty not increasing the ordinary and normal risks which he would incur as such licensee and *the negligence the company added to those risks made it liable.
2-Municipal corporation - Negligence
-Care of streets-Duty repair-Ice sidewalk.] municipality under a statutory obligation to keep a street in repair fails to discharge such obligation if ice allowed to remain on the sidewalk in a condition dangerous to pedestrians, and liable in damages to a person injured by reason such condition.
OF .................
3-Contributory mobile and street car-Jury's findings- Sufficiency.] The action is for damages for injuries suffered in a collision between an automobile driven by the respondent, and appellant's street car. At the trial one witness for the respondent, who was in the automobile, testified to having warned the respondent before the accident; and the respondent was not called to explain his failure to act upon this warning. The jury, after having found the appellant guilty negligence, specified 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 the trial judge, were justified both as to appellant's negligence and as to absence 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 any witness; and they are not bound to believe the whole the evidence any witness; they may believe that part a witness' evidence which makes 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. v. Slattery App. Cas. followed.-Judgment the Court Appeal 48 D.L.R. 3 W.W.R. affirmed.
4-Railways -Joint defendants - Dangerous situation-Prompt action.] street car had stopped at a railway crossing as a train was coming.
When the latter was seventy-five or one hundred feet away the motorman, without a signal from the conductor, started to cross.
When half way over the power was increased, the car went forward with jerk and two ladies at .the rear end were either thrown jumped off and falling on the diamond were killed by the train.
In an action against the Electric Ry. Co. and the Canadian Northern Ry.
Co. by the husband of one of the victims:-Held, affirming the judgment of the Court
Appeal Man. R. that the motorman was guilty of negligence in crossing under these conditions and the Electric
Company was liable.-Held, also, reversing said judgment, Idington and Brodeur
JJ. (dissenting)
, that the Canadian Northern Ry. Co. was likewise liable; that approaching the crossing it was the duty the employees to exercise great caution;
that it was shewn that the train was travelling slowly and could have been stopped in time if the train hands had acted promptly; that failing to stop when the situation danger arose was negligence, and the fact that the mitnner which the accident happened could not reasonably have been anticipated was of no importance and the further fact that but for the negligence the Electric Ry. Co.
the deceased would iot have been killed no excuse.-Held, per Duff J.
respondent company was obliged to take precautions to obviate the risk harming passengers in the electric car and the wrongful neglect of that duty having directly caused the harm the question remoteness of damages cannot arise.
RY.
NORTHERN RY. Co...........
5-Power Co.-Use of power-Pipe across ravine on trestle-Wire four feet pipe-Boy crossing. on trestle-Injury from wire.] pipe conducting compressed air was carried across a ravine on trestles and an electric wire crossed at right angles four feet above it at the centre. Barriers were erected across this pipe-line on both sides of the wire and on each barrier was posted a warning danger.
a boy twelve years old, attempted to cross the ravine by the pipe-line and having climbed around a barrier came into contact with the wire and was badly injured. In an action against the power company for damages the jury found that children were not in the habit going the pipe-line at the place where the accident occurred.-Held, affirming the judgment of the Appellate Division (45 Ont.
L.R. 449), that owing to this finding the jury, and the fact that the company could have no reason to- suppose that any person would get into a position of danger from the wire the action must fail. SniLsoN
Municipal corporation-Repair road-Findings of trial judge.] In an action claiming damages for personal injuries from an accident caused, as alleged, by the negligence the defendant corporation in failing to keep in proper repair the approach to a bridge which was by a curve in the road dangerous for automobiles the trial judge -held, that the approach was dangerous and awarded damages to the plaintiff (43 Ont. L.R. 434). The Appellate Division reversed his judgment and dismissed the action.- Held, affirming the judgment Appellate Division (45 Ont. L.R. 28; D.L.R. 551), that the case is not one depending on the credibility witnesses or reliability their testimony in which great weight is attached to the findings of the trial judge, but one weighing the evidence as a whole and inferences to drawn therefrom. dealt with the weight the evidence that the approach to the bridge was not dangerous and the judgment at the trial was properly set aside.
.......... 7-"Workmen's Compensation Act," 4 V. 25 (Ont.)-Negligence-"Accident"-Injury poisonous gases.] Injury to the health a workman in a munition factory through continuously inhaling the fumes poisonous gases not injury within the meaning of that term in the Ontario "Workmen's Compensation Act."-Judgment of the Appellate Division Ont. L.R. 586; 48 D.L.R. 655), reversed on the merits as there was evidence on which the jury could reasonably find for the plaintiffand the Appellate Division should not have disturbed their findings.
8-Tramway-Driving team across track -Contributory negligence. Repairs Oiling. ................
Railays-Animals killed train -Negligence owner-Evidence-Hearsay -Admissibility.
11-Construction of ditch-Surface water- Draining of higher land-Liability of owner. 12-Master and servant-Faulty machinery-Skilled engineer.
Co. BEGIN.................
13-Injury employee-" Workmen's
Election
Right action ............................
NOTICE-Judgment Creditor-Mortgage
Priority
Notice of judgment.................
PARTNERSHIP - Parol evidence - Husband and wife.
Liquidated dam ages..........................
PRACTICE
PROCEDURE - Apportionment damages-Findings of fact-Inferences- R.S.O., An action brought under the "Fatal Accidents Act" (R.S.O., ch. by a father and mother to recover compensation for the death their son by defendant's negligence resulted in a judgment against defendants for apportioned as follows: $500 to the father and $1,000 to the mother. This judgment was reversed by the Appellate
Division and the action dismissed.
appeal to the Supreme Court of Canada:- Held, that as the "Fatal Accidents Act"
permits but one action to be brought the entire damages sustained by the class entitled to compensation and the appeal must be from the judgment as a whole the full amount is in controversy in this appeal and the court has jurisdiction to entertain it.
L'Autoriti, Ltd.
v. Ibbotson Can. S.C.R. 340) distinguished.
Jurisdiction
Habeas
Person large-R.S.C., (c) and 48
"Supreme Court Act"-8 & 9 s. Board of Enquiry, proceeding under' the "Immigration Act," ordered the deportation of the respondent, who thereupon applied for a writ habeas corpus. The writ was refused by the trial judge; but the Court of Appeal granted and ordered the respondent's discharge.- Held, that an appeal from the court final resort in any province except Queber
PRACTICE PROCEDURE-cont. in a case of habeas corpus under sec. 39 of the "Supreme Court Act" will not lie unless the case comes within some of the provisions of 48, as amended by 8 & 9 Geo. ch.
Mitchell v. Tracey Can. S.C.R. 640; 46 D.L.R. 520, followed.-Per Duff and Anglin JJ. The words "criminal charge" in sec. of the "Supreme Court Act" mean a charge preferred before a tribunal authorized to hear such a charge either finally or by way of preliminary investigation; and the Board of Enquiry under the "Immigration Act" is not a tribunal by which the respondent could have been convicted of a criminal offence.-Per Duff and Anglin JJ. The right appeal given by sec. 39 in cases of habeas corpus, does not exist where the court below has ordered the release of the person, the legality of whose custody was in question in the court below and that person is at large.
Cox v. Hakes App. Cas. 506) Mignault J. dubitante. How........... Judgment-Setting aside-Common error of parties.]
In a former action between the appellant and the respondents the trial judge pronounced an oral judgment finding in favour of the appellant upon certain contested items and favour the respondents upon certain other contested items and fixed the rate per foot upon which the sum for which judgment was to be finally given favour of the appellant was to be calculated; and a reference to the registrar was directed to work out this judgment and express the result in figures. solicitors then agreed to substitute a report by architects for this reference. It had been expressly stated that it was the respondent's intention to appeal from the The order, drawn up by agreement and initialled by the solicitors for both parties, apparently deprived the respondents of that right. Subsequently, the respondents appealed but the appeal was dismissed on the ground that it was a judgment by consent. The respondents then took a direct action to set aside the judgment.-Held, that there had been common error in the expression of the intentions of the parties and the judgment was properly set aside. Wilding v. Sanderson, 2 Ch. 534, followed.-Per Davies C.J. and Duff, Brodeur and Mignault JJ. The appellant, having succeeded in his contention that the judgment was PRACTICE AND PROCEDURE-cont.
drawn in a form which made it unappealable, cannot now be allowed to say, as against the respondents, that this was not in law the construction the order.- Judgment of the Court Appeal([1919]
3 W.W.R. 740) affirmed.
4- Trade union-Procuring dismissal of non-unionist-Action for conspiracy- Unincorporated local union.] In an action by workmen against an unincorporated and unregistered local union The
United Mine Workers America for conspiracy in procuring their dismissal from employment.-Held, per Anglin and
Brodeur JJ. The issue want of legal entity was sufficiently raised by the explicit denial of the allegation that the
Local Union was a body corporate.-Per
Anglin and Brodeur JJ. No action lies against an unincorporated and unregistered body in an action tort such as the present one.-Per Anglin and Brodeur JJ.
The rule practice by which, when numerous persons have a common interest the subject matter an action, one or more of such persons may be sued behalf of all persons interested, which rule was invoked in support the application for an order for representation, cannot properly be applied in an action of tort such as the present one without evidence that the individual appellants could fairly be said to be proper representatives.
Idington J. contra.-Per Idington and
Mignault
JJ. (dissenting)
.-The
Local
Union having throughout the litigation acted as if rightly sued, it is too late now to urge the objection want of legal entity; and per Mignault J. the judgment of the trial judge should not be interfered with on a matter of procedure.
Jury trial-Evidence.] 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 any witness; they may believe that part a witness' evidence which makes for the party who calls him, and disbelieve that part 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
App. Cas. 1155) followed.
PRACTICE AND PROCEDURE-cont. sheriff-His refusal to withdraw-Poundage.
trial
Misdirection. 8-Municipal corporation-Promissory note
Evidence.
NORD ..................... 9-Findings of trial judge-Weight evidence-Negligence................. PRINCIPAL
AGENT - Sale Lapsed
Quantum meruit. 2-Contract - Agent's signature followed "councilman" -Personal liability.
3-Stock transactions-Margins-Failure cover-Notice and sale of stock.. PRINCIPAL SURETY - Suretyship sent ations payee maker-Parol evidence -Commercial matter-Arts. 1233 (1) and The appellants and the respondent were shareholders in the Star Films company.
In order to help the company to discount its note $15,000, one Lubin, the president of the company, obtained from the respondent his note for $10,000 made payable to the company and to be used as collateral security. According to evidence adduced by the appellants, although objected to by the respondent, Lubin afterwards approached the appellants, informed them that the company held respondent's note for $10,000 and agreed with them that, if they would indorse the company's note for $15,000 to enable him to discount it with the bank, he would pledge the respondent's note as collateral and they would thus be liable only for $5,000; and, on this understanding, the appellants indorsed the company's note. The company went into liquidation before its note of $15,000 became due.
The appellants paid the bank $5,000, but refused to pay more. The bank then sued the respondent for $10,000 which he paid; but he called the appellants in warranty asking to be reimbursed in full for his payment to the PRINCIPAL SURETY-continued.
bank.-Held, Brodeur and Mignault JJ.
dissenting, that the respondent, by giving his note to Lubin without any limitation placed on its use, had given him authority to use it as collateral in any manner he might deem advisable to enable the company to discount its own note, and that such authority was lawfully exercised
Lubin to impose on the respondent the obligation indemnifying the appellants against their indorsement to the extent
Held, also, Brodeur and Mignault JJ. (dissenting)
, that, as the appellants as to $5,000 were sole sureties and as to
$10,000 were sureties to the bank but not co-sureties with the respondent, such arrangement takes this case out article
C.C. as the parties did not "become sureties for the same debtor and the same debt."-Held, also, Brodeur and Mignault
JJ. (dissenting)
, that parol evidence as to the understanding between Lubin and the appellants, although the civil contract suretyship was the subject matter the testimony, was admissible under art.
(1) C.C., as it concerns liability on promissory notes discounted with a bank in the carrying out of what was undoubtedly a commercial transaction.-Judgment the Court Review (Q.R. S.C. 516)
Brodeur and Mignault
JJ.
pay damages"-Costs.
PROMISSORY NOTEfor trespass-"Nova Scotia Railway Act"
(R.S.N.S., 264).] By sec.
264 of the "Nova Scotia Railway Act"
(R.S.N.S., ch. 99), every person not connected with the railway who walks upon a railway track liable to a penalty.
H. was killed while walking along a track on a stormy night in winter and on the trial of an action by his widow the jury found the railway company negligent not having lights and having a defective whistle and that the public had, to the knowledge the company, habitually travelled on the track at the place question.
They refused to find that running the engine 'without lights and without sounding the whistle at this place
RAILWAY-continued.
was a reckless disregard of human life but considered it careless.-Held, Davies C.J. and Anglin J. dissenting, that H. was a trespasser on the right of way; that the only duty owed him by the company was not to run him down knowingly and recklessly which was not done and the jury so found; and that the company was, therefore, not liable.-Per Davies C.J. and Anglin J. dissenting. Deceased was a ficencee being on the track by permission and consent of the company which owed him the duty of not increasing the ordinary and normal risks which he would incur as such licencee and the negligence of the company added to those risks made liable.
2-Injurious Affection land-Loss business profits-Compensation-"Railway Act," R.S.C., 37, s. Where land is injuriously affected by construction railway works, the owner is not entitled to compensation for loss of business profits resulting therefrom.
Such compensation can be given only when land taken.- In the construction of the the English decisions under the "Railway Clauses Consolidation Act" to the above effect should be Idington and Brodeur JJ. dissenting.-Judgment of the Appellate Division (45 Ont. L.R. 47 D.L.R. 3-Negligence-Joint defendants-Dangerous situation-Prompt action.] street car had stopped at a railway crossing as a train was coming.
When the latter was seventy-five or one hundred feet away the' motorman, without a signal from the conductor, started to cross.
When half way over the power was increased, the car went forward with a jerk and two ladies at the rear end were either thrown jumped off and falling on the diamond were killed by the train.
In an action against the Electric Ry. Co. and the Canadian Northern Ry. Co. by the husband of one of the victims:-Held, affirming the judgment of the Court Appeal (29 Man. R. 91), that the motorman was guilty negligence in crossing under these conditions and the Electric Company was liable.-Held also, reversing said judgment, Idington ' and Brodeur JJ. dissenting, that the Canadian Northern Ry. Co. was likewise liable; that approaching the crossing it was the duty RAILWAY-continued.
of the employees to exercise great caution;
that it was shewn that the train was travelling slowly and could have been stopped in time if the train hands had acted promptly; that failing to stop when the situation of danger arose was negligence, and the fact that the manner which the accident happened could not reasonably have been anticipated was no importance and the further fact that but for the negligence the Electric Ry.
Co. the deceased would not have been killed no excuse.-Held, per Duff J. The respondent company was obliged to take precautions to obviate the risk harming passengers in the electric car and the wrongful neglect that duty having directly caused the harm the question remoteness damages cannot arise.
RY.
than costs-Limitation-" Railway Act,"
R.S.C. The taxable costs, incurred on an arbitration pursuant to the "Railway Act," are constituted a debt recoverable by action; and the liability for these costs of the expropriated party not limited to the amount of the compensation. Idington and Duff
JJ. (dissenting)
.-Per Anglin, Brodeur and
Mignault JJ. The judge, when taxing the costs under the statute, acts as persona designata and no appeal lies from his decision.-Per Anglin J. So far as the right of the appellant to certain items allowed depended upon findings fact, it was within the jurisdiction of the learned judge to make such findings and they cannot be reviewed for the purpose establishing that in making the allowances he exceeded his jurisdiction.
Brodeur J.
dubitante and Mignault J. expressing no opinion.-Judgment
Appellate
Division Alta. L.R. 416; 46 D.L.R.
357; 2 W.W.R. 297) reversed,
Idington and Duff JJ. (dissenting)
.
RY.
5-Animals killed train-Negligence
Hearsay sibility.
REGISTRY LAWS-Registration of mortgage-Notice of judgment-Priority-Nova
Scotia "R.egistry Act," R.S.N.S.,
The mortgagee land in Nova
REGISTRY LAWS-continued. Scotia who registers his mortgage with notice of a judgment against the mortgagor, afterwards registered, does not obtain priority over the judgment-creditor. Idington J. dissents.-Judgment of the Supreme Court Nova Scotia N.S. Rep. 39 D.L.R. 640) affirmed. v. K ..........................
2-Lien
- Unregistered purchaser - Priorities-Cancellation of application registrar-"Land Registry Act," R.S.B.C., 129, ss. 35; and ss. 104 and as amended
(B.C.) 1912, "Aechanics' Lien Act," R.S.B.C., 154, ss.
P., a beneficial but unregistered owner land, agreed to sell the land to B. who never registered his agreement, J. being then the registered owner. P. shortly afterwards let contracts to four contractots for the clearing the On May P.. made an application for a certificate of indefeasible title which was granted.
report, dated May
1913, made upon a reference as to title ordered in a mechanics' lien action taken by the labourers who had cleared the land certified that "there are no charges of any kind whatsoever against the title" except the liens. May P. conveyed the land to N.M. subject to the agreement with and also assigned to him this agreement. On May 20, N.M. applied to register the assignment as a charge, but, not until October did N.M. make any application to be registered under the grant.
On January the sheriff sold all the right title and interest P. to R. The Court of Appeal held that this sale was a sale of the fee in the lands charged only by the liens.-Per Fitzpatrick C.J. When N.M. acquired title from P. the land was already impressed with the mechanics' liens.-Per Duff J. Where an application to the registrar has been cancelled under the provisions of the "Land Registry Act," the application must be deemed, for the purposes of the "Land Registry Act" and particularly for the purpose applying 28 of the Act to have been void ab initio; and it follows that when the lien affidavits were registered there was, in contemplation law, no application for registration the N.M. interest "pending."-Per Duff J. N.M. was not in the position of a mortgagee but a person "claiming under" P. and a person "whose rights are acquired after the work REGISTRY LAWS-continued.
or service, in respect of which the lien is claimed, is commenced."-Per Duff J.
N.M. lost its status with respect to the registered title by its acquiescence in the registrar's notice cancellation, given
July 1913.-Per Anglin J. N.M. had
"no estate or interest either at law or equity" in the land in question which made it a proper or necessary party to the mechanics' lien action under the judgment in which R. derives his title; nor had it any estate or interest of which the plaintiffs in that action or R. should be deemed to have had "any notice, express, implied or constructive."
"Land Registry Act,"
secs. 108.-Judgment the Court
Appeal (32 D.L.R. 81; 1 W.W.R.
494) affirmed.
Principal and
Verbal representations-Warranty-Return of goods.] The respondent ordered from the appellant "one Case 40 Horse Power
Case Gas Engine."
The agreement provided that "the purchaser" could claim
"the return after returned the to the received them"; and that "no representations, warranty or conditions, expressed or implied, other than those herein any collateral hereto be binding upon the.
vendor unless it is in writing."
engine was delivered to the respondents, accepted by them in May, and never returned to the appellant.
A promissory note due in November, was paid the respondents without any protest: The engine had two tanks, one labelled
"kerosene"
and one "gasoline."
agent the appellant represented to the respondents that the engine would also operate on kerosene and promised to send experts; but it stopped whenever operated.-On an action by the appellant for the price of sale, the respondents alleged fraud and misrepresentations.- Held, Idington J. dissenting, that, upon the evidence, the engine delivered was accepted by the respondents as the engine ordered in the written agreement sale.- Per Duff J.
The written contract is explicit, and its terms are not susceptible modification by evidence of contemporary or antecedent negotiations.-Per
Anglin J. The agreement contained no warranty that the engine would run on
SALE-continued.
kerosene, breach of which would support a claim for damages. Schofield v. Emerson Can. S.C.R. 203) distinguished.-Per Brodeur J. By paying their promissory note without protest and, per Brodeur and Migndult JJ. by not returning the engine to the appellant, the respondents waived any right they might have to rescission.- Judgment of the Court Appeal 1 W.W.R. reversed, Idington J. of the goods. SERVITUDE - Servitude of support - Conventional-" Destination phre famille"-Common wall-"Pignon" gable-Arts. 522, 560 0.0.] appellants are the owners of lot No. 694 the City Three Rivers, and the respondents are the owners the adjoining lot No. 695. These two lots formerly belonged to one Hart, who, in sold lot No. 694 to one Woolsworth. One clause the deed reads as follows: est convenu et arrt6 entre les parties que Erastus Woolsworth aura droit A perp6tuit6 de bAtir, accoter contre et sur mur en pierres et en briques du pignon nord-ouest du magasin et maison du dit sieur vendant et 6rige sur I'autre partie du dit lot de terre, lequel pignon sera mitoyen entre les parties."-Held, that the right mitoyennetA claimed by the appellants is a conventional servitude and not a servitude par distination du phre famille.-Held, that in the clause quoted the word "pignon" means not merely the triangular gable at the top of the wall but the entire north-west gable end the grantor's house, and the whole wall, including its foundation, has been declared mitoyen by the deed of sale.
Duff and Mignault JJ. (dissenting)
.-Judgment the Court King's Bench (Q.R. 28 K.B. reversed, Duff and Mignault JJ. Delorme v. Cusson (28 Can. S.C.R. 66) distinguished.
SHERIFF - Practice and procedure - Seizure - Assignment - Notice sheriff -His refusal withdraw-Poundage. SHIPPING - Hiring of shipmaster - Wrongful dismissal-Damages....... 404 Constitutional panies Act," R.S. Sask., ss.
and 25-Licence to business in province
-Dominion companies.] Sees. 23 and of the Saskatchewan "Companies Act"
requiring all companies, as a condition for doing business in the province, to be registered and take out an annual licence are intra vires the legislature and apply to, and may be enforced against, a company incorporated by the Parliament
Canada to do business throughout the
Dominion.
John Deere Plow Co. v.
Wharton A.C. 330; D.L.R. 353)
distinguished.-Judgment the Supreme
Court Saskatchewan, Harmer v.
Macdonald Co. Sask. L.R.
D.L.R. 363)
PLOW CO. v. THE
Co. v. HARMER....................
2-Constitutional law-Manitoba "Companies Act," R.S.M., 35-Licence to carry on business in province-Dominion companies.] The provisions of Part IV.,
Classes V. and VI., of the Manitoba
"Companies Act" (R.S.M., ch.
requiring companies incorporated by the
Parliament Canada to be registered and take out an annual licence as a condition of doing business in the province are intra vires the legislature. John Deere Plow
Co. v. Wharton A.C. 330; D.L.R.
Davies
C.J. and
Mignault J. (dissenting)
.
DAVIDSON.........
Railway Injurious affection land
-Loss of business profits-Compensation
Act," R.S.C., s. Where land is injuriously affected by construction railway works, the owner is not entitled to compensation loss of business profits resulting therefrom.
Such compensation can be given only when land is taken.-In the construction of sec. the "Railway Act" the
English decisions under the "Railway
Clauses Consolidation Act" to the above effect should be followed.
Idington and Brodeur JJ. (dissenting)
.- Judgment of the Appellate Division
Ont. L.R. 47 D.L.R. reversed.
4- "Supreme Court Act," s.
Habeas corpus-Criminal charge.]
Per
Duff and Anglin JJ. The words "criminal charge" in 39 of the "Supreme
Court Act" mean a charge preferred before a tribunal authorized to hear such a
STATUTE-continued.
.
charge either finally or by way of preliminary investigation; and the Board Enquiry under the "Immigration Act" is not a tribunal by which the respondent could have been convicted of a criminal V. JEU JANG How. 5-Mines and mining-Certificate improvements-Application for-Affidavit -Cessation of work-"Mineral Act," R.S. B.C. ss. 49, 56, The respondents, owners of mining claims under the "Mineral Act," complied with all the requirements of 57 except the filing the affidavit required by sub-sec. 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" 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. provides that such work (annual work) not 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 the certificate of improvements and that they were not subject to of the Court
47 D.L.R. 509; W.W.R. 229) affirmed.
6- Constitutional law-Provincial company-Status ab extra-Comity-Right "Extra-Provincial Corporations Act," R.S.O. Item of sec. 92 "B.N.A. Act," empowering the legislature of any province to make laws in relation to "the incorporation companies with provincial objects" does not preclude a legislature from creating a company with capacity to accept extra-provincial powers and rights. Bonanza Creek Gold Mining Co. v. The King, A.C. 566, 26 D.L.R. 273, followed. -Such capacity need not be expressly conferred.
It sufficient if the intention of the legislature to confer it can be gathered from the instruments creating the company.-A Saskatchewan company may, on obtaining a licence under the STATUTE-continued.
"Extra - provincial
Corporations Act"
(R.S.O. ch. carry on business in Ontario. It may enforce in the Ontario
Courts the performance of a contract entered into with a resident that province and the action may be maintained though the licence was not granted until after it was instituted.-Judgment of the
Appellate Division (45 Ont. L.R.
reversing that on the trial (43 Ont. L.R.
451) affirmed.
7-Constitutional law-"Nova Scotia
Temperance Act," 1 V. 33-Seizure of liquor-Intercolonial Railway-Carrier
-Statute-Application to Crown.]
of the "Nova Scotia Temperance Act"
authorizes the seizure liquor in transit or course of delivery upon the premises any carrier etc.-Held, that neither expressly nor by necessary implication did this enactment apply to liquor in custody of the Crown in right of the Dominion as a carrier.-Held, also, Duff J. expressing no opinion, that if it did purport so to apply it would be ultra vires.
& Co. McCoRMIcK..............
"Workmen's Compensation Act," 4
V. ch. 25 (Ont.)-Injury to employee- Compensation from Board - Election - Right of action.]
The Ontario "Workmen's Compensation Act" provides that a workman injured in course of his employment and thereby entitled to bring an action against a person other than his employer, may claim compensation under the Act from the Compensation Board or bring such action.
If he elects to claim under the Act, and the compensation payable out of the accident fund, the
Board is subrogated to his rights, and may maintain an action in his name, against the wrongdoer.
H., driver of a bread wagon in Toronto, was injured by a collision with a street car and elected to claim, under the Act, compensation payable out of the accident fund which was awarded and paid for a time.
He then brought an action against the Toronto
Ry. Co. and, after the trial, he obtained an order from the Board allowing him to withdraw his election.-Held, affirming the judgment the Appellate Division
(45 Ont. L.R. 550; 49 D.L.R. that his right action was not barred.-Per
Anglin J.
H. should have obtained an order from the Board authorizing him to bring the action and the proceedings
STATITE-Continued the appeal should be stayed until such order is filed.
9- "Workmen's Compensation Act," 4 V. 25 (Ont.)-Negligence-"Accident"-Injury poisonous gases.] Injury to the health a workman in a munition factory through continuously inhaling the fumes of poisonous gases is not injury by within the meaning that term in the Ontario "Workmen's Compensation Act."-Judgment the Appellate Division (45 Ont. L.R. 586; 48 D.L.R. 655), reversed on the merits as there was evidence on which the jury could reasonably find for the plaintiff and the Appellate
Division should not have disturbed their findings.
Husband and wife-Will husband -Relief to wife-Discretion of the court- Intestacy-" The Married Women's Relief Act," Alta. S. 1910, 2nd sess., ss. 2 &
The discretion conferred on the court in favour of the widow, who applies for relief under "The Married Women's Relief Act," is restricted, by implication, to the portion her deceased husband's estate which she would have received on an intestacy. Idington J. contra.-Judgment of the Appellate Division 48 D.L.R. 29; .2 W.W.R. 685, 11-Shipping - Carriage of goods - Injury to cargo-Seaworthiness of ship- "Canada Shipping Act," R.S.C., s. 964.
12-Expropriation-Identity of land- Duty of Commissioners - Plans. THE .................... 13-Timber licences - Application - Description
Act," B.C.S., s. Company - Ontario "Companies Act," s. 92-Application-By-law.. .. " Workmen's Compensation Act"- Election-Right of action............ STATUTES-R.S.C.,
("Railway Act")........................
STATUTES-Continued.
2-R.S.C., ("Railway
3-R.S.C., [1906] c. 113 ("Canada Shipping A ct")........................
4-R.S.C., ss. and 18
("Navigable Waters Protection Act").. 379
5-R.S.C., s. ("Bills of ....................
6-R.S.C., ss. 39 and
("Supreme Court Act") .............
7-R.S.C., s. ("Winding-upAct") ...................
8-R.S.C., s. 498 ("Criminal Code").......................
9-(D.) 8 & 9 Geo. V. c. 7, s. 3 ("Supreme Court Act" amended) .........
R.S.O.,
[1914] c.
("Fatal
Accidents Act")...................
R.S.O., 178, 82 ("Companies")......................
R.S.O.,
("Extra- Provincial Corporations Act") .......
13-(Ont.) Edw. VII. c. ("Municipal A ct").......................
14-(Ont.) 4 Geo. V. c. 25 ("Workmen's
Compensation Act")................
15-(Ont.) 4 Geo. V. c. 25 ("Workmen's
Compensation Act") ................
(Que.) 18 Vict. c. 100 ("Municipal and Road Act of Lower Canada")..
17-(Alta.), [1906] c. 41 ("Charter of
W etaskiwin").....................
STATUTES-Continued.
18-(Alta.),
2nd sess., ("Married Women's Relief Act").. .. 19- (Alta.), c. 2 (" Town 20- R.S.B.C.,
[1911] c. 129 ("Land Registry Act") ..................... 21- R.S.B.C., [1911] c. 154 ("Mechanics' Lien Act")........................ 22-R.S.B.C., [1911]
c. 157, s. 49 ("Mineral Act") .................
23- (B.C.), [1912] c. 17 ("Forest Act") ......... 24-(B.C.), c. 28 ("Land Registry 25-R.S.M., 35 ("Companies 26-R.S.N.S.,
30- (N.W.T.), Cons. Ord., [1898] c. 70 ("Municipal Ordinance") ........... STATUTE OF FRAUDS-Landlord and Tenant - Lease - Agreement for lease - Memorandum-Statute of Frauds-Date when term begins.] The appellant, suing for the specific performance an agreement for a lease, relied on the following memorandum:-Prince Albert, Sask. Received from Mr. John D. Mitchell the sum of Fifty Dollars, being deposit on rental of St. Regis ground floor, building taken at $100.00 per mo., for a term of five STATUTE OF FRAUDS-Continued.
years to start from completion repairs or when handed over to Mitchell. $50.00.
Romeril, Fowlie & Co., Romeril."- Held, Idington and Brodeur JJ. dissenting, that the document was insufficient to satisfy the requirements of the Statute
Frauds, it being impossible to determine from it the time of the beginning of the contemplated term.-Judgment
Court of Appeal Sask. L.R. 447; 43
D.L.R.
Idington
Brodeur JJ. (dissenting)
.
CANADA.........
SURETYSHIP- SHIPPING-Carriage of goods-Injury to cargo-Seaworthiness of ship-"Canada
Shipping Act," R.S.C., 964.
TELEPHONE - Franchise of streets - Time liniit - "Ontario Municipal Act," Edw. VII. ss.
330, (1) and 559 The Legislature of Ontario has not given the municipalities the province authority to permit telephone companies to occupy ihe streets and highways with their poles and wires for a longer period, at one time, than five years.-An agreement by a municipality to permit, by irrevocable licence, a telephone company to occupy the streets with poles and wires is ultra vires.-Judgment the Appellate Division (44 Ont. L.R.
366) reversed, that on the trial (42 Ont.
L.R. 385) restored.
TITLE TO LAND-Crown grant-Indian lands-Adverse possession.
......................
Restraint of trade-Unduly lessening competition-Art. 498 Cr.
TRADE UNION-Inducing dismissal of non-unionists threatening strike-Right to damages-Liability of individual members-Practice and procedure-Unincorporated body-Representative action.]
respondents, being miners and members of the Local Union appellant, were employed by the Rose-Deer Mining Company.
The manager of the company, becoming dissatisfied with the actions the Union, closed the mine down with the
TRADE UNION-Continued.
object, successful for a time, of destroying the weight of the Union; but he opened it again, and the respondents returned to work, agreeing to the condition not to pay any Union dues. The respondent Williams then received an anonymous letter calling him a "scab."
The manager of the company having taken the ultimate decision to live at peace with the Union for the security of his own interests, a new Local Union was organized, but. both respondents refused twice invitation to become members until the matter the letter was "cleared up."
Later on, the manager of the mining company advised the respondents that they would be discharged unless they settled with the Union as he had received notification that the Union would declare a strike if they continued to work. This notification was given by the appellants Young and Stefanucci. The respondents then applied for membership in the Union, but were refused, though the Union withdrew the objection formally taken to them as coworkmen in the mine. The respondents, having been subsequently discharged took an action against the individual appellants on the ground.of conspiracy to injure them by inducing their dismissal and against the Local Union for unlawful intimidation by the threat of a general strike. Local Union was not incorporated, nor registered under the "Trades Union Act"; and an application was made at the close of the trial to amend the statement claim by making the individual appellants defendants in their representative capacity, but this was not granted.-Held that, upon the evidence, the respondent's action should dismissed, except as to the appellants Young and Stefanucci; Idington and Mignault JJ. dissenting; Duff J. would have dismissed the action in toto.-Per Duff J. The conduct the appellant Young cannot be construed as intimidation or coercion by "threat" and did not expose him to an action in damages in the absence the characteristic elements of a criminal conspiracy to injure. Quinn v. Leatham
A.C. 495, discussed.-Per Duff J. The object "The Industrial Disputes Act" is to interpose investigation and negotiation with a view to conciliation between the institution of a dispute and the culmination of it in a strike or lockout; but there is nothing illegal (notwithstanding the legislation) in an employer or his workmen deciding to pay no attention to outside advice TRADE UNION-Continued.
decision but to insist upon their or his terms and to enforce them by all legal means and nothing illegal in making this known to the othbr party to the dispute.- Anglin and Brodeur JJ. In the absence of legal evidence that they were present at the meetings where the acts complained of were authorized or that they had otherwise sanctioned them, mere membership in the Local Union would not render the individual appellants personally answerable in damages for the results these acts.-Per Anglin, Brodeur and Mignault JJ. The dismissal of the respondents was the direct and intended outcome the action the Local
Union's committee such action amounting to a coercive threat and being therefore an unlawful means taken to interfere with the respondents' engagement, the liability the Local Union appellant suable is established, and the delivery the message the committee by the appellants Young and Stefanucci to the manager of the mining company, having regard to all the circumstances, makes them personally liable towards the respondents.-Per Anglin and Brodeur JJ.
The issue want of legal entity was sufficiently raised by the explicit denial the allegation that the Local Union was a body corporate.-Per Anglin and Brodeur
JJ. No action lies against an unincorporated and unregistered body in an action tort such as the present one.- Per Anglin and Brodeur JJ. The rule practice by which, when numerous persons have a common interest in the subject matter of an action, one or more such persons may be sued on behalf all persons interested, which rule was invoked in support the application for an order for representation, cannot properly be applied in an action tort such as the present one without evidence that the individual appellants could fairly be said to be proper representatives. Idington J.
contra.-Per Idington and Mignault JJ.
Local Union having throughout the litigation acted as rightly sued, it is too late now to urge the objection want of legal entity; and per
Mignault the judgment of the trial judge should not be interfered with on a matter procedure.
TRAMWAY-Driving team across track- Contributory negligence.
TRESPASS-Title to land-Onus-Proof of title.
.......... 2-Damages - Cutting of timber - Licence.
3-Railways - Taking gravel - Consent of owner. Estate of eration
Disbursements.
tion ...............................
Sale of engine-Contract of sale- Alleged defects-Payments on price-Retention of engine...................... tion liability.; "Married Women's Relief Act" (Alta.) Winding-up-Assets transferred to new company - Petition - Status of petitioner. Leave to appeal-R.S.C., 144,s.106........................ WORDS
PHRASEScharge".........................
WRECK-Obstruction navigation-Re- Liability
Waters Protection Act," R.S.C., ss. and 18.......................
Cases cited
- 3 W.W.R. 500 3 W.W.R. 500
- A.C. 330 A.C. 330