Majority
The word "royalties," in section 109 of the B.N.A. Act, must be construed in its primary and natural sense as the English equivalent of "Jura regalia" and its scope is not limited by its association with the words "lands, mines and minerals."
Bona vacantia fall within the meaning of that term and therefore belong to the Davies C.J. contra.
APPEAL from the judgment of the Exchequer Court of Canada, maintaining the respondent's action. The material facts of the case and the questions in issue are fully stated in the judgments now reported. * PRESENT:-Sir Louis Davies C. J. and Idington, Duff, Anglin, Brodeur and Mignault JJ.
J. A. Ritchie K.C. for the appellant.-The term "royalties" is not limited to escheats or something arising out of land but should be construed in its full natural and primary sense.
E. L. Newcombe K.C. and C. P. Plaxton for the respondent.-The scope of the word "royalties" ought to be limited by reference to the subjects with which it is found associated in section 109 B.N.A. Act. term includes only those royalties which are connected with "lands, mines and minerals."
The qualifying words "the property of the province," attached to the enumeration in section 109 have the effect of confining the operation of that section to subjects in respect of which at Confederation the province not only possessed the power of appropriation but had also exercised that power.
(dissenting).-The question to be determined in this case is whether the sum of $7,215, representing the proceeds of certain assets and effects in the province of British Columbia agreed by both parties to be bona vacantia belongs to the Province of British Columbia or to the Dominion of Canada. The answer to this question depends upon the construction to be placed upon sections 109 and 126 of the "British North America Act, 1867." The learned President of the Exchequer Court held After carefully reading the several judgments of the Judicial Committee which deal with the construction of the two sections, and having given the question CoLumBA before, us my best consideration, I have reached the same conclusion.
The Chief
Mr. Newcombe on behalf of the Crown submitted Justice.
that the legislature of British Columbia having had power before and at the union of that province with Canada to appropriate the casual revenue arising within the colony from bona vacantia, with the assent of the Crown, it follows, whether the power was exercised or not, that the casual revenues from this source fall within sec. 102 of the B.N.A. Act and, therefore, belong to the Consolidated Revenue Fund of Canada, unless they be part of the revenue covered by the words of exception in that section.
In Attorney-General of Ontario v. Mercer (1), the Earl of Selborne delivering the judgment of the Judicial Committee, said, at page 775:
The words of exception in sec. 102 refer to revenues of two kinds: (1) such portions of the pre-existing "duties and revenues" as were by the Act "reserved to the respective Legislatures of the provinces" and (2) such duties and revenues as might "be raised by them, in accordance with the special powers conferred upon them by the Act" It is with the former only of these two kinds of revenue that their Lordships are now concerned; the latter being the produce of that power of "direct taxation within the provinces, in order to the raising of a revenue for provincial purposes" which is conferred upon Provincial Legislatures by sec. 92 of the Act.
There is only one clause in the Act by which any sources of revenue appear to be distinctly reserved to the provinces, viz., the 109th section: "all lands, mines, minerals and royalties belong to the several provinces of Canada, Nova Scotia, and New Brunswick, at the Union * * * shall belong to the several provinces of Ontario, Quebec, Nova Scotia and New Brunswick, in which the same are situate or arise," etc. The Judicial Committee in that case held that in this section included the revenue arising from escheated lands. In the Precious Metals (1) 8 App. Cas. 767.
Case (1), that Committee held that it reserved to the provinces the revenues arising from gold and silver mines. In neither of these cases did the Judicial Committee feel called upon to decide whether the word "royalties" in sec. 109 extends to other royal rights besides those connected with or arising out "lands, mines and minerals."
The question now presented is whether "royalties" in this section includes the casual revenue arising from bona vacantia in The Judicial Committee seems to have concluded the question adversely to the province in the interpretation which it has put upon said sec. 109 in the cases which have come before it. In Mercer's Case (2) the Judicial Committee uses language as to the object and effect of the word "royalties" which limits the word to Royal territorial rights. This meaning is confirmed by Lord Watson in St. Catharines Milling and Lumber Co. v. The Queen when, at page 58, referring to sec. 109, he said:
If this be a correct and comprehensive interpretation of the object and effect of sec. 109, and I am disposed to think it is, then it cannot apply to royal rights which are not territorial, such as rights in respect of personal property, e.g.,
The alternative contention would seem to be that "royalties" must be understood in an unlimited sense-that is to say as comprehending not merely all royal territorial revenues-i.e., the revenue arising rOm lands, mines, minerals-but also all other royal revenues.
In the result, I have reached the conclusion that the . term "royalties" in section 109 following the words "lands, mines, minerals,"
should be construed as limited to royalties incident to or arising out of the preceding words. In other words, the term "royalties" extends to such as arise out of territorial rights only, and does not extend to bona vacantia such as are in question in this action.
The Judicial Committee in the cases I have referred to, in accordance with its usual practice, was careful to confine its actual decision to the questions specially before it for decision in each case. But the. observations used alike by Lord Selborne and by Lord Watson, which I have quoted, are such as to satisfy my mind at any rate that the true construction of the section is such as I have stated.
J.-A company incorporated in England in 1871 to carry on business in British Columbia having, in the exercise of such powers as given it in that regard, acquired property in that province, of which the sum of $7,215.04 proceeds thereof remained in the hands of respondent Rithet some time after the time of the dissolution of the said company and later death of its liquidator without any special provision in law for the disposition of said balance.
Mr. Rithet applied to English representatives of the Crown, and in turn was referred by such to those in British Columbia or Canada.
Hence proceedings were taken in the Exchequer Court here by the Dominion authorities as against Rithet and the Attorney-General of British Columbia. The case was tried before Sir Walter Cassels J. of that court who rendered judgment on the 22nd January, 1918, awarding the said money, less costs of Mr.
Rithet, to the respondent on behalf of the Dominion.
The Attorney-General for British Columbia appeals here from that decision, claiming that such bona vacantia belong to the Crown on behalf of that provunce.
We are not enlightened by way of evidence or admissions from what source this balance of money now in question was derived, or exactly when it was realized.
The same kind of commendable industry as was devoted to produce the interesting results put before us in the case and appendix possibly would have disclosed that the-original source of the money was an exploitation of the natural resources of the province, now in law beyond dispute belonging to it, such as the precious metals, for example, and realized upon since the dissolution of the company.
The exact date of the conversion thereof into money might in relation to the actual facts of the date of the extinction of the company and legal authority of any one to represent it have shed some light upon the basic facts, or what should have been looked upon as the basic facts, to which the relevant law should be applied. It may have been that the conversion into money took plhce after the property had become bona vacantia and, under such circumstances, as to entitle appellant beyond doubt to recover same.
The converse speculation as to whether or not the conversion was of property to which the Imperial authorities on behalf of the Crown could have claimed, under the circumstances, upon the actual facts if disclosed, might have put the respondent on behalf of the Dominion out of court.
We are deprived of the instruction or perhaps E amusement which a close investigation might have led to, and must, leaving appellant in future to see that CoLMA his province is adequately protected by administrative or legislative measures, proceed on the assump- Idington J. tion that the bona vacantia in question must be of some class that is neither land, mines or minerals, but may be of the class which can be properly described as within the class named "Royalties" in section 109 of the B.N.A. Act of 1867, which reads as follows:- 109.-All lands, mines, minerals, and royalties belonging to the several provinces of Canada, Nova Scotia and New Brunswick at the Union, and all sums then due or payable for such lands, mines, minerals, or royalties, shall belong to the several piovinces of Ontario, Quebec, Nova Scotia and New Brunswick in.which the same are situate or arise, subject to any trusts existing in respect thereof, and to any interest other than that of the province in the same.
I am clearly of the opinion that the word "royalties" as used in that section never was intended to be given only the narrow and limited interpretation and construction that is contended for by counsel for the respondent on behalf of the Dominion.
I cannot conceive of the men who in fact framed the scheme of government to carry out which this Act was enacted, listening for a moment to such a contention, unless to laugh at it.
In the Mercer Case (1), Lord Selborne delivering the judgment of the Judicial Committee of the Privy Council, spoke as follows:- It appears, however, to their Lordships to be a fallacy to assume that because the word "royalties" in this context would not be inofficious or insensible, if it were regarded as having reference to mines and minerals, it ought, therefore, to be limited to those subjects. They see no reason why it should not have its primary and appropriate sense, as to (at all events) all the subjects with which it is here found associated,-lands as well as mines and minerals; even as to mines and (1) 8 App. Cas. 767 at p. 778.
minerals it here necessarily signifies rights belonging to the Crown jure coronae. The general subject of the whole section is of a high political nature; it is the attribution of royal territorial rights, for purposes of revenue and government, to the provinces in which they ro Barris are situate, or arise. It is a sound maxim of law, that every word ought, prima facie. to be construed in its primary and natural sense, unless a secondary or more limited sense is required by the subject or the context. In its primary and natural sense "royalties" is merely Idington J. the English translation or equivalent of "regalitates," "jura regalia,' "jura regia."
(See, in voce "royalties" Cowell's "Interpreter" Wharton's Law Lexicon; Tomlins' and Jacobs' Law Dictionaries.) "Regalia" and "regalitates" according to Ducange, are "jura regia;" and Spelman (Glos. Arch.) says, "Regalia dicuntur jura omnia ad fiscum spectantia." The subject was discussed with much fullness of learning, in Dyke v. Walford where a crown grant of jura regalia, belonging to the county palatine of Lancaster, was held to pass the right to bona vacantia. "That it is a jus (said Mr. Ellis, in his able argument, ibid, p. 480) is indisputable; it must also be regale, for the Crown holds it generally through England by Royal prerogative, and it goes to the successor of the Crown, not to the heir or personal representative of the Sovereign. It stands on the same footing as the right to escheats, to the land between high and low water mark, to felons' goods, to treasure trove, and other analogous rights."
With this statememt of the law their agree, and they consider it to have been, in substance, affirmed by the judgment of Her Majesty in Council in that case.
Part of that was quoted by Lord Watson approvingly in the Precious Metals Case (2).
Needless to say these cases did not decide the question raised herein, but these dicta from high authorities point the way in which we should go to interpret and construe such an Act as that now in question; I respectfully submit that was not the path followed by resporndent or this litigation never would have arisen.
The said dicta indicate the trend of thought I have sought to apply in my perusal of this case which consists chiefly of argument.
Reading, in that spirit the word "royalties" which the conjunction "and" in said section 109 indicates to be given a separate and distinctly additional item (2) 14 App. Cas. 295 at p. 304.
of subject matter or class of revenue, to be assigned each of the respective provinces, I conclude that the appellant province is entitled by such reading alone to the bona vacantia in question.
There is no doubt of its being entitled under the terms of its union with the Dominion to that much. And the articles to which we have to refer to find the terms of the Union with the Dominion, indicate to me, that if British Columbia had, before the Union, any greater rights in regard to such a subject as that now in question, she did not lose them by reason of the Union.
The respective rights in this regard of the several provinces which originally constituted the Dominion may not have been identically the same, but the law enacted in 15-16 Vict., c. 39, ss. 1 and 2, put all such colonies as British Columbia on the same footing in that regard, unless wherein otherwise provided for. British Columbia's history I need not follow. She, at least by the time of her union with Canada, had acquired the right to assert the right given, to claim and collect such sources of revenue as now in question.
I repeat I cannot find that she lost, by the Union, any such right.
I cannot agree with Mr., Newcombe's argument that some legislative enactment was necessary before the Union.
The power to enact or assert was continued, and is all she needs to rest upon herein. But it is the sections 126 and 146 of the B.N.A. Act which must be read and applied, as those by and through which the negotiations which took place, under the latter, before reading section 102 which only gives the Dominion that which is left after such adjust- The legal history of that Union is to be found in the pages LXXXIV and CVII of the Orders in Council preceding the Dominion Statutes for 1872.
Properly read and considered along with other material above referred to, I submit with great respect that it seems to me there is no foundation for the judgment appealed from.
The argument of Mr. Ritchie before the Exchequer
Court relative to the powers assigned the provinces over property and civil rights, deserves more attention than it got before us. For let any one who has considered the questions from that point of view and all that succession duties mean, and, in the last analysis, the fundamental question of the right in or to property, and see how easy it is for the local legislature to take care not only of the property of the intestate, who has only remote next of kin, but also by same power to avoid the need of any consideration of failure of heirsat-law or next of kin by supplying a substitute therefor, and then it would appear that the contention set up herein is hardly worth while.
I think this appeal should be allowed with costs, if any, to be allowed respondent Rithet, to be paid by his co-respondent, or out of the fund.
If there is an understanding, as probably there is, that the other parties are not to recover from each other costs, neither ought to recover costs.
Possibly there should be no costs directed except as to Mr. Rithet.
J.-Both the Dominion and the Province concur in presenting the view which the very able argument on behalf of the Dominion sufficiently establishes that the hereditary casual revenues of the
Crown including bona vacantia arising within the limits of the Province were included in the "duties and revenues" over which the Province had power of appropriation before the Union; and consequently the question to be determined is whether the word "royalties" in sec. 109 embraces bona vacantia. The scope of that expression was the subject of consideration by the Judicial Committee in Attorney-General v. Mercer
But the question upon which we have now to pass was left undecided.
In effect their Lordships' view expressed in that case, in so far forth as presently relevant, is perhaps most clearly disclosed in the following passage from Lord Selborne taken from p. 778 of the report:- On behalf of the Dominion it is contended that the scope of the word "royalties" ought to be limited by reference to the subjects with which it is "found associated" in sec. 109; that is to say that it includes only those royalties which are connected with "lands, mines and minerals."
The object of the provisions of the B.N.A. Act beginning with sec. 102 dealing with the distribution of property between the provinces and the Dominion was, as their Lordships pointed out in Mercer's Case the attribution of Royal Rights for the purposes of revenue and government as part of a broad political scheme. I can perceive no reason why the word
"royalties" occurring in this enumeration of the assets ATHEY assigned to the provinces should not be given its full natural sense-"its primary and appropriate sense"without restriction.
If the intention had been to express the limited meaning the Dominion seeks to ascribe to the term it would have been easy to employ language more plainly limited in its scope.
In effect the adoption of the Dominion construction involves,
I think, the addition of some qualifying words to the language of the statute.
Mr. Newcombe also argued that the qualifying words, "the property of the province," attached to the enumeration in sec. 109 have the effect of confining the operation of that section to subjects in respect of which at Confederation the province not only possessed the power of appropriation but had also exercised that power. Admittedly bona vacantia had not up to that time been the subject of any special legislation or of any special appropriation to the public purposes of the colony; but I think the suggested consequence does not follow.
As Lord Watson points out in delivering the judgment of the Judicial Committee in the Liquidator of the Maritime Bank v. Receiver General of New Brunswick the title to the property disposed of by this provision was, and after Confederation remained, in the Queen as Sovereign Head of the province; it was the property of the province in the sense only that the legislature and government of the province had been invested with the power of appropriation over it. That I think, is the sense in which the word "property" is used in sec. 109.
The appeal ought, I think, to be allowed.
J.-It is common ground that the monies paid into court by the defendant Rithet are bona acantia. The parties are also agreed that the province of British Columbia prior to entering Confederation had the right to appropriate casual revenues of the Crown arising within that colony, other than droits of the Crown and droits of Admiralty (15-16 V. (Imp.) c. 39, s. 2), and that revenues arising from bona vacantia did not fall within either exception.
All claim to the property in question has been expressly renounced by the Imperial authorities. That it belongs either to the provincial government of British Columbia or to the Dominion government may therefore be taken for granted.
The question at issue is whether bona vacantia are "royalties" reserved to the province by s. 109 of the "British North America Act," and, as such, excepted from s. 102 and within s. 126 of that statute. The solution of that question depends upon the scope of the word "royalties" in s. 109.
Is it used, as Mr. Ritchie, representing the Attorney-General of British Columbia, contended, in its primary and natural sense, or is it used, as Mr. Newcombe argued on behalf of the Dominion government, in a sense limited by its association with the words "lands, mines, minerals?" The latter view found favour with the learned President of the Exchequer Court.
Section 109 reads as follows:- The applicability of this section to the province of British Columbia is of course conceded.
Nort
Ameica ct" While in s. 102 of the "British North America Act" we find the clause and in s. 109 the phrase,
I cannot seriously doubt that royalties of the class which the provincial legislatures had the right to appropriate were ioyalties "belonging" to the provinces in the sense in which "belonging" is used in s. 109. "Lands, mines (and) minerals" actually "belonged" to the several provinces at the Union.
Stricty speaking, royalties (such e.g. as escheats-The Mercer Case), (1) belong to a province only when they come into existence upon the occurrence of the circumstances out of which they arise-in the case of an escheat, the death of the owner of land intestate and without heirs. The abstract right to- them is what "belonged" to the several provinces at the Union. Hence the use, in the latter part of s. 109, of the two verbs "are situate" and "arise"-the former applicable to "lands, mines (and) minerals," the latter to "royalties."
That bona vacantia fall within the term "royalties" regalitates, jura regalia or jura regia, when used without restrictiop, is authoritatively settled in Attorney-General v. Mercer (1), where the holding to that effect in Dyke & Walford (2), is accepted and a passage from the argument of Mr. Ellis in support of that view (p. 480) is expressly approved.
at
Although their Lordships of the Judicial Committee have twice had to consider the scope and meaning of the term "royalties" as it occurs in s. 109, in accordance with their well established practice when dealing with provisions of the "British North America Act," they, on each occasion, abstained from further definition of it than was necessary for the determination of the case actually before them. Thus, in the Mercer Case (1), they held that it extended, at all events, to all revenues arising from prerogative rights of the Crown in connection with "land" as well as "mines" and "minerals."
In the Precious Metals Case (2), they held that a conveyance by the province of certain "public lands" did not imply a transfer of revenue arising from the prerogative rights of the Crown in regard to precious metals found therein, which belong beneficially to the province, not as mines or minerals and not as an incident of the land, yet under s. 109 and therefore as "royalties."
While their Lordships were careful in these two cases not to say that the term "royalties" is used in sec. 109 in its unrestricted sense, it may I think be gathered from the general tenor of the judgments that they inclined to the belief that its signification is not limited by its association with the words, "lands, mines, minerals."
Thus in the Mercer Case (1)
and they add
In the Precious Metals Case (2), while they said (pp. 304-5)
they pointed out that "mines" and "minerals" in the sense of sec. 109 cover only the baser metals, which are incidents of land, and that the prerogative right in regard to precious metals is a jus regale, and as such not an accessory of land. But their Lordships add that the right to "lands" granted by the province to the Dominion Government by the 11th article of Union did not, to any extent, derogate from the provincial right to royalties connected with mines and minerals under sec. 109 of the "British North America Act." (p. 305) thus indicating that in their view the jus regale in regard to the precious metals is, in some sense, a right connected with "mines" and "minerals," notwithstanding that the latter term as used in sec. 109 comprises only the baser metals.
I find great difficulty in appreciating the force of the argument in favour of restricting the meaning of the word "royalties" to such jura regalia as are associated with "lands, mines (or) minerals."
This is not the ordinary case of generic words following particular and specific words.
"Royalties" is neither more nor less a generic word than "lands, mines, (or) minerals." The fact is that the term "royalties" denotes a class of subjects differing entirely from "lands, mines (and) minerals."
No common genus embraces them. Without belittling the rule of construction invoked on behalf of the respondent-noscitur a sociis-care must always be taken that its application does not oLtmnuA defeat the true intention of the legislature;
Hawke v. THE Dunn (1); and the cardinal rule that
Anglin J an Act of Parliament is to be construed according to the ordinary meaning of the words in the English language as applied to the subject matter, unless there is some other very strong ground derived from the context or reason why it should not be construed,
Hornsey Local Boars v. Monarch Investment Building Society (2)
should not be disregarded.
I share, to some extent, the view expressed by Rigby L. J. in Smelting Co. of Australia v. Commissioners of Inland Revenue (3).
The rule of construction which is called the ejuadem generis doctrine or sometimes the doctrine "noscitur a sociis" is one which, I think, ought to be applied with great caution because it implies a departure from the natural meaning of words in order to give them a meaning which may or may not have been the intention of the legislature. Were we to accede to the argument of Mr. Newcombe we would, I fear, put on the ordinary meaning of "royalties" a restriction that Parliament did not intend. Indeed, Parliament has already limited that word by the qualification, "belonging to the several *
*
* at the Union."
Why should the court superadd another?
It may be that from other provisions of the B.N.A. Act other limitations upon the signification of "royalties" should be deduced. For instance, the rights asserted by the Dominion to legislate concerning bona conflscata, deodands and royal fish, may be well founded; but, saving such possible exceptions, with profound respect, "neither in "the subject nor in the context" do I find adequate reason for giving to the word "royalties" in s. 109 (1) 1 Q.B. 579, at p. 586.
(2) 24 Q.B.D. 1, 5. (3) 11897] 1 Q.B. 175, at p. 182.
other than its primary and natural meaning. I think it includes the jus regale to bona vacantia. It would, indeed, present a curious incongruity if escheats should be included in, but bona vacantia excluded from, the royalties granted to the provinces.
I would therefore allow this appeal and direct that J. judgment be entered for the Attorney-General of J.-I concur with Mr. Justice Duff. J.-The controversy here is whether the province of British Columbia or the Dominion of Canada is entitled to certain monies, to wit $7,135 brought into court by the defendant, Robert Paterson Rithet, who, as agent for the liquidator of the Colonial Trust Corporation, a company incorporated in England and which was dissolved in 1904, collected these monies in British Columbia as being due to the company. The liquidator died in 1911, and the Crown as represented by the Government of the United Kingdom makes no claim to this sum. Both parties before us concede that the monies in Mr. Rithet's hands are bona vacantia and it is on this basis that the court below dealt with them, and decided that they should be paid to the government of the Dominion. The Attorney-General of British Columbia now appeals and I will assume, as the parties both contend, that the monies collected by the defendant are really bona vacantia. The shareholders, if any remain, of the dissolved company have made no claim to these monies, and should they ever do so, nothing in the judgment to be rendered should stand in the way of justice being done to them.
The question to be decided turns on the construction of sections 102 and 109 of the "British North America Act, 1867," which are as follows:- G.
102. All duties and revenues over which the respective legislatures of Canada, Nova Scotia and New Brunswick before and at the Union Mignault J. had and have power of appropriation, except such portions thereof as are by this Act reserved to the respective legislatures of the provinces, or are raised by them in accordance with the special powers conferred on them by this Act, shall form one consolidated revenue fund, to be appropriated for the public service of Canada in the manner and subject to the charges in this Act provided.
109. All lands, mines, minerals and royalties belonging to the several provinces of Canada, Nova Scotia and New Brunswick at the Union, and all sums then due or payable for such lands, mines, minerals or royalties, shall belong to the several provmces of Ontario, Quebec, Nova Scotia and New Brunswick in which the same are situate or arise, subject to any trusts existing in respect thereof, and to any interest other than that of the province in the same.
British Columbia came into the Canadian Confederation in 1871 and these sections apply to it as if it were named therein. Attorney-General of British Columbia v. Attorney-General of Canada. The Precious Metals Case (1).
The point which arises in this case is not 'covered by any authority by which we are bound. In Attorney- General of Ontario v. Mercer (2), the question of the meaning of the word "royalties" in section 109 was considered by the Judicial Committee, but as their Lordships stated in the Precious Metals Case (1), at page 305, their decision did not go further than to hold that the word "royalties"
comprehends, at least, all revenues arising from the prerogative rights of the Crown in connection with "lands," "mines," and "minerals."
(1) 14 App. Cas. 295, at p. 304.
App. Cas. 767. On behalf of the Dominion it is contended that this is all that the word "royalties" really comprehends; that to understand it in a general sense as synonymous with jura regalia would be to give to the provinces some species of property coming within the meaning jura regalia, such as wrecks, confiscated property or deodands, which belong to the Dominion; and that since the word "royalties" as used in section 109 cannot be taken without some restrictions, a fair construction would be to limit these royalties to those connected with the enumerated species of property, lands, mines and minerals, applying the ejusdem generis rule.
The contention of British Columbia is that "royalties" in section 109 should receive its natural meaning as the English equivalent of jura regalia, and that as bona vacantia are among the jura regalia to which the King was entitled by virtue of his prerogative, the property in question belongs to the province and not to the Dominion. It is also suggested that at least the term "royalties" comprises any species of property as to which the province has powers of legislation, which would explain the exclusion of wrecks, deodands and property confiscated by virtue of the criminal law. It was argued in the Mercer Case (1) that the term "royalties" had a special meaning restricting it to a royal right connected with mines and minerals, but their Lordships considered it a fallacy to assume that because the word "royalties" in this context would not be inofficious or insensible, if it were regarded as having reference to mines and minerals, it ought therefore to be limited to those subjects. They also said that they saw no reason why it should not have its primary and appropriate meaninig, as to (at all events) all the subjects with which it is here found associated-lands as well as mines and minerals, adding that the general subject of the whole section is of a high political nature, that it is the attribution of royal territorial rights, for purposes of revenue and government, to the provinces in which they are situate or arise.
If the object of section 109 is to attribute royal territorial rights for purposes of revenue and government to the provinces in which they are situate or arise, can it be applied to mere personal property such as this sum of money which the defendant collected in British Columbia as being due to the dissolved There does not appear to be any occasion here-since the monies collected are bona vacantia and therefore without an owner-to apply any rule such as mobilia sequuntur personam. The property is in British Columbia and has no other situation, real or notional.
Moreover the whole question is whether bona vacantia of such a kind, under section 109 of the "British North America Act," come within the meaning of the word "royalties" as used in that section. If they do, they are within the exception made by section 109 to section 102 and belong to British Columbia; if not, under the general rule of section 102, they should go to the Dominion.
After full consideration, my opinion is that the word "royalties" in section 109, should be construed in its primary and natural sense as being the equivalent in English of jura regalia. Thus construed, it comprises bona vacantia (see Dyke v. Walford (1) approved by the Judicial Committee in the Mercer Case (2)). VOL. LXIII. my judgment it is not restricted or controlled by the words "lands, mines and minerals" which precede.
It is a fourth head added to lands, mines and minerals, and should comprehend all property which is properly described as "royalties," or at least such property as the property here in question. It may be that under Imperial statutes some species of jura regalia such as wrecks, do not go to the province, a point on which it is unnecessary to express an opinion here. It may also be that as an incident of the legislative authority of the Dominion Parliament over criminal law, property confiscated by virtue of the decision of a court of criminal jurisdiction should be attributed to the
Dominion, a point also which does not call for a decision in this case.
All that I intend to hold is that bona vacantia of the kind here in question belong to the province under section 109.
I have not failed to notice the ingenious argument of
Mr. Newcombe, founded on the difference of expression between sections 102 and 109, that while at the Union the province of British Columbia had the power of appropriation over "royalties" in the general sense, which would bring them under the general rule of section 102, it is not shown that this species of property
"belonged" to British Columbia at the union, section
109 referring to "royalties" belonging to the province at the Union. But in my opinion the question here is of a right belonging to the province, and where the province has the right of appropriation over property it seems to me clear that the right to that property belongs to the province. I therefore think that this argument, while ingenious, is not conclusive against the right of British Columbia to claim the property in question.
I would in consequence allow the appeal but without costs and decide that the monies in Mr. Rithet's hands should be paid to the province of British Columbia. I agree with the first court that Mr. Rithet is entitled to his costs.
Appeal allowed with costs. Solicitor for the appellant: J. A. Ritchie.
Solicitor for the respondent: C. P. Plaxton.
ACTION-Appeal
- Jurisdiction - Action by nominal plaintiff dismissed- Motion asking payment of costs by real plaintiff.] In May, 1920, the plaintiff obtained judgment before the County
Court against the defendant for damages caused by an automobile collision but on appeal the action was dismissed. The costs of the trial and appeal having been taxed at $1,165.05, execution against the plaintiff was returned nulla bona.
On February 24th, 1921, a motion was made by the respondent for an order that the appellant, on whose behalf, as insurer of the plaintiff, the action had really been prosecuted, should pay the respondent's costs. The judgment granting the motion was affirmed by the Court of Appeal, and on motion to quash an appeal to this court:-Held,
Brodeur
JJ. (dissenting)
, that, as the action had been begun before the 1st of July, 1920, the right of appeal to this court must be determined upon the provisions of the
"Supreme Court Act" as they stood before the amendments of 10 & 11 Geo.
V., c. 32, which became effective on that date. ST.
Co. FEWSTER...................
ALIEN-Taxes
- Notice - State war-Sale of land.................
2 - Constitutional law - Government contracts - Employment of Japanese or
Chinese-Legislative prohibition-11 Geo.
V., c. 49 (B.C.).................
3- Licence to cut timber-Condition- Non-employment Japanese or Chinese- Validity-Injunction.............. 466
ANNUAL RENTS - Obligation of donee-Sister's right-Refusal- Charge on land....................
Jurisdiction - Obligation to provide home-Refusal by donee-Conversion into payment of money.] Under a deed of gift of a house from her father to the appellant, her brother, the respondent was entitled to a home with the donee as long as she remained single. Alleging failure by the appellant to fulfil his obligation, the respondent brought action to convert such obligation into a payment of money and to have the immovable charged with the amount awarded.
The trial judge held that the appellant should pay the sum of $20 per month or provide the respondent with a home, but did not adjudicate upon the claim that the donated immovable be hypothecated as security, and this judgment was affirmed by the Court of King's Bench.-Held, that there was jurisdiction in the Supreme Court of Canada to entertain an appeal. Mignault J. dubitante. v. 2-Leave to appeal-Criminal law- Conflict of decisions-Cr. C. sect. 1024a, as added by 10 & 11 Geo. V., c. 43, s. 16.] Section 1024a of the Criminal Code provides that "either the Attorney General of the province or any person convicted of an indictable offence may appeal to the Supreme Court of Canada from the judgment of any court of appeal * * * if the judgment appealed from conflicts with the judgment of any other court of appeal in a like case."-Held, that the conflict must be one on a question of law.
V. ...... - Jurisdiction - Action by nominal plaintiff dismissed-Motion asking payment of costs by real plaintiff- "Judicial proceeding"-"Final judgment" -Equal division of the court on motion to quash-"Supreme Court Act," R.S.C. c. 139, s. 37-"Supreme Court Act" as amended by 10 & Geo. V., c. 32.] In May, 1920, the plaintiff obtained before the County Court against the defendant for damages caused by an automobile collision but on appeal the action was dismissed. The costs of the trial and appeal having been taxed APPEAL-Concluded.
at
$1,165.05, execution against plaintiff was returned nulla bona. On
February 24th, 1921, a motion was made by the respondent for an order that the appellant, on whose behalf, as insurer of the plaintiff, the action had really been prosecuted, should pay the respondent's costs. The judgment granting the motion was affirmed by the Court of Appeal, and on motion to quash an appeal to this court.-Held, Idington and Brodeur JJ.
dissenting, that, as the action had been begun before the 1st of July, 1920, the right of appeal to this court must be determined upon the provisions of the
"Supreme Court Act" as they stood before the amendments of 10 & Geo.
V., c. 32, which became effective on that date.-Per Davies C.J. and Duff and
Anglin JJ.-The judgment granting the motion is not susceptible of appeal as a
"final judgment" under sect. 37 of the
"Supreme Court Act," R.S.C. (1906), c. 139.
Brodeur J. contra.-As three of the six judges were of opinion that the court had no jurisdiction, it was considered that a hearing on the merits would be futile and the appeal was dismissed without costs.
ST.
WEST- AssuRANcE Co. FEWSTER.
4 - Jurisdiction - Interlocutory injunction - Substantive right - Final judgment - Discretion-"Supreme
A judgment refusing an interlocutory injunction, in which no substantive right is determined, is not a "final judgment" as that term is defined in sec. 2 (1) of the Supreme
Court Act and therefore not appealable to this court.-Per Brodeur J. Such a judgment is one in which the judge of first instance exercises his discretionary powers and is non-appealable by sect.
38 of the Act.
ST. Louis.....................
5- Appeal-Discretion - Final judgment-10-11 Geo. V., c. 32, 8. 1 ......
See 6.
ASSESSMENT AND TAXES-Municipal corporation - Taxation powers - Brige-"Immovable"-"Cities and Thwns
R.S.Q.
(1909, art. 5730-R.S.Q.
(1909) arts. 5280, 5281, 5282-"Charter of the town of Ste. Rose," 8 Geo. V., c. 98,
10, 11. (L.C.) 1830, 10 & 11 Geo. IV., c. 56-Arts. 375, 376, 377, 381 C.C.- ASSESSMENT AND TAXES-Cont'd. Art. 16 M.C.]
By a statute of Lower Canada of 1830 (10 & 11 Geo. IV., c. 56), one James Porteous, the assignor of the appellant, was authorized by the Crown to erect a toll bridge crossing a river between the town of Ste.-Rose and the village of Ste.-Th6rbse, the Crown reserving the right to become owner after fifty years by paying its value. The respondent brought an action to recover taxes imposed on part of the bridge.-Held, that the part of the bridge extending to the middle of the river was subject to taxation, as it was within the municipality and the property of the appellant and not of the Crown, such bridge being an "immovable"
within the meaning of article 5730 R.S.q. (1909).-Judgment of the Court of King's Bench (Q.R. 30 K.B.
181) affirmed.
ROSE........................ 2 - - Assessment of lands - Agricultural purposes - Power of Court of Revision - Whether imperative or discretionary - Jurisdiction - Judicial discretion -B.C.
"Municipal Act," s.s. 3 of 8. 219, as enacted by 9 Geo. V., c. 63- "Act to amend the Supreme Court Act," 10 & 11 Geo. V., c. 32, s. 1, s.s. (b).] Subsection 3 (c) of section 219 of the B.C. "Municipal Act," as enacted by 9 Geo. V., c. 63, provides that inter alia "the powers of (the Court of Revision) shall be
*
*
* to fix the assessment upon such land as is held in lBlocks of three or more acres and used solely for agricultural or horticultural purposes, and during such use only at the value which the same has for such purposes without regard to its value for any other purposes." -Held,
Duff and Anglin JJ. (dissenting)
, that this provision is imperative and does not admit of any discretionary power in the Court of Revision; that it requires that court to fix at its agricultural value the assessment of all lands held in blocks of three or more acres; and that the only discretion given the court is that of finding whether the land is solely used for agricultural purposes.-Per Idington J.-Assuming such a provision to be discretionary, then this case would not be appealable to this court, as it is expressly excluded by s.s. (b) of the first section of the "Act to amend the Supreme Court Act" 10 & 11 Geo. V., c. 32.
SHANNoN.... ASSESSMENT AND TAXES--Concl'd.
3 - Non-payment of taxes-Proceedings for forfeiture- Notice to owner - Alien - State of war - Illegality - "Rural Municipality Act,"
Alta. S. (1911-12) c. 3, ss. 309 to 319.]
RURAL
BILLET DE LOCATION
Contract of carriage - Passenger - Ticket - Conditions -Exemption from liability-Knowledge of passenger- Reasonable notice to passenger-Evidence for jury.] The respondent paid the appellant passage money for a voyage on their steamer and received a transportation ticket. The document handed to the respondent was at the outset called
"this ticket;" the words "subject to the following conditions" were found in the tenth line of a paragraph of small type;
there was no heading such as "conditions;" the seventh paragraph stipulated that "the company
*
*
*
(was) not
*
*
* liable for
*
*
* injury to the passenger
*
*
* arising from the
*
*
* negligence of the company's servants
*
*
* or from other cause of whatsoever nature;" at the end of a series of eleven distinct conditions, occupying sixty-six lines of small type closely printed, were the following words:
"I hereby agree to all the provisions of the above contract;" and then blank spaces were provided for signatures by the purchaser and a witness. The ticket sold had been destroyed by the appellants, but the jury found that the respondent had not put her signature to it. The respondent also denied knowledge of any conditions relating to the terms of the contract of carriage. The respondent, in debarking from the steamer, was injured and sought damages from the appellant. The above facts having been proved at the trial, the jury found that the respondent knew there was printing on the ticket, but did not know that the printing contained conditions limiting appellant's liability and that the appellant did not do what was reasonably sufficient to give her notice of the conditions; and they found a verdict for
CARRIER-Concluded.
her.-Held, Davies
C. J. dissenting, that there was evidence upon which the jury could properly find as they did and that judgment was properly entered for the respondent upon the findings. Richardson, Spence & Co. v. Rowntree ([18941 A.C. 217) discussed; Cooke v. T. Wilson, Sons & Co. (85 L.J.K.B. 888) distinguished. SS. Co. CASES
Aitken v. Winnipeg Electric Ry. Co. (31 Man. R. 74) rev................... 2-Arthabaska v. Chester Est (Q.R. 31 K.B. 475) aff...................
3-Bothwell v. West Wickham (6 Q.L.R. 45) fol........................
4-Bulmer v. Dufresne (Cass. Dig. 2nd ed. 873) fol...................... See SuBsTIuoN.
5--Canada Paper Co. v. Brown (Q.R. 31 K.B. 507) aff................... 6---Canadian Consolidated Rubber Co. v. Belanger (Q.R. 32 K.B. 44) aff ...... 7--Cooke v. T. Wilson Sons & Co. (85 L.J.K.B. 888) dist ..............
8-Decarie v. Samson (Q.R. 29 K.B. 273) aff.......................... 9-Despins v. Dominion Glass Co. (Q.R. 32 K.B. 30) rev.............. 10-Employer's Liability Assur. Corp. v. Melukhova (Q.R. 32 K.B. 146) rev.. 511 11-Goldstein v. Montreal Trust Co. (Q.R. 31 K.B. 157) aff ............. See WILL 2.
CASES-Continued.
12-Greenizen v. Twigg ([1921] 3 W.
W .R.. 493) rev....................
13---Grimsby South v. County of Lincoln
(48 Ont. L.R. 211) rev.............
14--Groulx v. Bricault (Q.R. 31 K.B.
287) aff.......................
15- Ibrahim v. the King ([1914] A. C.
599) appr........................
16- Jamieson v. Jamieson (16 Alta.
L.R. 241) rev.....................
17- Lanston Monotype Machine Co. v.
Northern Publishing Co. (14 Sask. L.R.
371) rev......................
18- Lombard v. Varennes (Q.R. 32
K.B. 164) cons...................
19-Marshall v. Canadian Pacific Lumber Co. ([1921] 3 W.W.R. 209) aff.... 352
20-Meloche v. Simpson (29 Can. S.C.
R. 375) fol....................
21-Montreuil v. Ontario Asphalt Block
Co. (47 Ont. L.R. 227) var........ 401
22-Pointe Anne Quarries v. Whalen
(21 Ex. C. R. 99) var.............
23---Quebec Railway, Light, Heat and
Power Co. v. Vandry ([1920] A.C. 662)
disc.........................
24-Richardson, Spence & Co. v. Rowntree ([1894] A.C. 217) disc...........
25-Ryckman v. Hamilton, &c. Ry. Co.
(10 Ont. L.R. 419) cons............
26-Shannon v. Point Grey ([1921]
3 W.W.R. 442, 549) aff............
See TAXES 2.
CASES-Concluded.
27-Ste. Rose v. Belair (Q.R. 30 K.B. 181) aff ...........................
28-Wolfe Co. v. The King (20 Ex. C. R. 306) aff....................... CIVIL CODE
Arts. 596, 597 (Successions) ......... 207 Art. 838 (Will)................. Arts. 891, 902 (Legatees)............ Arts. 939, 941 (Registration of Substitutions)........................ Arts. 1025, 1027 (Sale of immovable). Art. 1054 (Fault)................ 544 Arts. 2082, 2098 (Registration)....... Art. 2108 (Substitution)............. Art. 2206 (Prescription)............ Art. 2485 (Insurance).............. CODE OF CIVIL PROCEDURE Arts. 957, 968 (Injunctions).......... 243 Art. 685, 686, 690 (Garnishee)....... 511 COLONIZATION - Location ticket - Notice of cancellation-Protest-Right to hearing-Powers of Deputy Minister- Change in Act-Retroaction-R.S.Q. [1909] Art. 1579.
s.s. 5; ss. 102, 106, 108, 109, 117 126,
132, 146-'"Japanese Treaty Act,'
(D.)
1913-3 & 4 Geo. V., c. 27-(B.C.) 1921,
11 Geo. V., c. 49.] The legislature of
British Columbia passed an Act in 1921
(11 Geo. V., c. 49) purporting to "validate and confirm (an) order in council"
which provided that "in all contracts, leases and concessions of whatsoever kind entered into, issued or made by the government, or on behalf of the government, provision be made that no Chinese or Japanese shall be employed in connection therewith."- Held, that the legislature of British Columbia had not the authority to enact this legislation. Idington J. contra and Brodeur J. contra as to the part relating to Chinese.-The Japanese Treaty, made in 1911 between England and Japan, was "sanctioned and declared to have the force of law in
Canada" by a Dominion statute enacted under the powers conferred by s. 132 of the B.N.A. Act (3 & 4 Geo. V., c. 27).
Paragraph 3 of article 1 of the treaty states that the subjects of the high contracting parties "shall in all that relates to the pursuit of their industries, callings, professions, and educational studies be placed in all respects on the same footing as the subjects of citizens of the most favoured nation."-Per Davies C. J.
and Duff and Brodeur JJ. The provincial statute of 1921, as to its part relating to Japanese, is ultra vires of the legislature of the province as being in conflict with the Japanese Treaty. Idington J. contra, and Anglin and Mignault JJ.
expressing no opinion. In re
- Constitutional law - License to cut timber - Condition not to employ Chinese or Japanese-Validity-Injunction.] The respondents were the assignees of a timber license issued by the Deputy
Minister of Lands of British Columbia, in which was inserted the following provision: "this licence is issued and accepted upon the understanding that no Chinese or Japanese shall be employed in connection therewith."
respondents applied to the courts for an injunction restraining the appellants from attempting to enforce such a provision, on the
CONSTITUTIONAL
LAW-Concluded. ground that the statute enabling the department to insert it in the licence was ultra vires.-Held, that the injunction could not be granted.-Per Davies C.
Mignault
JJ. The respondents have no ground for complaint; if the condition is good, they have no grievance; if it is bad, the licence itself is void and the respondents have therefore no status as licensees.-Per Idington J. The legislation of the province is intra vire.-Per Duff J. According to section 50 of the "Land Act" and to section 57, s.s. 3a, as amended by c. 28, s. 6 of the B.C. Statutes of 1910, the Minister of Lands had no authority to renew the licence in February, 1921, unless performance of the condition precedent
(above quoted)
had been waived; performance of the condition during the year ending in February, 1922, had not been waived; thus the respondents' licence had already lapsed or would have lapsed on the 11th of February, 1922, and accordingly the respondents' apphcation must fail.
BRiTisH ...... Scows - Rectification - Limitation - Canada Shipping Act, R.S. C. [1906], c. 113, s. 921.] The owners of the tug Whalen, by contract in writing, agreed to tow the respondent's "barges" between Pointe Anne and Toronto on the terms and conditions stated.-Held, reversing the judgment of the Exchequer Court (21 Ex. C.R. 99). Idington and Anglin JJ. dissenting, that the contract did not include an undertaking to tow "scows" and that the evidence at the trial of an action claiming damages for loss of a scow did not warrant a rectification to bring such towage within its terms.-Per Duff J. The trial judge was wrong in holding that he could resort to the negotiations prior to the contract for evidence of warranty of the tug's capacity and that the contract could be rectified on a mere preponderance of evidence.- Per Duff J. Qu. Has the Exchequer Court, sitting as a Court of Admiralty, the equitable jurisdiction required to empower it to rectify instruments? M. F. Whalen v. QUARRIES........................ CONTRACT-Concluded.
2-Carrier-Contract of carriage-Passenger-Ticket--Conditions - Exemption from liability-Knowledge of passenger- Reasonable notice to passenger-Evidence for jury.] The respondent paid the appellant passage money for a voyage on their steamer and received a transportation ticket. The document handed to the respondent was at the outset called
"this ticket;" the words "subject to the following conditions" were found in the tenth line of a paragraph of small type;
there was no heading such as "conditions;" the seventh paragraph stipulated that "the company
* * * (was) not
*
*
* liable for
*
*
* injury to the passenger * * * arising from the
* * * negligence of the company's servants * * * or from other cause of whatsoever nature;" at the end of a series of eleven distinct conditions, occupying sixty-six lines of small type closely printed, were the following words:
"I hereby agree to all the provisions of the above contract;" and then blank spaces were provided for signatures by the purchaser and a witness. The ticket sold had been destroyed by the appellants, but the jury found that the respondent had not put her signature to it.
The respondent also denied knowledge of any conditions relating to the terms of the contract of carriage. The respondent, in debarking from the steamer, was injured and sought damages from the appellant. The above facts having been proved at the trial, the jury found that the respondent knew there was printing on the ticket, but did not know that the printing contained conditions limiting appellant's liability and that the appellant did not do what was reasonably sufficient to give her notice of the conditions; and they found a verdict for her.
-Held,
Davies C.J. (dissenting)
, that there was evidence upon which the jury could properly find as they did and that judgment was properly entered for the respondent upon the findings.
Richardson, Spence &
Co. v. Rowntree A.C. 217) discussed)
Cooke v. T. Wilson, Sons & Co. (85 L.J.K.B.
888) distinguished. TRUNK PACIFIC
SS. Co. v. SIMPsoN ........... 361
3--Contract-Sale of land-Fraud-Collusion between vendor and one of several purchasers-Claim by purchasers for rescission-Restoration of property-Sufficiency of restitution-Damages for deceit. TWIGO
GREENIZEN.....................
CRIMINAL
LAW-Appeal-Leave to appeal-Conflict of decisions-Cr. C., sect. 1024a, as added by 10 & Geo. V., c. 43 s.
Section 1024a of the Criminai Code provides that "either the Attorney General of the province or any person convicted of an indictable offence may appeal to the Supreme Court of Canada from the judgment of any court of *
*
* * if the judgment appealed from conflicts with the judgment of any other court of appeal in a like case."-Held, that the conflict must be one on a question of law.
THE KING V. JANOUSKY........................ 2--Charge of murder-Warrant against accused in United States as undesirable- Admissions before emigration officers- Admissibility of evidence-Voluntary statement.] A warrant of arrest having been issued against the appellant on a charge of murder committed in a lumber camp near Quebec, his presence in the City of Detroit was discovered a year later by a Canadian detective. Instead of instituting extradition proceedings, the detective obtained the arrest of the appellant under a warrant of deportation, as an undesirable, issued by the U.S. Immigration authorities.
On being brought before two emigration officers and informed that he would be deported, the appellant declared that he was "as good as dead." The officer asked: "Wh
" and the then answere by making certain admissions as to his presence at the lumber camp at the time of the murder. At the trial, the two officers gave evidence as to these statements by the accused.-Held, that the evidence was admissible, as the statements made by the accused were "voluntary" within the rule laid down in the case of Ibrahim v. The King ([1914] A.C. 599), Mignault J. dubitante. v. THE CROWN-Crown-Public work-Injury to property- Negligence of Crown officials -ExchequerCourt Act-R.S.C. [1906] c. 140 s. 20; 7-8 Geo. V., c. 23.] Under a lease for an indefinite period and terminable on fourteen days' notice the Government Canada occupied the basement and first a building as a recruiting station in 1916-17.
A fire originating on the premises while so occupied destroyed property belonging to the tenants of adjacent premises who claimed compensation by petition of right.-Held, affirming the judgment of the Exchequer Court (20 Ex. C.R. 306) Duff J. dis- CROWN-Concluded.
senting, that the portion of the building so occupied by the Government was not a "public work" within the meaning of that term as used in sub-sec. (c) of sec.
20 of the Exchequer Court Act.-Per
Duff J. The meaning of "public work"
as that term is used in sub-sec. (c) is not confined to property of which the Crown has a title not less ample than a title in fee simple or to property constructed or in course of construction by the Crown.- Per Anglin and Mignault JJ. It includes any operation undertaken by or on behalf of the Crown in constructing, repairing or maintaining public property.
WOLFE
Co. v.
2 - Construction - "Royalties" - B. N.A. Act,
(1867) sa. 102, The word "royalties," in section 109 of the B.N.A. Act, must be construed in its primary and natural sense as the English equivalent of "jura regalia" and its scope is not limited by its association with the words
"lands, mines and minerals."
Bona vacantia fall within the meaning of that term and therefore belong to the
Davies C.J. contra. AiroR- BRITISH
CROWN LANDS-Quebec
- Location ticket - Cancellation - Powers of deputyminister ..
....................
scows-Limitation of damages-Canada
Shipping Act, R.S.C. [1906] c. 113, s. 921.]
The owners of the tug Whalen wished to sell her to the respondent and entered into a contract to tow the latter's barges from Pointe Anne to Toronto, thus giving respondent an opportunity to test her capacity.
In sending her to Pointe
Anne the owners instructed her master to take orders from respondent's manager who tendered a loaded scow for towage.
The tug had not sufficient power for this towage in November (the time of performance) and on the voyage the tow was cast adrift and lost.-Held, per Duff
J. Under the circumstances the respondent's manager in tendering the scow for towage was not a wrongdoer; the master of the tug was guilty of improper navigation on the voyage, and for this act of
DAMAGES-Concluded.
negligence. the owners were responsible to the respondent.-Per Davies C.J. and Duff J., Idington and Anglin JJ. contra and Mignault J. expressing no opinion. Such negligence of the master was without the fault or privity of the owners and the damages should be limited under sec. 921 of the Canada Shipping Act.-Owing to this difference of opinion the judgment appealed from could neither be affirmed nor reversed in toto. In the result it was varied by directing a limitation of the M. F. Whelan v. QUARRIES.................. Obligation of donee Refusal to observe-Charge on land.. EJECTMENT - Mesne profits - Setoff-Compensation for improvements.. 401 EMPLOYER AND EMPLOYEE. EVIDENCE
Criminal law--Charge of murder-Warrant against accused United States as undesirable-Admissions before emigration officers-Admissibility of evidence-Voluntary statement.] A warrant of arrest having been issued against the appellant on a charge of murder committed in a lumber camp near Quebec, his presence in the City of Detroit was discovered a year later by a Canadian detective. Instead of instituting extradition proceedings, the detective obtained the arrest of the appellant under a warrant of deportation, as an undesirable, issued by the U.S. Imigration authorities. On being brought before two emigration officers and informed that he would be deported, the appellant declared that he was "as good as dead." The officers asked:
"Why" and the appellant then answered by making certain admissions as to his presence at the lumber camp at the time of the murder. At the trial, the two officers gave evidence as to these statements by the accused.-Held, that the evidence was admissible, as the statements made by the accused were "voluntary" within the rule laid down in the case of Ibrahim v. The King ([1914] A.C. 599), Mignault J. dubitante. v. THE 226 Workmen's compensation. - Factory
Guard - Inexcusable fault- R.S.Q. [1909] Art. 7325............. 384
FINAL JUDGMENT-Action of nominal plaintiff dismissed-Motion for payment of costs by real plaintiff-Appeal- Supreme Court Act, 10-11 Geo. V., c. 32.]
An action by a person injured in collision with an automobile was dismissed and an execution against plaintiff returned nulla bona. The defendant moved for an order that the company insuring the owner of the automobile should pay these costs.-Held, per Davies
C. J. and Duff and Anglin JJ. The judgment granting the motion is not susceptible of appeal as a "final judgment" under sect. 37 of the "Supreme
Court Act," R.S.C. [1906), c. 139. Brodeur J. contra.
WESTERN
2- Interlocutory injunction - Substantive right-10-11 Geo. V., c. 32, s. 2 (1)
...............
FUTURE RIGHTS - Obligation of donee-Refusal to observe- Award of monthly payment ..........
GARNISHEE - Insurance - Guarantee
-Condition in policy - Action against insurer-Payment of loss by insured- Insolvency of insured...............
HIGHWAY - Municipal law - County corporation - County road - Procksverbal local road-"Road to be made"- Arts 444, 445, 447, 449, 451, 453, 574
M.C.]
homologated a procks-verbal for the opening and construction as a county road of a contemplated highway situated wholly within the limits of the local municipality of
St. Norbert. Such highway, when constructed, would have connected with other roads already existing in the adjacent municipalities.-Held, Duff and
Bernier JJ. (dissenting)
, that such procesverbal was ultra vires of the appellant corporation.-Held, also, Duff and Bernier JJ. dissenting, that the words "road to be made" in article 451 of the new municipal code should receive the same interpretation as that given by a well- HIGHWAY-Concluded.
established jurisprudence to the same words contained in article 762 of the precedent municipal code;
that these words mean a road already established by the local authority, although not yet constructed, and do not include "a road which previously did not exist in any way." Bothwell v. Corporation of West Wickham (6 Q.L.R. 45) followed. Judgment of the court of King's Bench (Q.R. 31 K.B. 475) affirmed, Duff and Bernier JJ.
2 - Application - 45 V.c* 33, s. 8 (0)-Municipal Corporation- Maintenance of road-Exemption from rates-Change in character highway systsm -Continuance of exemption-Highway Improvement Act, R.S.O. [1914] c. 40, s. owned the Queenston and Grimsby Road as county property but not as a "County road.'
In that year the Township of Grimsby in said county was divided into the municipalities of North and South Grimsby and the Act making the partition provided that South Grimsby wholly in North Grimsby. In the county, as authorized by the Highways Improvement Act, passed a by-law for the assumption of main roads in order to form a system of county highways, the Q. and G. being included. South Grimsby, being called upon to pay its share of the cost, brought action for a declaration that it was not liable for such payment so far as it related to the said road.-Held, reversing judgment of the Appellate Division (48 Ont. L.R. 211) that by the adoption of this system the character of the Q. and G. Road and the nature of the control over its maintenance was entirely changed and the exemption granted to South Grimsby in 1882 in respect to it no longer existed.
SouTH Grurmser........... INJUNCTION - Offensive odors and fumes
- Residential neighbourhood- Proper remedy - Municipal control - Enforcement of injunction - Arts. 541, 9S7, 968, 971 C.C.P.-Arts 5639 (14) and 5683 R.S.Q. (1909)-Art. 5991 R.S.Q. (1888)-41 V c. 14, s. 12.] Nauseous and offensive odors and fumes emitted by a pulp mill to the detriment INJUNCTION-Continued.
of a neighbouring property, causing to its occupants intolerable inconvenience and rendering it, at times, uninhabitable, are a proper subject of restraint; and, in such a case, the courts are not restricted to awarding relief by way of damages but may grant a perpetual injunction to restrain the manufacturer from continuation or repetition of the nuisance.- Although the entire neighbouring population is affected by such nuisance and the municipal authorities have not thought proper to interfere on its behalf, even if the respondent is the only person objecting he is entitled to maintain a demand for injunction, if the injury suffered by him is sufficiently distinct in character from that common to the inhabitants at large.- Per Davies C.J. and Anglin and Brodeur
JJ. When such an injunction is granted
"under the pains and penalties provided by law," it is susceptible of enforcement under the provisions of Article 971 C.C.P.
which gives power to the courts to punish for contempt by way of fine or imprisonment.-Per Davies C.J. and Anglin J.
The jurisdiction and practice of the
Quebec courts in regard to the remedy of injunction would seem to resemble the jurisdiction and practice of English courts rather than of the courts of
France. Lombard v. Varennes (Q.R.
K.B. 164) considered.-Judgment of the
Court of King's Bench (Q.R. 31 K.B.
507) affirmed.
CO. V.
BROWN......................
- Constitutional law-License cut timber-Condition not to employ Chinese or Japanese-Validity-Injunction. The respondents were the assignees of a timber licence issued by the Deputy
Minister of Lands of British Columbia, in which was inserted the following provision: "this licence is issued and accepted upon the understanding that no
Chinese or Japanese shall be employed in connection therewith."
The respondents applied to the courts for an injunction restraining the appellants from attempting to enforce such a provision, on the ground that the statute enabling the department to insert it in the licence was ultra vires.-Held, that the injunction could not be granted.-Per Davies C.J.
Anglin
Mignault JJ. The respondents have no ground for complaint; if the condition is good, they have no grievance; if it is bad, the licence itself is void and the respondents have
INJUNCTION-Concluded.
therefore no status as licensees.-Per J. The legislation province is intra vires.-Per Duff J. According to section 50 of the "Land Act" and to section 57, s.s. 3a, as amended by c. 28, s. 6 of the B.C. Statutes of 1910, the Minister of Lands had no authority to renew the licence in February, 1921, unless performance of the condition precedent (above quoted) had been waived; performance of the condition during the year ending in February, 1922, had not been waived; thus the respondents' licence had already lapsed or would have lapsed on the 11th of February, 1922, and accordingly the respondents' application must fail. 3 - Judgment on application for - Final judgment - Substantive right-10-11 V., c. 32, s. 2 (1)..............
INSURANCE, GUARANTEE - Insur- Fidelity
Untrue sentations - Evasive and misleading - Materiality - Affirmative of promissory warranties - Arts. 2485, 2486, 2487, 2490 C.C.]
The company appellant issued a policy guaranteeing the company respondent against loss, up to $3,000 through the dishonesty of Mr. Shortt, respondent's agent at Halifax, whose duties were, inter alia, to collect premiums due in that city and vicinity to deposit them in a bank and to remit same monthly to the respondent.
The policy contained the usual agreement by the insured whereby the truth of its answers to questions by the insurer was made the basis of the As to the respondent's supervision over the handling of the moneys collected by Shortt a certain number of questions were put to and answered by the respondent at the time of the application for the bond.
To a question as to the inspection and checking of the bank book, the answer was: "We do not inspect the bank account."
To a question as to how often Shortt's accounts were balanced and checked, the answer was: "monthly accounts."
To a question as to any cash balance due them, the answer was: "only for receipts that are in his hands for collection."
To the question: "How often does an audit take place," the answer
"He remits monthly.'? INSURANCE GUARANTEE-Cont'd.
To another question as to time of the last audit, the answer was: "His last remittance was received a few days ago."
And to a last question: "Were all things found in order." the answer was: "Yes."
At the time the insurance was effected, a sum of over $2,000 was owed by Short to respondent, which the latter alleged was not to its knowledge.
There had never been any audit of Shortt's accounts on behalf of the respondent during his employment.- Held, Duff and Bernier
JJ. (dissenting)
, that the respondent's answers, even if literally true, were evasive, misleading and framed in a way to give the impression that Shortt's accounts were audited monthly; and thus they did not "represent to the insurer fully and fairly every fact which shows the nature and extent of the risk" within the terms of art. 2485 C.C.-Per Duff and
Bernier JJ. (dissenting)
:-The representations were not shown to be substantially untrue and it has not been established that there had been amy material concealment or that the affirmative warranties had not been fulfilled.-Per
Duff J. The respondent's declaration, as to the truth of his answers being part of the contract, is restricted in its application to representations and to warranties which are not promissory.
Assun. Co.
LIFE AssUn. Co ........
2 - Practice and procedure-Seizure by garnishment - Insurance policy -Suspensive condition - Payment - Arts. 675,
685,
686, 690 C.P.C.]
obtained a judgment for $5,000 damages against the defendant company as responsible for the death of her husband while in its employment.
The defendant company being in liquidation, the appellant proceeded, by way of seizure in garnishment, against the respondent company which had insured the defendant company under an indemnity policy to the extent of $2,000 for each of its employees.
A clause of the policy provided that no action would lie against the respondent until loss had been actually sustained and paid in money by the insured. The respondent company, as garnishee, declared that it owed nothing and the appellant contested the declaration.- Held, that the contestation of the declaration as garnishee by the respondent company should have been maintained.- Per Davies C.J. and Duff, Anglin,
INSURANCE GUARANTEE-Concl'd. Brodeur and Mignault JJ. The seizure in garnishment should have been declared tenante; as, although the respondent's obligation would not be payable until the defendant company had itself paid under the appellant's judgment, the appellant was nevertheless entitled to have the seizure remain binding until this condition should be fulfilled.-Per Idington J. The respondent's obligation was payable at the time of the seizure under the clauses of the indemnity policy. of the Court of King's Bench (Q.R. 32 K.B. 146) reversed. INTEREST - Death of partner - Continuation of business- Profits or interest-Election-Partnership ordinance M.W.T.C.O. [1915] c. 94, s.s. 41, 44, 45........................ LAND
- Improvements - Lessee - Option to purchase-Enhanced value- Lien-Retention of land-R.S.O. [1914] c. 109, 3. 37...................
2 - Inter-municipal bridge-Immovable-Taxation-Ownership and medium filae..........
............
LESSOR AND LESSEE - Application-Lessor and lessee-Lessee's option to purchase-Improvements by lessee -Mistake as to lessor's title-Action for possession-Retention of land-Belief in ownership-Equitable relief-R.S.O. [1914] c. 109, s. 37.]
R.S.O. [1914] ch. 109, sec. 37 provides that a person who makes lasting improvements on land under the belief that it is his own is entitled to a lien thereon for the enhanced value given it by such improvements or may retain it on making compensation to the owner.- Held, Idington and Duff JJ. dissenting, that a lessee of land with an option to purchase at the end of the term is not entitled to the benefit of this statute. As lessee he could not believe the land to be his own and the option does not warrant such a belief before it is exercised.- The lessee in such a case may obtain, as equitable relief, compensation for his LESSOR AND LESSEE-Concluded.
improvements to the extent to which they enhanced the value of the land.
His mistaken belief that the lessor owned the fee which he could acquire on expiration of the term was such a mistake of title as to bring him within the equitable doctrine applicable.-To entitle the lessor to such compensation where the owner has not encouraged nor acquiesced in the expenditure therefor it is necessary that the latter must himself be asking some equitable remedy, but- Held, that in
Ontario, in the common law action of ejectment and for mesne profits the compensation so made for improvements may be set off against the allowance for such profits.-Held, also, that no compensation can be allowed for improvements made after the lessee was aware that the lessor's title was questionable.of the Appellate Division
(47 Ont. L.R. 227) which reversed that on the trial (46 Ont. L.R. 136) varied.- Co. 401
LICENCE - Condition - Timber licence
-Employment of aliens-Injunction. 466
See LAw 2.
LIMITATION OF ACTIONS - Limitation of action-Railway- Negligence- Carriage of passenger-Contract-Manitoba Railway Act, R.S.M. [1913] c. 168, s.
116.]
By sec.
116 of the Manitoba
Railway Act "all suits for indemnity for any damage or injury sustained by reason of the construction or operation of the railway shall be instituted within twelve months next after the time of such supposed damage sustained or, if there be continuation of damages, then within twelve months next after the doing or committing of such damage ceases, and not afterwards."-Held, reversing the judgment of the Court of Appeal (31
Man. R. 74) Idington and Cassels JJ.
dissenting, that the limitation prescribed applies in case of an action brought by a railway passenger claiming indemnity for injury so sustained.
Ryckman v.
Hamilton, etc., Rly. Co. (10 Ont. L.R.
419) considered.-Per Cassels J. The words "or if there be continuation of damages, etc." indicate that the section was not intended to apply to the case of a passenger injured by negligence of the railway as a common carrier. WINNIPEG
RY. Co. v. 586
LOCATION TICKET - Colonization lot-Location ticket- Notice of cancellation-Protest by ticket holder- Right to be heard-Delays for filing protest-Changes in the statute law-Retrospective effect-Whether part of the contract or question of procedure-Powers of the deputy-minister to cancel-Arts. 1527, 1574 to 1579 R.S.Q. [19091-Arts. 1244, 1270 to 1285 R.S.Q. [18881-Art. 1537 C.C.]
The appellant obtained in 1896 a location ticket for a colonization lot situated in the Province of Quebec, but no letters patent were issued. In 1909, he was served with a notice of cancellation on the ground of non-compliance with the conditions of the licence 1st as to residence, 2nd, as to cultivation and building of an habitable house, and 3rd, as to non-payment of the nominal purchase price. Within the delays mentioned in the notice, the appellant sent a declaration under oath setting forth his reasons against cancellation, which affidavit was duly received and put on file in the department of Crown Lands. Later a superior officer of the department made a report on a printed form recommending the cancellation of this licence, amongst many others, on the ground of noncompliance with all the three abovementioned conditions and also stating that there had been no opposition by the ticket holders.
The appellant's location ticket was subsequently cancelled and the same lot was re-sold under similar licence to the respondent L'Heureux.
The appellant then brought an action petitoire against the respondent L'Heureux asking for a declaration that he was the owner of the lot; and the Attorney General for Quebec intervened in the case. The evidence shows that the two first grounds for cancellation contained in the notice were well founded but that the third one was not. At the trial, only the superior -officer could give some explanations on the matter, as the deputy minister had previously died.-Held, Duff and Anglin JJ. dissenting, that upon the evidence the deputy-minister, notwithstanding erroneous report made to him, was fully acquainted with all the essential facts of the case and that he must have, after full consideration of appellant's objections, cancelled the licence for non-compliance with the two first conditions contained in the notice.-Per Duff and Anglin JJ. The legislature, in providing by Art. 1579 R.S.Q. [1909] that LOCATION TICKET-Concluded.
the owner or occupant may, during the delay between notice and cancellation
"set forth his reasons against such cancellation," impliedly prescribes consideration of such reasons by the officer empowered to order cancellation as a condition precedent to his exercising that power, and in this case the deputy minister ordered the cancellation of the appellant's location ticket relying upon a report made to him that there was no opposition.-At the time the appellant obtained his licence the statute law required sixty days' notice of cancellation to be given; but,*at the time the notice in this case was given, this law had been amended and the time reduced to thirty days. A thirty days' notice was given to the appellant, who filed his objections within such delay.-Held, Duff J. contra, and Anglin J. expressing no opinion, that the new law was applicable to the appellant, as the statutory change was not one dealing with the conditions and obligations of the licence but one pertaining to the mode and method by which the minister could exercise his jurisdiction to cancel.-Per
Duff J. A
"licence of occupation" under sect. 1270
R.S.Q. confers upon the licensee not only a right of occupation and possession but an interest in the land sui generis; and the above legislation must be treated as affecting substantive rights of the licensee and not as an enactment relating to procedure.-Per Davies C.J.
and Idington and Brodeur JJ. deputy minister had express power to adjudicate and sign the cancellation under art. 1244 R.S.Q. [1888]; and, per
Davies C.J. and Idington J., if this article only meant that the deputy minister could sign on behalf of the minister after the latter had himself determined to cancel it, it must be presumed that the minister has authorized his deputy to do so.
MARcoux
MUNICIPAL CODE - Art. 16 (Interpretation).........................
Art. 451 (Roads)..................
MUNICIPAL CORPORATION -Municipal law-County corporation-County road-Procs-verbal local road-"Road to be made"-Acts 444, 445, 447, 449, 451, 453, 574 M.C.]
The appellant homologated a procs-verbal for the opening and construction as a county road of a contemplated highway situated wholly within the limits of the local municipality of St. Norbert. Such highway, when constructed, would have connected with other roads already existing in the adjacent municipalities.-Held, Duff and Bernier JJ. dissenting, that such procksverbal was ultra vires of the appellant corporation.
CHESTER EST.................. And See 1.
owned the Queenston and Grimsby Road as county property but not as a "County road."
In that year the Township of Grimsby in said county was divided into the municipalities of North and South Grimsby and the Act making the partition provided that South Grimsby wholly in North Grimsby. In 1917 the county, as authorized by the Highways Improvement Act, passed a by-law for the assumption of main roads in order to form a system of county highways the Q. and G. Road being included. South Grimsby, being called upon to pay its share of the cost, brought action for a declaration that it was not liable for such payment so far as it related to the said road.-Held, reversing the judgment of the Appellate Division (48 Ont. L.R. 211) that by the adoption of this system the character of the Q. and G. Road and the nature of the control over its maintenance was entirely changed and the exemption granted to South Grimsby in 1882 in respect to it no longer existed. Soumu .................
3 powers- Bridge - "Immovable"-"Cities and Towns Act," R.S.Q. (1909, art. 5730- R.S.Q. (1909) arts. 5280, 5281, 5282- "Charter of the Town of Ste. Rose," 8 MUNICIPAL CORPORATION-Cont'd.
(L.C.) 1830,
10 & 11 Geo. IV., c. 56-Arts. 375, 376,
377, 381 C.C.-Art. 16 M.C.]
By a statute of Lower Canada of 1830 (10 & 11
Geo. IV., c. 56), one James Porteous, the assignor of the appellant, was authorized by the Crown to erect a toll bridge crossing a river between the town of
Ste. Rose and the village of Ste. Therese, the Crown reserving the right to become owner after fifty years by paying its value. The respondent brought an action to recover taxes imposed on part of the bridge.-Held, that the part of the bridge extending to the middle of the river was subject to taxation, as it was within the municipality and the property of the appellant and not of the Crown, such bridge being an
"immovable"
within the meaning of article 5730 R.S.Q.
[1909.-Judgment of the Court of King's
Bench (Q.R. 30 K.B. 181)
BELAIR V.
4 - Non-payment of taxes-Proceedings for forfeiture- Notice to owner-Alien- State of war-Illegality-"Rural Municipality Act," Alta. S. [1911-12] c. 3, ss.
309 to 319.
RURAL
REvENTLOW-CRIMINIL
..........
5 - Municipal Act - Imperative legislation - Discretion - 9 Geo.V.,c.63....................
See 6.
Workmen's Compensation Act-Machine-Absence of guard- Duty of employer-Inexcusable fault - R.S.Q. [1909] art. 7325.]
while working on a machine by feeding cotton into it between two rollers, had both hands caught and crushed necessitating their amputation. The maximum under the "Workmen's
Compensation Act" was admitted by the respondent company but the appellant claimed a greater compensation under article 7325 R.S.Q. on the ground of "inexcusable fault" of the respondent especially in not having provided the machine with protection devices.
respondent had installed an apparatus of wire for stopping the machine within four seconds.
No other safety device was supplied by the manufacturers of the machine. Although the practicability of a certain guard may have been established at the trial, the respondent
NEGLIGENCE-Continued.
having an expert engineer continuously working at the discovery of new safety devices, had found none suitable for this machine.
The provincial government inspector had never given to the respondent any notice to provide a safety guard. A somewhat similar accident had previously happened in the defendant's factory but no evidence was adduced as to the exact cause of that accident.-Held, Idington J. dissenting, that the "inexcusable fault" of the respondent company had not been established.-Per Idington J. (dissenting).
The appellant was ordered to do a dangerous work, of which he had no experience, without being given any instructions, in contravention of the company respondent's own regulations; and, also, there were existing protection devices in use when the calendar machine, or its principle, was applied to doing other work than the one done in respondent's factory.-Judgment of the Court of King's Bench (Q.R. 32 K.B. 44) affirmed, Idington J. dissenting.
....... 2 - Street railway-Contributory negligence - Jury trial-Judge's charge.] B, travelling on a street car, on reaching the street where he wished to stop, being in a hurry left the car while it was moving and went around it at the rear to cross the other track. Walking quickly with his head down he ran into a car travelling in the other direction and received injuries which caused his death. The latter car was going at excessive speed and its gong was not rung as the company's rules require. On the trial of an action by B.'s widow for damages the judge directed the jury that "stop, look and listen" before crossing a railway track was not a prescribed rule of conduct in Canada; that they should find whether or not the excessive speed and nonsounding of the gong caused the accident which killed B.; and also whether or not B., when the gong could not be heard, acted as a reasonable and prudent man would in attempting to cross without ascertaining that it was safe to do so. A verdict was rendered against the company.- Held, Davies C. J. dissenting, that there was no misdirection in the charge of the trial judge that called for an order for a new trial.-Per Davies C. J. The jury should have been told that NEGLIGENCE-Continued.
whether the gong was sounded or not it was the duty of B. to look and listen before attempting to cross.
ELEcnc Ry. Co. v. BooTH ........
3 - Accident - Fault - Presumption of fault-Industrial establishment-Employment of persons under 16 years-Liability of employers-Arts. 1053,
1054, 1055 C.C.-"Industrial Establishments Act,"
R.S.Q.
[1909] Arts. 3835,
3835d.]
The respondent's son, aged fourteen years and with no education, was employed at the appellant company's factory. With the probable intention of going out without being seen he climbed over a barricade placed to prevent the use as a means of egress of a doorway, left open for the purpose of ventilation, and fell to the bottom of a smoke flue where his body was found two days later.-Held, Idington and Brodeur JJ.
dissenting, that, upon the evidence, the appellant cannot be held liable for the accident, which was due to the sole fault of the respondent's son.-Per Anglin,
Mignault and Cassels JJ. The facts in this case do not constitute any presumption of fault against the appellant company under article 1054 C.C. Quebec
Railway, L
H. and P. Co. v. Vandry
([1920]
A.C.
discussed.-Article
3835 R.S.Q. [1909], as amended by 9
Geo. V., c. 50, provides that the owner of an industrial establishment shall not employ boys or girls under sixteen years of age unless they can read and write fluently; and article 5835d provides that the employers who do not comply with these enactments cannot, in case of accident, allege fault of the injured employee.-Held, Idington and Brodeur
JJ. (dissenting)
, that, notwithstanding the fact that the appellant company had employed respondent's son in contravention of the statute, it cannot be held liable as no fault on its part had been proven; the meaning of the statutory provisions being that the employer, when himself guilty of fault, cannot invoke the fault of the injured employee as a contributing cause of the accident.- Judgment of the Court of King's Bench
(Q.R. 32 K.B. 30) reversed, Idington and
Brodeur JJ. (dissenting)
.
GIAss
Co. v. DESPISNs...................
4-Towage-Improper navigation-Privity of owners-Limitation of damages.....
NEGLIGENCE-Concluded.
5 - Street railway - Injury to passenger - "Construction or operation"- R.S.M. [1913] c. 168, a. 116......... See AcaroNs. NOTICE - Sale for taxes - Alien - State of war - Right to redeem...... .8 See TAXEs 3. Contract for carriage- Notice of conditions............... NUISANCE - Injunction - Offensive odors and fumes - Residential neighbourhood - Proper remedD - Municipal control-Enforcement of injunction-Arts. 541, 957 968 971 C.C.P.- Arts. 5639 (14) and 5683 R.S.Q. (1909)- Art. 5991 R.S.Q. [1888] 41 V., c. 14, s. 12.] Nauseous and offensive odors and fumes emitted by a pulp mill to the detriment a neighbouring property, causing to its occupants intolerable inconvenience and rendering it, at times, uninhabitable, are a proper subject of restraint; and, such a case, the courts are not restricted to awarding relief by way of damages but may grant a perpetual injunction to restrain the manufacturer from continuation or repetition of the nuisance.- Although the entire neighbouring population is affected by such nuisance and municipal authorities have not thought proper to interfere on its behalf, even if the respondent is the only person objecting he is entitled to maintain a demand for injunction, if the injury suffered by him is sufficiently distinct in character from that common to the inhabitants at large.-Per Davies C.J. and Anglin and Brodeur JJ. When such an injunction is granted "under the pains and penalties provided by law," it is susceptible of enforcement under the provisions of Article 971 C.C.P. which gives power to the courts to punish for contempt by way fine or imprisonment.-Per Davies C.J. and Anglin J.
The jurisdiction and practice of the Quebec courts in regard to the remedy of injunction would seem to resemble the jurisdiction and practice of English courts rather than of the courts of France.
Lombard v. Vdrennes (Q.R. 32 K.B. 164) considered.- Judgment of the Court of King's Bench (Q.R. 31 K.B. 507) affirmed. CO. v. BROWN.............. Death of partner - Continuation of business-Election by estate between profits and interest-Partnership property devised to partner-Sale in winding-up-"The
Partnership Ordinance"
N.W.T.
94,
41, 44, 45.] J. and his son, the respondent, had been partners in farming operations. J. died and by his will directed payment of his share of the net profits to his wife, one of the appellants, during her lifetime.
The respondent and others, executors to the will, neglected to apply for probate or to have a legal representative of the estate appointed with whom he could establish business relations. After the respondent had carried on the business of the farm for a considerable time, the widow brought action asking for the appointment of an administrator cum testamento annexo, a declaration that the partnership was dissolved by the death of J. and a winding up including a charging of the respondent with the profits.
The appellant, the Trusts and Guarantee
Co., was named administrator and was later added as a party plaintiff; and both the appellants then filed a claim of election to take interest in lieu of profits, relying on section 44 of "The Partnership Ordinance."
The referee named in the winding up proceedings found that there had been no profits from the operations of the farm since J.'s death.-Held,
Duff J. (dissenting)
, that the administrator had the tight, under the above section
44, to claim interest from the testator's death on the amount of his share of the partnership assets as the business had been carried on by the respondent "without any final settlement of accounts as between the firm and the outgoing partner's estate" and as nothing in the will authorized explicitly the continuation of the business by the respondent.-The will directed that at the widow's death a certain half of the partnership land should be conveyed to the respondent on condition of his releasing his interest in the other half and paying off half of the mortgage indebtedness.
The respondent was willing to carry out the conditions and to meet his share of the partnership debts.-Per Davies C.J. and Idington and Anglin JJ. Notwithstanding the devise of it to respondent, this west half of the land was still liable to be sold to satisfy claims against the partnership.- Judgment of the Appellate
Division
(16 Alta. L.R. 241) reversed, Duff J.
PRACTICE AND
PROCEDURE - Nuisance-Injunction-Enforce-ment 243 2 - Location ticket-Cancellation-Powers of Deputy Minister..............263 3 - Action for possession of land - Defendant's belief in title - Equitable relief - Ejectment - Mesne profit - Improvements. - Set off ............... 401 PRESCRIPTION - Good faith - Substitution - Registry - Art. 941 C.C.] As good faith is required for the ten years' prescription under the Civil Code, that prescription cannot be invoked against a substitution duly registered, registration being sufficient to constitute any third party, who might subsequently purchase from the institute, a holder in bad faith.
Meloche v. Simpson (29 Can. S.C.R. 375) followed. GuouLx BRICAULT...................... PRIORITY - Sale of land - Registration - Arts. 1025, 1027, 2082, 2085- 2089, 2098 C.C.................... PUBLIC WORK - Crown - Public work - Injury to property of Crown officials-"Exchequer Court Act" -R.S.C.
[1906] c.14018.20; 7-8 Geo. V., c. Under a lease for an indefinite period and terminable on fourteen days' notice the Government of Canada occupied the basement and first floor of a building as a recruiting station in 1916-17. A fire originating on the premises while so occupied destroyed property belonging to the tenants of adjacent premises who claimed by petition of right.-Held, affirming the judgment of the Exchequer Court (20 Ex. C.R. 306) Duff J. dissenting, that the portion of the building so occupied by the Government was not a "public work" within the meaning of that term as used in sub-sec. (c) of sec. 20 of the Exchequer Court Act.- Per Duff J. The meaning of "public work" as that term is used in sub-sec. (c) is not confined to property of which the Crown has a title not less ample than a title in fee simple or to property constructed or in course of construction by the Crown.-Per Anglin and Mignault JJ. It includes any operation undertaken by or on behalf of the Crown in constructing, repairing or maintaining public property. WorsE Co. THE .......... Limitation of action - Carriage of passenger - Contract-Manitoba Railway Act R.S.M.
[19131 c. 168, 8. 116.]
By 116 of the Manitoba Railway Act "all suits for indemnity for any damage or injury sustained by reason of the construction or operation of the railway shall be instituted within twelve months next after the time of such supposed damage sustained or, if there be continuation of damages, then within twelve months next after the doing or committing of such damage ceases,and not afterwards".- Held, reversing the judgment of the
Court of Appeal (31 Man. R. 74) Idington and Cassels JJ. dissenting, that the limitation prescribed applies in case of an action b iotight by a railway passenger claiming indemnity for injury so sustained. Ryckman v. Hamilton, etc., Rly.
Co., (10 Ont. L.R. 419) considered.-Per
Cassels J. The words "or if there be continuation of damages, etc.," indicate that the section was not intended to apply to the case of a passenger injured by negligence of the railway as a common
Ry. Co.
v. AITKEN.......................
REGISTRY LAWS - Sale - Immoveable - Registration - Priority - Fraud- Title from the same vendor-Registration of notice of verbal sale-Effect as to third parties-Arts. 1025,
1027, 2082
2085,
2089, 2098 C.C.]
On the 15th of October,
1910, the appellant's wife bought an immoveable property by oral contract from one D.
She having died the appellant was appointed tutor to her children, heirs to the estate. On the 29th of
November, 1910, D. was legally asked to sign a deed of sale but refused to do so.
The next day D. died, leaving his wife
B. as usufructuary legatee of his estate and naming her testamentary executrix with power to sell. In January, 1911, an action en passation de titre was brought by the appellant against B. In February, 1911, the appellant registered a notice of bordereau alleging the mis-endemeure served upon D.
On the 23rd of
June,
1913, rendered maintaining the appellant's action, which judgment was confirmed on appeal, both judgments being registered as soon as rendered.
On the 3rd of March, 1911,
B. sold the same property to the respondent, who had knowledge of the alleged sale to appellant's wife and of the institution of the action en passation de titre,
REGISTRY LAWS-Concluded. this deed of sale being registered some days later. After judgment had been rendered by the appellate court in the above action, the appellant brought the present action au petitoire against the respondent in order to be put in possession of the immoveable property.-Held, that the mere fact of the respondent's knowledge of the anterior sale did not deprive him of the benefit of priority of registration of his own title.-Held, also, that the registration by the appellant of a bordereau indicating a verbal sale to him of the property is not equivalent to the registration of a right in or to that property within the purview of the registration provisions of the code.-Held, also, that the appellant and the respondent "derive their respective titles from the same person" within the terms of art. 2089 C.C., although the first bought property from the owner and the second from his universal legatee and testamentary executrix.-Per Duff, Mignault and Bernier JJ. Although there is res judicata against the respondent as to the validity of an anterior title to the appellant, that does not deprive the respondent of the benefit of the prior registration of his own title.-Judgment of the Court of King's
Bench (Q.R. 29
K.B. 273), v. ..... 2 - "Publication insinuation" - Registration - Third party - Prescription - Arts. 939, 941, 2108, 2206 C.C.-Ordonnance de Moulins (1566), arts. 57, 58.]
Notwithstanding the terms of the Ordonnance de Moulins (1566),-article 57 of which provides for the "publication et insinuation" of a donation or a will creating a substitution within six months from the date of the deed of donation or of the testator's death, the registration of a substitution after the above delay in accordance with article 941 C.C. is valid as against a person acquiring title subsequently to such registration. Bulmer v. Dufresne (Cassels Digest 2nd ed. 873) followed. v. BRICAULT............... SALE OF LAND - Registration - Priority - Fraud - Title from the same vendor - Registration of notice of verbal sale-Effect as to third parties-Arts. 1025, 1027, 2082, 2085, 2089, 2098 C.C.] SALE OF LAND-Continued.
On the 15th of October, the appellant's wife bought an immoveable property by oral contract from one D.
She having died the appellant was appointed tutor to her children, heirs to the estate.
On the 29th of November, 1910, D. was legally asked to sign a deed of sale but refused to do so.
The next day D. died, leaving his wife B. as usufructuary legatee of his estate and naming her testamentary executrix with power to sell. In January, an action passation de titre was brought by the appellant against B.
In February, the appellant registered a notice or bordereau alleging the mis-en-demeure served upon D.
On the 23rd of June, judgment was rendered maintaining the appellant's action, which judgment was confirmed on appeal, both judgments being registered as soon as rendered.
On the 3rd of March, B. sold the same property to the respondent, who had knowledge of the alleged sale to appellant's wife and of the institution the action en passation de titre, this deed of sale being registered some days later.
After judgment had been rendered by the appellate court in the above action, the appellant brought the present action au petitoire against the respondent in order to be put in possession of the immoveable property.
Held, that the mere fact of the respondent's knowledge of the anterior sale did not deprive him of the benefit of priority of registration of his own title.-Held, also, that the registration by the appellant of a bordereau indicating a verbal sale to him of the property not equivalent to the registration of a right in or to that property within the purview of the registration provisions of the code.- Held, also, that the appellant and the respondent "derive their respective titles from the same person" within the terms of art. 2089 C.C., although the first bought the property from the owner and the second from his universal legatee and testamentary executrix.-Per Duff, Mignault and Bernier JJ. Although there res judicata against the respondent as to the validity of an anterior title to the appellant, that does not deprive the respondent of the benefit of the prior registration of his own title.-Judgment of the Court of King's Bench (Q.R. 29 K.B.
273) affirmed.
SALE OF LAND-Continued.
Public auction
Mistake Parcel intended sold and bought- Not included in particulars-Rights of purchaser.] The receiver of the P. Lumber Co. was, by order of the court, authorized to borrow from the appellant bank a certain sum which should be a first charge on the whole assets of the company and the order provided for a sale of those assets in default of repaydefault having occurred, the bank sold the property to the Investby public auction, the conduct the sale being the hands of the bank's solicitor under the supervision of the court.
Owing to this solicitor being under the impression that a certain parcel of land did not belong to the lumber company, it was omitted from the particulars of sale.
The solicitor for the receiver and the bank approved the particulars in the belief that they covered the omitted parcel and the purchasers bought under the same erroneous belief.
One condition of the sale provided that "any error of description *
* * shall not annul the sale nor shall any compensation be allowed respect thereof."
There was evidence that the omitted parcel had a very substantial value but no evidence was adduced that a greater price might have been obtained for the assets, if the omitted parcel had been included. Upon the discovery of the mistake, the appellants applied for an order by the court that the receiver execute and deliver to the purchaser a conveyance the said parcel omitted in the particulars the sale; this application was resisted by the respondent acting as trustee the bondholders of the Lumber Company.- Held, that the appellants' application should not be granted; and that, although the purchaser may have been entitled to rescission of the sale on the ground of mistake, the order prayed should not be granted, as the appellants had failed to shew anything which would raise an equity against the bondholders such as might have enabled the court to direct that the deficiency in the land should be made good by the receiver at the bondholders' expense.- Judgment of the Court of Appeal 3 W.W.R.
MARSHALL................ SALE OF LAND-Concluded.
3---Contract--Sale of land-Fraud- Collusion between vendor and one of several purchasers-Claim by purchasers for rescission-Restoration of property- Sufficiency of restitution-Damages for deceit.
SALE OF GOODS-Conditional sale- Subsequent purchaser-" Purchaser in good faith"-"Act respecting lien notes"-R.S.
Sask. [1909) c. 14, s.
company sold to the Phoenix Publishing
Company two machines subject to the condition that the title of the property would remain with the appellant until full payment of the purchase price, with the right to re-take possession on default of payment. Later, the Phoenix Company assigned for valuable consideration, to A.B. representing the respondent company "all (its) rights, -title and interest" in these two machines. The agreement of sale was not registered but A.B. was aware of the above mentioned conditional sale.
Default having been made on the payment of the purchase price, an action was brought by the appellant to recover from the respondent possession of the two machines.-Held,
Brodeur and Mignault JJ. (dissenting)
, that A. B. acquired title to the two machines subject to satisfying the appellant's "lien" thereon and was not "a purchaser in good faith" within section 1 of ch. 145 of the Revised Statutes of
Saskatchewan, and that the respondent was therefore not entitled to rely on the protection of that section.-Judgment of the Court of Appeal (14 Sask. L.R. 371.)
reversed, Brodeur and Mignault JJ. (dissenting)
MONOTYPE V.
SHIPPING - Scows - Rectification - Limitation - Canada Shipping Act, R.S.C. [1906] c. 113, s. 921.]
The owners of the tug Whalen, by contract in writing, agreed to tow the respondent's "barges" between Pointe Anne and
Toronto on the terms and conditions stated.-Held, reversing the judgment of the Exchequer Court (21 Ex. C.R. 99)
Idington and Anglin JJ. (dissenting)
, that the contract did not include an undertaking to tow "scows"
and that the evidence at the trial of an action claiming damages for loss of a scow did not warrant
SHIPPING-Concluded.
a rectification to bring such towage within its terms.-Per Duff J. The trial judge was wrong in holding that he could resort to the negotiations prior to the contract for evidence of warranty of the tug's capacity and that the contract could be rectified on a mere preponderance of evidence.-Per Duff J. Qu. Has the Exchequer Court, setting as a Court of Admiralty, the equitable jurisdiction required to empower it to rectify instruments?-The owners of the tug Whalen wished to sell her to the respondent and entered into a contract to tow the latter's barges from Pointe Anne to Toronto, thus giving respondent an opportunity to test her capacity. sending her to Pointe Anne the owners instructed her master to take orders from respondent's manager who tendered a loaded scow for towage. The tug had not sufficient power for this towage in November (the time of performance) and on the voyage the tow was cast adrift and lost.-Held, per Duff J. Under the circumstances the respondent's manager in tendering the scow for towage was not a wrongdoer; the master of the tug was guilty of improper navigation on the voyage, and for this act of negligence the owners were responsible to the respondent.-Per Davies C.J. and Duff J., Idington and Anglin JJ. contra and Mignault J. expressing no opinion. negligence of the master was without the fault or privity of the owners and the damages should be limited under sec. 921 of the Canada Shipping Act.-Owing to this difference of opinion the judgment appealed from could neither be affirmed nor reversed in toto. In the result it was varied by directing a limitation of the M. F. Whelan v. Construction - County road-Art. 451 M.C.]
The words "road to be made" in article 451 of the new municipal code should receive the same interpretation as that given by a wellestablished jurisprudence to the same words contained in article 762 of the precedent municipal code; and that these words mean a road already established by the local authority, although not yet constructed, and do not include "a road which previously did not exist in any way."
Bothwell v. Corporation of West STATUTE-Continued.
Wickham (6 Q.L.R. 45) followed.-Judgment of the Court of King's Bench
(Q.R. 31 K.B. 475) affirmed, Duff and
Bernier JJ. (dissenting)
.
V. CHESTER-EST ..............
Application
33, 8 (O.)-Municipal Corporation- Maintenance of road-Exemption from rates-Change in character highway system
-Continuance exemption- Highway
Improvement Act, R.S.O. 40,
5. (1).]
owned the Queenston and Grimsby Road as county property but not as a "County road."
In that year the Township of
Grimsby in said county was divided into the municipalities of North and South
Grimsby and the Act making the partition provided that South Grimsby wholly in North Grimsby.
In 1917 the county, as authorized by the Highways
Improvement Act, passed a by-law for assumption of main roads in order to form a system of county highways, the
Q. and G. road being included. South
Grimsby, being called upon to pay its share of the cost brought action for a declaration that it was not liable for such payment so far as it related to the said road.-Held, reversing the judgment of the Appellate Division (48 Ont. L.R. 211)
that by the adoption of this system the character of the Q. and G. road and the nature of the control over its maintenance was entirely changed and the exemption granted to South Grimsby in
1882 in respect to it no longer existed.
Sour
...................
3-Constitutional law-Jurisdiction legislature-Employment on provincial property-Exclusion of Japanese and Chinese
-Imperial treaty with Japan-"B. N.A.
Act" s.s. 25, s. 92, s.s.
1913- & 4 V., 27-(B.C.)
V., c. 49.]
The legislature of British
Columbia passed an Act in 1921 (11
Geo. V., c. 49) purporting to "validate confirm (an)
order in council"
which provided that "in all contracts, leases and concessions of whatsoever kind entered into, issued or made by the
STATUTE-Continued.
government, or on behalf of the government, provision be made that no Chinese or Japanese shall be employed in connection therewith."-Held, that the legislature of British Columbia had not the authority to enact this legislation. Idington J. contra and Brodeur J. contra as to the part relating to Chinese.-The Japanese Treaty, made in 1911 between England and Japan, was "sanctioned and declared to have the force of law in Canada" by a Dominion statute enacted under the powers conferred by s. 132 of the B.N.A. Act (3 & 4 Geo. V., c. 27). Paragraph 3 of article 1 of the treaty states that the subjects of the high contracting parties "shall in all that relates to the pursuit of their industries, callings, professions, educational studies be placed in all respects on the same footing as the subjects of citizens of the most favoured nation."-Per Davies C.J. and Duff and Brodeur JJ. The provincial statute of 1921, as to its part relating to Japanese, is ultra vires of the legislature of the province as being in conflict with the Japanese Treaty. Idmgton J. contra and Anglin and Mignault JJ. expressing no opinion.
In re pplication -Lessor lessee - Lessee's option purchase- Improvements lessee-Mistake as lessor's title-Action for possession-Retention land-Belief in ownership-Equitable relief-R.S.O. R.S.O. [1914] ch. 109, sec. 37, provides that a person who makes lasting improvements on land under the belief that it is his own is entitled to a lien thereon for the enhanced value given it by such improvements or may retain it on making compensation to the owner.- Held, Idington and Duff JJ. dissenting, that a lessee of land with an option to purchase at the end of the term is not entitled to the benefit of this statute. As lessee he could not believe the land to be his own and the option does not warrant such a belief before it is exercised.-The lessee in such a case may obtain, as equitable relief, compensation for his improvements to the extent to which they enhanced the value of the land. His mistaken belief that the lessor owned the fee which he could acquire on expiration of the term was such a mistake of title STATUTE-Continued.
as to bring him within the equitable doctrine applicable.-To entitle the lessor to such compensation where the owner has not encouraged nor acquiesced in the expenditure therefor it is necessary that the latter must himself be asking some equitable remedy, but-Held, that in
Ontario, in the common law action of ejectment and for mesne profits the compensation so made for improvements may be set off against the allowance for such profits.-Held, also, that no compensation can be allowed for improvements made after the lessee was aware that the lessor's title was questionable.- Judgment of the Appellate
Division
(47 Ont. L.R. 227) which reversed that on the trial (46 Ont. L.R. 136) varied.
ONTAmo Co. 401
- Industrial establishment - Employment of persons under years-Liability of employers-Arts.
1054,
C.C.-"Industrial Establishments Act," R.
[1909] Arts. 3835, 3835
Article
3835 R.S.Q. [19091, as amended by 9 Geo.
V, c. 50, provides that the owner of an industrial establishment shall not employ boys or girls under sixteen years of age unless they can read and write fluently;
and article 5835d provides that the employers who do not comply with these enactments cannot, in case of accident, allege fault of the injured employee.- Held, Idington and Brodeur JJ. dissenting, that, notwithstanding the fact that the appellant company had employed respondent's son in contravention of the statute, it cannot be held liable as no fault on its part had been proven; the meaning of the statutory provisions being that the employer, when himself guilty of fault, cannot invoke the fault of the injured employee as a contributing cause of the accident.-Judgment of the
Court of King's Bench (Q.R. 32 K.B. 30)
reversed,
Brodeur JJ.
DommsxoN
DESPINS..........................
- -Assessment of lands-Agricultural purposes-Power of Court of
Revision- Whether imperative or discretionary- Appeal-Jurisdiction-Judicial discretion
-B.C.
"Municipal Act," s.s.
219, as enacted V, 63- "Act to amend the Supreme Court Act,"
& V, s. 1, s.s. Subsection 3 (c) of section 219 of the B.C.
STATUTE-Concluded.
"Municipal Act," as enacted by 9 Geo. V, c. 63, provides that inter alia "the powers of (the Court of Revision) shall be
*
*
* to the assessment upon such land as is held in blocks of three or more acres and used solely for agricultural or horticultural purposes, and during such use only at the value which the same has for such purposes without regard to its value for any other purposes."- Held, Duff and Anglin JJ. dissenting, that this provision imperative and does not admit of any discretionary power in the Court of Revision; that it requires that court to at its agricultural value the assessment of all lands held in blocks of three or more acres; and that the only discretion given the court is that of finding whether the land is solely used for agricultural purposes.-Per Idington J. Assuming such a provision to be discretionary, then this case would not be appealable to this court, as it is expressly excluded by s.s. (b) of the first section of the "Act to amend the Supreme Court Act," & Geo. V, 32.
GREY Bona vacantia-B. N. Act, ss. 102,
109.]
The word section 109 of the B.N.A. Act, must be construed in its primary and natural sense as the English equivalent of "Jura regalia" and its is not limited by its association with the words "lands, mines and minerals."
Bona vacantia fall within the meaning of that term and therefore belong to the provinces.
Davies C.J. contra. KINo ............ lands
Cancellation - Powers of Deputy Minister -Retroactive
Act-R.S.Q.
Arts. 1244, 1270-R.S.Q. [1909] Art. 1579.. 263 STATUTES
........ 2-B.N.A. Act [1867] ss. 102, 109. 622 See 7.
3-R.S.C.
(Exchequer Court Act)..................... .. STATUTES-Continued.
4- R.S.C. s. 921 (Canada
Shipping Act).....................
R.S.C. s. 37 (Supreme
Court A ct)........................
(D) 3-4 Geo. V, 27 (Japanese
Treaty Act).......................
7-(D)
V, 23 (Exchequer
Court A ct)........................
8-(D)
V, 32, s. 1
(Supreme Court Act)...............
9-(D)
V, (1)
(Supreme Court Act)...............
10-(D)
V, 43, s. 16
(Criminal Code)...................
11-(0)
V., 8 (Division
Township of Grimsby) .............
R.S.O. 40, (1) (Highway Improvement Act) .............
R.S.O. s. (Transfer of Property) ......................
14- Arts.
(Crown Lands)....................
15-R.S.Q. rt. 5991 (Injunction) ..........
...................
16-R.S.Q. Art. 1579 (Lands and
Forests)...........................
17-R.S.Q. Art. 3835 (Factories)
........
..............
.. .........
18-R.S.Q.
Arts.
5683 (Cities and Towns) ...........
STATUTES-Concluded.
19-R.S.Q. Art. 5730 (Cities and Towns)........................... 20- Art. 7325 (Workmen's Compensation) ...............
(Q) 8 1, c. 98, ss. and 11 (Charter Ste. Rose) ................
22-(Q) V, 50 (Factories). 544 23-R.S.M.
(Railway Act)..................... 24-(B.C.)
V,
(Municipal Act).................. 25--(B.C.) V, 49 (Employment on Crown Property)........... 26---(Alta.) [1911-12 ss. 309- 319 (Rural Municipality Act) ...... R.S. Sask. s. 1 (Lien notes) ............................
28-N.W.T. c. 94, 44 STREET
Contributory negligence-Charge to jury ........... "Publication et insinuation"-Registration-Third party- Prescription-Arts. 939, 941, 2108, 2206 C.C.-Ordonnance de Moulins Notwithstanding the terms the Ordonnance de Moulins [1566],article of which provides for the "publication et insinuation" of a donation or a will creating a substitution within six months from the date of the deed donation or of the testator's death-the registration of a substitution after the abcve delay in accordance with article 941 C.C. valid as against a person acquiring title subsequently to SUBSTITUTION-Concluded.
registration.
Bulmer v. Dufresne (Cassels
Digest 2nd ed. 873) followed.-As good faith is required for the ten years prescription under the Civil Code, that prescription cannot .be invoked against a duly registered, registration being sufficient to constitute any third party, who might subsequently purchase from the institute, a holder in bad faith.
Meloche v. Simpson (29 Can.
S.C.R. 375) followed.-The substitution created by the donation in this case provides for a substitution of two degrees of consanguinity.-Judgment of the Court of King's Bench (Q.R. 31 K.B. 287)
Gnouax
TREATY-Treaty with Japan-Government contracts-Employment of Japanese
-Prohibitive legislation-Conflict with trealy-3-4 V., c. 27 (D); V., c. 49 (B.C.)................... 293
See 1.
VENDOR AND PURCHASER-Sale of land-Public auction-Mistake-Parcel intended sold and bought- Not included in particulars-Rights of purchaser. The receiver of the C. P.
Lumber Co. was, by order of the court, authorized to borrow from the appellant bank a certain sum 'which should be a first charge on the whole assets of the company and the order provided for a sale of those assets in default of repay- Such default having occurred, the bank sold the property to the Investby publie auction, the conduct of the sale being the hands of the bank's solicitor under the supervision of the court.
Owing to this solicitor being under the impression that a certain parcel of land did not belong to the Lumber Company, it was omitted from the particulars of sale.
The solicitor for the receiver and the bank approved the particulars in the belief that they covered the omitted parcel and the purchasers bought under the same erroneous belief.
One condition of the sale provided that "any error of description
*
*
* shall not annul the sale nor shall any compensation be allowed in respect thereof."
There was evidence that the omitted parcel had a very substantial value but no evidence was adduced that a greater price might have been obtained for the assets, if the omitted parcel had been included.
Upon
VENDOR AND PURCHASER-Concl'd. the discovery of the mistake the appellants applied for an order by the court that the receiver execute and deliver to the purchaser a conveyance of the said parcel omitted in the particulars of the sale; this application was resisted by the respondent acting as trustee for the bondholders of the Lumber Company- Held that the appellants' application should not be granted; and that, although the purchaser may have been entitled to rescission of the sale on the ground of mistake, the order prayed for should not be granted, as the appellants had failed to shew anything which would raise an equity against the bondholders such as might have enabled the court to direct that the deficiency in the land should be made good by the receiver at the bondholders' expense.-Judgment of the Court of Appeal
([1921]
3 W.W.R. 209) affirmed.
- Sale of goods-Conditional sale- Subsequent purchaser-"Purchaser in faith-"Act respecting lien notes"-R.S. Sask. The appellant company sold to the Phoenix Publishing Company two machines subject to the condition that the title of the property would remain with the appellant until full payment of the purchase price, with the right to re-take possession on default of payment. Later, the Phoenix Company assigned for valuable consideration to A.B.
representing the respondent company "all (its) rights, title and interest" in these two machines.
The agreement of sale was not registered but A.B. was aware of the above mentioned conditional sale. Default having been made on the payment of the purchase price, an action was brought by the appellant to recover from the respondent possession of the two machines.-Held, Brodeur and Mignault JJ. dissenting, that A.B. acquired title to the two machines subject to satisfying the appellant's "lien" thereon and was not "a purchaser in good faith" within section 1 of ch. 145 of the Revised Statutes of Saskatchewan, and that the respondent was therefore not entitled to rely on the protection of that section.- Judgment of the Court of Appeal ([1921] 2 W.W.R. 971) reversed, Brodeur and Mignault JJ. dissenting.
v. Pun- Insurance
Guarantee-Representations-Art. C.C.
WILL-Partnership-Death of partner- Continuation of business-Election by estate between profits and interest-Partnership property devised partner-Sale in winding-up-"The
Partnership Ordinance."
N.W.T.
94, s.s.
41, 44, 45.] J. and his son, the respohdent, had been partners in farming operations. J. died and by his will directed payment of his share of the net profits to his wife, one of the appellants, during her lifetime. The respondent and others, executors to the will, neglected to apply for probate or to have a legal representative of the estate appointed with whom he could establish business relations.
After the respondent had carried on the business of the farm for a considerable time, the *widow brought action asking for the appointment of an administrator cum testamento annexo, declaration that the partnership was dissolved by the death of J. and a winding up including a charging of the respondent with the profits.
The appellant, the Trusts and
Guarantee Co., was named administrator and was later added as a party plaintiff;
and both the appellants then filed a claim of election to take interest in lieu of profits, relying on section 44 of "The
Ordinance."
referee named in the winding up proceedings found that there had been no profits from the operations of the farm since J's death.-Held, Duff J. dissenting that the administrator had the right, under the above section 44, to claim interest from the testator's death on the amount of his share of the partnership assets as the business had been carried on by the respondent "without any final settlement of accounts as between the firm and the outgoing partner's estate" and as nothing in the will authorized explicitly the continuation of the business by the respondent.-The will directed that at the widow's death a certain half of the partnership land should be conveyed to the respondent on condition of his releasing his interest in the other half and paying off half of the mortgage indebtedness. The respondent was willing to carry out the conditions and to meet his share of the partnership debts.-Per
Davies C. J. and Idington and Anglin
JJ. Notwithstanding the devise of it to
WILL-Concluded.
respondent, this west half of the land was still liable to be sold to satisfy claims against the partnership.-Judgment of the Appellate Division (16 Alta. L.R. 241) reversed, Duff - J. dissenting. Will-Interpretation-Residuary bequest -Intestacy-Arts. 479, 597, 838, 891, 902 C.C.]
The two following clauses were contained in a will: "5. I direct and desire that my executors whom I also name as trustees, shall set apart a sum of twenty-five thousand dollars and invest the same in the securities provided by law, and pay the interest or dividends from the said sum as the same are payable to my said wife during hcr lifetime so long as she remains my widow but in the event of her marrying then in such case the said interest or dividends shall cease and the said sums shall revert to my estate in the same manner as it will revert to my said estate upon the death of my said wife."
*
*
* Should there be any issue of my marriage the residue of my estate shall be kept in trust for such issue until such issue shall attain the age of twenty-one years but the interest or revenue shall be employed in the education and support of such issue but in default of such issue, the said residue shall go to my wife to whom I give the same absolutely."-Held, that, upon the testator's death without issue and subject to the condition against re-marriage, the sum of $25,000 passed to the wife of the testator as part of the residue of the estate bequeathed to her and did not devolve upon the heirs at law as on an intestacy.-Judgment of the Court of King's Bench (Q.R. 31 K.B. 157) affirmed.
WORKMEN'S
- Workmen's Compensation Act-Machine- Absence of guard-Duty of employer- Inexcusable fault-R.S.Q. art. 7325.] The appellant, while working on a machine by feeding cotton into it between two rollers, had both hands caught and crushed necessitating their amputation. The maximum compensation under the "Workmen's Compensation
Act" was admitted by the respondent company but the appellant claimed a greater compensation under article 7325 R.S.Q. on the ground of "inexcusable fault" of the respondent especially in not having WORKMEN'S COMPENSATION-Con.
provided the machine with protection devices.
The respondent had installed an apparatus of wire for stopping the machine within four seconds.
No other safety device was supplied by the manufacturers of the machine.
Although the practicability of a certain guard may have been established at the trial, the respondent company, having an expert engineer continuously working at the discovery of new safety devices, had found none suitable for this machine.
provincial government inspector had never given to the respondent any notice to provide a safety guard.
A somewhat similar accident had previously happened in the defendant's factory but no evidence was adduced as to the exact cause of that accident.-Held,
Idington J. (dissenting)
, that the "inexcusable fault" the respondent company had not been established.-Per Idington
J. (dissenting). The appellant was ordered to do a dangerous work, of which he had no experience, without being given any instructions,. in contravention of the company respondent's own regulations;
WORKMEN'S COMPENSATION-Con. and, also, there were existing protection devices in use when the calendar machine or its principle, was applied to doing other work than the one done in respondent's factory.-Judgment of the Court of King's Bench (Q.R. 32 K.B. 44) affirmed, Idington J., dissenting.
WORDS AND PHRASES
"Ad medium filae" .................
"Jura regalia".................... "Stop, look and listen"............
Cases cited
- ibid ibid
- 3 W.W.R. 209 3 W.W.R. 209
- A.C. 662 A.C. 662
- A.C. 217 A.C. 217
- A.C. 599 A.C. 599
- 2 W.W.R. 971 2 W.W.R. 971
Statutes and regulations cited
-
Unresolved citations
- section 109
- sections 109
- 126
- ss. 1
- 2
- sections 126
- 146
- section 102
- s. 2
- s. 109
- s. 102
- s. 126
- Section 109
- sections 102
- 109