Holman v. Green

APPEA.L from a judgment of the Supreme Court of Judicature of Prince Edward Island, making absolute a rule for judgment of non-suit in the cause.

This was an action of ejectment brought by the appellants (plaintiffs below) against the respondent (defendant below) to recover possession of a piece of land, being part of the foreshore, between high and low water mark of the town of Sumnerside, lying outside of and to the westward of Queen's wharf.

The writ was issued on the thirty-first day of August,. A.D., 1877.

The defendant limited his defence to that part of the premises described in the writ, situate on the western side of Queen's wharf. The cause was heard before the Chief Justice and a jury in October, 1878. The appellants (plaintiffs below) claimed title to the locus under a grant to them from the crown in fee, under the Great Seal of Prince Edward Island.

The local statute 25 Vic. c. 19, enabled the Lieut.- Governor in Council to issue grants of certain parts of The respondent offered no evidence of any title to the locus.

The jury found a verdict for the appellants (plaintiffs below) for all the lands in issue. The respondent afterwards, pursuant to leave reserved by the Chief Justice at the trial, obtained a rule nisi for a new trial or nonsuit on the following, among other grounds:- " 8. Because said gry I is void on the ground that at the time it was made the plaintiffs were not in possession of the whole of the land in front of which the locus lies, part of the same being a public street, another part being in possession of I. L. Steeves, and another part in possession of Thomas Brehaut tenants of the plaintiffs.

" 4. Because said grant is void on the ground that the locus is in front of and abuts the railway, which is vested in the Dominion of Canada, and it was admitted that no consent from the Dominion Government had been obtained.

"5. Because said grant is void on the ground that the locus abuts on the public wharf under the control of the corporation of Summerside and no consent was obtained from such corporation.

" 8. Because said grant is void on the ground that by the British North America Act all public harbors are vested in Canada, and Summerside is a public harbor." This rule nisi, after argument, was made absolute for a non-suit on the above 3rd, 4th and 5th grounds, and against this latter rule the appellants appealed to the Supreme Court of Canada.

The counsel were heard at length on the several grounds taken in the rule nisi, but as the judgment of the Supreme Court proceeded entirely on the ground that the grant was void because by the British North America Act all public harbors are vested in Canada, and Summerside is a public harbor, their arguments on these points are omitted.

As to the eighth ground taken for the rule visi that the grant is void because public harbors are vested in the Dominion of Canada by the B. N. A. Act: the public harbors which became the property of the Dominion by the 108th section of the -B N. A. Act, . must clearly be such public harbors (if any) as the local government as such had acquired an actual proa. perty in, e g., artificial harbors constructed by the outlay of monies. This section contemplated public works of the province only, and not natural harbors in which the province had no special property. The words must be construed ejusden generis with the class of words in the clause where they are used. This is not an artificial harbor. The only monies expended here were on the wharves by private individuals and provincial government.

The wharf in question was built out of the funds of the government of Prince Edward Island, and has always been known as a government wharf. Putting aside the question that Summerside is a public harbor, and is vested in the government of Canada under sec. 108 B. N. A. Act, I contend the wharf in question is a public work and comes within the word " piers " mentioned in the third schedule of the act. It is not an answer to say that a pier should be built of stone. It is built on public property and advances into the harbor. Surely the Dominion parliament alone has control over public works necessary to carry on trade. It is called the Queen's wharf, and was the largest wharf at Summerside until the railway wharf was built. I also contend that the whole soil of the harbor passed to the Dominion, and that the giving of grants is inconsistent with the rights of the Dominion government in the harbor. See B. N. A. Act, 1867, sec. 108, schedule 3. If it is necessay for the purposes of carrying on trade that the Dominion government should have the property of artificial harbors, why should they not also have the control of natural harbors, and it cannot be denied that Summerside harbor is one of the naturql harbors of the islan4.

One of the points raised, on which I think the case must turn, was that the harbor of Summerside is a public harbor and is vested in the government of pukeca. Canada under the British North America Act, 1867, sec. 108 and 8rd schedule, and that the making of grants of the foreshore. or land between high and low water, by the Lieutenant-Governor of Prince Edward Island, is inconsistent with the rights of the Dominion government in the harbor, and therefore the grant under which plaintiff claims is void.

The locus in quo in this case is situate between high and low water mark in the harbor of Summerside, P.E.I, which is a public harbor and port for ships where customable goods may be laden and unladen. By section 108 of the B. N. Act, 1867, headed: " Transfer of property in schedule," the provincial public works and property enumerated in the third schedule to be the property of Canada are: 1. Canals with lands and water power connected therewith. 2 Public harbors.

And in the same case Lord Chelmisford says:

It B., The words of the B. N. A. Act are, in my opinion, too clear to admit of any doubt. But it was contended that the public harbors referred to in the B. N. A. Act, were only such public harbors (if any) as the local governments, as such, had acquired an actual property in, that is to say, artificial harbors constructed by the outlay of moneys and not natural harbors. But I can find nothing in the act to justify this restriction being placed on the clear words of the statute, and if we look to the general scope of the act in relation to matters with which harbors are connected, I think it is apparent that parliament intended the words to be construed in their full plain grammatical sense. In the first place, the exclusive legislative authority over the regulation of trade and commerce, beacons, buoys, lighthouses, and Sable Island, navigation and shipping, is vested in the parliament of Canada ; then, secondly, property in canals, with lands and water power connected therewith, and lighthouses and piers, and Sable Island, is specifically transferred to the Dominion. It is but consistent with this that the property in public harbors, so intimately connected with and essential to trade and commerce, and shipping and navigation, lighthouses and piers, should likewise be vested in the Dominion for I1a their more efficient management, control and regulation; a matter in which, not only the whole Dominion, but foreign shipping are likewise interested, and which V.''EN could hardly be effectually managed and regulated if there were to be a divided control. Still less can it be supposed that having vested all matters connected with trade and commerce, and shipping and navigation, and matters pertaining thereto in the Dominion parliament, the property in and control of the public harbors should have been left to provincial authority. Such being the case with reference to the property in harbors in the provinces originally united under the B. N. A. Act, 1867, the same is now applicable to the harbors in the province of Prince Edward Island, it being one the terms upon which Prince Edioard Island was admitted into the union or Dominion of Canada " that the provisions in the British North America Act, 1867, shall, except those parts thereof which are in terms made or by reasonable intendment may be held to be especially applicable to and only to affect one and not the whole of the provinces now com* posing the Dominion, and except, so far as the sime may be varied by these resolutions, be applicable to Prince Edward Island in the same way and to the same extent as they apply to the other provinces of the Dominion, and as if the colony of Prince Edwoard Island had been one of the provinces originally united by the said act." As, therefore, this clause relating to public harbors is alike applicable to all the provinces, and .was in no way varied by the resolutions referred to, the same became applicable to Prince Edward Island if it had been one of the provinces originally united by the British North America Act, 1867, and therefore the executive government and legislature ceased to have any property in, or executive or legislative power over, the ungranted lands between high and low water mark in such public harbors as that in question, and as a necessary consequence the grant under which plaintiff G .

claimed, issued by the Lieutenant-Governor of Prince Edward Island under the Great Seal of that island, was mitoheAc.of no force or effect, and therefore plaintiff had no right of action against defendant though a wrongdoer. J.:- This is an appeal from a judgment of the Supreme Court of Prince Edward Island making absolute a rule for a non-suit in an action of ejectment brought to recover possession of a portion of the foreshore of Summerside Harbor. The plaintiffs title consisted of letters patent, under the great seal of Prince Edward Island, dated the 30th August, 1877, by which the Crown, in right of the island, and assuming to act in exercise of authority conferred by a provincial statute, passed long before the island became a province of the Dominion, purported to grant to the plaintiffs, in fee simple, the land sought to be recovered in the action. The first question-which arises is as to the title of the Crown in right of its government of Prince Edward Island, it having been contended, on the part of the defendants, that the land in dispute, upon the admission of the island as a province of the confederation, being part of the soil or bed of a public harbor, became vested in the Crown as representing the Dominion of Canada. If this contention is correct, it follows that the grant under the. great seal of the island, which constitutes the plaintiff's title, was wholly void and inoperative. There can be no doubt that by the common law of England the sea shore between high and low water mark, or as it is sometimes called the foreshore, is vested in the Crown.

Hale, in the treatise De Jure Maris (1) says:- The shore is that ground that is between high and low water mark. This doth, primd facie and of common right, belong to the king both HOLM' in the shore of the sea and in the shore of the arms of the sea. Chitty, on the Prerogatives of the Crown (1), lays it GREEN. down that

Strong, J. The king is also by his prerogative the pried facie owner of the shores; that is, the land which lies between high and low water mark in ordinary tides of the seas, and arms of the seas, within his dominions.

In the Mayor of Penhym v. Holmes (2) Cleaseby, B., says :

The primafacie title to the foreshore everywhere is in the Crown. And this general rule of law applies to ports and harbors as well as to the shore of the open sea. In Coulson and Forbes, Treatise on the law of Waters (3), it is said:

The ownership of the soil of all ports as well as of the sea shore between high and low water mark is vested prim4 facie in the Crown, and the Crown umight formerly have conveyed the soil to a subject by grant or royal charter, either apart from or in conjunction with the franchise.

And the books abound in authorities to the same effect (4).

Therefore at the date of the admission of Prince Edward Island " into the Union" pursuant to the provisions of the 146th section of the British North America Act, the land in question formed part of the demesne lands of the Crown belonging to that province. Then by the express provision of the 146th section of the British North America Act, upon the admission of Prince Edward Island all the provisions of that Act became applicable to the province, including the 109th section, which enacted that the public lands should (1) P. 207.

of Whitatable, 11 H. L. C. 192.

(2) Attorney-Generaiv.chambers, (3) P. 41.

4 De G. McN. & G. 206 Hall (4) Gann v. 2',e Free Fishers on Sea Shores, 18.

belong to the provinces in which they were situated, He we and the 117th section, which provided that the several provinces should retain their public property not otherwise disposed of by the Act. These lands n Jwould therefore have remained the property of the province after confederation, unless by some particular enactment they were distinguished from the ordinary Crown lands and taken out of the operation of the 109th and 117th sections by being expressly vested in the Dominion. The only section which can have this effect is the 108th, which enacts that:

The second enumeration of the schedule referred to is " Public Harbors." The question for our decision is therefore narrowed to this:-Did the 108th section of the British North America Act transfer the property in the soil or bed of this harbor to . the Crown in right of the Dominion?

The land in dispute is situate opposite the town of Summerside and forms part of the foreshore or the. land between ordinaryhigh and low water marks of Bedeque or Summerside harbor -- a harbor of which the public have the common right of user, and which in that sense at least is therefore a public harbor. It does not appear that any public works have been erected or any public money expended for the improvement of, or in any way in connection with, this harbor, either by the Dominion Government since, or by the Provincial Government before or since, Confederation.

I can, however, conceive no other meaning to be attached to the words: " Public Harbors " standing alone, than that of harbors which the public have the right to use, and consequently if a more restricted construction is to be put on those words it must arise from the context or from some other provision of the Act. I find no other prol10e

Vt]

vision of the Act conflicting with what thus appears to be the primd facie construction of the terms in question.

It is said, however, on the part of the appellants, that the 108th clause itself, or at least the words of the third Sog J. schedule, which may be read as incorporated with it, so exclusively refer to property consisting of public works and which has resulted from the expenditure of public money that it must be taken in the enumeration of public harbors to refer to harbors ejusdem generis, and is therefore confined to those harbors which at the time of confederation had been artificially constructed or improved at the public expense. I find nothing inI the section and schedule combined to warrant such a construction, which, it seems to me, can only be based on conjecture. The words of the section are

" public works and property," and in the schedules, though most of the properties enumerated have resulted from the expenditure of public money, this is not so as to all, for we find " Sable Island " " property transferred by the Imperial Government, and known as ordnance property," and " lands set apart for general public purposes," none of which descriptions imply, as they do not actually include, properties which had been improved at the general public expelise.

This argument seems therefore wholly to fail, and we must conclude that there is nothing in the context which would warrant us in restricting the wide general description of " public harbors " to a meaning different from that which the words bear in their ordinary and primary signification.

Next arise the questions-Does the description

"Public Harbors " include the bed or soil of the harbor? and if so, is the foreshore also comprised in it ? I am of opinion that there is even less doubt on this head than on the first point. By the attribution of the harbors to the Dominion it never could have been meant to transfer a mere franchise to the Dominion Government-that is, to the Crown in right of the Dominion-leaving the property in the soil vested s Jin the Crown in the right of the province. Such a construction would be so arbitrary, unnatural and improbable as to be totally inadmissible. Who ever heard of such an anomaly as the Crown, as a body politic representing one Government, having a franchise in the property of the Crown itself as a body politic representing a distinct Qovernment ? Then the object of vesting the harbours in the Dominion was doubtless with the object of enabling that Government to carry out with more facility such measures as it might, under the power granted to it to legislate on the subject of navigation and shipping, from time to time think fit to enact. And for this purpose it was material that the right of property in the soil of harbors should be under the control of the Dominion, a result which would not be attained by conferring a mere franchise or the police power of regulating harbors and taking tolls in them. Further, the taking of tolls or harbor dues would have implied the duty of conservancy, which could not have been properly performed if the bed of the harbor had been vested in a different proprietor. Then there would have been no necessity for this special provision of the 108th section vesting harbors in the Dominion, unless it was intended to vest the property in the beds of harbors, for under the grant of legislative power relating to navigation and shipping, Parliament might have assumed ail such powers as would have been comprised in the 108th section, if it were to be construed as a mere grant of a franchise, or police, or conservancy power, or of all these together. The fair inference is therefore that it was intended to transfer the harbors in the widest sense VOL. Vt.]

SUPREb

COURT OF CAXADA.

of the word, including all proprietary as well as prerogative rights, to the Crown as representing the Dominion. And this construction is in accord with W. the presumption of law as laid down by Lord 0.

Stro J. That the foreshore is comprised in and forms part of the harbor, and passed to the Dominion under that denomination, is too plain to need demonstration, for it is held by the crown by the same title and is part of the soil of the harbor, the harbor or port being held to include all below high water mark. The passage from the text writers already quoted (2) is also to this effect.

The conclusion is that nothing passed to the plaintiffs under the letters patent of 80th August, 1877, and this appeal must consequently be dismissed with costs. FOURNIER,

L'Intim6 a* t poursuivi en cette cause pour une voie de fait (trespass) consistant dans 1'rection d'un quai dans la baie de Sunnerside, sur la devanture de la propri6t6 des appelants, demandeurs en cour int6rieure. Le proa eu lieu devant un jur qui a rapport6 un verdict en faveur des appelants. L'iatim6, ayant fait motion pour non suit on nouveau procks, la cour inf6rieure a admis le non suit. O'est de ce jugement qu'il y a appel. - Une loi de 1'lle du Prince-Edouard 25 Vict.. ch. 19, autorise le lieutenant-gouverneur en conseil A accorder, A certaines conditions, des lettres patentes sur lea grbves publiques. En vertu de cette loi, des lettres patentes ont 6t6 6mises le 80 aoftt 1877, sons le grand sceau de la province, accordant aux appelants l'4tendue de terrain Jd6crite dans lea dites lettres patentes Ce terrain eat en Fourner, Joutre sp6cialement d6sign6 comme faisant partie du rivage situ6 en front de la terre appartenant aux appelants (" being part of the shore situated in front of land owned by the said Robert 1IfcCaul and Robert Tenson Holman.") La validit6 de ces lettres patentee a 6t6 attaqu6e par les intim6s sur le principe que la commission du lieutenant-gouverneur ne lui conf6rait pas expreas6ment le pouvoir de faire une telle concession, et aussi comme n'6tant pas faite en conformit6 des dispositions du statut ci-dessus cit6, lequel par la sec. 3, exige pour la validit6 des lettres patentes le consentement de tous lea propri6taires sur la devanture de la propri~t6 desquels se trouve situ6 un lot de grbve publique. Le chemin de fer de i'lle du Prince-Edouard, maintenant la propri6t6 du gouvernement du Canada, et un quai, appel6 le quai de la Reine, construit par la province comme ouvrage public avant son annexion i la Puissance, sparent la terre des appelants de l'endroit oi eat construit le quai en question L'intim6 prtend que d'aprbs le statut le consentement du gouvernement du Canada, comme propri6taire du dit chemin de fer, 6tait n6cessaire pour la validit6 des lettres patentes. I soutient aussi que le consentement de la corporation de Summerside, qui, en vertu de son acte d'incorporation, 40 Vict., ch. 15, a le pouvoir de faire Aes r~glements pour l'administration de quais, 6tait dussi n6cessaire pour la validit6 des dites lettres patentes. Il y a encore plusieurs autres objections invoqu6es A 1'appui de la demande d'un non suit ou d'un nouveau procks, mais je ne crois pas qu'il soit n6cessaire de s'en occuper pour arriver A la d6cision de cette cause, si la 8e objection eat fond6e. Cette objection eat formul6e comme suit: " Because said VI.]

OF

" grant is void on the ground that by the British North "America Act all public harbors are vested in Canada, and -Summerside is a public harbor."

est admis que la preuve constate que les lignes lat6rales de la propri6t6 des appelants prolongbes daneFourm rJ. la baie jusqu'au deld du quai, comprendraient dans leurs limites le terrain c6d6 par les lettres patentes et particulierement 1'endroit sur lequel est construit le quai dont il s'agit; que Summerside est un havre form6 par la nature, employ6 comme Charlottetown, Pictou, Halifax ou St. John, aux usages de la navigation. L'admission est en ces termes:

Halifax

Que le quai de la Reine, est un quai public, construit par le gouvernement local avec des deniers publics vot6s A mesure qu'il en 6tait besoin, de la meme maniare que pour la plupart des autres quais de l'lle. Ce quai fut construit vers l'ann6e 1840, et a toujoura 6t6 employ6 depuis comme quai public & l'usage des nombreux vaisseaux qui fr6quentent le havre de Summerside.

Ces admissions constatent d'une manibre certaine que le hfvre de Summerside est un h&vre public. En vertu de la sec. 108 de l'acte de 1'Am6rique Britannique du Nord, d6clarant que lea travaux et propri6t6s publics de chaque province, 6num6r6s dans la troisibme c6dule annex6e an dit acte, appartiendront au Canada, lee h&vres publics 6tant compris dans 1'6num6ration faite dans la dite cdule, la propri6t6 du havre de Summerside appartient au gouvernement du Canada, depuis que 1lle du Prince-Edonard en fait partie. A dater de-cette 6poque le havre en question a t6.sous la juridiction du gouvernement du Canada qui y a nomm6 un maitre du hivre charg6 de la police de ce h~vre etc., etc. Du moment que Ia propri6t6 du h&vre est devenue 7S1 celle du gouvernement fbd6ral, le gouvernement de 1'lle a cess6 d'y avoir aucun droit. En cons6quence lors de .

1'6mission des lettres patentes en question, le 30 aoxt 1877, le gouvernement de 17/e du Prince-Edouard n'avait nier,.' plus dans les limites du hAvre en question aucun droit de propri6t6 dans le sol formant ce h&vre. En cons6quence ces lettres patentes sont nulles en autant qu'elles cadent aux appelants une partie de ce hbvre qui 6tait albrs la propri6t6 du gouvernement fAd~ral.

Je suis en cons6quence d'avis que l'appel devrait Atre renvoy6 avec d6pens.

There is another difficulty, too, which presents itself to my mind, in addition to those mentioned by my learned colleagues, and that is that since confederation, even if the local legislature had the soil of the harbor, the public had an easement-that is, the whole public (not the public of Prince Edward Island, but the public everywhere) had a right to an easement of the wharves, and if the legislature of Prince Edward Island assumed the right of granting the land between low water mark and high water mark, they might carry that still further, and grant the soil so as to be injurious to the whole shipping interest. I think, therefore, that ever since confederation, even if the soil did belong to Prince Edward Island, and its legislature had the right to dispose of the soil, which I think it had not, there was an easement that the public had in it that the Local Government had no right to obstruct by granting the sole right to other parties to occupy the waters of the harbor by putting up buildings, erections, or in any other way impeding the passage of it. I concur in the views expressed by the learned Chief Justice and those who have preceded me.

J.:- To the real question which is involved in this suit, the only answer which can be given is in the negative; that question is-is a deed executed by a lieutenantgovernor of one of the provinces of this Dominion with the public seal of that province thereto annexed, conpetent and effectual to transfer to a persbn named in such deed as vendee, the legal estate in property which, by force of the provisions of the B. N. A. Act; is vested in Hei Majesty for the public purposes of the Dominion, and is for that reason expressly placed 'dnder the exclusive control of the Dominion parliament.

Upon Prince Edward Island being admitted into the Dominion, an event which took place upon and from the 1st July, 1873, the legislative authority of the parliament of Canada (by force of sec. 91, item 1, and of sec 108 and item 2 of the schedule therein referred to of the B. N. A. Act) became absolute and exclusive over all public harbors situate in the island. Her Majesty remained seized of those harbors and of the land covered with the waters thereof, jure regio, for the public purposes of the Dominion and subject to the exclusive -control of the parliament of Canada.

Under the provisions of the Dominion statute, Vic., c. 84, and the orders in council made in pursuance thereof, the Dominion government has assumed ,control over the piece of land situate in the harbor of Summerside, and which the plaintiffs claim to be their property under and in virtue of a deed dated the 80th August, 1871, purporting to be executed by A. Hodgson, Lieutenant-Governor, with the Great Seal of the province of Prince Edward Island attached. It is contended that this deed is valid and effectual to transfer to the vendee named therein the land therein described, by force of two statutes of the province passed before the passing of the B. N. A. Act, viz., 15 Tic., c. and 25 Vic., c. 19, but it is obvious that upon the province being admitted into the Dominion under the provisions of the B. N.

power, statutory or otherwise, to sell property placed for Dominion purposes undcr the supreme control of Owynne, J the Dominion' parliament, and that the property in question is such property cannot admit of a doubt. The deed, therefore, under which the plaintiff claims is inoperative and void, and the non-suit was, therefore, right, and the appeal must be dismissed with costs It is a matter of no importance that the defendant has no right either to the land in question, or that his acts at the place in question are punishable under the provisions of the Dominion statute 37 Vic., c. 34 and the orders in council issued thereunder.

For the purpose of the present action it is sufficient to say that the plaintiff has no title to the land in question.

Arthabaska, in an action of damages (laid for verbal slander. The judgment of the

Superior Court awarded to the appellant a sum of for special and vindictive damages. B.

appealed to the Court of Queen's Bench (appeal side), and the present appellant, did not ask, way of cross appeal, an increase of damages, but contended that the judgment for should The Court of Queen's Bench partly concurred in the judgment of the Superior

Court, but as the amount, because G.

had not proved special damages, and the amount awarded was reduced to $500, and costs of appeal were given against the present appellant. L.

thereupon appealed to the Supreme Court. Held:

(Taschereau, dissenting), that L., the plaintiff, although respondent in the court below, and not seeking in that court by way of cross appeal an increase of damages beyond the $1,000, was entitled to appeal, for in determining the amount of the matter in controversy between the parties, the proper course was to look at the amount for which the declaration concluded, and not at the amount of the judgment.

JoYos (1

Can. S. C. R., 341) reviewed and approved.

an appellate court will not interfere with the discretion such judge has exercised in determining the amount of damages.

2-The Chief Justice of the reme Court, under of the Supreme Jourt Amendment Act of allowed an appeal direct the Supreme Court of Canada, it being known that there were then only two judges on the bench in Manitoba, the plaintiff

(Chief Justice) and Dubuc, J., whose decree the appeal was brought. V. - -- - ASSESSMENT-Improper-False imprisonment- Arreat-41 N.B.-Execution issued Receiver of taxes fir City of John-" Respondeat superior."] The ch. intituled "An Act to widen and extend certain public streets in the city " authorized missioners appointed the Governor in Council to assess the owners ofthe land who would be benefited by the widening of the streets, and their report on the extension of Canterbury street, the commissioners appointed assessed the benefit to a certain lot at and put their report the name of the appellant as the owner. The amount so assessed was to be paid to the corporation of the city, and, if not, it was the duty of the receiver of taxes, appointed the city corporation, to execution and levy the same.

although assessed, was not the owner of the lot. $., the receiver of taxes in default, issued an execution, and want goods was arrested until he paid the amount at the Chamberlain's in the city of St. The action was for arrest and false imprisonment, and for money had and received.

The jury found a verdict for McS. on the first count against both defendants.

Held (reversing the judgment the Supreme Court of New Brunswiack), that S., who issued the warrant founded upon a void assessment and caused the arrest to be made, was guilty of a trespass, and being at the time a servant of the corporation, under their control and specially appuinted by them to collect and levy the amount so assessed, the maxim of respondeat superior applied, and therefore the verdict in favor of for againstboth respondents on the count should stand. (Ratchie, and J., dissenting.) Per Gwynne, J.: That the corporation had adopted the act of their as their own receiving and retaining the money paid authorizing McS.'s discharge custody only after such payment.

1867-Sees.

Vic., of city of St. Building in of ----- CALLS-Action for

See

CAPIAS-Afldavit-Art. .P.-IVan' ofrerandprobable cause-Damages j.-S.,a debtor resident Ontario, being on the eve of departure for a trip to Europe, passed through the city of and while refused to make a settlement an overdue debt with his creditors,

K. a'., who had instituted legal proceedings

Ontario recover their debt, which proceedings still pending.

McK. al. thereupon caused to arrested, and paid the debt.

Subsequently claimed damages from McK. et at. the malicious issue and execution of the writ of eapias. et al , the respondents, appeal, relied a plea of justification, alleging that when they arrested the appellant, they acted with reasonable and probable cause.

his the reasons given the

NcK., the defendants, for his belief that the appellant was about to leave the Province

Canada were follows

That P., the deponent's partner, was last night in ronto II., broker, that the said i. J.

was leaving immediately the Dominion Conto cross over the sea for Europj or parts unknown, and defendant was himself this day, J. broker, of the said J. S"3 departure Europe and other places"

appellant was carrying business wholesale grocer at Toronto, and was leaving with for the Paris Exhibition, and there was that was in the habit of crossing almost every year, and that his banker and business friends knew that he was only leaving for a trip and there was no evidence that the deponent bad been informed that appellant leaving with intent to defraud. There was also evidence given McK., that after the the capias, but its execution, the deponent asked plaintiff for the payment of what was due to and that plaintiff answered him

'that would not pay that might the best way could."

Held: that affidavit was defective, there being no cient reasonable and probable cause stated believing that the debtor was leaving with inteut to defraud his creditors: and that the evidence showed the respondent had no reasonable probable cause for issuing the writ of capias question.

of Procedure-Art.

for colls-Misrepresentation

-Contract-Repuiiation-Acquiescence receipt

COMPANY.-Continued.

dividend.]-The Stadacona Insurance Company incorporated in employed local agents to obtain subscriptions stock in the district of such local agents to receive a mission on shares subscribed. At the solicitation of one of these local agents, F. X. intending subscribe for paid-up shares, paid ;500 and signed his name to the subscription the columns for the amount of the subscription and the number of shares being at the time left blank. These columns were afterwards, in the presence of appellant, in with the number shares shares? the agent of the company, without F. X. 0.8. consent. Having discovered his position, one of appellant's brothers, also subscribed in the same way, went next day to and endeavored, but ineffectually, to induce the company to relieve them the larger liability.

At the end of the year tho company declared a dividend of cent. the paid-up capital (montant and the plaintiff received a check for for which gave receipt. In the following year the company heavy losses, and notwithstanding F. X. C's repeated endeavors to relieved the larger liability, brought an action against him to recover the 3rd, 4th, 5th and 6th calls per cent. on shares of each alleged to have been subscribed F. X. in the capital stock of the company. Held, (Sir J. Ritchi, du'itunte) reversing the judgment of the court below, that the evidence showed the appellant never entered into a contract to take shares, that the receipt given for a dividend of ten per cent. on the amount actually paid (mordant vers), was not an admission of liability for the larger amount, and he therefore was not estopped from showing that was never fact holder of shares in the capital stock of the company.

Negligence of-41 and 7 (N.B.)-By-law city of St. John, Building in violation of-Negligence of Contractor- Liability f Employer-veral defendants appearing same attorney-Separate counsel at trial- 'ross-appeal-Rent, of-Damages.] the September, S. contracted to erect a proper and legal building for on (W.'s) land, in the city of St. John. Two days after, a by-law of the city of St. John, under th Act the Legislature, "The John Building Act, was passed, prohibiting the erection of buildings such as the one contracted for, and declaring them to nuisances. tract, reserved the right to alter or modify the plans and specifications, and to make any deviation in the construction, detail or execution of the work without avoiding the contract, the contract it was also declared that had engaged B. superintendent of the erection-his duty being to enforce the condi- CONTRACTOB.-Continued.

tions of the contract, furnish drawings, make estimates of the amount due, and issue certificate. While W. building was in course erection, the centre wall, having been built an insufficient foundation, fell, carrying with it the party wall to and neighbour. an action by HMc. against W.

Court of New Brunswick for a non-suit trial, the verdict was allowed to stand the amount of the general damages found the jury. appeal to the Supreme Court and crossappeal respondent to have verdict stand the full amount awarded the jury-lleld:

(Gwynne, J., dissenting) that at the time of the injury complained of, the contract the erecerection of building being in contravention of the provisions of a valid by-law of the city

John, the defendant his contractors and his agent were all equally responsible the consequences of the improper building of the illegal wall which caused the injury to charged in the declaration. That the jury, in.the absence any evidence to the contrary, adopt the actual loss of rent as a fair criterion which to establish the actual amount of the damage sustained, and therefore the verdict should stand for the full amount claimed and awarded.

The defendants appeared the same attorney, pleaded jointly the same attorney, and their defence was, in substance, precisel the same, but they were represented at the tria by separate counsel. examination of plaintiffs witness, both counsel claimed the right to cross-examine the witness.

Held (affirming the ruling of the judge at the trial), that the judge was right allowing only one counsel to cross-examine the

FEES-Petition of rig 49t-Counsel

Action for-Retainer for Fishery

Commission-Turisdiction.] The suppliant, an advocate of the Province of and one

Her Majesty's counsel, was retained the

Government of Canada as one of the counsel

Great Britain the Fishery Commission which sat at Hal fax pursuant to the Treaty

Washington. There was contradictory evidence as to the terms of the retainer, but the learned judge in the Exchequer Court found "That each the counsel engaged was to receive a refresher equal to the retaining of that they to at liberty to draw on a bank at

Halifax a month during the sittings the Commission, that the expenses of the sup- FEES.-Continued.

pliant and his family were to and that the final amount of was to remain unsettled until after the award."

The amount awarded by the Commissioners was The suppliant claimed as his remuneration, addition to already received him. Held, per Fournier, Henry and Taschereau, JJ. : That the suppliant, under the agreement entered into with the Crown, was entitled to sue petition of right for reasonable sum in addition to the amount paid him, and that$8,000 awarded him the Exchequer Court was reasonable Per Foirnier, Henry, and Gwynne, JJ.: the law of the Province counsel and advocates can recover stipulated for an express agreement. Per Pournier and Henry, J.J.: the law also the Province of Ontario, counsel can recover for such Per Strong, J.: The terms of the agreement, as established the evidence, shewed addition to an express agreement pay the supliant's expenses) only an honorary and gratuitous undertaking on the part of the Crown to give additional remuneration for beyond the amount of paid, which undertaking is only no foundation an acon but excludes right of action as upon an implied contract to pay the reasonable value of the services rendered; and the suppliant could therefore recover only his expenses in addition to the amount paid. Per Ritchie, C.J.: the agreement between the sujpliant and the of and Fishon behalf of Her Majesty, was made at Ottawa, in Ontario, for services to performed at Halifax, in Nova Sotia, it was not subject to the law of Quebec: that in neither Ontario nor Nova Scotia could a barrister maintain an action for and therefore that the petition would not Per Gwynne, J.: the Petition of Right sec. the subject is denied any remedy against the Crown in any in which would not have entitled to such remedy in England, under similar circumstances.

the laws in force there prior to and thIp.), counsel could not, at that time, England, have enforced payment of counsel the Crown,and therefore the suppliantshould not recover.

answer questions on

for

S&e

OF-Peitsor of ight-lisheries Vc., cap. (D.)-Britiah North America Act, and 199-License to Ash in that part of the Miramichi River Price's Bend

-Rights of riparian proprietors in granted and ungranted lends

Right of passage and right offishingl. January 1st, the of and Fisheries Canada, purporting to act under the powers conferred upon him executed on behalf of

Majesty to the suppliant an instrument called a lease of whereby Majesty purported to lease to the suppliant nine years a certain portion of the South .Airamichi River

New Brnnswick the purpose of fly-fishing salmon therein.

The locus in quo being thus described in the special case agreed to the parties:-" Price's Beni about or miles the ebb and of the tide. The stream for the greater greater part from this point upward, is navigable for canoes, small boats, flatbottomed scows, logs and timber. Logs are usually driven down the river in high water the spring and fall. The stream is rapid.

During summer it is in places on the bars very shallow."

Certain persons who had received conveyances of portion of the river, and under such conveyances, claimed the exclusive right of fishing in such portion, interrupted the suppliant in the enjoyment of his fishing under the lease granted to him, and put him to certain expenses in endeavoring to assert and defend his claim to the ownership of the fishing of that portion of the river included in his lease. The

Supreme Court of New Brunswick having decided adversely to his exclusive right to fish in virtue of said lease the suppliant presented a petition of right and claimed compensation from Her

Majesty for the loss of his fishing privileges and for the expenses he had incurred.

By special case certain questions (which are given below)

were submitted for the decision of the court, and the Exchequer Court held inter alia that an exclusive right of fishing existed in the parties who had received the conveyances, and that the Minister of Marine and Fisheries consequently had no power to grant a lease or license under sec. 2 of the Fisheries Act of the portion of the river in question, and in answer to the 8th question, viz.: "where the lands (above tidal water)

through which the said river passes are ungranted by the Crown, could the Minister of Marine and

Fisheries lawfully issue a lease of that portion of the river ?" held, that the Minister could not

&c.,-Contfinued, lawfully issue a lease of the bed of the river, but that could lawfully issue a license to a franchise apart from the ownership of the soil in that portion of the river. The appellant therenpon appealed to the Supreme Court of Canada the main question: whether or not an exclusive right of fishing did exist Held,-(affirming the judgment of the Exchequer Court) that the general power of regulating and protecting the Fisheries under the British North America Act, is in the Parliament of Canada, but that the license granted the Minister and Fisheries of the locus in was because said Act only authorizes the granting leases " where the exclusive rightof fishing not already exist law," and in this case the exclusive right of fishing belonged to the owners of the land through which that portion of the Aliramichi River flows.

2nd, That although the public may have in a river, such as the one in question, an easement or right to float rafts or logs down and a right of passage up and down in Canada, wherever the water is ciently high so such right is not consistent with an exclusive right of fishing with the right of the owners of property opposite their respective lands ad medium filum aqua. 3rd. That the rights of fishing in a river, such as is that part of the Afarimichi Price's Bend to its source, are an incident to the grant of the land through which such river and where such grants have been made there is no authority given the B..A. to grant a right to and the Dominion Parliament has noright to give such authority. 4th. Per Ritchie, . J., and 8trong, Fournier and ienry, JJ.-(reversing the judgment of the Exchequer Court on the 8th question submitted) that the ungranted lands in the Province of Brunswick being in the Crown for the benefit of the people of New Bruswick, the exclusive right to follows as an incident, and is in the Crown as trustee for the benefit of the people the province, and therefore a license by the Minister of Marine and Fisheries to fish in streams running through provincial property would be illegal. Tas - - - - - - - PUBLIC-Letters Palent under Great Beal P. E. I. offoreahore in Summerside Harbor, void-B. N. 108-Public Harbor- 25 Vic., ch. 19 ]-d. (defendant) was in possession of a part of the foreshore the harbor of Summerside, and had erected thereon a wharf or block at which vessels might unload. H. et at. (plaintiffs) brought an action of ejectment to recover possession of the said foreshore. et al.'s title consisted of letters patent under the Great Seal of Prince Edward Island, dated 30th August, by which the crown in right of the island, and assuming to act in exercise of authority conferred by a provincial statute, 25 Vc., ch. purported to grant to plaintiff'in fee simple the land sought to be recovered in the action. Held, that under sec. B. N. A. BOR, PUBLIC.-Continucd.

the soil and bed of the foreshore in the harbor of Summerside belongs to the crown, as representing the Dominion of Canada, and therefore the grant under the great seal of P.

H. at., is void and inoperative.

28-Oitaining false pretences.]

an indictment, containing four counts obtaining money by false pretences, was dorsed : " direct that this indictment laid the grand jury.

" Montreal, 8th October,

"B Mousseau,

"

.'. Davidson, Q.C.

Atty.-General."

and Davidson were the two counsel authorized to represent the Crown in all the criminal proceedings during the term. A motion supported affilavit was made to quash the indictment on the ground, inter alia, that the preliminary formalities required sec. of and Vic., had not been observed. The

Chief Justice allowed the case to proceed, intimating that he would reserve the point raised, should ihe defendant found guilt.

The defendant was convicted, and it was Hel4 appeal, reversing the judgment of the ourt

of the pleas was that was not respondent's duly authorized agent, as alleged.

The general managers of the company for the province of Ontario had appointed, a letter, signed them both, one general agent for the city of L.

the person by whom the interim receipt in the present case was signed, was employed to solicit applications, but had no authority from, or correspondence with, the head of the company. In his evidence, said he was authorized to sign interim receipts, and the jury he was so authorized.

also stated that one of the joint general managers, was informed that issued interim receipts, and that the former said he was to considered as W's agent. There was no evidence that the other general manager knew what capacity was acting in.

the judgment the Court of Appeal Ontario, that no power to delegate his functions,

COMPANY.-Continued.

and that S. had no authority to bind the res. pondent company. Per Strong, J., that the general agents, being joint agents, could only bind the respondent company by their joint concurrent acts, the appointment of agent W't. without the concurrence of the other general manager would have been insufficient. Tea LIFE-Life Insurance-Insurable Interest- Transfer- Policy-Payment Premiums.] applied to respondents' agent at for an insurance on his life, and having undergone medical examination, and signed and procured the usual papers, which were forwarded to the head at New York, a policy was returned to the agent at for delivery. was unable to pay the premium for some time, but L., at the request of the agentat who had been entrusted with a blank executed assignment of the policy, paid the premium and took the assignment to himself.

Subsequently, L. assigned the policy, and the premiums were thenceforth paid the assignee.

Prior to death, the general agent of the company enquired into the circumstances and authorized the agent at to continue to receive the premiums from the assignee. Held (Gwynne, dissenting): That at the time the policy was executed for 9E., he intended to affect a londfide insurance for his own benefit, and as the contract was valid in its inception, the payment of the premium when made related to the date of the policy, and the mere circumstance that the assignee, who did not collude with for the issue of the policy, had paid the premium and obtained an assignment, did not make it a wagering policy. dee of Court of Queen's Bench (Ont.) and Supreme Court of Canada as trials 684 2-Over foreahore in Sumnerside Harbor, in LIABILITY-Joint, of contractor and employer ConTAcro.

In he executed a subsequent mortgage in favor of J. the appellant, to secure the payment of and interest, which was iuly registered on the day of its execution. In IW K. executed (S. C. Rt. VOL. VI. Continued.

another mortgage to the respondent for the of which was intended to substituted for the prior mortgage that amount, and the money obtained thereon was applied towards payment thereof, and J. executed an agreement under seal-a deed poll-consenting and agreeing that the proposed mortgage to responeent should have priority over his

In

J. assigned his mortgage for to the Bank, without notice to the bank agreement, to secure acceptances which he was liable, which assignment was registered, and superseded the agreement, which had neglected to register.

his bill against the executors and against J. and

Bank.

The Court of Chancery held that the respondent was not entitled to relief upon the facts as shown, and dismissed the bill. The

Court of Appeal the decree as to all the defendants, except as to T. ff, who was ordered pay the respondent's (plaintiff's) mortgage principal and interest, but without costs.

J. M.

thereupon appealed to the Supreme Court affirming the judgment of the

Court Appeal, (Strong, J., dissenting), that.

appellant could not justify the breach of agreement in favor of was bound both at law and equity to indemnify for any loss he sustained reason of such

NEW TRIAL-Life Insurance-Power of Court aal enter another-37 and Ont-sece.

Ont-38 In an action policy tried before a judge and a jury, accordance with the provisions of ch. the learned judge, place of requiring the jury to render a general verdict, directed them to answer certain questions, and the jury having answered all the tions in favor of the plaintiff, the judge entered a verdict the plaintiff. Upon a rule nisi to cause why this verdict should not be aside and a non-suit or a verdict entered for fendants pursuant to the Law Reform Act, or a trial had between the parties, said verdict being contrary to law and evidence, the finding virtually for the defendants, the

appellant then appealed to the Court

Appeal for

Ontario, and the court being equally divided, the appeal was dismissed. Held

(Taachereau, dissenting), that the Court

That the court below might have ordered a trial upon the ground that the finding of the jury upon the questions submitted to them was against the weight of evidence, but they exertheir discretion in declining to act, or not acting, on this ground; and therefore no

TRIAL.-Continued.

appeal to the Supreme Court of Canada would lie such ground under That if an amendmeit to a plea was authorized the court below, but such amendment was never actually made, the Supreme Court has power to consider the as if the amendment in effect made.

(But Supreme and Exchequer Courts Amendment Act, Per Gwynne, J., that the plaintiff never could have been non-suited in virtue of

7, Ontario, as it is only where it can said thtt there is not any evidence in support of the plaintiff's that a non-suit entered; that in this the proper verdict which tne law required to entered upon the answers the jury was one in favor of the plaintiff. This case was appealed, and the Lords the Judicial Committee of the Privy Council the holding the Supreme Court. to the second holding, it was that the Supreme and Exchequer Court Act, gives the Supreme Court power to give any judgment which the court below might or ought to have given, and amongst other things to order a new trial the ground either of misdirection the verdict being against the weight of evidence; and that power was not laken away in this case in which the court below not exercise any discretion as to the question a new trial, and where the appeal from their judgment did not relate to that subject. See Report of Case, Cases,

The judgment of the Judicial Committee will also printed as an appendix to the Supreme Court Report.

also Report of Case in and in Ont. Appeal Ta - -- -- - - - 1-See

For Counael Fees - - - - - -Amndment of in Supreme Court - LIFE-Wager Policy

the appellant said: have charged TV with abstracting the letters. I have charged with the abstractions that have occurred from those money letters, and have concluded to suspend him." The respondent, having brought an action for slander, was allowed to give dence of the conversation between himself and appellant.

There was no other evidence malice. The jury found that appellant was not actuated ill-feeling toward the respondent making the observation to but found that was actuated in the communication he made to the Assistant Postmaster. field, on a ppeal,

Assistant Postmaster were privileged.

That the onus lay upon respondent to prove that the appellant acted under the influence of malicious feelings, and the jury found that the appellant had not been actuated ill-feeling, the respondent was not entitled to retain verdict, the rule for a non-suit should made absolute.

2-ee

appellants discounted a note made P. and endorsed in the Bank of Commerce. 8.

leaving the respondent his executor, who proved the will the note matured.

The note fell due the 8th and was protested non-paynent, and the bank, being unaware of the aeath of addressed notice protest to S. at Tfronto, where the note was dated, under 1(D)

appellants, who knew of 8.'s death maturity of the note, subsequently took up the note from the bank, and, relying upon the notice of dishonor given the bank, the defendant.

Held, reversing the judgment of the Court

Appeal Ontario: That the holders of the sued upon when it matured, not knowing of death, and having sent him a notice in pursuance of 1, gave a good and cient notice to bind the defendant, and that notice given enured to the benefit of the appellants.

<f - - - - - n18I

See

STATUTES-Construction

&e

2-BrITISu sees. - - - - - -2 also

3-32 and

4-33 Vic., 1,

Notice Dishonor.

6-41 Vic., and 7,

WARRANTY-Efect of,-Civil Code-Arts. and 1518-Sal. bloc-Deficiency]-By a executed October for the purpose making good of square miles limits which respondents had previously to appellants, together with a saw mill, the right using a road to mill, four acres of land, and right and title obtained from the Crown to square miles of limits a sum of the respondents ceded and transferred "with warranty against all troubles generally whatsoever" the appellants, two other limits containing square ; the description of the limits given in the the following words are to found : "Not to interfere with granted or to renewed view regulations." The limits in found in fact to interwith anterior grants made to I. ld, That the respondents having guaranteed the appellants against all troubles whatsoever, and at the time of such warranty the said miles limits sold having through the negligence of respondent's auteurs, the property H., the appellants were entitled, pursuant to Art. U.0., P.Q., to recover the value of the S. C. R. VOL. VI.]

Continued.

limits from which they had been evicted proportionally upon the whole price, and damages to be estimated according to the increased value of said limits at the time of eviction, and also to recover, pursuant to Art. 0.0., for all improvements, but as the evidence as to propor.

tionate value and damages was not satisfactory, it was ordered that the record should be sent back to the court of first instance, and that upon a report to be made by experts to that court on the value of the same at the time of eviction the case be proceeded with as to law and justice may appertain. Per Henry and Gwynne, JJ., dissenting, That the only reasonable construction which could be put unon the words " with warranty against all troubles generally whatsoever"

in the deed, must be to limit their application to protecting the assignee of the licenses against all claims to the licenses themselves, as the instruments conveying the limits therein described and not as a guarantee that the assignee of the licenses should enjoy the -limits therein described, notwithstanding that it should appear that they were interfered with by a prior license

But, assuming a different construction to be correct, there was not sufficient evidence of a breach of the guarantee. Duruy v.

WILL-Construction of-Surplu-Whet131h'r residuary personal estate of testator pissedj- Among other bequests the testator declared as follows :-" I beuueath to the Worn-out Preachers' and Widows Fund in connection with the

Wesleyan Conference here, the sum of £1,250, to be paid out of the moneys due me by Robert of Fredericion. I bequeath to the

Bible Society £150.

I bequeath to the Wesleyan

Missionary Society in connection with the ference the sum of £1,500."

Then follow other and numerous bequests.

The last clause of the will is:-"Should there be any surplus or deficiency, a pro rata addition or deduction, as may he, to be made to the following bequests, namely, the Worn-out Preachers' and Widows'

Fund

Wesleyan Missionary Society;

Bible

Society."

When the estate came to be wound up, it was found that there was a very large surplus of personal estate, after paying all annuities and bequests.

This surplus was claimed, on the one hand, under the will, by these charitable institutions, and on the other hand by the heirs-at-law and next of kin of the testator, as being residuary estate, undisposed of under his will.

Ifid, affirming the judgment of the

Supreme Court of New Brunswick, that the

" surplus" had reference to the testator's personal estate out of which the annuities and legacies were payable; and therefore a pro rata addition should be made to the three abovenamed bequests, Statutes of Mortmain not being force in New Brunswick. (Fournier and

Henry, JJ., dissenting.]

et al. Tia

WITNESS-Refusal to answer questions on

WITNESS.-Continued.

examination-Privileged communicatione-.Improper ruling-isdirection.] Plaintiff (respondent), a teller in a bank in New York, absconded with funds of the bank, and came to John, N. B., where he was arrested the defendant (appellant), a detective residing in N.S., and imprisoned in the police station for several hours. charge having made against him he was released. While plaintiff was a prisoner at the police station, the defendant went to plaintiffs boarding house and saw his read to her a telegram and demanded and obtained money had in her possession telling her that it belonged to the bank and that ier husband was in custody. In an action for assault and false imprisonment and for money had and the defendant pleaded, inter alm, that the been fraudulently stolen by the plaintiff at the city New York, from the bank and was not the money of the plaintiff ; that defendant as agent of the bank, received the money to and the use of the bank, and paid it over to them. Several witnesses were examined, and the plaintiff being examined as a witness on behalf did not, on cross-examination, answer certain questions, relying, as said, upon counsel to advise him, and on being interrogated as to his belief that his doing would tend to criminate him, remained silent, and pressed refused to answer whether he appreended serious consequences if answered the question proposed.

The learned judge then told the jury that there was no identification of the money, and directed them that, if they opinion that the money was obtained lorce duress from plaintiff's wife, they should find the plaintiff. Hlfd (Ilenry, J., dissenting): That the defendant was entitled to the oath of the party that objected to answer because believed answering would tend to criminate PURCHASER- agreement- Subsequent dmed-Vendor and purchaser-Alleged fraudulent representation vendor-Refusal to postpone hearing.] W. (plaintiff) desirous of securing a residence, entered into negotiations with S. (defendant) to purchase a house which defendant was then erecting. WV. alleged that the agreement was, that he should take the land lots) at a lot of frontage, and the materials furnished and done at its value.

In August, a mortgage were executed, the consideration stated in both at The mortage was afterwards assigned to the

. and N. W. L. pany. alleged in his bill, that in violation of good faith, and taking advantage of IV's ignorance of such matters, and the confidence placed in inserted the mortgage a larger sum than the balance due as a fair and reasonable market value of the lands, and of what had done to the dwelling house and other premises, he prayed that an account might be taken the amount due. repudiated the allegation PURCEASER.-Continued.

fraud, and alleged that had every opportunity to satisfy himself, and did satisfy himself, the value what was getting; that he had told the plaintiff valued the land at and that in no way had sought to take advantage the plaintiff was unable to present at the hearing, and applied for agostoeet on the grounds set f an aidv that was material witness his behalf, that it was not him, his state health, to travel from to Winnipy.

J , refused the postponement, on the ground that the court was only asked now to that the account should opened and perly taken, and the amount ascertained, which would done the master if the court should decide,and that the defendant would then have an opportunity of being present, and that he was not necessarily wanted at the hearing; and, as the result the evidence, made a decree

VENDOR PUCRASER.-CbntiuuedL accordance with the contentions of the plaintiff, and directed an account to taken.

Chief Justice of the Supreme Court, under of the Supreme Court Amendment Act allowed an appeal direct to the Supreme Court of Uasada, it being known that there were then only two ludgea on the bench in Manitoba, the plaintiff (Chief justice) and Dubuc, J., whose decree the appeal was brought. Held, that under the circumstances, the case ought not to have proceeded with in absence of appellant, without allowing him the opportunity of giving his evidence.

Per Ritchie, U.J., rong and Gwynne, JJ, that on the merits there was no ground shown to entitle the plaintiff to relief. Per Ritrhie, C.J., and Strong, J., that the bill upon its face alleged no ground in euity for relief, and was demurrable. Souas