Aotion of trover charging appellants with converting 250 barrels of mackerel, which were the property of W. . R. the respondent's assignor.
One of the branches of ap. pellants' business was supplying merchants who were connected with the fishing business in the country, and who in return sent them fish, which was sold and the proceeds placed by appellants to credit of their customers.
One S., who so dealt with appellants, in October, 1877, sent them 77 barrels of herring and 236 barrels of mackerel.
On 3rd November, 1877, 8. sold all the *PasaT-Sir W.
big fish he had, including those mackerel, to one R. at $8 a barrel, when some were delivered, leaving 236 barrels in the appellants' T R store, and in payment rect ived $4,000 and a promissory note for $4,000 at four months. This note was given to appellants by S. on account of his general indebtedness.
On the 4th March, 1878, B. became insolvent and the respondent who was sub. quently appointed assignee, demanded the 236 barrels of mackerel and brought an action to recover the same. After issue was joined, the appellants proved against the estate of R. on the note and received a dividend on it.
The Chief Justice at the trial gave judgment for $1,888,less $46.10 for one month's insurance and six months' storage, and found that the appellants had knowledge that the fish sued for were included by the insolvent in the statement of his assets, and made no objection thereto known to the assignee or creditors at the meeting.
Held,-(Strong, J., dissenting,) that the appellants having failed to prove the right of property in themselves, upon which they relied at the trial, the respondent had as against the appellantst a right to the immediate possession of the fish.
2. That S. had not stored the, fish with appellants by way of security for a debt due by him, and as the appellants had know. ledge that the fish sued for were included by the insolvent in the statement of his assets, to which statement they made no objection, but proved against the estate for the whole amount of insolvents' note, and received a dividend thereon, they could not now claim the fish or set up a claim for lien thereon. APPEAL from a judgment of the Supreme Court of Nova Scotia in favor of the respondent. The action was one of trover charging the appellants (who do business under the name of Black Bros. 4* Co.,) with converting 250 bar* rels of mackerel, which were the property of William lf. Richardson, the respondent's assignor. One of the branches of the appellants' business was the supplying of merchants who were connected with fishing business in the country, and they were accustomed, as others in the same line, to receive in return the fish which their customers obtained, and to sell such fish, placing the proceeds to the account of their customers. One D. N. Shaw, living in Cape Breton, so dealt with the appellants, obtaining all his supplies from them and sending them all his fish.
In October, 1877, he sent to appellants barrels of herring and 236 barrels of mackerel, which they placed in their store. While these fish were in their store Shaw came to Halifax, and sold the barrels of mackerel along with a quantity of other fish (with which the appellants had no concern), to W. M. Richardson, who soon after became insolvent; respondent as his assignee demanded barrels mackerel appellants refused to deliver.
On
16th March, 1878, verbal demand was made on appellants for the fish.
On the 22nd March appellant sold 200 barrels of the fish to West. On the 4th April a written demand was made on the appellants for the fish. The whole amount of the sale by Shaw to Richardson was $8,101.11, of which half was paid in cash and a note was given for the other half ($4,050.56), and this note was endorsed over by Shaw to the appellants,.who held it, unpaid and overdue, when the demand was made and action brought. The appellants pleaded not guilty and that the goods were not, nor was any of them, the respondent's as such assignee as alleged. The action was brought 6th April, 1878, and, long after issue joined, viz.: in January, 1880, appellants proved against the estate of Richardson on the note, and in February, 1880, received a dividend thereon of $577.20.
The late Chief Justice tried the cause without a jury and gave judgment against the appellants for $1,841 90, on the ground that they knew Richardson had included the mackerel in his statement of assets and had not objected at the meeting of the creditors. Only one of the appellants was present at this meeting.
Thompson, Q.C., for appellants:
The action in this case charging the defendants with converting 250 barrels of fish, which were the property, of the plaintiffs assignor, was brought on the 6th April, . 1878, and it was long after issue joined, viz.: in January, 1880, that the defendants proved against the estate of Richardson on the note and received a dividend thereon of $577.20. Now, the learned judge who tried the case gave judgment against the defendants, on the ground that they knew Richardson had included this particular fish in his statement of assets, and that they had not objected at the meeting of the creditors, but accepted a dividend on the note and declared they held no security. Only one of the defendants was present at this meeting, and having great quantities of fish in store from time to time for different persons, he could not be certain that Richardson had not any fish there until he should make enquiry. But even if the defendants had knowledge that the fish sued for were included by the insolvent in the statement of assets and made no objection thereto known to the assignee or creditors at the meeting, these facts did not entitle the plaintiff to judgment. Defendants were not bound to make any such objection. The plaintiff cannot claim by estoppel, and these facts did not amount to an estoppel. - The assignee can only avail himself of such title as Richardson had. Freeman v. Cook (1); Clarke v. Hart
It was a fact immaterial to the issue-it was not made matter of replication, and any replication of that fact would have been demurrable, and therefore such a ground is not now available to plaintiff.
The case of ex parte English v. American Bank is an authority that the defendants did not lose their title to the fish by alleging in the proof of claim that they held no security for the claim. A creditor can properly SUPRE31E COtCRT OF CANADA. [VOL. VI1. so attest if he holds no security from the insolvent. T ,p Insolvent Act of 1875 (1); McMahon's Insolvent Act My second point is that the fish were the property of defendants, either absolutely or as pledged to them by Shaw. Langton v. Higgins (3).
If the fish are the property of Shaw, as assumed in and stated by the judgment, and the defendants were merely the custodians of them, they had at least the right on Shaw's behalf to hold the fish for the unpaid purchase money. Beniamin on Sales (4); Bullen and Leake
There was a lien on the fish for unpaid purchase money, and whether this lien was in Shaw or the defendants, it was an answer to the action. Butler v. Hobson ; Gadsden v. Barron ; Leake v. Loveday There was a lien, according to the Chief Justice's finding, for insurance and storage, which he deducted from plaintiffs damages. The validity of any such charges (which the learned judge expressly affirmed) did not constitute them a set-off against the plaintiffs damages, but constituted a defence to the action, and one that did not require to be pleaded.
Bullen 4* Leake
Finally, I submit even if the fish were only left with defendants to sell for Shaw, they had such an interest that Shaw could not revoke their authority and sell without their consent. Jones v. Rodgskins (10); Benjamin on Sales (11); Gaussen v. Morton (12); Walsh v. Whitcomb
Mr. Rigby, for respondent:
A good deal of my learned friend's argument is based upon the assumption that the learned judge only found upon one of the facts in issue. Now, in order to arrive at the conclusion he did, he must have found that the fish was Richardson's and had been originally Shaw's. This special finding is an addition to the general verdict in our favor. There were only two issues raised by the pleadings: the first issue denies the commission of trover, and second, goods not plaintiff's and he had no right to possession. Now my learned friend rests his contention entirely upon the lien of an unpaid vendor. I contend he cannot raise the question of lien at all under our practice act.
Then, we come to the qiiestion of fact. Whose property was it? It is not denied that it was Richardson's, but they say there was an equitable assignment of it. Surely that must be pleaded.
There is no proof that the appellants are defending this suit for or on behalf of Shaw, and if not, they cannot, under any circumstances, set up the non-payment of the note or Richardson's insolvency as a defence to this action, and they cannot, under the state of the pleadings herein, in view of the provisions of c. 94 of the Revised Statutes, fourth series, and especially of s. 152 thereof, set up any such defence.
If the appellants' claim to hold the fish be founded on stoppage in transitu, there is no proof that Shaw ever exercised such right, nor that he authorized the appellants to do so, nor that they did so. In order to constitute stoppage in transitu, there must be some act declaration on the part of the vendor countermanding delivery. Benjamin on Sales (1).
If any such right existed, and could under the circumstances in proof herein be properly exercised, it gave at most only the right to detain, and not to sell, the goods, and by selling them the appellants were guilty of a conversion, and respondent is therefore entitled to recover. Roscoe's Nisi Prius
The transilus was at an end when the goods were sold by Shaw to Richardson.
Part of the fish, viz., 86 barrels, having been delivered, it must, in the absence of proof to the contrary, be deemed equivalent to delivery of the whole, and the right of stoppage in transitu was at an end.
The respondent in any point of view-the contract made with Shaw never having been rescinded-had the right to tender the portion of the purchase-money remaining unpaid, and thus entitle himself to the goods, and any profit or advantage to accrue from their possession; and the appellants, by not setting up when the several demands were made their alleged right to detain, have misled the respondent, and have also waived and lost all right, if any such ever existed, to insist upon a lien or right to detain.
The only other point I intend to urge is, that the defendants cannot set up either a lien for charges or unpaid balance account, because they filed a claim for their note with a sworn statement that they had no security and received a dividend.
The defendants knew that Richardson, at his first meeting, claimed the fish as his, and although Lewis, one of the appellants, informed himself, as he says, between the first and second meeting, as to the accuracy of this claim, yet he made no objections to such claim at the second meeting, although the claim on the part of Richardson to the fish was repeated at the second meeting.
Mr. Thompson, Q.O., in reply.
Defendants were commission merchants and warehousemen. One Shaw, living at L'Ardoise, in the island of Cape Breton, a distance from Halifax, was in habit of dealing with them, they supplying him with goods, he sending them his fish, which they stored and sold, and credited him with the proceeds. In the summer of 1877 Shaw had in the store of defendants 286 barrels of mackerel. Richardson, the insolvent, says, and I think all the surrounding circumstances corroborate his testi. mony, that
On the 8rd November, 1877, Shaw, being in Halifax, sold all the fish he had, including those mackerel, to Richardson, the mackerel at $8 a barrel=$1,828 for the 236 barrels. The whole sale amounting to $8,101.11 for which Richat paid, half cash, or
$4,050 And half by a note at 4 months for
4,050 66 $8,101 12 Shortly after the sale and date of the note at 3 months, Shaw endorsed the note to defendants on account of his indebtedness to them. The note would fall due on 6th March, 1878.
All the fish sold, except the 236 barrels, were at time of sale in two vessels, and of all these fish Richardson got the actual delivery. The 236 barrels remained in defendants' store. On the 4th March, 1878, before the note fell due, Richardson assigned under the Insolvent Act of 1869.
Plaintiff became assignee of the insolvent, 15th March, On the 16th March verbal demand was made on defendants for the fish.
On 22nd March, 1878, defendants sold 200 barrels of the fish to West.
,.
On 4th April a written demand was made on defen- -_ fendants for the fish; and
' On 6th April, 1878, the writ was issued in the case; On 7th May, 1878, defendants sold the remaining 86 barrels to Cochran.
There were three meetings of Richardson's creditors after the assignment, and no meeting after the 18th March. At these meetings one of the defendants, Lewis, attended, and at these meetings a statement was produced of the insolvent's assets, in which among the items of assets the fish now in dispute was put down as " 236 bble. mackerel, stored at Black Bras."
At the first meeting the defendants took a copy of this statement. The witness, W H. Hart, inspector, and a creditor, who was present at the three meetings says:
And on cross-examination, he says:
This was fully confirmed by other witnesses present. Though taking apparently a very active part, and fully informed as to these fish being claimed as the property of the insolvent, and as an item of his estate available for his creditors, neither this defendant nor his firm ever set up any claim thereto or lien thereon on behalf of themselves, Shaw, or any one else, but, on the contrary, filed with the assignee a claim against Richardson's estate as follows:- And supported the claim by an affidavit sworn to, 8th January, 1880, by Lewis, in which he says: And the plaintiff, the assignee, says:
I think there is satisfactory evidence in this case to show that whatever may have been the general dealings or relations between Shaw and defendants with respect to these fish, they clearly refused to sell them on account of Shaw, and left Shaw to deal with and sell them entirely independent of them, and referred Richardson to him to buy them direct from him without their intervention, and necessarily free from any claim that might have existed, growing out of the general dealings of defendants with Shaw; and there can be no doubt that under such sale by Shaw to Richardson, the latter would, up to the time of his insolvency, have been entitled to demand and receive from defendants the said goods, wholly free from any lien or claim arising from such general dealings between Shaw and defendants, and also in like manner as against Shaw, would have been entitled to have delivery and possession of the goods. Such being the case, and defendants in their own rights having no lien, had Shaw a lien? and, if so, did defendants deal with those gdods by virtue of such claim, or have they set up Shaw's lien as a defence to this action ? There can be no doubt that if a vendor sells on time and takes a bill of exchange or promissory note for the price, he loses hi's lien on the SUPREMf goods sold, though in like manner there can be no doubt that it revives on the dishonor of the instrument in the hands of the vendor; that is to say, if a purchaser becomes insolvent before the goods are actually delivered, the vendor's right to refuse delivery revives, the law does not compel the vendor to deliver to an insolvent purchaser, but if the buyer does not become insolvent during the time that the bill is current, there is no vendor's lien, and the vendor is bound to deliver. It is stated in some of the text books that such lien does not revive on the dishonor of the instrument, if it be then outstanding in the hands of a third person, and in support of this proposition the case of Bunny v. Poynts (1) is generally to be found cited, but that was a case where the agent of the vendor took the notes of the vendee and another for the price and discounted them with his banker and endorsed them, but the vendor, his employer, did not endorse them. The court held the vendor must be considered as having received payment for his goods and could not retain them, though his agent afterwards became bankrupt and the notes were dishonored. It is somewhat difficult to understand why the fact of the notes being endorsed by the agent .or the principal should make any difference in the right of the principal to retain the goods on dishonor of the note. If the creditor negotiates the bill or note for value and without rendering himself liable, it will operate as payment though dishonored, for in such a case he has obtained value which he cannot be compelled to refund, and therefore, if by a lien on the goods he could recover the price he would be paid twice. But if the creditor negotiates the bill or note, so as render himself personally liable upon it, in that case it will not operate as a payment, if dishonored. It is said the bill is still outstanding; that is true, and $28 it may, perhaps, operate to prevent the seller from having a complete right to the goods so as to be able to give a valid title by re-selling them to a third party, but the only question in the present case is whether he has not a right to hold them till the price is paid.
But if the goods sold are in the warehouse of a third person, and he assented to hold them as agent for the vendee, then there would have been a delivery of the goods, and the possession of the warehouseman would be the possession of the vendee, and all right of. lien on the part of the vendor would be gone. In other words, the right of property and possession would both have passed from Shaw to the insolvent, and the right of lien would be destroyed, or rather would not exist.
In this case, did not defendants, by their conduct, recognize Richardson and his assignee, as having the absolute right in the property and the possession of the goods?
It is in vain to say that defendants did not know of the sale to Richardson. It was at their instance that Richardson negotiated with and bought from Shaw. They received the cash and note given by Richardson in payment for these and the other fish, and it is asking too much to expect us to believe that they did not know for what the notes and cash were given; the non-production of the warehouse books and of their warehousman, the sending to Richardson the notice of the running out of the insurance (for it is clear it could only have come from their establishment), their non-insuring the goods for the benefit of themselves or Shaw after the sale, then allowing the insurance to run out,the statement of Troop that the storage was at a fixed rate, and his saying: "I charged Richardson the usual rate," takeri in connection with the non-repudiation of Richardson's property in the goods and the right to them of. the plaintiff, as his assignee, at the several meetings of the creditors, the not setting up any claim of lien of any sort, or in any person when the property was demanded, or of Shaw on the trial, the non-assertion of any lien being J the goods, the entire absence of Shaw from any parti- Jcipation in the doings of the plaintiff in reference to securing these goods, the entire absence of the assertion of any claim of lien or otherwise by Shaw or by defendants in his behalf, the putting in of their claim to the full amount of the note, their swearing, long after this action was brought, that Richardsons estate owed thereon the full amount, and that they held no other security, would, in my opinion, fully justify a jury in coming to the conclusion that defendants acknowledged Richardson as owner, and that they actually held the goods for him; if so, then Shaw would have no lien, for Lord Campbell in Pearson v: Dawson says (1)
It is true Mr. Troop says in cross-examination: This may be so, but it is quite consistent therewith that his partner and his warehouseman or managing man may have had full knowledge of the whole transaction, and it is to be remarked that his partner is on this point suggestively silent. He does say:
This is entirely irreconcilable with all the evidence in the case, and it is the more strange that with the two cargoes they had nothing to do, these having been sold by Shaw himself from the vessels, and it is still more VOL. Vil.] SUPREMTE COURT OF CANADA.
M2 strange, when it is recollected what took place at the meetings in March, 1878; and the finding of the Chief Justice was, " that defendants had knowledge that the H "fish sued for were included by the insolvent in the "statement of his assets, and made no objection theretonitchie,C.J. "known to the assignee or creditors at the meeting;" and which finding is supported by overwhelming evidence. There.is no evidence whatever that notice of dishonor of this note was ever given to Shaw, or that the defendants hold him in any way liable thereon as indorser, or that Shaw in Cape Breton had any notice or knowledge of Richardson's insolvency at Halifax, or that he had any notice or knowledge of the note having been dishonored. Nor is there any evidence whatever that Shaw in any way directly or indirectly authorized defendants to set up any lien on his behalf on the said goods, or that he ever know that any such claim ever was so set up nor in fact is there a tittle of evidence to show that defendants, with or without the consent or knowledge or authority of Shaw, ever did set up such claim on his behalf, or that they ever did deal with or claim to deal with the fish as the agents of or as authorized in any way by Shaw so to do; on the contrary, the fair inference from the evidence is that, on the ground that they had a claim on them in their own right, they dealt with the fish of their own mere motion without reference to Shaw or anybody else, and that they received the proceeds of the sales to West and Cochran, without accounting to the plaintiff as assignee of the estate of Richardson, or without crediting the proceeds on the note,* though they say the amounts 'of the sales were credited to Shaw. If they sold them on Shaw's lien they should have credited the insolvent or his assignee on the note, and not Shaw, but it does not appear that that fact was ever communicated to Shaw by them, or that he ever had any knowledge of it. On the contrary, without any apparent communication with Tao
Shaw on the subject, and, so lar as the evidence shows, .
without any reference to him or to the said sale, some two years after, the defendants prove the whole amount i of the note was due by the insolvent estate to them, and claimed and received a dividend on such full amount, a proceeding wholly inconsistent with a sale of the fish under a lien (supposing, if a lien, a sale would be justifiable,) for the fish appear to have been sold;
200 barrels for $7.60 and 36 at $6.30 would and deducting charges, in which there are items which could not be charged against the insolvent, supposing there there would be a balance of
.
which, if the property had been sold under Shaw's or any other lien, would have to be credited on account of the note, for the security of which the lien, if any, must have existed. And would leave only $2;883.71 instead of $4,050.56, due on the note, for which any claim could possibly be made on the insolvent. estate. The sworn claim, therefore, that the defendants put in for the full amount of the note, and for which they swore they had no security, is conclusive, to my mind, that they did not dispose of the said fish by virtue of any right of lien or under any authority from Shaw, or by or with his consent or approval, and in this connection it may not be amiss to notice that a vendor will lose his right of lien if he prove for the price of the goods under an adjudication in bankruptcy against the vendee. Exp. Hornby Again, if Shaw had a lien, neither Shaw nor defendants, supposing they were acting for them, had any right to sell or dispose of the goods, and such sale was a conversion as against the assignee, in whom the property was, subject to the lien. Assuming that under a plea of not possessed a lien may be given in evidence, still, if you admit evidence of a lien you cannot exclude evidence to show that it had ceased to exist at the time of the conversion, so that supposing the defendants had a lien on these goods, and he should prove it under the plea of not possessed,. the plaintiff would be entitled to show that the lien had ceased at the time he converted The defendants clearly had no right to sell the goods, as they had no property in them; they do sell the goods and thereby necessarily put an end to the lien, if any existed. Continuance of possession being indispensable to the existence of liens at law, an abandonment of the property over which the right extends divests the lien.
But assuming again that Shaw had - a lien, the defendants cannot, under the pleadings in this case, set up such a defence to this action, and if they could, under the pleas in this case, set up a lien in Shaw, they. could not justify, au against the assignee of Richardson, in whom the general property in these fish was, a sale and conversion unauthorized by Shaw, and unwarranted if authorized.
J.:- This is an appeal from the judgment of the Supreme Court of Nova Scotia discharging a rule nisi for a new trial. The facts on which the questions presented .for the decision of the court arise, are as follows: In October, 1877, one D. N. Shaw, a merchant at L'Ardoise, in Cape Breton, consigned to the appellants, merchants at Hallfax, trading under the name of Black Bros., a quantity of fish consisting of 236 barrels of mackerel and barrels of herring.
These fish were stored by the defendants. Shaw had for some time previous to this consignment been in the habit of dealing with the defendants, who supplied him with goods, and Shaw consigned fish to the a,,iJ. defendants, who sold them and credited him with the proceeds. That this was the regular course of dealing between Shaw and the defendants is proved by both the latter and not contradicted.
The defendant Troop in his evidence says:
The defendant Lewis says:
He also -says:
In November, 1877, Shaw came to Halifax and W. .M. Richardson, of whom the respondent is the assignee in insolvency, purchased from him a large quantity of fish comprising, amongst other lots, 292 barrels of mackerel at $3 per barrel. This lot of 292 barrels included the 236 barrels, which had previously been consigned to the appellants, and were at the time of sale held in store by them. The difference, barrels of mackerel and the rest of the fish purchased by Richardsmn, were delivered to him by Shaw at the wharf, never having been in the possession of the appellants.
Richardson says in his evidence that before he made his purchase one of the appellants (Troop) told him they did not want to sell the fish in their hands as Shaw was on his way from Cape Breton, and would probably dispose of them himself, and that Richardson S might probably buy them from Shaw. This conversa- J. tion is denied by Troop. He says :
The price of all the fish purchased by Richardson from Shaw was $8,101.11-of this amount, one-half was paid by Richardson to Shaw in cash, and for the other half, $4,050.56, Richardson gave Shaw his promissory note, dated 3rd November, 1877, payable four months after date. Dr. Lewis, one of the appellants, swears that his firm had given Shaw no authority to sell the fish in their warehouse, but some time in November Shaw endorsed Richardson's note to the appellants on account of his debt to them. Lewis, however, says: Troop swears:
Further, Richardson states:
There is a seeming inconsistency between these several statements of the appellants and Richardson and that of Troop on cross-examination, when the latter says :
if, by this, it is meant that the appellants charged Richardson storage on the 236 barrels-of mackerel in dispute.
On the 4th of March, 1878, and before the promissory note, which did not mature until the 7th of March, fell .due,
Richardson became insolvent and executed an assignment under the Insolvency Act of 1869. At this time the appellants still had the 236 barrels of fish in their possession. The respondent was appointed the creditors' assignee of Richardson's estate on the 15th March, 1878, and on the next day made a verbal demand on the appellants for the fish; the terms 6f the appellants' answer to this demand are not stated in the evidence; the respondent merely says, he did not get the fiEh. On the 4th April following a written demand was made, to which the appellants replied by a letter, referring the respondent to their solicitor.
The appellants, on the 22nd March, 1878, sold 200 barrels of the fish to We.t, and on the 17th May, 1878, they sold the remaining 36 barrels to Cochrane. This action was commenced on the 6th April, 1878.
In the statement of assets belonging to the insolvent Richardson, received by the respondent from the official assignee, the fish now in dispute, described as " 236 barrels of mackerel stored at Black Bros.," was included. This statement was produced and handed round at two, if not at -three, meetings of Richardson's creditors, held prior to the 18th March, 1878, at both of which the appellant Lewis was present.
Dr Lewis admits having seen the statement at the first meeting held before the assignment, though there is some contradiction between him and the other witnesses as to whether the statement was read or produced at the subsequent meeting. No objection was made by Dr. Lewis to the statement in respect of the fish in question in Black Bros. warehouse being the property of the insolvent. Dr. Lewis's evidence on this point is as follows:
In Januiary, 1880, long after this action had been commenced and after appellants must have ascertained the facts of Shaw having sold or assumed to sell this identical lot of fish to Richardson, and that the price was included in the note, which had been indorsed by them to Shaw; the appellants proved their debt on the note in the insolvency matter, the proof of the claim being made by Dr. Lewis, who, in his affidavit, swore that the appellants held no security for the claim; and on this proof, a dividend amounting to $577.20 being at the rate declared of 141 cents on the dollar, was afterwards paid by the assignee to the appellants.
The declaration was in trover for the conversion of the fish, and the pleas were, not guilty, not possessed, and a traverse of the respondents' property in the goods. The action was tried on the 28th of April, 1880, before the late Chief Justice of Nova Scotia (Sir William Young) without a jury, when a verdict was found for the plaintiff for $1,841.90, being the value of the 286 barrels of mackerel at $8 per barrel, less the sum of $46. 10 allowed for insurance and storage.
Shaw was not called as a witness at the trial. It appears from the judge's notes of the trial that the Attorney General, for the defendants, then raised the same point of lien which he insisted on in the argument here. The note being as follows:
The reference to 4 B. & Or. 941 is to the cases of Bloxam v. Sander and Bloxam v. Morley, the leading cases on the law of vendor's lien in cases of insolvency. The Chief Justice found for the plaintiff upon the ground, as expressed in his note, that the "defendants had knowledge that the fish sued for were included by the insolvent in the statement of his assets, and made no objection thereto known to the assignee or creditors at the meeting." The Chief Justice adds to his finding this further note:
from which it appears that it was intended that all questions of law arising on the evidence should be open at the argument on the application for anew trial, and, at all events, that the defendants were not to be precluded from raising then the same points which they had insisted on at the trial. The court in banc afterwards granted a rule nisi to set aside this verdict, which was upon argument discharged with costs.
It was contended on the argument of the appeal before this couirt, by the Attorney General, on behalf of the appellants-1st. That Shaw had a lien upon the 236 barrels of fish for the unpaid residue of the price of all the fish sold by him to Richardson, i.e., for the amount of the promissory note, which lien, the appellants were entitled to set up and enforce. 2nd. That if Shaw had not such a lien, the appellants themselves, under the arrangement with Shaw upon which the fish had been consigned to them, were entitled to one in their own right for the price of the 286 barrels in question. There is, I think, nothing in the objection that the defence of a lien either in Shaw or in the defendants themselves was not admissible under the pleadings. The evidence of conversion was, as regards all the goods claimed, the demand and refusal to deliver, and also as regards 200 barrels, the sale to West before the action; the remaining 86,barrels not having been sold to rane until after action brought, the demand and refusal constitute the only evidence of the conversion of that quantity. The effect of not guilty, in an action for con- S- J. version under the English rule of Trinity Term, 1853, with which section 146 of the Revised Statutes of Nova Scotia (4 Series) cap. 94 is identical, is stated in Wilham's notes to Saunders as follows:
And this is not affected by see. 144 of Revised Statutes of Nova Scotia (4 series) cap. 94. Then as the right to the possession, as well to the property in the goods, at the time of conversion is requisite to enable a party to maintain an action of this kind, a right of lien, either in the defendants in their own right or in Shaw, whose agents the defendants were, as I shall hereafter establish, is a sufficient defence to the- action as disentitling the plaintiff to the possession; and it is clear upon authority that such a lien may be set up under pleas traversing the plaintiff's property and possession for even assuming that the appellant had no right to re-sell, yet, as the buyer had no title to the immediate possession of the goods at the time of conversion, the defence must be admissible under the plea of not possessed. In William's notes to Saunders, (4) it is said:
This principle is also very clearly stated by Mr. Benjamin in his Treatise on Sales
He says: I have noticed this question of pleading, not because it gives rise to any difficulty, but for the reason that it was strenously contended by the learned counsel for the respondent that the defence was not open to the appellants on this record.
Then proceeding to consider the substantial question raised by this appeal, I am inclined to the opinion, that although as between themselves and Shaw, the appellants originally had, under the arrangement upon which consignments were made to them by Shaw, a lien or rather a special property in these goods with a power of sale, and authority to apply the proceeds in payment of Shaw's debt to them, their conduct has been such as to have debarred them from insisting upon it as against Richardson,or the respondent as his assignee, as a paramount title invalidating the sale by Shaw to Richardson.
Richardson says:
I think we must assume Richardson's account of this conversation to be correct, for by purchasing the fish from Shaw, he acted upon what he states Troop to have said to him, in a way he would hardly have done, had he not considered Shaw had the right to sell free from all lien or other superior title on the part of the appellants. This view of the evidence is ilso consistent with the conduct of the appellants in not setting J. up their claim when they found Richardson had s included the fish in his list of assets.
I assume, therefore, that the appellants are precluded from setting up in their own right any title paramount under- the terms of Richardson's consignment to The property must, therefore be deemed to have been in their hands in the character of bailees, i.e. as warehousemen for Shaw at the time of the sale by the latter to Richardson. Then, assuming for the present that the appellants continued to hold the goods in the character of warehousemen for Shaw down to the date of Richardson's insolvency, two questions arise-let. Was it competent to the defendants to set up Shaw's rights as an unpaid vendor? 2nd. What was the nature and extent of those rights?
It is clear upon the most elementary principles of the law of agency that an agent, such as a warehouseman, in possession of goods deposited with him by a principal, who has afterwards sold them under a contract of sale which has operated to pass the property to the vendee, is in such privity with his vendor, that he not only may, but must, in order to perform his duty to his principal and protect himself from liability to him, set up any lien or right of retention until payment, which the vendor to the knowledge of his agent may have, in answer to the vendee's demand of possession without payment. If, under such conditions, a warehouseman were to deliver the goods to the purchaser without payment, thus waiving the lien he would be personally liable to indemnify his principal against the loss so caused. It is out of the question, therefore, to say in the present case that the appellants holding these goods as 8a
SUPRIM
OURT OF CANADA.
warehousemen for Shaw were setting up ajus tertii in insisting upon Shaw's lien (1).
Next we are to consider what were Shaw's rights in these fish, still assuming that at the time of the sale to J.& Richardson they were held by the appellants as ware- * housemen for Shaw, and that there was never any change in the character of their possession as such.
The promissory.note for $4,050.56, which had been given by Richardson on account of one-half the price of the whole lot of fish purchased by him from Shaw, including the two cargoes delivered at the wharf and those now in question, was, at the time of the insolvency and also at the date of the commencement of this action, in the hands of the appellants as holders for value, having been endorsed to them by Shaw on account of his debt to the appellants; and at the date of the insolvency which occurred on the 4th March this note was still current, not maturing until the 7th of March, 1878.
The case is therefore to be considered precisely as if this note had been outstanding in the hands of some third person other than the appellants, holding it as a bond fide indorsee for value. Would it then have been competent for Shaw, having taken a negotiable security for the unpaid portion of the price, which he had transferred to a holder for valuable consideration, to have asserted a lien on the goods on the occurrence of Richardson's insolvency?
There can be no doubt that the property had passed to Richardson by the operation of the sale, the goods having been ascertained and the requirements of the Statute of Frauds having been satisfied by the receipt and acceptance by Richardson of the two cargoes delivered at the wharf. The only question is as to the lien or right of retention for the price, arising upon the insolvency of the vendee. It is a well established rule that upon the sale of ascertained chattels upon credit the vendee not only acquires the property in the goods sold, but has also a right to the immediate possession. - If, however, the price is not paid at the expiration of J. the term of credit, or if before that period, and during the currency of the credit, the vendee becomes insolvent a lien at once arises entitling the vendor to retain the goods still remaining in his actual possession or in that of his bailee until payment. Further, the vendor is entitled to insist on this lien as well in the case where a bill or note has been taken for the purchase money as in that where the price is unsecured; and the circumstance that a bill so taken is outstanding in the hands of a bond fide holder for value makes no difference in the vendor's rights if he is himself liable as an indorser on the bill. It is also settled by authority that the vendor by consenting to hold the goods as a warehouseman for the purchaser, does not disentitle himself to insist on the lien. If, however, the goods are in the custody of a warehouseman who, upon the sale, has attorned to the purchaser, as the goods can then in no sense be said to be in the possession of the vendor, the right of lien is gone.
These principles are so well established that a reference to authorities in support of them is scarcely required. It may be useful, however, to point out a few amongst the numerous decided cases which show that the law is thus settled beyond cortroversey.
Most of these are referred to by Mr. Benjamin in his Treatise on Sales in which is to be found a very full discussion of the vendor's right in this respect. The leading case is Blozam v. Sanders (2).
In the course of his judgment in that case Bayley, J., states the law very fully and clearly.
In this case of Blozam v. Sanders the term of credit, upon which the goods had been sold, had expired at the date of the resale. The general doctrine here referred to was also clearly expounded and acted upon in the g recent case of Grice v. Henderson But the proposition that goods which have been sold on a credit which has not expired, so that the vendee, being solvent, would be entitled to immediate possession, may, upon the vendee's insolvency occurring be retained by the vendor until payment, and that although bills have been given for the price which have been negotiated and are still current and outstanding in the hands of third parties, holders for value, does not depend merely upon the dictum of Mr. Justice Bayley in Bloxam v. Sanders, in which these circumstances Id not occur, but is warranted by adjudicated cases in which these facts were actually presented. In the case of McEwan v. Smith (2), a quantity of sugar had been sold at a credit of four months, and a bill taken for the price, but upon the insolvency of the vendees taking place during the currency of the bill, the vendors were held entitled to refuse delivery until payment of the price. It does not appear in this case that the bill had been negotiated. Gunn v. Bolckow, Vaughan 4- Co. was a case decided in the Court of Appeal in Chancery by Lords Justices James and Mellish. The defendants had contracted to sell to the Aberdare Iron Company a lot of railway iron which they manufactured, and which was approved and accepted by the vendees and stacked at the defendants' works. Wharfingers' certificates that the iron was lying at the vendors works ready for shipment were given to the Aberdare Company, who, upon receipt of these certificates, accepted bills for the price at six mohths date which Bolckow, Vaughan 4 Go. negotiated. The Aberdare Company handed the certificates to one Jones, whose 18S2 administrator the plaintiff was, as security for a loan Taioo The plaintiff had given notice to the defendants that he H. claimed a lien on the rails for the amount of the loan. - Subsequently the Aberdare Company became insolvent Strng, J. and filed a liquidation petition. At this time, two of the bills accepted by them had become due and had been dishonored. The other bills had not matured and were outstanding in the hands of holders for value. Upon this state of facts the Lords Justices held that the defendants were entitled to retain the iron for the whole price, as well for that portion which was represented by the bills not yet matured, and which were out. standing in the hands of bond ide holders, as for that covered by the bills which had been dishonored. Lord Justice Mellish says :
Now, it is said that it is a question of fact to be tried, whether that acceptance was taken in satisfaction.
*
* *
*
*
Whoever heard of such a thing in a mercantile contract, where it is said that payment is to be made by buyers acceptance of sellers' diafts, that if the acceptance was diehonored, the right to sue under the original contract did not revive? No one ever heard that if the purchaser became insolvent bef-re the goods were actually delivere 1, the vendor.' right to refuse delivery to an insolvent purchaser did not revive. Or even if he had actually started the goods, and delivered them to a carrier to be carried to the purchaser, it is perfectly well known that at law upon the buyers' insolvency there would be a right of stoppage in iransitu which would revest the vendors lien.
It would make no difference that a bill had been given which had not yet become due, or that credit had been given. No doubt, if the buyer does not become insolvent, that is to say, if he does not openly proclaim his insolvency, then credit is given by taking the bill, and during the time that the bill is current there is no vendor's lien and the vendor is bound to deliver. But if the bill has been dishonored before the delivery has been made, there the vendor's lien revives 5 or if the purchaser becomes openly insolvent before the delivery actually takes place, then the law does not compel the vendor to deliver to an insolvent purchaser.
Then, in a subsequent part of the judgment, the Lord Justice determines that the vendor's right to the lien for the whole price was not affected by the fact that some of the bills were outstanding in the hands of bond fide holders for value and that two of them had been dishonoured.
A very late writer on the law of sales, (1) thus sums up the result of the authorities:
As I have already stated, the fact that the goods have been left in the custody of the vendor, even though he has assented to hold them as a warehouseman for the buyer and has been paid warehouse rent in respect of them makes no difference in the vendor's right to the lien, arising on the insolvency; if they are in the actual possession of the vendor, even although he has agreed to hold as a warehouseman, and has been paid as such for his care, he is entitled to retain until the price is paid. For this proposition Grice v. Richardson (2), Miles v. Gorlon and Townley v. Crump are direct authorities, and are recognized as such by Mr. Benjamin
If, however, the goods are not in the actual possession of the vendor himself, but were, at the time of sale, in the custody of a third party as a warehouseman or bailee, and have, after the sale and up to the date of the vendee's insolvency, remained in the possession of such third party, then the right of lien depends on the question whether the warehouseman hasassented to hold the property as bailee for the purchaser or, as it is commonly expressed, has attorned to him. If the bailee has so attorned to the purchaser, it is clear that the goods can no longer be said to be in the possession of the vendor, and all right of lien is H1, gone. If, however, the warehouseman has not, by his consent to hold for the buyer, established the relation. 3. ship of bailor and bailee between them, he will not, although he has had notice of the sale and has even had presented to him the vendor's order for delivery to the vendee or to a sub-purchaser from him, be considered as holding for the vendee or sub-purchaser, but the goods will be considered as still remaining in the constructive possession of the seller, whose right of retention will revive on the insolvency of the purchaser. For this proposition I need only cite from amongst numerous authorities the single case of McEwan v. Smith (1) in the House of Lords, already referred to on another point. In that case the goods were sold on a credit of four months, an acceptance at that date being taken for the price and a delivery order given to the buyers by the vendors directing their agent, in whose name the property was stored in a bonded warehouse, to deliver it to the purchasers.
The purchasers having become insolvent before the expiration of the credit, it was held that although the goods had been re-sold by the original purchasers and the delivery order duly transferred to their sub-vendee's, nothing had occurred to interfere with the vendor's right to a lien arising on the insolvency.
Griffiths v. Perry (2) is also a case, in which it was expressly held, that the right of the vendor to retain the goods is not affected by the giving of a delivery order and its transfer to a subsequent purchaser. In short, as is observed by a late treatise writer already referred to (8) :rights are exactly the same as those for actual receipt, in regard to % the Statute of Frauds.
The same author in the following extract also clearly H states what is requisite to constitute the warehouseman Strong, J. the bailee of the purchaser (1) :- Where the goods, notwithstanding the engagement to sell, remain in the custody of a middleman, who at the time of sale held them as warehouseman for the vendor, the question of actual receipt within the statute depends upon the. consent of the three parties to the effect that the middleman shall thenceforth hold them as warehouseman for the buyer. Such joint consent constitutes an equivalent to delivery for, I think, every legal purpose. The most satisfac tory evidence of it is an order by the vendor, and a note by the middleman acknowledging the order, and stating that the goods have been transferred in his books to the vendee.
Again Mr. Benjamin in his work on sales states the law thus (3):
When the goods, at the time of the sale, are in possession of a third person, an actual receipt takes place when the vendor, the purchaser, and the third person agree together that the latter shall cease to hold the goods for the vendor and shall hold them for the purchaser. They were in possession of an agent for the vendor, and therefore, in contemplation of law, in possession of the vendor himself, and they become in the possession of an agent for the purchaser, and therefore in that of the purchaser himself. But it is important to remark that all of the partis must join in this agreement, for the agent of the vendor cannot be converted into an agent for the vendee without his own knowledge and consent.
Therefore, if the seller have goods in the possession of a warehouseman, a wharfinger, carrier, or any other bailee, his order given to the buyer directing the bailee to deliver the goods or to hold them subject to the control of the buyer, will not affect such a change of possession as amounts to actual receipt, unless the bailee accepts the order or re. cognizes it, or consents to act in accordance with it i and until he has so agreed he remains agent and bailee of the vendor.
I have made these quotations for the reason that in the view which I take of the law applicable to this case I find myself dissenting from the other members of the court, and in deference to them I considered it incum- (1) Campbell on Sales, p. 186.:
(2) 2nd Edition, Sec. 174. bent on me to set f9rth, with the utmost fulness and clearness, the principles of law which I rely on as warranting the opinion I have formed. The obvious H'ar deductions from the foregoing authorities is, that mere notice of the sale to the warehouseman is not sufficient J. to create a privity between him and the purchaser; there must be beyond that an assent by the agent not merely to the sale, which must be a matter of indifference to him, but such an assent as will be sufficient to create a new contract for holding the goods between himself and the buyer, such as, if the bailment is not gratuitous, will entitle him to sue the latter for warehouse rent.
Then to apply these principles, which I have thus extracted from the authorities, to the facts of the present case, it- appears to me that, subject to what I shall hereafter have to say as to a statement contained in the evidence of Mr. 'Troop, one of the defendants, the result must be to sus.tain the present appeal. The goods at the time of the sale to Richardson were in the hands of the defendants as warehousemen for Shaw. There is not, subject to the ambiguous passage in Mr. Troop's cross-examination to be referred to hereafter, a particle of evidence to show that the character of this possession was ever changed by the attornment of the defendants to Richardson, so as to create between them the relationship of bailee and bailor. On the contrary, Richardson himself swears positively that nothing was done to change the possession. The property in the fish, no doubt, passed to Bichardson on the sale, and of this the defendants had notice, but it has been shewn that even an order directing the warehouseman to deliver the goods; much less notice of the sale, is insufficient to work a change of possession, unless the warehouseman in addition, expressly, or impliedly by words, or by conduct with the consent of the vendor, assents to hold for the [VOL. Vil. vendee.
That the defendants never made any new arrangement to hold for Richardson appears very distinctly from Richardson's own testimony; he says: It was contended on behalf of the respondent that the notice from the insurance agent of the expiration of the policy which had been effected by the defendants upon the fish must have been sent by them to Richardson, and that this implied a recognition of Richardson's constructive possession through the defendants as his bailees
I am of opinion, however, that the Attorney General's answers to this argument are conclusive. First it nowhere appears in the evidence that this notice was transmitted by or through the defendants.
All that is said about this notice is what is stated by Richardson and the defendants. The former says:
Dr. Lewis, one of the defendants, says:
Mr. Troop also denies all connection with this notice. He says:
The fact of the defendants having forwarded the notice is therefore not established either directly or inferentially. But even if it had been distinctly proved, that the insurance agent having sent to Black Bros. the usual notice that their insurance was about to expire, they had transmitted it to Richardson, I should not have considered that the right of lien would have been in any way prejudiced by that circumstance. The property VOL. VII.] SUPREM1i COURT OF CANADA.
was undoubtedly in Richardson, and the fish were consequently at his risk; an insurance by him, with the assent of, and at the instance of, the defendants, would therefore have been in no way inconsistent with the fact of the goods being still in the constructive possession of Shaw, held by the defendants, as they had always held them, in the character of warehousemen for him. For the like reason, I see nothing in the conduct of the defendant Lewis, with regard to the list of assets produced at the insolvency meeting, which can in any way affect the defendants' rights in the present case. The tacit acquiescence of Dr. Lewis, if, indeed, it amounted to that, in the statement that these fish belonged to Richardson, and were stored in the defendants' warehouse, involved no admission that the fish were held by the defendants as warehousemen for Richardson, or that he was entitled to a delivery of them without payment of the price.
Further, the defendants' possession of the fish, originally held for Shaw, could not have been changed into one for Richardson, without the assent and privity of Shaw, and there is not the least proof of anything having been said or done by Shaw which could have that effect. It does not appear that any order or direction for delivery, either verbal or written, was ever given by Shaw, and Richardson does not pretend that he ever received such an order. If, therefore, the defendants are to be held in this action to. have converted themselves into warehousemen for Richardson or his assignee, by force of any admission made at the creditors meeting, it would not relieve them from a like responsibility to Shaw; for their liability to the present plaintiff could only proceed on the principle of estoppel, and to warrant the conclusion that there was such an estoppel, involving as it would a double liability, the clearest and most unequivocal proof of representation or conduct, inconsistent with the defence 3o put forward in this action,must have been established (1), and no such evidence has been given.
That no estoppel could have arisen from any assent - given by the defendants to the list of assets will be ap- Jparent from a slight consideration of the facts taken in connection with the first principles of the doctrine of estoppels. It is not shown that any of the creditors were in any way induced to alter their positions, or to do any act of any kind, on the strength of Dr. Lewis' silence, and, under the circumstances, it is not easy to see how they could have been led so to act. It was not the case of a compromise with creditors, or a deed of arrangement being entered into with their assent, but Richardson executed an assignment to an official assignee under the Dominion Insolvency Act of 1869, to which, of course, the creditors were not parties, and which required no consent of creditors and no previous statement to them of the amount of his assets. It is not even shown for what purpose the meetings preliminary to the assignment were held, and we can only conjecture that it was with a view of obtaining the advice of his creditors as to whether he should continue to carry on his business, compromise, or assign, that Richardson called them together. We are in like manner left entirely to conjecture whether the assignment was the result of the advice of the creditors or was made, as Richardson had a right to make it, without their consent. But even if we should assume that the assignment was the result of the advice or pressure, there is nothing to warrant the inference that this action of the creditors was in any way induced by the fact of these barrels of fish appearing in the list of assets, and the consequent assumption, that they were the property of the insolvent clear of any lien; and every presumption must be against such a conclusion from the facts. Therefore, in this respect one of the essential requisites of an estoppel in pais is wanting; for no proposition in law can be more plain in reason or better supported by authority than that which affirms it to be essential to the creation of this kind of estoppel, strong,.J. that the representation or concealment relied upon must not only have been made with the intention that the other party should act upon it, but also that the latter should have acted upon it in such a way as to change his position.
Mr. Bigelow (1) in the treatise on Estoppel states this to be the law in so many words; he says : And numerous authorities are cited which place this plain and well known principle beyond all controversy. The conclusion must be, that the failure of Dr. Lewis to object to the list of assets, or to explain the nature of Shaw's lien on this fish, can in no way prejudice the defendants in this action.
It appears, from the Chief Justice's notesof the trial, that a statement of the charges on the fish up to the time of sale delivered to Shaw by the defendants was put in and read. This document has not been printed amongst the exhibits, nor was it produced before this court, and I have not had an opportunity of seeing it. From the .description given of it, however, it cannot possibly affect the defendants' liability. The mere circumstance that the defendants had rendered Shaw an account charging him with the storage up to the date of sale, when the property vested in Richardson, does not imply that from that date they held for Richardson, or charged warehouse rent to him by his authority, more especially is it not sufficient to prove any such fact when (1) Ed. 2,
[iOL. VII. we find Richardson himself swearing as he does that he did not authorize such a change. There is, however, in a the evidence of Troop, in his cross-examination, a stater ment which certainly requires explanation. He says: Taken by itself, isolated from the rest of Troop's testimony and the evidence of Richardson and Ltwis, this might be taken to refer to the lot of fish now in question, but when read in connection with the context of Troop's evidence and the statements of the other witnesses, I consider it as referring to fish on former occasions Richardson had bought from Shaw, and had, under an express ag reement with the defendants, warehoused with them. Taken in this sense, the passage I have quoted from Troop's evidence is not only consistent with what he had himself just before stated, but also with the statements of Richardson and Lewis. Troop in his examination in chief says:
Dr. Lewis says:
And in his cross-examination, he produced the warehouse book of his firm, from which it may be presumed it would have appeared that the fish had been transferred into Richardson's name, if any such transfer had in fact taken place, but no entry of the kind is extracted from the book or in any way referred to, from which I infer it contained none. Then Richardson himself entirely supports the view I take, for he swears:
VOL. VII.] SUPRIDE 0OUItT OF OANADA
I come to the conclusion, therefore, that it is impossible on this evidence to hold that the defendants ever strong, J. attorned to Richardson, for there is not a scintilla of proof to warrant such a finding, except the passage in Troop's cross-examination, which I have already quoted, and which, read with the context and compared with the unequivocal statement of Richardson, can only have the meaning I attribute to it. Moreover, the Chief Jus-. tice does not appear to have found that there had been any change of the possession, and, even if there had been such a finding, supported, as it would have been, by no other proof than- the vague and ambiguous statement appearing in the note of Troop's cross-examination, a statement entirely inconsistent with the testimony of the plaintiffs own witness, and not, so far as it appears, supported by any entry in the defendants' warehouse books, I should have thought a new trial proper in order to ascertain with accuracy what the facts in this respect really were. But, after all, I have, perhaps, attached too much importance to this question of evidence, which, however, was much relied on by the learned counsel for the respondent, for if the law as to the requisites to a transfer of possession by the attornment of a warehouseman is correctly stated, as undoubtedly it is, by Mr. Benjamin in the extract I have before made from his book, it could have made little difference even if it had appeared that the defendants had actually charged Richardson with the warehoixse rent, and had entered the fish in their warehouse book as being held by him, in the face of Richardson's positive assertion that he never went to the defendants to look after the fish, or to make any arrangement about storage, for it must be remembered that no change of possession could have been worked by the act of the defendants alone, however clear and unequivocal, without the consent of Richardson, which, as just shown, he swears he never gave.
Shaw's consent to the change of possession would also have been indisputable, and of that also there is no proof.
The promissory note for $4,050.56, which had been given by Richardson to Shaw on account of part of the price of all the fish sold, comprising as well the two cargoes delivered at the wharf as those stored in the defendants' warehouse, was endorsed by Shaw to the defendants, and he was liable upon it by reason of that endorsement.
At the date of Richardson's assignment on the 4th March, 1878, this note had not matur. ed, but it became due on the Tth March, and was overdue and unpaid when the demand of possession was made by the plaintiff, and when the defendants subsequently resold the fish. Therefore, although the authorities before adduced, particularly the cases of Gunn v. Bolckow, and AlcEwan v. Smith, and the quotations from the opinions of text writers, show conclusively that, if the vendee has become insolvent, the vendor is not bound to deliver without payment, upon the demand of the vendee or his assignees during the currency of bills given for the price, yet in the present case, the defendants, being in the position of holders for an unpaid vendor, who has sold on a credit which has expired, do not require the support of those authorities. The defendants were no doubt bondfide holders for value of the promissory note, and the plaintiff is entitled to put the case against them, when they assert Shaw's lien, just as if the note had been outstanding in the hands of third parties, entire strangers to the transaction of the sale and holders for value. But the extract I have before given from the judgment of Lord Justice Mellish in Gunn v. Bolckow, the cases of Valpy v. Oakley and Feize v. Wray and the passage extracted from Mr. Campbell's work on sales all show that this makes no . difference, as in reason it should not, in the right of a S- J. vendor to insist upon payment, either to himself or to the holder of the bill or note given for the price, before parting with the possession of goods sold to an insol. vent vendee.
The note is put in evidence, and Shaw appears upon it as an indorser with the usual liability as such, the indorsement not being without recourse or in any way restrictive. The lien attached on the occurrence of the insolvency on the 4th March, 1878, during the currency of the note, which did not becomedue until the Ith of March. If it is objected, that it does not appear from the evidence that notice of dishonour was given to Shaw, so as to hold him liable upon the note, and that for all that appears he was discharged from liability, and his debt thus in effect satisfied, the answers to that argument are: 1st. That the lien having once attached, it was for the plaintiff, as representing the purchaser, to show that it was afterwards discharged, just as if he had relied on a discharge by actual payment. Secondly, that this same circumstance occurred in the case already cited of Gunn v. Bolckow, Vaughan 4- Co., where Lord Justice Mellish expressly states of the two overdue bills, that although there was " no evidence one way or the other as to their being indorsed or what has happened," the vendors had a lien in respect of them ; in other words, he presumed that the vendors were still liable to take up the bills, a presumption which we must make here as to Shaw's continued liability in the absence of all contrary proof. Thirdly, that this point was not made at the trial, when, if it had been raised, the so appellants might possibly have shewn that due notice of dishonour was given.
This is an action for the conversion of the goods in question, and the facts relied on as evidence of a strog J.conversion are, first, the refusal of the defendants to deliver on the demand of the assignee, implied in the reference by the letter of the plaintiff to their solicitor; and, secondly, the resale of the goods, or at least of part them; for a portion was not sold until after action brought. Had the defendants coupled their refusal to deliver with a claim in any way inconsistent with the vendor's lien which they set up, they might have precluded themselves from now asserting it, but nothing of this kind was done; in answer to the demand of the plaintiff as assignee they wrote the letter of the 8th of April, 1878, which amounts to a refusal to deliver, based on no specific ground.
It was a sufficient defence for the defendants to show that, neither at the time of the refusal to deliver possession to the plaintiff, nor at the date of the subsequent re-sale, had the plaintiff any right to possession, and I cannot discover that the defendants had done anything to disentitle themselves to use any of the facts disclosed in the evidence for the purpose of establishing this defence.
My conclusion upon the whole case, therefore, is that the defendants, at the time of the refusal to deliver, and also at the date of the re-sale of the fish, held it as warehousemen for Slao, an unpaid vendor who had originally sold on credit, and who therefore had a right, on the purchasers insolvency happening, to retain possession of the goods until actual payment either to himself or to the holders of the note given for the price. That this lien or right of retention was not confined to a proportionate part of the price equal to the price of the fish in the hands of the defendants, but extended to the whole amount of the unpaid purchase money of the whole lot of goods sold, secured by the promissory note, for the sale having been an entire one of the two A cargoes, as well as of the fish in the warehouse of the defendants, the price was also an entire one principle therefore applies that when there has been a sale of goods for an entire price, part of which have been delivered, the whole- unpaid purchase money becomes a lien upon the undelivered residue of the goods
The defendants therefore, both as warehousemen holding the property for Shaw, and as consignees, under the agreement upon which the fish was originally consigned to them, were entitled and bound to assert Shaw's rights and woild have made themselves liable to him had they failed to do so. Further, that Shaw being liable upon the note as endorser, the fact that it was not held by him, but by the defendants to whom it had been transferred for value, did not disentitle him, and consequently does not disentitle the defendants as his agents, to insist on the lien.
It being clear that the plaintiff is not entitled to maintain an action for conversion, unless he was entitled to the possession as well as to the property at the time of the refusal to deliver and of the sales, it is immaterial to enquire, for the purpose of deciding the present appeal, whether a vendor, having the right of lien or retention arising upon the insolvency of the purchaser, has or has not a legal power of re-sale. In Bloxam v. Sanders and Bloxam v. Morley (4) already referred to, Mr. Justice Bayley states the law thus:
for the damage they sustain by such wrongful sale, and recover damages to the extent of that injury; but they can maintain no action in which right of property and right of possession are both requisite, unless they have both those rights.
Strong, J.
Mr. Benjamin points out that this judgment of Bayley, J., is said by Mr. Justice Blackburn (1), as recently as 1866 to be still a correct exposition of the " peculiar law " as to unpaid vendors, and the last mentioned writer, after having discussed at length (2) the whole question of the rights of unpaid vendors in respect of goods retained for the price in section 194 of his book, gives a summary of the rules which he deduces from the cases, one of which is as follows:
.
Fourthly. In the case of a re-sale, a buyer in default cannot maintain trover against the vendor, being deprived by his default of that right of possession without which trover will not lie.
Campbell on sales (3) is to the same effect. He says: These rights, commonly known as "vendor's rights," include the right to retam the goods until payment of the whole price; but they are larger than a mere right of retention or lien, and extend in many cases to a right to re-sell the goods. In the case where the buyer has become insolvent, the vendor's rights extends to a right to sell the goods in order to realise his debt. Where the buyer is not insolvent but is in default: If before the attempted re-sale, he makes tender of the price, the vendor's right is at an end, and the re-sale is void ; but if no tender is made, the vendor may re-sell-the buyer having no immediate rightof possession and therefore being unable to complain of the act as a wrongful conversion of the goods. And the author cites the case of 11ilgate v. Kebble (4) and Lord v. Price (5) as authorities for his text. Lord Blackburn (6) thus gives his conclusion from the cases which had been decided at the time he wrote; he says:
- Assuming, therefore, what seems pretty well established, that the vendor's rights exceed a lien, and are greater than can be attributed (1) McDonald v. Suckling, 35 L. (3) P. 329.
J. Q.
(4) 3 f. &
G. 1000.
(2) Benjamin on Sales ; book 5,
(5) L. IL 9 Ex. 54.
edition 2, part I, cap. 3.
(6) Blackburn on Sales p. 329. Y iOL.
VII.] SUPREME COURT OF CANADA.
Then it was urged that the proof of the defendants, founded upon the note which had been endorsed to them by Shaw, against the insolvent estate of Richardson, and the receipt of a dividend upon that proof, was a waiver of the right of the defendants to set up any lien either in themselves or Shaw. In considering this objection, it is important to bear in mind the material dates. The refusal to deliver on the demand of the plaintiff was on the 4th April, 1878; part of the fish (200 barrels) was sold to *West on 22nd March, 1878; the residue was sold to Cochrane on 17th May, 1878; the action was commenced on 6th April, 1878; the proof in insolvency was made on 8th January, 1880, and the dividend was received by the defendants on the 10th February, 1880.
It will be remembered that both counts of the declaration were for a conversion or in trover, and that the pleas were not guilty and a traverse of the plaintiff's property and right of possession. It is manifest that the defendants were entitled to succeed on the issue on the plea of not guilty, as well as on that on not possessed, if, at the time of the sale of the fish and the refusal to deliver on the plaintiff's demand, which refusal was merely evidence of a conversion, the defendants were entitled to set up Shaw's rights as an unpaid vendor, and to retain the fish in his righ t. That , they were entitled so to do, I have already endeavored -g to establish. Then, how cauld this subsequent proof, pendente lite, operate retroactively so as to alter the rights of the parties as they stood at the time the action was brought ? A little consideration will, I think, show that for several reasons it could not possibly prejudice the defendants in their defence to this action. Troop says in his evidence that the net proceeds of both sales were credited to Shaw by the defendants. By this I understand that the money so credited was appropriated by the defendants, not as a payment on account of the note which they held, but to the unsecured balance of account on which Shaw was indebted to them. This, I think, was not a proper application of the payment, for the defendants were bound to have given credit for this money as a part payment of the note which had been endorsed to them by Shaw, and for the payment of which the fish, held by them as Shaw's agents, was in the nature of a collateral security in Shaw's hands. That they did not do so, however, but claimed, and were permitted by the assignee to prove for, the whole amount, does not establish- that they were guilty of illegal acts in witholding possession of the goods and afterwards selling them, but merely that they have obtained from the insolvent's estate more than they were entitled to claim. But this cannot have the retroactive effect of rendering illegal the acts referred to, which at the time of their commission, if I am right in my view of the law, were unobjectionable as regards the plaintiff, as assignee, if not perfectly legal. The remedy of the assignee in insolvency is plainly one which he must seek in the insolvency matter, viz., an application to reduce the proof and compel the defendants to repay so much of the dividend as they have improperly received. That the proof was excessive, I think is apparent. The defendants were entitled to prove only for the amount due for principal and interest upon the note after deducting the net pro- J. ceeds of the sales.
The defendants, it is true, were creditors in their own right, as bond fide endorsers for value, but the note being overdue, Shaw was in the position of a surety to them for the debt which it represented, and the goods remaining constructively in his possession are to be considered as held by him by way of counter security against his liability. Then, upon realising this security by the sale of the fish, Shaw through his agents, the defendants, became a trustee of the proceeds for the holders of the note, and was bound to apply the money so received to the payment pro tanto of the note. This he did in effect by allowing the defendants to receive and deal with the money as their own. But the defendants, so receiving this money with the knowledge of all the facts, were bound to impute it as a payment on account of the price of the fish -that is, as part payment of the note-in the same way that Shao himself was bound to deal with it, and were not at liberty to apply it as a general and unappropriated payment by Shaw, by giving him credit for it on account of the general balance due to them by him, apart from the note. The result of all this, however, is only to show that, in a legal proceeding adopted by the defendants to obtain payment from Richardson's estate, they have received, without opposition, as far as it appears, frc m the assignee or other creditors, more than they were legally or equitably entitled to be paid, and this, not in a conclusive proceeding, but under a proof which it is competent for the court in insolvency at any time to reduce, and in this way to afford the plaintiff as assignee a complete remedy. I cannot think that this has any bearing on the rights of the parties in this action; that it either shows the defendants to have T., been guilty of unlawful conversion, or that the plaintiff had a right to the possession of the fish at the time of the commencement of the action, which are the only questions to be here decided. Had the proof and receipt of dividend been before the action was brought, and prior in date to the sale of the fish and the refusal to deliver, the case might have admitted of different considerations.
I have taken the least favorable view to the defendants in treating them as warehousemen for Shaw. It was, as I understood the Attorney-Greneral, contended that, as under the terms of the original consignment the defendants had a right to sell the fish and apply the proceeds in reduction of Shaw's debt to them, they were entitled to adopt the sale which Shaw made, as though it had been made by him as their agent, in which case they would not only have all the rights which, in my judgment, Shaw, if himself the vendor, had, but they would be relieved from any difficulty, even if it should be considered that they had attorned to Richardson; since it is clear that if goods remain in the actual possession of the vendor himself, and not in that of a middleman, the lien for the price revives on non-payment or insolvency, notwithstanding the fact that the vendor has expressly constituted himself a warehouseman for the purchaser and has even received warehouse rent from him
I have already said I incline to think the defendants are estopped from setting up this title by Troop's statement to Richardson, but I express no decided opinion upon the point.
I think there should be a new trial on which it will be competent for the plaintiff to establish, if he can, that the defendants had adopted the character of bailees for Richardson, and held the fish for him, which would be (1) v. 3 conclusive against the defendants, unless they can make good the position, which I have last alluded to, of having been in legal construction the vendors of the fish through the agency of Shaw.
My judgment, therefore, is that this appeal should be allowed with costs, and that the rule nisi for a new trial should be made absolute and, in accordance with the Nova Scotia practice, with costs.
FouRNIR, J., concurred with the Chief Justice. HENRY, J. - I do not for a moment contradict the law as laid down by my brother Strong; the difficulty I have is, that the law, so correctly stated, does not apply to this case.
Now, what do the defendants answer to the plaintiff's action: 1st. That they did not convert the property;
2nd. Deny that plaintiff, as assignee of Richardson, had any right to the property in question. The question then arises, what was the title of Richardson to the fish in question after the purchase by him from Shaw ? The facts are these: Richardson purchased a quantity of fish from Shaw for which he paid one half in cash and balance by note at four months. He got delivety of part of.the fish which was in vessels, but did not get the balance, viz., 236 barrels, which happened to be at the time of the sale in a store belonging to appellants.
What was then the position of Richardson with regard to this fish? It cannot matter where the fish was, if it could be identified; the fish became by operation of law the property of Richardson. The plea put in is, that the fish does not belong to Richardson. If not his; whose property was it ? Certainly not appellants, they never had a lien on the property, and did not plead one in themselves or in Shaw. If they had put in such a plea there might havebeen a question as to lien as between Richardson and Shaw, but in that plea they should have alleged the title of Shaw to the fish, and that they were holding it by his directions. Now there is no evidence that J. they held for Shaw, or that Shaw ever asserted any lien on the fish. If a lien had been pleaded in Shaw, it would have been necessary for them to show that Shaw was liable on the note which he endorsed over to the appellants; and on this point also there is no such evidence. The property in this case, in my opinion, passed to Richardson by a bill of parcels given by Shaw, and adopted by appellants, they agreeing from that date to hold the property for Richardson. Richardson's title depended upon his purchase and payment in virtue of which the property immediately vested in him. For these reasons, I am of -opinion, the appeal should be dismissed.
GwYNNE, J.:- As to the soundness of the principle of the cases upon which the learned counsel for the appellants so much relied there can be no doubt, but their applicability to the case before us is, in my judgment, open to great doubt. The learned judge who pronounced the judgment of the Supreme Court of Nova Scotia, sustaining the verdict rendered in favour of the plaintiff by the learned Chief Justice of that court, before whom the case was tried without a jury, referred, among other things, to a fact which appeared in evidence at the trial, namely: that the defendants claimed against the estate of Richardson in insolvency, as holders of the note which Richardson had made to Shaw for the balance of purchase money of the fish purchased by Richardson from Shaw, and received a dividend out of Richardson's estate in respect of that claim, and that in an affidavit made by Lewis, one of the defendants, in support of that claim, he swore that the insolvent was indebted to himself and the other defendant in the sum of $4,050.56 (the amount of that note) for which they held no security. At.the time of the making of this affidavit the defendants, it is true, did not hold the fish, the conversion of e, which is the subject of this suit. They had already sold them; a part, in the month of March, and the remainder in the month of May, 1878; but they had received, and, according to their own shewing, had appropriated, the proceeds arising from the sale thereof, amounting to $1,734, to their own use, and gave no credit therefor to Richardson upon the note, but took their dividend out of his estate in insolvency upon the full amount of the note.
Now, the contention of the learned counsel for the defendants before us was, that the defendants had a perfect right, in law, thus to retain the proceeds of the sale of the fish and to prove on Richardson's insolvency for the full amount of the note, upon the authority of ex parte English and American Bank which the learned counsel contended was conclusively in his favor upon this point.
That case affirmed a rule well established in bankruptcy, that a creditor who has a security from a third person, or a security which belongs jointly to the bankrupt and a third person, can prove in the bankruptcy for the whole debt without giving up the security. Upon the authority of this rule the learned counsel relied in justification of the defendants having (notwithstanding the sale of the fish in 1878) proved for the whole amount of the note. But neither the case, nor the rule affirmed thereby, asserts a right in a creditor, after realizing upon the security, and so reducing the debt by the amount realized, to prove for the whole debt. Moreover, it is obvious that the rule relied upon applies to a security placed in the hands of the bankrupt's creditor by way of security for the debt of the bankrupt, and lit is equally obvious that such was not the state of the facts in the present case. The fish are _ clearly shewn to have become the property of Richardson in November, 1877, while they were in the possession of the defendants in the only right, whatever it was, by which they ever had possession of them; they continued to be the property of Richardson in virtue of his purchase from Shaw, the owner of them, until Richardson's insolvency on the 4th March, 1878, when they became the property of his assignee, subject, it may be, after the 6th March, when the note became due, assuming the fish not to have previously been reduced into the actual possession of Richardson or his assignee, to a right in the nature of the right of stoppage in transitu in Shaw, who might, in such case, if he had pleased, have given, but he did not, notice to the defendants not to permit Richardson or his assignee to have possession of the fish without payment to Share of the balance of the purchase money. As matter of fact Shaw has never interfered in any manner in the matter. He has never claimed or asserted any right of detention of the fish, nor has he offered any impediment to his vendee receiving them, but they were never placed in the defendants' hands by way of security for any debt due by Richardson to the defendants, so that the rule referred to has no application to the case.
Moreover, this claim, now apparently for the first time asserted, upon the authority of the above rule, is quite inconsistent with the allegation in Lewis's affidavit to the effect that he and his partner had no security whatever for Richardson's liability to them upon the note, and also quite inconsistent with the position taken by the defendants at the trial, and upon which they wholly rested their defence to the action. To the plaintiff's declaration, which is for the wrongful conversion by the defendants of the property of the plaintiff, as assignee of Richardson, they pleaded not guilty, and that the goods were not, nor was any of them, the plaintiff's as such assignee as alleged.. This latter plea enabled them to dispute the title of the J. assignee, and also of Richardson, by setting up the title in themselves or in a third person, and the whole contention of the defendants at the trial, and which is 'repeated in the third paragraph of the appellant's factum, was, that Richardson had never any property in the fish, for that they were consigned by Shaw to the defendants as his factors, with authority to them to sell to cover certain advances made by them to Shaw, and to apply the proceeds to Shaw's credit, and that in virtue of this title and authority they sold the fish, and that in fact they had no knowledge that Richardson claimed any interest in the fish until after his insolvency; and that they, the defendants, as stated by Lewis in his evidence, gave no authority to Shaw to sell them. Upon this title, asserted to be in the defendants themselves, the defendants wholly rested their defence to the plaintiff's action at the trial, and at the close of the plaintiff's case a nonsuit was moved upon the ground of the alleged insufficiency of the evidence to shew Shaw's ownership of the fish, so as to entitle him to sell them to Richardson; this objection being overruled, the defendant Lewois was called as a witness for the defence, when he asserted title as above stated. He said among other things that the defendants received a bill of lading with the fish; but no such document was produced.
To that, if, as seems to have been implied, its contents would have supported the defendants claim, its non production constituted a material flaw in defendants' evidence.
Upon crossexamination moreover Lewis stated that until the day before, "he had no knowledge of what fish was sold to Richardson, or that it extended beyond two cargoes," (not comprising the fish in question); and the defendant Troop admitted that the defendants had no special agreement with Shaw as to the fish in question. In view of this evidence and of the evidence given on the part of 'the plaintiff, which, if believed, was abundantly sufficient to shew that the fish were in truth Shaw's, stored only by him with the defendants, and that Shaw sold them to Richardson in Nov. 1877, whose property they then became and thenceforth remained, it is not at all surprising, as it appears to me, that the learned Chief Justice, before whom the case was tried, came to the conclusion that the defendants wholly failed to prove the title to the fish and their proceeds which they had set up, and rendered a verdict for the plaintiff.
The defendants now raise a point, that inasmuch as the learned Chief Justice has allowed them a sum for storage and insurance, which does not constitute matter of set-off, the effect of his so allowing this sum is to recognize a right of lien in the defendants, which existing is a defence to the action; but the defendants, not only never before the commencement of the action nor at the trial set up any claim of lien, but such a claim, if set up, would have been inconsistent with the position upon which they rested their defence at the trial; and the learned Chief Justice, having allowed them fdr storage and insurance as against Richardson from the time of his purchasing, cannot give to the defendants a right to appeal against a verdict which gives them a benefit to which, in strict law, they were not entitled.
The defendants now also attempt to set up, as another ground of appeal, a point which was not made a ground of objection at the trial and which is also inconsistent with the defence then relied upon, and which, not having been taken at the trial, could not now be entertained, if there were anything in it, viz.: that admitting VOL. VIL] SUPRSEN O01TaT OF CANADA.
the fish to have been the property of Shaw in Novem. ber, 1877, and to have. been then sold by him to Too Richardson, whose property they then became and o. thenceforth continued to be, still that, upon non-payment of his note by Richardson when it became due on owynne, J. the 6th of March, 1878, inasmuch as Richardson had not then obtained actual possession of the fish, .the defendants can resist this action by setting up, under the doctrine of the Jus tertii, the right of Shaw to have prevented Richardso's assignee obtaining actual possession of the fish without payment of the balance of the purchase money. It is certainly true that the defend* ants, although acknowledged wrongdoere, might, to an action for conversion, under the plea that " the goods were not the plaintiff's as alleged," prove the property in the goods to be in Shaw or in any other person, and not in the plaintiff; but no case has been cited to us to show that, to an action like the present, brought by the person in whom the title and property in the goods are, a wrongdoer can resist the right of such owner of the goods converted, to recover, by setting up a right in the nature of a right of stoppage in transitu, which a third person might have had it in his power to exercise, but did not exercise, of interfering to prevent the vendee of the goods (who although by the terms of sale entitled to have had, had not yet obtained actual possession of the goods) from receiving such actual possession until he should pay a balance of purchase money; nor has any case been cited to shew that a person who had received possession of the goods only as storekeeper for the vendor could, without any authority from the vendor, sell the goods and apply the proceeds to his own benefit, although in satisfaction of a debt claimed to be due by the vendor, without subjecting himself to an action at the suit of the vendee owner, for wrongfully depriving such owner of his property. For our present purpose it is sufficient to say that no such point having been made at the trial it cannot now be entertained.
In fine, the sale of the fish by the defendants was made by them,-and, so far as appears in evidence, without any right whatever, when the fish were the proparty of the plaintiff as-assignee of Richardson; and the defendants having failed to establish the only title asserted by them in justification of that sale, such sale was wrongful to the plaintiff, as such assignee, who, for anything established in evidence, had as against the defendants a right to the immediate possession of the fish which, together with the right of property, sufficient to maintain this action. There is no evidence whatever that Shaw ever claimed to have had any right to dispute the right of Richardson and his assignee to the possession of the fish; that he had such a right is an assumption merely of the defendants, and I do not think that the defendants, who sold Richardson's property without any right so to do, and without any direction or authority from Shaw so to do, can shelter themselves under an assumed Tight of detention of the fish in Shaw, which right Shaw has never claimed or asserted, and so relieve themselves, as a defence to this action, from the consequences of having without any legal right sold Richardson's property and applied the proceeds to their own use The'point that 36 barrels of the fish were sold after the action brought was never made, and the court is not called upon to suggest it; but the rest of fish was sold before action and a demand and refusal of the whole before action was also proved, and no claim of lien on them then or at the trial made. In my opinion, therefore, the appeal should be dismissed with costs, and judgment entered for the plaintiff on the verdict rendered in his favor.
Appeal dismissed with costs. Solicitors for appellant: Thompson 4- Graham.
. Solicitor for respondent: Tohn M. Chisholm.
1CKJEqUER COURT OF CANADA.
IN THE MATTER OF THE PETITION)
OF RiGHT OF EPHIAIM A.JONES SuPlaNS, Ay
AND JAMES SIMPSON.........
Way 21.
HER MAJESTY THE QUEEN..............RERPONDENT. Petition of right-Intercolonial Railway contract-31 Vic., c. 13, see. 18 -Gertiffcate of Chief Engineer-Condition precedent to recovery of money for extra work-Petition of right will not lie against the Crown for tort, or for the fraudu'ent misconduct of its servants-Furfeiture and pena'ty-Liquidated damages. On the 25th May, 1870, J. and S., contractors, entered into a contract with the Intercolonial Railway Commissioners (authorized by 31 Vic., ch. 13) to construct and complete section No.7 of the said Intercolonial Railway for the Dominion of Canada, for a bulk sum of $557,750.
During the progress of the work, changes of various kinds were made. The works were sufficiently completed to admit of rails being laid, and the line opened for traffic on the 11th Nov., 1872. The total amount paid on the 10th Feb., 1873, was $557,750, the amount of the contract. The contractors thereupon presented a claim to the Commissioners amounting to $116,463.83 for extra work, &c., beyond what was included in their contract. The Commissioners, after obtaining a report from the chief engineer, recommended that an additional sum of $31,091.85 (less a sum of $8,300 for timber bridging not executed, and $10,354.24 for under drain taken off contractor's hands) be paid to the contractors upon receiving a full discharge of all claims of every kind or description under the contract. The balance was tendered to suppliants and refused. The contractors thereupon, by petition of right, claimed $124,663.33, as due from the Crown to them for extra work done by them outside of and beyond the written contract, alleging that by orders of the chief engineer additional work and alterations were required, but these orders were carried out only on the understanding that such additional work and alterations should be paid for extra ; and alleging, further, that they were put to large expense and compelled to do much extra work which they were entitled to be paid for, in consequence of mis- *PaRS~.-Rithie, J.
YUL. VII.
representations in plans and bill of works exhibited at time of letting.
JONES On the profile plan it was stated that the best informa- . tion in possession of the chief engineer respecting the probable THE quantit'es of the several kinds of work would be found in the schedules accompanying the plan, "but contractors must under. stand that these quantities are not guaranteed;" and in the bill of works, which purported to be an abstract of all information in possession. of the Commissioners and chief engineer with regard to 'the quantities, it was stated, " the quantities herein given as ascertained from the best data obtained are, as far as known, approximately accurate, but at the same time they are not warranted as accurate, and no claim of any kind will be allowed, though they may prove to be inaccurate."
The contract provided inter alia, that it should be distinctly understood, intended and agreed that the said price or consideration of $557,750 should be the price of, and be held to be full compensation for all the works embraced in, or contemplated by the said contract, or which might be required in virtue of any of its provisions, or by law, and that the contractors should not upon any pretext whatever, be entitled by reason of any change, alteration or addition, made in or to such works, or in the said plans and specification, or by reason of the exercise of any of the powers vested in the Governor-in-Council by the said Act, intituled "An Act respecting the construction of the Intercolonial Railway," or in the commissioners or engineer, by the said contract or by-law, to claim or demand any further or additional sum for extra work, or as damages or otherwise, the contractors thereby expressly waiving and abandoning all and any such claim or pretention, to all intents and purposes whatsoever, except as provided in the fourth section of the said contract, relating to alterations in the grade or line of location; and that the said contract and the said specification should be in all respects subject to the provisions of the Act first cited in the said contract, intituled "An Act respecting the construction of the Intercolonial Rallway," 31 Vic. ch. 13, and also, in as far as they might be applicable, to the provisions of " The Railway Act of 1IM."
The 18th se-. of 31 Vic. ch. 13, enacts "that no money shall bepa'd to any contractor until the chief engineer shall have certified that the work, for or on account of which the same shall be claimed, has been duly executed, nor until such gertificate shall have been approved of by the Commissioners. 8T2
No certificate was given by the chief engineer of the execution of the work.
JONEB e.
Held,--That the contract requiring that any work done on the road Tn QuUaN.
must be certified to by the chief engineer, until he so certified and such certificate was approved of by the Commissioners, the contractors were not enititled to be paid anything. That if the work in question was extra work, the contractors had by the contract waived all claim for payment for any such work. If such extra work was of a character so peculiar and unexpected as to be considered dehore the contract, then there was no such contract with the Commissioners as would give .the contractors any legal claim against the Crown ; the Commissioners alone being able to bind the Crown, and they only as authorized by statute.
That there was no guarantee, express or implied, as to the quantities, nor any misrepresentations respecting them. But even if there had been a petition of right will not lie against the Crown for tort, or for a claim based on an alleged fraud, imputing to the Crown the fraudulent misconduct of its servants. In the contract it was also provided that if the contractors failed to perform the works within the time agreed upon in and by the said contract, to wit, lst July, 1871, the contractors would forfeit all money then due and owing to them under the terms of the contract, and also the further sum of $2,000 per week for all the time during which said works remained incomplete after the said Ist July, 1871, by way of liquidated damages for such default. The contract was not completed till the end of August, 1872. Held,-That if the Crown insisted on requiring a decree for the penalties, time being declared the essence of the contract, the damages attached, and the Crown was entitled to a sum of $2,000 per week from the 1st July, 1871, till the end of August, 1872, for liquidated damages.
The Crown subsequently waiving the forfeiture, judgment was rendered in favor of the suppliants for the sum of $12,436.11, being the amount tendered by the respondent, less the costs of the Crown in the case to be taxed and deducted froi the said amount.
THTS was a petition of right by which the suppliants claimed from the Government of Canada the sum of $124,663 33 in connection with their contract with the commissioners of the Intercolonial Railway, for the construction of section number seven of said railway. The facts, and pleadings are fully stated in the head note and in the judgment hereinafter given.
Mr. James Macdonald, Q.C., and Mr. J. N. Ritchie, Te. Qu.w. Q.C., for suppliants, and Mr. J. Bell, Q.C., for respondent.
J.:- This was a petition of right, presented originally by Ephraim A. Tones, James Simpson. having been subsequently added as a joint petitioner by consent.
The petitioners were contractors with Her Majesty for the construction and completion of a certain portion of the Intercolonial Railway, and the claims now put forward are for works done under that contract and in connection therewith. Provision was made for the construction of the Intercolonial Railway by the 81 Vic, ch. 13, which enacted that the railway should be a public work belonging to the Dominion of Canada, and made with a gauge of ft. 6 inches on such grades, on such plans and manner, and with such. materials, and on such specifications as the Governor-in-Council should determine and appoint as best adapted to the general interests of the Dominion; that its construction and management, until completion, should be under the charge of four commissioners to be appointed by the Government, who should hold office during pleasure; that the Governor should appoint a chief engineer to hold office during pleasure, who, under the instructions he might receive from the commissioners, should' have the general superintendence of the works to be constructed under the act; that the commissioners should appoint and employ a secretary, such engineers (under the chief engineer), and such surveyors and other officers, and also such agents, servants and workmen as, in their discretion, they might deem necessary and proper for the execution of the powers and duties vested in them by virtue of the act; and, after giving the comjo.s missioners full power and authority by themselves, their QUEN. engineers, agents, workmen, servants, and contractors -e to explore, enter on lands, fix the site of the railway, J fell timber, take possession of lands and use adjacent lands, and to do such works specified, or other works as they might think proper, and to alter the courses and levels of rivers and roads and to drain into adjacent lands, it was declared, that the commissioners should have all such other powers (not inconsistent with the Act) as might be conferred upon railway companies by any Act which might be passed for the consolidation and regulation of the general clauses relating to railways, and after giving power to the commissioners to contract and agree for the purchasing of lands, and providing for arbitration in case of difference as to value, it was provided, that the commissioners should build the railway by tender and contract after the plans and specifications thereof should have been duly advertised, and that they should accept the tenders of such contractors as should appear to them to be possessed of sufficient skill, experience and resources to carry on the work, or such portions thereof as they might contract for, provided that the commissioners should not be obliged to accept the lowest tender in case they should deem it for the public interest not to do so ; and provided also that no such contract involving an expense of $10,000 or upwards should be concluded by the commissioners until sanctioned by the Governor-in- Council; and it was further provided, that the contracts to be so entered into should be guarded by such securities and contain such provisions for retaining a portion of the contract moneys to be held as a reserve fund for such periods of time and on such conditions as might appear to be necessary for the protection of the public, and for securing the due performance of the VOL. VIII contract, and that no money should be paid to any contractor until the chief engineer should have certified that Jones the work, for or on account of which the same should be claimed, had been duly executed, nor until such certifi- cate should have been approved of by the commissioners. Under this Act certain commissioners were appointed, and the contruction of the railway was commenced, and tenders were advertised for; and by a certain indenture, under seal, dated the 25th day of May, 1870, and made between James Simpson and E. A. Jones, of the first part; and Her Majesty, represented therein by A. Walsh, M.P., the Hon. E. B. Chandler, C. J. Brydges and the Hon. A. W. McLelan, commissioners appointed under and by virtue of said Act of Parliament, of the second part, after reciting, inter alia, that such commissioners had duly advertised foi tenders for the construction of certain portions of said railway, including the portion described as section No. 7, and that the tenders of said Simpson and Jones, for the construction of such section in manner in said indenture set forth, had been accepted, and they had, in consequence, agreed, by and with the sanction. of the Governor-in-Council, as provided by the said Act, with the commissioners to construct and complete said section, it was witnessed, that in consideration of the sum of $557,750 to be paid to the said Simpson and Jones, the contractors, by Her Majesty, in manner thereinafter set forth, the contractors did contract with Her Majesty in these words:
" 1. That the contractors shell and will, well, truly, and faithfully make, build, construct and complete that portion of the railway known as No. 7 section, and more particularly described as follows, to wit: ' Extending from the southerly end of section number 4, near river Phillip, to station 0, formerly station 50, at Polly Lake, a distance of about twenty-four miles, and all the bridges, culverts ahd other works appurtenant thereto, to the entire satisfaction of the commissioners, Jis and according to the plans and specification thereof signed by the commissioners and the contractors; the plans thereof so signed are hereunto annexed and markce, J. ed Schedule " and which specification is to be construed and read as part hereof, and as embodied in and forming part of this contract; and, after providing that the contractors should be bound to provide all plans and materials and be responsible for all means used for fulfilment of contract, to run all risks of accidents and other provisions not bearing on this case, it was further agreed, in these woids:
" The contractors shall perform and execute all the works required to be performed by this contract and the said specification in a good, faithful, substantial and workmanlike manner, and in strict accordance with the plans and specifications thereof, and with such instructions as may from time to time be given by the engineer, and shall be under the direction and constant supervision of such district, division and assistant engineers and inspectors as may be appointed. Should any work, material or thing of any description whatsoever be omitted from the said specification in the contractwhich, in the opinion of the engineers, is necessary or expedient to be executed or furnished, the contractors shall, notwithstanding such omission, upon receiving written instructions to that effect from the engineer, perform the work and furnish the same. All the works to be executed and materials supplied to the entire satisfaction of the commissioners and engineers, and the commissioners shall be the sole judges of the work and materials, and their decision on all questions in dispute with regard to the works or material, or as to the meaning or interpretation of the specification or the plans, or points not provided for, or not sufficiently explained in the plans or specifications, is to be final and binding on all parties. . " 3. The contractors shall commence the works embraced in this contract within thirty days from and ; a after the date hereof, and shall diligently and continuously prosecute and continue the same, and the same .respectively, and every part thereof, shall be fully and J. entirely completed in every particular and given up, under final certificate and to the satisfaction of the commissioners and engineer, on or before the first day of July, eighteen hundred and seventy-two, time being declared to be material and of the essence of this contract, and in default of such completion as aforesaid on or befqre the last mentioned day, the contractors shall forfeit all right, claim or demand to the sums of money or percentage hereinafter agreed to be retained by the commissioners, and every part thereof, as also to any moneys whatever which may be, at the time of the failure of the completion as aforesaid, due or owing to the contractors, and the contractors shall also pay to Her Majesty as liquidated damages, and not by way of fine or penalty, the sum of two thousand dollars ($2,000) for each and every week and the 'proportionate fractional part of such sum for every part of a week during which the works embraced in this contract, or any part thereof, shall remain incomplete, or for which the certificate of the engineer, approved by the commissioners, shall be withheld, and the commissioners may deduct and retain in their hands such sums as may become due as liquidated damages, from any sum of money then due or payable or to become due or payable thereafter to the contractors.
" 4. The engineer shall~be at liberty at any time before the commencament, or during the construction of the work, to make any changes or alterations which he may deem expedient in the grade, the line of location of the railways, the width of the cuttings or fillings, EXCHEQYER COURT OF CANADA.
YOL. VIL the dimensions or character of structures, or in any other thing connected with the works, whether or not .
such changes increase or diminish the work to be done Jor the expense of doing the same, and the contractors shall not be entitled to any allowance by reason of any such changes, unless such changes consist in alterations in the grade or line of location, in which case the contractors shall be subject to such deductions for any diminution of work, or entitled to such allowance for increased work (as the case may be) as the commissioners may deem reasonable, their decision being final in the matter.
By section 5 it was provided that the contractors should not sell, assign, or barter the contract.
Payments were provided for in these words:
* "6. Cash payments shall be made monthly on the certificate of the engineer, equal to eighty-five per cent. of the value of the work done, approximately made up from returns of progress measurements, and on the completion of the work to the satisfaction of the engineer, a certificate to that effect will be given, but the final and closing certificate, including the fifteen per cent. retained, will not be granted for a period of two months thereafter, the progress certificates shall not in any respect be'taken as an acceptance of the work or release of the contractors from their responsibility in respect thereof, but they shall at the conclusion of the work deliver over the same in good order, according to the true intent and meaning of this contract and of the said specification."
And after providing that the commissioners should have power to suspend operations or take work out of the hands of contractors, or make payments, or advances on materials, &c, clauses not material to this case, it was agreed in these words :- " 10. It is distinctly understood, intended, and agreed that the said price or consideration of five hundred and fifty-seven thousand, seven hundred and fifty dollars ($557,750) shall be the price of and be held to be full compensation for all works embraced in or contemplated J. by this contract, or which may be required in virtue of any of its provisions or by law, and that the contractors shall not, ipon any pretext whatever, be entitled, by reason of any change, alteration or addition made in or to such works, or in the said plans and specifications, or by reason of the exercise of any of the powers vested in the Governor-in-Council by the said Act, intituled : 'An Act respecting the Construction of the Intercolonial Railway,' or in the commissioners, or engineer by this contract, or by law, to claim or demand any further or additional sum for extra work, or as damages, or otherwise, the contractors hereby expressly waiving and abandoning all or any such claim or pretension to all intents and purposes whatever, except as provided in the fourth section of this contract."
And in the interpretation clause it is provided as follows: "The words 'the work' or the word 'shall' unless the context require a different meaning, mean the whole of the work or materials, matters and things, required to be done, finished and performed by the contractors under this contract ; the words 'the engineer' shall mean the chief engineer for the time being, appointed under the said Act, intituled 'An Act respecting the construction of the Intercolonial Railway,' and shall extend to and include any of his assistants acting under his instructions, and all instructions and directions given by those acting for the chief engineer, will be subject to his approval. The word 'Railway' shall mean the said Intercolonial Railway. The construction of the words given in this clause shall not control A to EQIIEQUFR any more extended signification or construction which may be given to any such words in this contract or the said specification."
in "12. This contract and the said specification shall be in all respects subject to the provisions of the herein first cited Act, intituled ' An Act respecting the construction of the Intercolonial Railway,' and also in so far as they may be applicable to the provisions of the Railway Act, 1868."
Note at the end of the contract, and above the signature and seals of Ephraim Jones and James Simpson, the following is added: " On page three, in fortieth line, 'Seventy-two' as the date of completion of contract is an error, and should be read ' Seventy-one,' in conformity with the advertisements for tenders, and published as one of the conditions of contract."
Annexed to the contract is the general specification and the tender; the latter is as follows:
"INTERCOLONIAL RAILWAY."
"for sections Nos. 5, 6 and 7 only."
No. 7.
"The undersigned, having seen the plan and profiles of section No. 7 of the Intercolonial Railway, hereby tender to construct the said section in accordance with the plans and profiles, and all other detailed plans which may be supplied, and in accordance with the general i-pecification, signed by the commissioners and dated Ottawa, 26th January, 1870, and to execute the contract, a form of which is printed at the end of the specifications, binding ourselves not to demand any extras of any kind whatever, for the sum of five hundred and fifty-seven thousand seven hundred and fifty dollars ($557,750), being at the rate of twenty-three thousand dollars per mile of railway, and we bind our VO[b. VII.
EXCHEQUER COURT' OP CAIADAL.
selves to complete such section for the above-named sum to the satisfaction of the engineer and the commisj'^~g sioners, such sum to be the full payment, without Tn Quaina. extras of any kind, for the entire completion -of the RithW. section, and we propose James Wilson and George R Romans as sureties for the due fulfilment of this tender. James Simpson 4- Co,
Londonderry, N S.
Neil Grant, witness:
May, 2nd, 1870.
"We, the above-named, tendered as sureties, hereby agree to execute such bond or other document as may be required by the commissioners for the due performance of the contract attached to the specifications, &c., upon which the above tender is made.
James Wilson,
Londonderry, N. S.
George Romans,
Lonlonderry, N. S.
Neil Grant, witness.
" And we hereby further supply, solely for the purpose of informing the commissioners, and not in any way to affect the contract, the following schedule of prices for some of the principal items- of construe- The petition sets forth that the section had previously been unde r contract to other paties who had done some work thereun, but being unable to carry on operations to the satisfaction of the commissioners, the contract was then taken oIf their hands, that though the contract of the suppliants was for the lump sum of $557,750, the contractors afterwards agreed to a deduction of
$8,200 for woode4 bridges take
9ff their hands, and that the said lump sum was to be for grading, bridging Joes and fencing, irrespective of quantities, that the estimates of the contractors were based on the plans and specifi- cations exhibited at the time of the letting, and the well underitood rule laid down by the commissioners and previously acted upon, that any diminution should be to the-advantage of the contractors.
That in the autumn of 1871, when 90 per cent. of the whole work was done, and when the line was wholly graded throughout, the chief engineer ordered 27 additional culverts to be built, of which seventeen were ultimately constructed, and that, as the line had been completely graded at the time under the supervision of the district engineer, acting under the orders of his chief, it was not within the contract to require the contractors to re-open the embankments or tear up culverts and re-build others, and that they protested against the additional work and alterations by which they were required to do much of their work twice, and the suppliants allege that it was only on the understanding that they should be paid extra for such additional work and alterations, that they agreed to carry out the orders of the chief engineer.
Paragraph 6 sets forth, under eight heads, that extra work was done under protest, and in accordance with the alkged understanding and for which they claim payment, nateely:- 1. Nine culverts were constructed which were not on the original plan or bill of works.
" 2. Two culverts were rebuilt which were first constructed according to plans furnished to the contractors, but afterwards rebuilt on a new plan. .
" 3. Six culverts were constructed where divisions had been made of the streams, either by the order or sanction of the engineer, after the work was graded, the bank being re-opened for the purpose.
V0L VII .
S. C. R. I
" 4. One culvert in which the side walls were taken down and rebuilt, the same having been built by the first contractors of the section, and returned in the bill T6 of works as finished.
"5. The abutments of the bridges at Rushtons and R Grenville were partially torn down and rebuilt, the plans being changed.
"6. Additional work was performed on the piers and abutments of river Philip bridge, these being carried deeper than originally intended, and in consequence of change of plans the coffer datm was enlrcd after it was sunk.
" 7. The grade at river Ph ili was raised afterthe line was completed.
"8. Much extra work was done on station grounds at Folly Lake, and the embankment there was widened." Paragraph 7 states that the commissioners have admitted the justice of the contractors' claim for such extra work, and recommended payment thereof, that is to say: the claim for culverts and extra works on foundations with changes for grading and station grounds, but that the sum estimated therefor does not agree with the statements of the contractors, and no opportunity has been afforded the latter of hearing how the amount of the commissioners had. been made up, that the sum recommended by the commissioners was about $30,000, a set off for bridges and chains not required to be completed of about $ 0,000; but no part of said sum has been paid to the contractors.
Paragraph 8 alleges that the contractors were put to large expense and compelled to do much extra work, for which they are entitled to be paid, in consequence of misrepresentations in plans and bill of works exhibited at the time of letting, in which it was stated that certain test-pits had been sunk in the cuttings, some to EXCREQUER COURT OF CANADA.
f grade and others to various depths much less than represented. That as these cuttings turned out rock in. stead of earth, as stated in the plails, the quantity of rock was less on the bill of works than it should have been if the return of the test-pits had been correctly made. That the contractors believe that this is not a contingency in the sense intended in the specifications for which they should suffer, but was a positive representation of fact by which they and those who computed the quantities were misled, and for which the commissioners were responsible; and they should, therefore, be paid for the excess of work, for had the test-pits been correctly returned the estimate of rock cuttings would necessarily have been increased, and the contract sum would have been much larger than the sum now claimed.
Paragraph states that in consequence of these misrepresentations the contractors were compelled (1) to remove a very large quantity of rock, 45,000 yards, instead of earth, as falsely represented on said plans. To haul a large additional quantity of earth to make the fill at Higgin's Brook, and to cut a large quantity of rock and clay at station 150, represented as sand, the test-pits not having been sunk as stated.
clear extra width of line one rod on each side equal to 67J acres, not included in the quantities in the bill of works, and to finish the clearing partially done by the first contractors, and returned on the bill of works as completed
(4.) To add to the length, 64 feet of Higgin's Brook turned beyond length, stated in the bill of works. To build an upright wall to retain foot of slope at Sniths Brook, in consequence of tunnel being laid too short.
To remove other 12,012 yards earth and 695 yards of rock in consequence of other e.rors of quantities stated in the bill of works.
SE S.
Paragraph 10. That in May, 1873, the commissioners, having received the account of the contractors, sent the same to the engineer-in-chief for report, and account was T referred to Schrieber, who reported value of work $82,000, or thereabouts.
Paragraph 11. That contractors faithfully completed contract, as well as extra work ordered to be done, and handed over section to commissioners finished to satisfaction of chief engineer.
I Paragraph 12. That in March last Government tendered contractors $12,000, or thereabouts, in full of their claim, which was refused on such conditions and no part since paid *
- Paragraph 13 states that the sum of $557,7.50, the contract price, has been paid to the contractors, but nothing Las been paid on account of such extra work, and the Government refuses, except as to the said $12,000 tendered, to pay the same, and the suppliants claim that there is now due and owing to them by the Government of Canada a large sum of money in connection with the said contract, that is to say:- "1. For culverts built under the order of the chief engineer, after grading was completed .......
..
...
....... $42,858 07 " 2. For iron pipes in substitution of masonry 3,356 00 " 3. For additional rock in cuttings............
44,285 50 " 4. For sundry errors in bill of works.........
11,311 70 " 5. For re-building sundry works..............
5,378 00 " 6. For River Philip bridge..
..........
9,980 53 " 7. For difference in currency and iron pipes 7,493 33 $124,663 .13 And prays payment to be adjudged to them of the sum of $124,663.33 and damages and interest for the withholding of the money due to them, and for their costs and disbursements.
AVendiz to The answer of the Attorney-General sets forth the different clauses of the contract, as to the manner in ** which the contract was to be completed, the provisions as to the omissions, alterations, extra work, and that J contract was subject to the Railway Act, 1868; in fact, all the provisions of the contract bearing on the question raised in this case, and it is alleged by section 10, that "in preparing the said plans and specifications and in inviting tenders for the construction of the work of the said railway, it was contemplated by the said commissioners that plans and specifications might have to be altered or varied, and that other work might be required for the due and proper construction of the line of railway, and I say that before they entered into said contract the said contractors were well aware that the contract price was intended to- cover the cost of any such alterations or variations in the plans and specifications, and of any other or additional works which might be required, unless such alterations or variations should arise from changes of grade or of the lineof location."
The answer then put forward, that in the bill of works * it was stipulated that contract should provide for changes being made without extra charge. The contractors entered into contract with full knowledge of contents of bill of works, that estimates therein, plans, and specifications, were only approximate, subject to be altered as circumstances might require.
The answer then denies misrepresentation, and, if inaccuracy occurs, that contractors were distinctly warned not to rely thereon, but to make such allowances as they thought fit. Right to relief by reason of anything antecedent to contract, or not arising strictly out of terms thereof denied, and claims based upon matters outside of express terms of contract demurred to.
Answer admits of additional culverts ordered and Appendiz to1 made, but any understanding with the commissioners that contractors should be paid extra denied. But commissioners took account of all work for which contrac- * tors claimed to be entitled to be paid over and above contract price, and recommended payment of so much J. thereof as was not within the contract at fair, reason. able and proper prices.
The answer sets out the works for which extra payment was reconimended, amounting to $31,091.35; that such was and is a fair, reasonable and proper sum or allowance for said works, regard being had -to the matter and character thereof, and to the terms of the said contract, and to all the circumstances of the case. That the deduction for wooden bridges agreed to by contractors was $8,300 instead of $82,000, and that Her Majesty is entitled, under the terms of the contract, to a further deduction of $10,354.24 for drainage works which the contractors did not perform; that the contractors accepted $557,750, and regard being had to the allowance for extra work and to the deductions, the contractors would be entitled to a credit of $12j436.11 over and -above contract price, which the commissioners recommended Her Majesty to pay contractors in full satisfaction of all their claims.
Her Majesty offered to pay such sum in full, but contractors refused to accept the same.
The answer then avers, that contractors failed to complete work within time agreed on, and claims, on behalf of Her Majesty, the benefit of the stipulations contained in 3rd paragraph of contract, viz., a forfeiture of all money due, and $2,000 a week for all the time during which said work remained incomplete after 1st July, by way of liquidated damages; and leave is craved to deduct, retain and set off $2,000 per week, amounting to upwards of $150,000 from out of $88 and against the claims of the suppliants in their pe, The answer then avers that, with respect to the re- Tea vision of prices, it was solelyfor the purpose of monthly J. estimates.
All right to extra work claimed under paragraphs 8 and 9 of petition denied. , That test-pits were sunk as in bill of works, and, if otherwise, right to any relief on that ground denied. Paragraph 10 admitted that Schreiber reported all, except $31,091.85, within terms of contract, and his report was adopted by commissioners. Admitted that contractors ultimately completed work in contract, and also extra work, to the satisfac- * tion of engineer, but charged that same was not completed within specified time
Admitted $567,750 was paid, but denies it was paid as contract price. Charges that only $539,095 was paid on contract price; that commissioners deducted $8,300 and $10,854.24 from the $557,750; and balance was paid on account of said allowance of $31,091.85. Submitted nothing due~sippliants.
Paragraph 10 admitted, so far as relates to report of Schreiber, but avers report was made irrespective of whether work claimed for was or was not included in contract, and was made only for information of commissioners and chief engineer; anything in 14th paragraph denied.
The chief engineer has not certified as required under Railway Act, in"Sec. 8 of contract referred to, nor that work for and on account of which the sums claimed are sought to be recovered, has been duly executed, nor has any such certificate been approved by commissioners, and that contractors have been paid in full for all works for whidh the said chief engineer has certified as in said Act provide4,
EXCHEQUijR COtJRT OP
There does not seem to be any difficulty in discovering what were the intentions of Parliament in regard
.ox. to the construction of this railway. In an undertaking TUEEN. of such a magnitude, involving such an immense expenditure, the protection of the public and the public RitchieJ. revenues of the country would necessarily be matter of paramount importance. To accomplish this Parliament appears to have deemed it absolutely necessary to define and limit and, to use an expression in one of the cases, to restrain and fence in the powers of the commissionera, and to make the chief engineer, upon whose skill and ability the success of the undertaking would greatly depend, independent of the commissioners, so far as his appointment and removal from office was concerned;
and with respect to the contractors, we have seen it expressly provided that the road should be built by' tender and contract, and the-commissioners strictly prohibited from entering into any contract involving an expense of $10,000 or upwards without the sanction of Government, and required all contracts to be guarded by securities and conditions ; and as if to prevent -the possibility of the Government being called on for claims outside of contracts of an uncertain and implied character, the payment of any of the public money until the chief engineer had certified that the work for which the same was claimed had been duly executed, and until such certificate had been approved by the commission.
ers is prohibited.
The statute and the contract must be read together.
From the statute we must ascertain what powers were delegated to the commissioners, and what restrictions imposed.
From the contract we see what the commissioners and contractors respectively undertook, and then,having regard to the statute, determine how far their respective obligations were fulfilled.
On the hearing the learned counsel for the suppliants classed the works for which payment was claimed, as T .
follows:
n Q
1. Additional work done by order of the commissioners and engineers, as for instance, extra culverts. 2. Work for which the first contractors were paid, and which is not included in the contract.
Work done by the first contractors, for which they were paid, but which was taken down and rebuilt by order of the engineer.
4. Extra work in consequence of grade and location. Additional work in consequence of changes in plans of bridges.
Additional work made necessary in consequence of misrepresentations made in the bill of works and plans, and mis-statements as to measurement.
Differences in value between using iron pipes and mason's work for culverts
Adopting the classification of suppliant's counsel, as substantially covering all the various claims put forward in the petition, I will first proceed to deal with that based on the misrepresentations said to be containedin the profile plan and bill of works.
The counsel for the suppliants repudiated the idea of charging the Crown or the commissioners or enginbers with any fraudulent misrepresentations, nor is it contended or shewn that the commissioners knew or sanctioned any misrepresentations.
It is very clear that, as the Crown can do no wrong, no petition of right can be sustained against the Crown for tort, still less for a claim based on an alleged fraud imputing to the Crown the fraudulent misconduct of its servants See Thomas v. The Queen (1); Tobin v. The Queen Heakin v. Queen (3).
8.0. R.
R
But relief against the Crown is claimed in- this case on the ground that the accuracy of the statements and representations in the profile plan and in the bill of works were guaranteed to the contractors, and that portions of such statements and representations were Ritchie, J. inaccurate, by. which they were misled as to the extent and character of portions of the work, more particularly as to the extent of the rock excavations, and 'thereby were compelled to do a large quantity of work of a much more expensive character than the plan and bill of works exhibited.
A careful perusal of the contract will show that there is nothing whatever that by the most forced construction can be construed into any thing approaching an express guarantee of any information whatever. The contract is absolute and unconditional that the contractors would, for a certain sum, within a certain time, build, construct, and complete section No. 7, as described in the contract, and all bridges, culverts and other works appertaining thereto, to the entire satisfaction of the commissioners and according to the plans and- specifications thereof, signed by the, commissioners and contractors, the plans so signed being deposited at Ottawa, and the said specifications being annexed to the contract and forming part thereof, and with such instructions'as might be, from time to time, given by the chief engineer. There being then no express covenant, can such a covenant or guarantee be implied? The contract being silent as to any such warranty, and nothing in the contract indicating any intention of binding the parties to any obligation beyond the express provisions contained in the contract itself, can this court presume, nevertheless that such was the intention of the parties, and that the Crown did impliedly wdrrant that the statements and representations complained of as being incorrect aiCHEQOER were correct and true? I think the law will imply no such warranty; that no principle of law will justify V4 me in saying that parties to a contract have by that Q contract contracted for something which is not to be foxInd within, or indicated by, the written contract to which they have attached their, hands and seals. the contract, and by the - contract alone, in the absence of fraud, must the parties to it be bound. No stipulation can, in my opinion, be implied in any contract at * variance with the express terms of the contract. To - imply a covenant there must be something in the instrument manifesting an intention to bind the parties, or, as Mr. Justice Lush puts it in Jones v. St. John College (1): "You must find words in the instrument capable of sustaining the meaning which you mean to imply from them."
The authorities on this point are very clear and, I think, decisive.
Among them may be named: Scriver v. Pask (2); Thorne v. Mayor of London which went to House of Lords (4); Churchward v. But wholly apait from, and independent of this, the documenis themselves show that, not only had the parties no intention of entering into any such covenant or guarantee, expressed or implied, but that the very reverse was the case; that it was the clear intention, so far as language can express it, that there should be no guarantee.
The commissioners gave persons intending to tender such information as they had of the surrounding circumstances, but, so far from guaranteeing the accuracy of such information, they, on the contrary, expressly, both in the profile plan and bill of works, disclaimed all responsibility for its correctness, what they furnished S.
(8) L R. L being previously nothing more than a representation of the information they had received, with a distinct warning not to place implicit reliance on it, or, in the language , as., of Lord Chelmsford, " not to place blind confidence in it," leaving parties before tendering to examine particu- J. larly for themselves; and it is difficult to conceive how they could have done this in clearer or more unequivocal language than on the profile plan and in the bill of works in which the alleged misrepresentation is stated to be. Six propositions are printed on the profile plan, and are as follows:- " 1. This is the profile. of that portion of the line of railway extending from 0 in ridge (north of River Phillip) to station' 0 (formerly station 50), at Folly Lake, in the Province of Nova Scotia, a distance of about 24J miles, for the completion of which the commissioners have advertised for tenders, to be received at Ottawa on the 7th day of May, 1870.
" 2. This profile is made from levels taken on the centre line as it is now located.
" 8. The work done by Sutton 4. Angus, (the former contractors) is colored on the profile, and detail information as to quantities executed is given in the printed schedules and bill of works. These quantities are believed to be correct, and must be assumed as such by the new contractors.
" 4. The number and character of structures at present believed to be required will generally be found within in red on the profile and described in the schedule of structures. These are, however, subject to any modifications which additional information respecting the freshet discharge of streams and other circumstances may render necessary.
" 5. The best information in the possession of the undersigned respecting the probable quantities of the a;
8 [ several kinds of work will be found in the schedule of Jon.
cuttings and embankments, the schedule of structures and the bill of works, which are printed to accompany this; but contractors must understand that these quantoie, J. tities are not guaranteed.
" 6. Lithographed general plans, sheets Nos. 1 to 24, inclusive, showing the character of structures intended to be constructed, will be exhibited with this to intending contractors. Special drawings will be furnished as required.
Sandford Fleming, Chief Engineer. OFFICE,
Ottawa, 11th April, 1870.
Attested.
(Signed) W. T. Forrest.
And in~the printed bill of works referred to, the following forms part.
"This bill is an abstract of all information in the possession of the commissioners and the undersigned with regard to the quantities of work to be executed. " The quantities here in given, asascertained from the best data obtained, are, as far as known, approximately accurate, and no claim of any kind will be allowed, though they may prove to be inaccurate.
" The quantities of excavation are for the most part ascertained from cross sections; the proportion of rock excavation is estimated from information furnished by test-pits dug at intervals along the line of railway; the information thub ascertained, and the nature of the soil to be excavated, will generally be found written in the profiles, but the accuracy of this information is not guaranteed. Contractors must satisfy themselves on this as well as on every point, as no addition or deduction will be made in the event of any excavation turning OL. V I EXCHEQUER COtJRT OF CANADA. out more than or different from what may be represented or supposed.
Jona " A schedule of cuttings and embankments is furn- .T ished showing the approximate quantities in each, and giving an estimate of the probable proportions of earth ' and rock which will be required to be excavated in the contract, inclusive of all the work which has been done to this date. The excavations are calculated net measurenent, and the contractors will observe that a percentage allowance is added to embankments for waste, subsidence, wash beyond slope lines, &c."
" The contractor is required to make every allowance which he may deem necessary to cover the risk of any of the quantities of work being increased in execution. A schedule of structures proposed for the passage of streams and general surface drainage across the line of railway is also furnished. The structures proposed are, from all the information obtained, believed to be the most suitable, but should circumstances require any change in the number, position, water-way or dimensions, the contract will provide that all changes should be made by the contractor without any extra charge. This schedule gives the probable quantities - in the structures now proposed and the data upon which these quantities are ascertained ; much, however, depends on additional information to be obtained with regard to the freshet discharge of streams, as well as the nature of the foundations, and, with respect to the latter, accurate information can only be had during the progress of the work.
" A third schedule showing the quantities of work actually done on this portion of the line up to this date is also furnished. These quantities form the basis of the final certificate in favor of the old contractor. This bill which follows is intended to show (approximately) EXCHQUER the total quantities actually executed to date, and the balance to complete this portion of the line."
11.m
And after giving the approximate quantities actually executed to date and the balance to complete this por- Jtion of the line, and after giving the approximate quantities and description of work, this is added: " In addition to the quantities herein given, the attention of the contractors is drawn to other services mentioned underneath, for which all allowances must be embraced in the tenders;" and among omissions and contingencies, for which it is stated allowance should be made, is the following : " For any errors in measurement or calculations, or deficiencies in quantities for all work of protection required for slopes of embankments and cuttings; for all alterations considered necessary in structures that may be found inadequate in water-way or strength; for removing all buildings and other obstructions on the line of railway; for re-building fences destroyed by fire, and for repairing all injuries done before the completion of the contract, and generally for all omissions, and to cover all possible risks and contingencies."
How in the face of this can the contractors be permitted to say that there was any guarantee expressed or implied, or how can they complain of being misled by misrepresentations ? If the accuracy of the test. pits, as delineated on the profile, or if the quantities named in the bill of works were of the grave importance now put forward, with the intimations given on the plan itself and in the bill of works, it does seem somewhat strange that the intending contractors should have tendered for a work of such magnitude for a gross sum, and that by a contract excluding all extras and omissions which might become necessary for completing the undertaking, without the most careful and most VII. I EXCHEQUEI
S. IL searching examination of the ground, and a minute comparison of the statements in the profile and in the JoNs bill of works, withithe ground itself, when a discovery T quN of the real state of the case would have been inevitable. J. The opportunities of knowledge were not only equal between the contractors and the commissioners, but the contractors were, if anything, in a better position. Having the information furnished, they had, not only the opportunity of testing the accuracy of such information, but the opportunity of making such further examination as they might deem necessary, if that so furnished was found imperfect or too limited to enable them to judge with precision of the difficulties they would have to encounter, or the work they would have to perform. If they did not do so, the language of the learned judge in the House of Lords, in the case of Thorne v. The Mayor, is extremely apposite:
With respect to the work done by the first contractors, many of the observations just made are to a certain extent applicable.
This work, as far as the present contractors are concerned, was put on the same footing as if it had been done by themselves, under the contract. The proffle plan and bill of works professed to show what had beam done by Sutton 4* Angus; the accuracy of this was no more guaranteed than were the representations of the test-pits and quantities of rock excavations. The profile plan says; " No. 4, the work done by Sutton &) Jons * Angus (the former contractors), is colored in the profile V. plan, and detail information as to quantities executed is given in the printed schedules and bill of works. J. These quantities are believed to be correct and must be assumed as such by the new contractors; " and in No. 6, to the statement that the best information respecting the probable quantities of the several kinds of work in possession of the chief engineer would be found in the schedules and bill of works, is added, " but contractors must understand these quantities are not guaranteed; " and in the bill of works it is stated that quantities of work done by the old contractors were believed to be correct, and must be assumed as such by the incoming contractors, and among the omissions and allowances which persons tendering were notified their tenders should embrace, were " for any errors in measurements, or valuations or deficiencies in quantities."
As to the culverts they do not appear to have been either additional or extra. The embankments, it appears, were cut down and culverts put in at the bottom after the road was graded by the written order of the engineer. The evidence of Mr. Schrieber shows that they were culverts that ought to have been put in in the first instance but were left out, and the chief engineer objected to the omission, and it would seem that in all there were not so many culverts actually put in as are shown by the profile plan. Mr. Schrieber says the alterations from the original plan were made by the district engineer without the chief engineer's authority. The contractors, no doubt, protested against doing this work as not included in their contract, and Mr. Schrieber says he gave them some little encouragement to do it, but that the contractors refused to continue doing that kind of work unless paid for it as they (Y
II. IBXHEQUER COURT OF CANADA. B.
went along, but, notwithstanding this, they appear to have done it. Now, on reference to the contract, it will be seen, that express provision is made that the works shall be executed " in strict accordance with the plans 2and specifications, and with such instructions as may, J. from time to time, be given by the chief engineer, and that instructions and directions given by those acting for the chief engineer shall subject to his approval," and it was also provided that in the event of any bad materials being delivered, or bad work being executed at any time, the same shall be immediately removed, on notice being given by the chief engineer; and the work shall be reconstructed at the expense of the contractors, in strict conformity with the contract and the specifications, and to the entire satisfaction of the chief engineer; and in cases of omissions from the specifications and contract, it is provided that should any'work, material or thing of any description whatsoever, be omitted from the said specification, or the contract, which, in the opinion of the chief engineer, is necessary or expedient to be executed or furnished, the contractor shall, notwithstanding such omission, upon receiving written directions to that effect from the clief engineer, perform and furnish the same.
By section 4 it is provided that: " the engineer shall be at liberty at any time, before the commencement or during the construction of any portion of the work, to make any changes or alterations which he may deem expedient in the grades, the line of location of the railway, the width of cuttings or fillings, the dimensions character of structures, or in any other things connected with the works, whether or not such changes increase or diminish the work to be done, or the expense of doing the same, and the contractors shall not be entitled to any allowance, by reasou of any such changes, unless suc BX0HEQUBR COURT OF CANADA.
O. VII. changes consist in alterations in the grades or the line of location, in which case, the contractors shall be subject to such deductions, for any diminutions of work, or entitled to such allowance for increased work (as the case may be) as the commissioners may deem reasonable, their decision being final in the matter;" and, if this was not sufficiently clear and explicit, the contract declares it to have been " distinct4y understood, intended and agreed, that the said price or consideration of five hundred and fifty-seven thouAnd seven hundred and fifty dollars ($557,750.00) shall be the price of, and be held to be full compensation for, all the works embraced in, or contemplated by this contract, or which may be required in virtue of any of its provisions, or by law, and that the contractors shall not, upon any pretext whatever, be entitled, by reason of any change, alteration or addition made in, or to such works, or in the said plans and specifications, or by reason of the exercise of the powers vested in the Governor in Council by the said Act intituled: I An Act respecting the construction of the Intercolonial Railway,' or in the commissioners or engineers, by this contract, or by law, to claim or demand any further or additional sum for extra work, or as damages or otherwise; the contractors hereby expressly waving and abandoning all and any such claim or pretention, to all intents and purposes whatsoever, except as provided in the fourth section of this contract."
And though by the contract " the contractors are to be under the direction and supervision of said district engineer and assistant engineers and inspectors as may be appointed," it is only in carrying on the works in accordance with the contract and specifications and instructions of the chief engineer; nowhere in the contract is any power or authority whatever given to any such district or assistant engineer or inspector to Appenidizto
IO alter, vary or depart in any the slightest particular from such plans and specifications or instructions. Still less, had they any power or authority to incur any liability outside of and beyond the contract, and it is equally clear that neither the protest of the contractors to the Rithie, J. district engineer, that the work was not within his contract, and he would not do it unless paid for, nor any encouragement, great or little,which such engineer might have given him, could create a legal claim against the
Crown. The commissioners alone could contract for a liability on the Government, and they only as authorized by statute. If this work is to be considered extra, additional, or varied work, as the contract clearly contemplates there may be, then the contractors have, by the contract, waived all claim for payment for any such work. If it, or any portion of it, is additional or varied work of a character so peculiar, so unexpected and so different from what any person could be supposed to reckon or calculate upon, that it is not within the contract, but altogether dehors the contract (which I cannot think it is, for it was only done to make the road according to the plans and specifications and instructions of the chief engineer), then I can discover no such contract with the commissioners as would give the contractors any legal claim against the Crown; the commissioners alone, under the statute, can bind the Crown, and they only as authorized by the statute. No doubt the insisting on the putting in of these culverts after the embankment had been graded, apart from any question of obligation on the part of the contractors to do it, and of all legal considerations, would seem to have been a very great hardship on the contractors, as they may most fairly have considered, that when the line was brought to grade level, under the superintendence of the district engineer, it would not have to be cut down
SS. C. R. and rebuilt at their expense, unless, indeed, the omission J s which the cutting down was to remedy was the fault T .
of the contractors, which does not appear to have been the case (though, on the other hand, prudence, in view Ritchie,J. of the terms of their contract, would perhaps have dictated, that the plans and specifications should not have been departed from unless the express approval of the chief engineer had been first obtained,) and would, under such circumstances, commend them, if not legally, at any rate, in foro conscientsce, to the favorable consideration of the Crown; and as will be seen by the report of the commissioners they were so commended by the commissioners, and the Crown tendered them the amount recommended by the commissioners as being by them deemed reasonable.
As to extra work in consequence of changes in plans of bridges, the contract, section 4, says: "The engineer shall be at liberty, at any time before the commencement or during the construction of any portion of the work, to make any change or alterations which he may deem expedient in the grade, the line of location of the railway, the width of cuttings or fillings, the dimensions or character of structures, or in any other thing connected with the work, whether or not such changes increase or diminish the work to be done or the expense of doing the same, and the contractors shall not be entitled to any allowance by reason of any such changes, unless such changes consist in the grades of the line of location, in which case the contractors shall be subject to such deductions for any diminution of work, or entitled to such allowance for increased work (as the case may be) as the commissioners may deem reasonable, their decision being final in the matter."
And section 10 provides that " the contractors shall not, upon any pretext whatever, be entitled by reason of any change, alteration or addition made in or to such work, or in the plans or specifications to claim or to demand any further or additional sum for extra work, or as damages or otherwise," the contractors expressly waiving and abandoning as before set forth.
J. And the bill of works states with reference to the structures, " A schedule of structures proposed for the passage of streams and general surface drainage across the line of railway is also furnished. The structures proposed are, from all the information obtained, believed to be the most suitable, but should circumstances require any change in the number, position, waterway or dimension, the contract will provide that any change shall be made by the contractors without any extra charge. This schedule gives the probable quantities in the structures now proposed and the data upon which these quantities are ascertained; much however depends on additional information to be obtained with regard to the freshet discharge of streams, as well as the nature of the foundation, and with respect to the latter accurate information can only be had during the progress of the work, and among omissions and contingencies, parties tendering are informed that allowance should be made for all alterations considered necessary in structures that may be found inadequate in waterway or strength."
Under these circumstances I know of no principle by which I can adjudge the contractors payment for which they have themselves declared they are not upon any pretence whatever to be entitled to.
As to the difference of value between iron pipes and mason work for culverts.
.
There are no averments in the petition with reference to this matter, except the item 7 in section 15, which is simply " fordifference in-currency and iron pipes," and nothing in the contract, except the power, herein before . C. referred to, of the chief engineer to change or alter the dimensions or character of structures, nor in the evi. T dence do I fnd anything explanatory of this claim, nor does it appear in any way whether the change was J. from mason work to iron, or from iron to mason work, unless indeed it was to be inferred from the bill of works, the only place that I can discover any reference to the subject. It is there stated, that " the commissioners will consent to the substitution of iron cylinders for box culverts of masonry at certain points to be designated by the engineer. Such as those places where the inclination of the streams or hill side ground renders the plan of construction shown on sheet No. 17 necessary. Wherever these cylinders are employed they must be three feet in diameter in the clear, and weigh not less than 450 lbs. per lineal foot ; they must be embedded throughout in concrete and furnished with substantial wings and parapets of masonry at the ends. They must be made and laid according to the plans and directions of the engineer, and such precautions taken as he may consider necessary to render the whole solid and permanent. Where iron cylinders or other structures are allowed or directed to be used in place of those mentioned in the schedule of struetures, they will be paid for at the prices in the schedule to the tender, and a deduction will be made from the contract sum of the total saving effected thereby, according to reduction in total quantities calculated at the schedule prices," from which it would appear that a deduction and not an increase was contemplated by the parties as the effect of the change.
As to the claim for extra work, in consequence of changes of grade and location of line.
This was the only extra work for which the contract provides for any allowance for increased work, should dU the change of grade or location involve an increase in the work to be done; but it is only such an allowance "as the commissioners may deem reasonable, their, decision being final in the matter."
The petition does not allege any sum as having been allowed by the commissioners, and the only statement or reference we have in the evidence of change of grade or location is in the report of Mr. Brydges, which will be referred to hereafter more fully, in which he says : " there is one item which ought to be allowed for raising the grade at Clifton station $1,778.24."
Looking upon this as the item considered reasonable by the commissioners, the suppliants would be entitled to recover for it, if not already paid, but then it is included in and forms part of the balance of the $12,47.61 admitted to have been tendered by Government.
But, independent of all these considerations, there are general provisions in the contract, and in the law, which are conditions precedent to the suppliants right to recover, but which have not been complied with. Section 6 of the contract says: " cash payments- will be made monthly, on the certificate of the engineer, equal to eight-five per cent. of the value of the work done, approximately made up from returns of progress measurements; and on the completion of the work to the satisfaction of the engineer a certificate to that effect will be given, but the final and closing certificate, including the fifteen per cent. retained, will not be granted for a period of two months thereafter. The progress certificate shall not in any respect be taken as an acceptance of the work or release of the contractors from their responsibility in respect thereof, but they shall, at the conclusion of the work, deliver over the same in good order, according to the true intent and meaning of this contract and of the said specification ;" and the language of the statute is that no money shall jo be paid to any contractor until the chief engineer shall .
have certified that the work for, or on account of which the same shall be claimed, has been duly executed, nor ' until such certificate shall have been approved by the commissioners.
If these clauses mean anything, it can only be that the work done on the road must be to the satisfaction of the Chief Engineer, and until he so certifles, and such certificate is approved of by the commissioners, the contractors are not entitled to any pay.
The petition sets forth (section 11) that the said contractors faithfully completed their contract, as well as the extra work they were ordered to do, and handed over the section to the satisfaction of the Chief Engineer. The petition is conspicuous for the absence of any direct or inferential averment that any such certificate, as indicated by the contract or law, was ever obtained, or that there had been such approval by the commissioners. On the trial what was called the engineer's final certificate was put in evidence, and is as follows: RAILWAY,
"Office of the Chief Engineer, " Ottawa, 10th Feb., 1878. "Ralph Jones, Esq., Secretary.
"Dear Sir,-I have 'now received a final return of quantities executed on section No. 7, and taking the contract as the basis for settlement with the contractors, the account will stand as follows, that is if we assume that the work has been executed properly, with respect to which I cannot say I am fully satisfied.
" The contract sum is..........................$557,750 From which deduct work taken off the contractors' hands:- "Timber bridging..............8,800 00
"Under drains, 64,714 lineal feet, at 16 cts..................10,854
42, " Balance.........$589,095 76 RitchieJ. "The contract for this section is dated 25th May, 1870; the whole was to have been finished by lst July, 1871.
" Although at the present date everything is not satisfactorily and entirely completed, the works are sufficiently far advanced to admit of the rails being laid and the line opened for traffic on the 11th November, " During the progress of the work changes of various kinds have been made, and I herewith furnish a statement prepared from the return received from the district engineer, showing the total quantities of the various kinds of work executed as compared with the original quanties of work estimated when the contract was entered into. From this statement it appears that the contractors have done work in excess of the original quantities as follows:- Clearing &c ...................
40?h acres. Rock excavating.............
42,225 cub. yde. Private road crossings.................
- Tunnelling at Caldwell's Brook.....
866 lineal feet. "
Hartz......
......
do "9
L. Whitstone.........
do "6
Whitone... ............
do Cast iron pipes..
...............
do say 115 tons. "The statement further shows that the contractors have done work in diminution of the original quantities, as follows:
"Earth excavation, 46,661 cubic yards.
Rip-rap,
"
**
Concrete,
1,062
"
1st class masonry, 1,480
"
2nd class
6,590
Paving,
Public road crossings, 2.
"According to the terms of the contract the commissioners are required to place a valuation on the altertions referred to, so that the same can be added to or deducted from the contract sum. Having furnished data for their valuation, I now await further instructions.
"Yours very truly,
SANDFORD FLEMING, "Chief Engineer." This so far from being the certificate contemplated, that the work has been duly executed to the satisfaction of the chief engineer, is directly the contrary. It would seem to be merely information conveyed to the commissioners (taking the contract as the basis of settlement with the contractors) as to how the account would stand on the assumption that the work had been properly executed, with respect to which, however, he says, " I cannot say that I am fully satisfied." And again, after stating that the whole work was to have been finished by July 1, 1871, he says, " although at the present date everything is not satisfactorily and entirely completed, though," he says, " the works were sufficiently advanced for laying the rails on 11th November, 1872."
On this basis and assumption $589,096.76 would be due as the contract price. He then states, that during the progress of the works various changes had been~made, and furnishes a statement, prepared from the returns received from the district engineer, showing the total quantities of the various kinds of work executed, as compared with the original quantities of work estimated when the contract was TaE QN. entered into; and furnishes in detail the work that appears from the statement to have been done in excess and in diminution of the original quantities, giving no certificate of the extra work having been done to his satisfaction, nor pointing out in any way why the changes were made, or whether any and what part were extras, payment for which the contractors had agreed to waive all claim to, or whether they arose from change of grade or location of line which the contract especially provided for. In conclusion, he says: "According to the terms of the contract, the commissioners are required to place a value on the alterations referred to, so that the same can be added to or deducted from the contract sum; " and that he had furnished the data for their valuation. The inference from this would certainly be that these items related solely to change of grade or location of line, the only work for which any provision is made in the contract; but these items themselves, as well as the suppliants' petition, and the evidence in the cause, very clearly show that such could not be the case. The chief engineer must therefore have supposed that all alterations and changes were, by the contract, placed on the same footing as changes or alterations in the grades or line of location which, as will be seen from section 14, is quite the reverse; but even if it was, as the chief engineer appears to have supposed, I cannot see that the suppliants would be any better off, because the allowances to which they would be entitled are only such as the commissioners might deem reasonable, and their decision is declared final in the matter. Now, the suppliants neither in the petition aver the obtaining the chief engi. neer's certificate, nor do they aver, directly or indirectly, that the commissioners ever fixed any sum or sums as the reasonable allowance to be made them, nor does the evidence show that the commissioners ever did fix the amount of any such allowanco, unless it is to be found in the report made by them through Mr. Brydges, which is as follows:
" Ottawa, Feb. 5, 1874. No.
"The undersigned, on behalf of the commissioners for the construction of the Intercolonial Railways, begs leave to report to the Governor General in Council upon the claims made by the contractors upon Section No 7, as follows:
"The general remarks in regard to the terms of the contract and bill of works, made in the report upon Section[No. 4, will apply to Section No. 7 as well. "The contract for this section was completed about the same time as that for No. 4, and the road opened at the same period.
" Enclosed is the report of the chief engineer, dated 10th February, 1873, showing the total amount of work done upon the contract. The contract was dated 25th May, 1870, and was for the sum of $557,750, from which was to be deducted timber bridging not executed $8,800, and under drains taken off the contractors' hands $10,854 24; total, $18,654.24, leaving the balance due to the contractors $589,095.75.
" The total amount paid to the contractors up to the present time is the amount of the contract, $557,750. From the engineer's report it seems that in rock excavations there was an excess of 42,225 yards, in earth exca. vation a decrease of 1,480 yards, and in second class masonry a decrease of 6,590 yards. Part of the diminution in masonry is accounted for by the construction of tunnels in substitution of culverts, and also, in part, by the rise in iron pipes. The cost both of tunnels and pipes is less than the cost of masonry. The contractors for this section presented a claim to the commissioners amounting to. $110,463.83, for extra works beyond what was included in their contract. The same course was pursued in this case as in No. 4,. and the claims were referred through the chief engineer to Mr. Schrieber, who had been charged with the completion of the works.
" Mr. Schrieber reported, as per letter annexed, on the 29th July, 1813, his letter being transmitted to the commissioners by Mr. Fleming, on the 26th August, 1873. Mr. Fleming, in this case also, declined to make any recommendation upon the subject. The undersigned has therefore gone carefully over the report made by Mr. Schrieber, and now submits the following recommendations: - "In this case as in No. 4, certain works were ordered by the engineer in charge not to be executed, and the work was completed without them.
" Mr. Fleming subsequently directed, after the completion of the works, that some of the culverts, &c., which had been omitted to put in should be built, and also ordered new culverts which had never been completed, and which were not shown in the original bill of works.
"In regard to the culverts which were originally in the bill of works, which were ordered not to be built, and were subsequently again directed by the chief engineer to be constructed after the embankments, &c, were completed, it seems only reasonable that the contractor should have some allowance made to him. It is therefore recommended that the cost, as reported by Mr. Schrieber, less the masonry, which is provided for EXCHEQTER COURT OF CANADA.
in the aggregate quantities, should be allowed, and in ;
a those cases where entirely new culverts, not originally at all in the bill of works, and ordered after the embank- ment, were completed, the cost as set out by Mr. Schrieber should be paid; also, that in cases where culverts were built, and after completion 6rdered to be altered, the cost of such alterations as reported by Mr. Schrieber should be paid.
" These three classes of works, on the basis here described, amount to the total sum of $20,789.28, as set out in the accompanying memorandums, and attached to Mr. Schrieber's report. The only other items which, in the opinion of the undersigned, ought to be entertained are the following, all the rest being covered by bill of works, and disposed of by the quantities executed under the lump sum of the contract ;- "Item No. 36. Tearing down and rebuilding a culvert built by old contractors, but subsequently condemned; it was not covered by new contract..................
$ 458 00 "Item'No. 88. Bridge torn down and rebuilt to suit changed plans........................
2,208 00 "Item No. 87. Taking down and rebuilding bridge to suit iron superstructures instead of wood....................
188 80 "The cost of the foundations in this work proved to be exceedingly different from what had been originally shown on the bill of works, and the contractors were no doubt deceived as to the amount of work which they would have to execute in this particular case. There is nothing more uncertain than the foundations of such structures, and unless every contractor made a thorough examination of the foundations of each bridge before he tendered he could only act upon the information given .
VII. I EXCHEQUEiR COURT OF CANADA. him in the bill of works; he can judge with some I77 degree of accuracy of cuttings and embankments, but what is beneath the water can only be ascertained byT actual borings and by examination. The undersigned is of opinion that such extensive changes, involving such a large additional cost, entitles the contractors to be paid extra when the works executed differ so much from what is shown in the bill of works. The amount claimed by the contractors is $5,674.83, which Mr. Schrieber puts down in his report, and which he considers fair and reasonable.
" There is one other item which ought to be allowed for raising the grade at Clifton station, $1,773.24. "There is a claim made for difference between~anadian and Nova Scotian currency which the undersigned cannot recommend to be paid.
" The various sums proposed to be allowed amount 1. Extra work on culverts........
......
$20,789 28 2. Rebuilding masonry at bridges in consequence of altered plans.......... ......
2,854 50 8. Foundation of River Philip bridge......
5,674 83 4. Raising grade at Cilton.....................
1,778 24 Total amount of contract, less deductions. 589,095 76 $570,177 61 Less amount paid.....................
557,750 00 Balance..........
............
$12,427 61 "If this proposed settlement is approved of by the Governor in Council, it should only be paid upon receiving a full discharge of every kind or description under the contract.
0. J. BRYDGES, "Chairman." Here we find an allowance made for the change of grade only to $1,773.24, which has been before referred v, but the petitioners allege that the commissioners have admitted the justice of the contractors' claim for extra work set forth in section 6 of the petition, but I fail to discover any admission of any claim. The most that can be said of the report of the commissioners is that, evidently under the impression that there was no legal claim they would be justified in paying, but considering that, under the circumstances, the contractors had experienced great hardships, and had performed a great deal of extra work not anticipated in carrying out the contract, they had a fair claim on the clemency of the Crown, therefore commended their case to the favorable consideration of the Crown, and recommended various sums to be allowed the contractors, but only to be paid upon receiving a full discharge of all claims of every kind or description under the contract, amounting in all to $31,091.85, as follows:- The various sums proposed to be allowed amounted Extra virork on culverts......2........020,789 28 Re-building masonry at bridges in consequence of altered plans .............
2,854 50 Foundations of River Philip bridge...........
5,674 83 R]aising grade at Clifton.................
$1,091 This amount the Government were willing to recognize, and tendered to the contractors.
In section 4 of the petition it is put forward, that the estimates of the contractors were based on the plans and specifications exhibited at the time of letting, and the alleged well understood rule laid down by the commissioners and previously acted upon, that any diminution in the estimated quantities should be to the advantage of the contractors, that the prices fixed for the said works were revised in May, 1871, the scale being based on an estimate by the engineer of the work actually ~Ritce, required to be done and made after the contract was half completed. I cannot see how this at all affects the legal bearing of the question; it is very evident the scale of prices was only to regulate the amount of the monthly certificates; there is nothing whatever put forward in this paragraph that could alter or affect the rights of the parties under the contract; we have no evidence of any such rule as that put forward, and if we had it would not alter or affect the contract. I only notice the allegation to show it has not been overlooked, but, in my opinion, the allegation amounts to nothing.
It is obvious, that the engineer had no right to dispense with any of the provisions, either of the law or the contract, or to make or substitute any contract in lieu thereof, or to involve the Crown in any liability in addition to or outside the contract, and that neither the engineer, nor the commissioners themselves, could dispense with any of the provisions of the law. If this or any other court undertook to dispense with the certificate of the engineer, the approval of the commissioners and the sanction of the Governor in Council, and adjudge to those suppliants $124,668.38, as due from the Crown to them as extra, outside of and beyond the written contract, without tender or contract, or any conditions or sureties for the protection of the public, and without any sanction of the Government, it would be simply to set at naught all the securities provided for the due performance of the contract, and to abrogate all the checks and guards solemnly imposed by law for the public safety and security, and enable parties to do and SS. C. obtain what Parliament has expressly forbidden to be Jo 5 done or had. The contract may be of a stringent nature, but whether more so than the nature of the subject- -matter, the magnitude of the undertaking and the large J. public interests involved required and the action Parliament necessitated, may be extremely doubtful. It must be borne in mind that the commissioners and chief engineer, with whom the contractors had to deal, and in whom such large powers were, no doubt, vested, stand in a very different position from private parties or corporations contracting on their own behalf, or engineers employed by parties so situated. They were appointed by the Crown to manage, superintend and carry to completion a great Dominion undertaking in which they had no private or individual interest. Disinterested public officers, who stood indifferent, as it were, between the Crown and the contractors, and who could have no interest in bearing hardly or unjustly on the contractors, and whose only interest could be honestly and faithfully to discharge their public duties. Very probably considerations of this character may have influenced the contractors in agreeing to be bound by stipulations so stringent; be this so or not, the parties voluntarily entered into the contrqct, and by it must they be bound. It is difficult to recognize any very great hardship, still less any wrong, in requiring parties to be bound by and fulfil contracts fairly entered into according to their plainly expressed terms and conditions.
In conclusion it may be satisfactory to see how contracts of this character have heretofore been viewed, not only in England, but in the United States of America, for in both countries such contracts have frequently been discussed, as the English and American reports obundantly show.
Out of a great number of casee S. C. I.
bearing on the subject, I will quote the language of several distinguished jurists as found in several promi- J oxs nent analogous cases.
Tas QTEN. In Sharpe v. San Paul By. Co. (1), Sir W. 11. Tames, Tas- L.J. say:- L.J., says - In this case the contractors undertook to make the railway and to do certain works, but they undertook to complete the whole line, with everything that was requisite for the purpose of completion from the beginning to the end, and they undertook to do it for a lump sum something short of two millions sterling, which was the amount upon which the Brazilian Government had undertaken to guarantee the interest. It is important to bear in mind, that the company was formed upon the basis of this guarantee, and it would be a singular hardship upon the shareholders-almost a fraud upon them-if they found, when they had taken shares in a company based on this guarantee, that they were to be compelled to pay something entirely different, and to do so in consequence of some conversations between the contractors and the engineer.
Then there was a considerable item as to the inclines up the Sierra, but every statement in the bill, it seems to me, puts the plaintiffs completely out of court as to that. The bill says that the original specification was not suffloient to make a complete railway, and that it became obvious that something more would be required to be done in order to make the line. But their business, and what they had contracted to do for a lump sum, was to make the line from terminus to terminus complete, and both these items seem to me to be on the face of them entirely included in the contract. They are not in any sense of the word extra works.
The plaintiffs then, thirdly, say that they were not to lay out more than £60,000 on the stations, and I think it has been made out that they were not to do so, but if they did, there was to be compensation for it, and that was to be one of the things to be included in the final certificate to be made by the engineer settling everything on the full completion of the work, and the engineer has made his certificate finding an ult'mate balance upon all the accounts which certiicate is not, according to my views of the pleadings, in any way impeached on any grounds which this court can take cog- (1) L. R. 8 Ch. 607.
OL. V11. nizance of. It is not pretended that Mr. Brunlees did not come to a conclusion to the best of his belief, and according to the best of his judgment. He was to determine the sums to be paid, and was not THE like an arbitrator dealing with evidence, or like a judge dealing with Ritce, J a law suit. The very object of leaving these things to be settled by an engineer is that you are to have the practical knowledge of the engineer applied to it, and that he, as an independent man, a surveyor, a valuer, an engineer, is to say what is the proper sum to be paid under all the circumstances.
That was the agreement between the parties. 'I he contractors relied upon Mr. Brunlees and the railway company relied upon Mr. Brunlee.
That is the ordinary course between such companies and such contractors, and practically it is found to be the only course that is convenient for all parties and just to all parties II myself should be very loath to interfere with any such stipulation upon any grounds except default or breach of duty on the part of the engineer.
In Roberts v. The Bury Improvement Commissioners (1), Willes, 3, says:
The question arising in this case is simply whether the Bury Improvement Commissioners, having employed the plaintift to do certainwork according to a specification, and the architect having decided that he was not proceeding with due diligence, the commissioners were justified under the 27 clause of the agreement, in interfering and taking the works out of his hands. That question depends on the construction of the agreement, and mainly on the 27th clause, which must of course be construed with due regard to the remainder of the agreement, but the cardinal rule, that the court should be guided more by the words of the clause dealing specifically with the matter than by any general inference from the whole contract, ought to be applied. Taking first, then, the 27th clause, it provides 'that it shall be lawful for the said burial board, in case said contractors shall fail in the due performance of any part of this undertaking; these words are very stringent, because they deal generally with any breach of contract, and show that the contractor was willing to trust himself to the good conduct of the board, because one can hardly conceive a case in which no small breach of contract should occur, of which a captious person might take advantage. The clause goes on 'or shall become bankrupt or insolvent, or shall compound with his creditors, or propose any composition to his creditors for the settlement of their debts, or shall carry on, or propose to carry (1) L. R. 4 C. P. 55.
Appendli to on, his business under inspectors on behalf of his creditors, or shall commit any act of bankruptcy. Here are a number of specific acts * JoNas mentioned in respect of which no case of hardship could be pleaded as a reason why the penalty imposed by the clause should not, be exacted. Then follows the proviso, on which the present case turns; IRitchie, J. and it is put on a footing of equality with the specific acts previously referred to. Now, what is it which is to produce the same effect as any of those previously described?
It is, 'or shall not in the opinion, and, according to the determination of the said architect, exercise due diligence, and make such due progress as enable the works to be effectually and efficiently completed at the time, and in the manner aforesaid,' that is the time provided for by the parties. It does not seem necessary to refer to any distinction between the time originally provided by the contract, and that which might be settled by the architect; it must be taken that before the time originally specified had arrived, and before any extension of time had been given, the board put in force the stringent powers given them by the contract, and on a certificate by the architect, that due dilligence had not been exercised took possession of the works, and of the plant and tools of the contractors. What, then, is the effect of the words "shall not, in the opinion, and according to the determination of the architect, exercise due diligence, and make such due progress as would enable the works to be effectually and efficiently completed at the time and in the manner aforesaid." It is not only a proviso for an additional or alternative event in which the powers of the board might be put in force, but a judge is appointed by the parties to decide whether that event has happened. The right, therefore, is made dependent, not on the event, but on the determination of the judge that it has occurred. Now, the plea founded in the 27th clause states that such a default did take place, which is superfluous, and need not have been averred, and that the plaintiff did not, according to the opinion and determination of the architect, exercise due diligence. Up to this point, the case seems to raise much the same question as was raised in the cases where there was a proviso in a lease that it should terminate if the tenant became bankrupt, and the tenant having been adjudicated bankrupt, the question arose whether it was necessary that he should have been so adjudicated on sufficient grounds in order to terminate the lease, and it was held by the majority of the court that he need not. That opinion is clearly the one to be acted on here, for it has been often decided on such contracts as the present one, that the decision of the architect means merely his decision in fact and not his decision on reasonable grounds; the plea therefore, is good and sufficient. VOL. VI. S. C.
By the first, the con- -~ tractor sets up against the decision of the architect, that the delay arose from acts and defaults of the defendants in not delivering the THE plans and laying out the ground in due time. We must look, then, to see what powers are given to the architect.
And two clauses are lichie, J. material, the 4th and 24th. The 4th, in terms, gives the architect the power and discretion to give what further di awings and plans he thinks right ; but assuming thit that were not so, and that the delay in givitig the plans was unjustifiable, what would be the consequence of such delay?
That appears to be provided for by the 24th clause, which gives power to the architect, under those circumstances, to extend the time for the completion of the works.
16 would seem, therefore, that all the matters relied on in the first replication are, in truth, matters which the architect ought to have taken into his consideration in determiniiig whether there should be an extension of time, and, therefore, also, in determining whether the plaintiff used due diligence; and the replication only, in fact, sets up reasons why the architect should not have given the certificate he did.
It is, therefore, in fact, an appeal from the architect, and not something paramount to his judgment, and not intended to be decided by him. Upon these grounds it would seem that the replication is not sustainable.
There is an apparent equity introduced into the replication by the averment that it was the opinion of the architect that the plaintiff was entitled to extra time, but unless this is to be taken as implying bad faith on the part of the architect, it really means nothing, because people may act bond fide on other persons' opinions instead of their own, or may feel bound by authority to act in a particular way contrary to their own views.
If the second replication is bad, the third one is bad also, for similar reasons. Referring now to the authorities relied upon by the plaintiff, the broad distinction is that in them the penalty was to accrue on a given event, viz., the failure of the contractor to fulfil his contract, and it was held in them that the failure must not have been caused by the other party; but in this case the penalty was not to accrue on the failure of the plaintiff to perform his contract, nor on any want of diligence on his part, but upon the judgment of the architect that there was such failure and want of diligence; the parties have made the architect the judge of the facts, and when he has given his judgment the penalty accrues whatever the real facts may be.
VOr4. VII.
R.
R
Montague Smith, J., says:
Now, the architect has determined that the plaintiff did not exer. JoNs cise such due diligence.
It was not denied, in the first replication, T . that he has come to that opinion and determination, for the answer T given in it is that the want of due diligence was a consequence of Ritchie, J. the acts of the defendants. That is an issue which cannot, I think, be left to a jury, because, looking at the whole contract, I think the parties intended to make the architect the judge, and that his judgment should not be reviewed. I think they meant to leave to him the question whether there was a want of due diligence, and that he was bound to take into his consideration all the matters now relied on by the plaintiff. It seems to me that this case is distinguishable from Wood v. Secretary of State for India because there was nothing in the contract relied on in that case equivalent to the 27th clause in this. Every case of this kind must turn on the construc tion of the particular contract, and if on the true construction an arbitrator is appointed to decide the question without appeal, his decision cannot be reviewed.
In Stadhard v. Lee (1), Cockburn, C. J., delivering the judgment of the Court, says :- We are equally clear that, where from the whole tenor of the agreement it appears that however unreasonable and oppressive a stipulation or condition may be the one party'intended to insist upon and the other to submit to it, a court of justice cannot do otherwise than give full effect to the terms which have been agreed upon between the parties. It frequently happens, in the competition which notoriously exists in the various departments of business, that persons anxious to obtain contracts submit to terms which, when they come to be enforced,, appear harsh and oppressive. From the stringency of such terms escape is often sought by endeavouring to read the agreement otherwise than according to its plain meaning. But the duty of a court in such cases is to ascertain and to give effect to the intention of the parties as evidenced by the agreement., and though, where the language of the contract admit of it, it should be presumed that the parties meant only what was reasonable, yet, if the terms are clear and unambiguous the court is bound to give effect to them without stopping to consider how far they may be reasonable or not
Now, on carefully considering the contract between these parties, we are satisfied that the intention was that (1) 7 L. T. N. 8. 786.
(1) 3 B. & 8. 364.
1b77 the defendants; if dissatisfied, whether with or without sufficient Jo 's reason, with the progress of the work, should have the absolute and Joxas unqualified power to put on additional hands and get the work done, THa and deduct the cost from the contract price payable to the plaintiff, ~and therefore, if these terms had been ever so unreasonable, we should have felt bound to give effect to them and to hold that, so long as the defendants were acting bond fide, under an honest sense of dissatisfaction, although that dissatisfaction might be ill-founded and unreasonable, they were entitled to insist on the condition, and, consequently, that the replication, which only alleges that their dissatisfaction was unreasonable and capricious, but which stops short of alleging mala fides in the defendants in acting as is stated in the plea, is insufficient.
We feel, however, bound, in justice to the defendants, to add that we do not consider the stipulation in question unreasonable.
It amounts only to this, that the defendants who are the principal contractors for a great public work, and who are themselves probably under'stringent terms to complete the undertaking with despatch, insist in employing the plaintiff to do a subordinate portion of the work, that if such work should not progress as rapidly as they may desire, they shall be at liberty to put on more hands and deduct the cost of them from the contract price, still leaving to the plaintiff the benefit of the contract.
In Jones v. St. John's College (1), Mellor, J., says Mr. Manisty concedes that in -general, where the works are specific and the contractor can form his estimate upon them, however absurd his contract may be, for instance, if he undertook to build some great work within a year, which it is utterly impossible he could do, still as he had the power of measuring and knowing the nature of the work, and understanding and forming a judgment upon his capacity to do if, he cannot excuse himself by saying it was impossible to do it in the time. But then Mr. Manisty contends when a contract provides 'for alterations to be prescribed by the other party, that it is impossible for a man so to bind himself as to exclude him from the benefit of the implied condition, that the order should be such as could be completed within the time. But as I have said, I do not think we can imply this.
In Roberts v. Bury Commissioners (2) it is undoubtedly shown by the judgment of my brother Blackburn and myself, that if people will bind themselves to absurd regulations or to matters that appear impossible to be performed within the time, they must take the con- (1) L. R. 6 Q.
(2) Ubi eupra.
YOL.
sequences of it, and therefore, if you make such a bargain it is clear you cannot imply a condition which appears inconsistent with it. J s Jox~s Therefore, so far as the authority of the case goes they do not support Mr. Alanisty's argument.
Impossibilities may be of various THE sorts.
It is remarkable in how many of these contracts, which certainly seem one sided, one party puts himself in the power of another, but people are content to enter upon works and contracts of this description, because they rely that the person named will not give them orders that they cannot do.
Lush, J., says:
I am entirely of the same opinion; nothing can be more clear or explicit than the contract into which the plaintiffs chose to enter, and by that contract they must be bound. We cannot relieve them from it because it happens to operate hardly upon them; we have only to ascertain what the contract is.
No stipulation can be implied in any contract which is at variance with the express terms of the contract.
Hannen, J., says:
Undoubtedly it may be an unusual or an unwise contract to enter into, but there is no reason why a man should not enter into such a contract. Certainly, if he does in direct terms enter into a contract to perform an impossibility, subject to a penalty, he will not be excused because it is an impossibility, so if he does bind himiself to perform an impossibility, if a certain named person shall require him so to do, there is nothing illegal in putting himself under such an obligation as that, and the question is whether or not the contract as set out in the rejoinder shows that the plaintiffs did in effect bind themselves. With regard to the language of that contract, I must say it seems to be impossible for the English language to supply words, by which a man can so bind himself if this contract does not. It is perfectly' plain that the intention was to rely on the fairness, as well as the skill and judgment of the person who was the clerk of the works, checked as he would be by a responsible person, namely, the bursar of the college. It was intended to rely on their fairness and judgment, and I can see nothing unreasonable in men so agreeing to be bound by the fairness and judgment of others. Therefore, unless we are obliged to hold that a man could under no circum. stances so bind himself, I should be compelled to come to the conclusion I have arrived at, that the contraot does so bind the plaintiffs, and for these reasons I agree in the judgment of the rest of the V*
In Russell v. Da Bandeira (1) Erle, 0. J., says: THE QuEN.
almost invariably happens that, in the course of the construe- Ritchie, J* tion of a house or a ship or other extensive work, the party for whom the work is done, from time to time, desires to have additions and alterations, and it is by no means an unusual thing to i-sert a clause, providing that the employer shall not be liable for extras or additions unless there be an order in writing fixing the price, or the certificate of an architect for the work so done. In many cases the court, though satisfied that the builder, acting upon the faith of an oral request, has fairly done the work for which he seeks to be paid, has felt itself to be fettered by the express terms of the bargain the parties have entered into. We cannot yield to suggestions of hardship on the one side or the other, though I must confess that, according to my experience, the hardship has most commonly been upon the side of the employer.
By the terms of this contract the £10,400 is inclusive of all charges for the ship finished and fitted perfectly in every respect, and no 'charges are to be demanded. for extras; but any addition or additions which may be made by an order in writing of Sir George Sartorious, as an extra or extras, are to be paid for at a price to be previously agreed upon in writing. No additions were ordered by the admiral in writing, but during the progress of the work orders were, from time to time, given by persons who represented the Portuguese Government for additions and alterations, for which, under ordinary circumstances, Mr. Scott Russell might well suppose he was to be at liberty to charge. He might have declined to comply with these requests unless they were made in writing, I feel bound to give effect to the terms of the contract, and to hold that the extras and additions supplied not under written orders during the performance of the contract, form part of the contract for the construction of the ship, and are not to be paid for by the defendant.
Byles, J. (2), says:
I must own I felt very much disposed to escape, if possible, from Mr. Collier's argument, with respect to the articles supplied and work done without orders in writing, but I think the cases he has referred to are too strong to be got over ; especially that of Scott v. The Corporation of Liverpool (3), which is substantially the same as (1) 13 C. B- N. S. 200.
(2) P. 205.
(3) 28 L. J. (Ch.) 230.
rAppendix to
LVOL. VII.
this case. It is a salutary rule, and ought not to be broken in upon. The contractor has no right to complain if he loses the the price of o extras and additions, which, in disregard of the stipulation he has entered into, he furnishes without getting a written authority. In Clarke v. Watson. Erile, C. J., (1) said:
I am of opinion that the judgment in this case ought to be for the defendants. The contract which they entered into was, to pay to the contractors, the plaintiffs, certain sums on production by them to the defendants, or one of them, of the certificate of William Lambert, or other the surveyor for the time of the defendants. Many contracts are so made. Every man is the master of the contract he may choose to make, and it is of the highest importance that every contract should be construed according to the intention of the contracting parties; and it is important in a case of this description that the person for whom the work has been done should not be called upon to pay for it until some competent person shall have certified that the work has been properly done according to the contract and specification. Here the contract is, that the money shall become payable on production by the plaintiffs to the defendants of the certificate of their (defendants') surveyor, and that the contractors have duly and efficiently performed and completed the work to his satisfaction.
No such certificate has been produced.
But itis said, that the plaintiffs have done all things necessary to entitle them to have the certificate of the surveyor that the works had been duly performed and completed to his satisfaction, and that the said surveyor had wrongfully and improperly 'neglected and refused so to do.' That, in my opinion, is not sufficient. If it had been alleged that the defendants wrongfully colluded with the surveyor to cause the certificate to be withheld, they could not have sheltered themselves by their own wrongful act. But the word "wrongfully," as used here, does not indicate anything of that sort; if the plaintiffs had intended to rely on the withholding of the certificate as a wrongful act on the part of the defendants, they should have stated how it was wrongful. This is in effect an attempt on the part of the plaintiffs to take from the defendants the protection of their surveyor and to substi. tute for it the opinion of a jury. That is not the contract which the defendants have entered into. The allegations on the park of the plaintiffs are not, in my judgment, such as to entitle them to succeed. Williams, J., says:
I am of the same opinion; notwithstanding the surveyor may have been wrong in withholding his certificate, the money is not due. (1) 18 C. B. N. S. 284.
Willes, J., says:
I am of the same opinion. Consistently with the allegations in this declaration, the only wrong the surveyor may have been guilty of may be an error in judgment, or he may have refused to exercise Ritchie, J. any judgment, in which case the proper course would have been to call upon the defendants to appoint some other surveyor who will do his duty.
In addition to these cases may be cited that of Ranger v. Gt. West Rail. Co. (1), a leading case too long to be stated in full, bearing strongly on the present, in which the propriety of having a proper referee in railway contracts, and making the payments dependent on his certificate, and as to imposing and enforcing penalties, is fully discussed, and in which case it was held, though the engineer appointed by the company was a stockholder in the company he was not, by reason thereof, incompetent to act as such referee. Some American caser I will not set out at length, but merely name. A contract for the construction of a railway, by the terms of which company's engineer is to be arbiter of all matters connected with the work, will, if fairly made, be enforced: Phelan v. Albany Susquehanna R R. Co. (2); Kidwell v. Baltimore4. Ohio R. R. Co. (3); Allon, Mt. Carmel 4- New Albany R. R. Co. v. Northcote (4) ; Condon v. South Side R. R Co. (5) ; O'Reilly v. Kerns (6); Howard v. Alleghany Valley R.R. Co. (7).
The provisions of a contract between a railway company and a contractor for building a portion of its road providing that " the engineer shall be the sole judge of the quality and quantity of all work herein specified, and from his decision there shall be no appeal,"
* * * constitute the engineer sole umpire, and if the company furnish a suitable engineer no recovery can be had for work done under such contract without or beyond his estimate, without the most irrefragible (1) 5 H. L 72.
(4) 5 Ill. 49, 1853.
(2) Iansing, N.Y. 258, 1869.
(5) 14 Grattan (Va.) 302, 1858.
(3) Grattan (Va.) 676, 1854.
(6)-52 Penn. 214, 806.
(7) 69 ib. 489, 1871.
ECXHEQUER COURT OF CANADA. , proof of mistake in fact, or corruption on the part of the engineer, or positive fraud in the opposite party in procuring the under estimate. See Vanderwerker v. Vermont Central R. R. Go. (1); Herrick v. Same (2).
Eaz In a contract for the construction of a railroad it was provided that Rc J. the decision of the chief engineer should be final and conclusive in any dispute that might arise between the parties to the agreement relative to or touching the same: Held, that the individual who filled the office of chief engineer when the adjudication was called for, was the proper person to decide disputes between the parties; and that one, who had held the office at the time the contract was made, but who had resigned, was not empowered to adjudicate between them. See North Lebanan R. R. Co. v. Mc Grann (3).
Alterations.
The contract provided that alterations directed by the engineer should "be made as directed."
Such alterations are within the jurisdiction of the engineer. Alterations directed did not abrogate the contract or substitute a new one: they were within the original contract. See O'Reilly v. Kerns (4).
Extra. work.
B. contracted with defendant to build its road, and plaintiffs sub-contracted in writing with B. to build particular portions of By both contracts the work was to be done to the satisfaction and acceptance of company's engineer, and no claim was to be allowed for extra work unless it was performed under written contracts or orders signed by the engineer. Plaintiffs, in the execution of their contract with B, made an excavation for a bridge agreeably to the directions of the engineer, and had left it as finished i the engineer found it necessary to have the excavation enlarged and ordered it done ; plaintiffs made the enlargement, but no contract was made between them and defendant with reference to it. Held: That there was no ground for implying or presuming a contract, and that plaintiffs could not recover of defendant therefor. See Vander. worker v. Yermont Central R. R. (5).
There could be no claim for extra work as the engineer had not ordered in writing. 1bid.
The rule is not varied by the fact that previous to doing the extra work the contractors were assured by the local or assistant engineer, (1) 27 Vt. 130, 1854.
(3) 83 Penn. 530, 1859.
(2) Ibid 673.
(4) 52 Penn. St. 214, 1866, (5) 27 Vt. 125, 1854.
rAppendix to EXCHEQUER COURT OF CANADA. VOL. VII. who communicated the order from his chief, that they should receive extra compensation therefor, it appearing that the assistant had no authority to make the promise for the company. See Barker v. Tin Quaxs.
Troy and Rutland R.R. Co. (1).
Certain detailed estimates of the cost of work were annexed to the contract for the construction of a railway. Shortly before the contract was made many persons, and among them B. C. & Co,, were assembled to make proposals to the railway company for the work. These estimates were exhibited to them by the engineer of the company, who stated they were made according to his best judgment, but were only approximate estimates, that they were given them that they might have the benefit of his judgment, and that they could go over the ground and examine for themselves. B. C. & went over the ground, and were experienced and competent enough to judge for themselves, but did not make a thorough examination, The contract was made fairly without fraud or mistake, and was an entire contract to do the whole work for the sum of $200,000.
A portion of the work proved to be much more expensive than was estimated, from a large excess of rock excavation above the quantity estimated. Held: that B. C. & Co., understandingly took the risk of the work, and were not entitled to any allowance beyond the contract price.
By the contract certain depot buildings were to be erected by the contractors, " after such plans and of such dimensions as might be adopted by the engineer. The engineer required certain of them to be built of somewhat larger dimensions than he had stated at the time of the signing of the contract that he should require, and the expense of their erection was thereby increased above the sum named in the estimates.
Held, that the contractors were not entitled to an allowance beyond the contract price for the increased expense. See Cannon v. Wildman (2).
The plaintiff, as a sub-contractor under B., contracted to build a section of defendants' road, and the engineers of the company had authority to direct the removal of the earth from one section to another when needed; and by the contract between the company and B., he, B., was bound to move the earth from one section to another, but no engineer had power to bind the company by any contract for grading and removing earth, and if B. was required by the engineer to so move the earth, he could obtain compensation under this contract. The engineers required plaintiff to move earth from one section to another, assuring plaintiff that defendant would (1) 27 Vt. 766.
(2) 28 Conn. 472, 1859, As to the forfeiture and liquidated damages claimed by the Crown to be set off against any amount that may be due the contractors, the contract provides that the works should be fully and entirely completed in every particular, and given up under final certificate and to the satisfaction of the commissioners and engineer on or before the first day of July, one thousand eight hundred and seventy-one, time being declared to be material and of the essence of the contract, and in default of such completion as aforesaid, on or before the last mentioned day, the contractors should forfeit all right, claim or demand to the sum of money or percentage thereinafter agreed to be retained by the commissioners, and every part thereof; and also to any moneys whatever which might be, at the time of the failure of the completion as aforesaid, due and owing to the contractors; and the contractors should also pay to Her Majesty, as liquidated damages, and not by way of fine or penalty, the sum of two thousand dollars ($2,000) for each and every week, and the proportionate fractional part of such sum, for every part of a week during which the works embraced in the contract, or any part thereof, shall remain incomplete, or for which the certificate of the engineer, approved by the commissioners, shall be withheld; and the commissioners may deduct and retain in their hands such sums as may become due as liquidated damages, rApendi to from any sum of money then due or payable thereafter to the contractors.
. 9.
There is no doubt the work was not completed with- J. in the time agreed on, and therefore the damages J attached; the earliest period that could possibly be named as the time when the work was finally com-. pleted, would be the end of August, 1872-Mr Schrieber says not earlier than September, 1872.
This sum of $2,000 a week I am bound to hold to be liquidated damages, which the Crown has a right to claim against, and deduct, by way of set-off from the suppliants, without proving any loss by delay. I can discover no grounds for saying this claim has been in any way waived or released by the Crown or the commissioners-assuming the commissioners had the power to do so after the right of the Crown vested.
The tender of $12,486.11 was, I infer, intended to be, if accepted by the contractors, in full settlement of all claims on both sides. In my judgment the contractors could not have legally claimed or enforced against the Crown the full amount recommended by the commissioners, the item of $1,773.84 for change of grade, being the only one for which any legal liability could attach; but as the Crown, by its answer, appears to admit the amount tendered as a claim to which suppliants are entitled, I should be prepared to award that sum to the suppliants, less the costs of the Crown in this suit, which in such case must be borne by the suppliants. If the Crown, however, insist on requiring a decree for the penalties incurred, the expediency of claiming which, under all the circumstances, I consider extremely doubtful, I know of no way that I can escape the duty of awarding it; but in that case, considering that no claim was ever put forward for the forfeiture while the work was going on that I can discover, that it was not urged OF CANADA.
as a fair and proper off-set to the suppliant's claim for extras until litigation commenced, and the answer was put in, that the tender was, as I understand it, in full H settlement of all claims on both sides, I think I ought not, in the exercise of a legitimate discretion, to award J. costs in addition to the forfeiture, in which latter case the petition will be simply dismissed. In the event of an intimation being given by the counsel on the part of the Crown that the forfeiture is not insisted on, the formal judgment will be in favor of the suppliants for the sum of $12,436.11, less the costs of the Crown in this case, to be taxed and deducted from the said sum, and the balance paid by the Crown to the suppliants in full.
The Crown not insisting on the forfeiture, a judgment was entered for amount tendered less costs of the Crown.
Solicitor for the suppliant: William liller.
Solicitor for the Crown: A. F. AflIntyre.
MARSHALL WOOD...........................SUPPLIANT;
HER MAJESTY THE QUEEN..........
for for EXOfEQUER COURT OF CANADA.
THE petition of right was filed on the 1st September, 1876, by the suppliant, who described himself therein as "of the city of London and.county of Middlesex in that part of Great Britain and Ireland called England." On the 27th September, the day before the statement in defence was due, the counsel for the Crown asked the solicitors for the suppliant for further time to answer, and obtained one week. The statement in defence was not fyled at the expiration of the week, but on the 27th October the solicitors for the Crown wrote to the solicitors for the suppliant stating that the statement in defence was in the hands of the printer, and, for the first time, asking security for costs. On the 13th November, the agents of the solicitors for the Crown took out a summons calling upon the suppliant to show cause why security for costs should not be given, and for a stay of proceedings. This summons was enlarged until the 27th November.
Mr. Cockburn, Q.C., for suppliant:
There is some obscurity about the practice to be followed in this court on such an application-whether that of the Court of Chancery or that of the Common Law Courts. In chancery the application must be made before time for answering expires or is extended, when the residence of the plaintiff appears on the face of the bill. In this case the summons ought to be discharged on two grounds :-1. Because the -application was not made within the time allowed to file the statement of defence.
See Smith v. Day (1); Arthur v. Brown
2. Because the.Government had sufficient security in their own hands, as they admit that they owe the suppliant the sum of $3,950.
See Re Carroll (3); 2 Archbold's Q. B. Pract. (4).
Mr. A. F. McIntyre, for the Attorney General:- By the 15th sec. of the petition of Right Act, 1876, and 258th rule of the Exchequer Court Rules, the practice in use in Her Majesty's High Court of Justice in England is to be followed, where no other provision is made. Now by the English petition of Right Act, 23 and 24 Vic., ch. 34, a party may intitule his petition in any one of the Supreme Courts of Common Law or Equity at Westminster, in which the subject-matter of such petition, or any material part thereof, would have been cognizable if the same had been a matter in dispate between subject and subject; and sec. makes the practice and procedure of the Courts of Law and Equity, respectively, applicable to petitions of right. This petition is framed after the* Common Law form, and would have been tried in a Common Law Court, and therefore, the Common Law Rules as to security for costs should be followed, which is that security can be applied for at any time before issue joined. As to the 2nd objection-the funds referred to are not such as would satisfy a demand for security for costs. Kilkenny Bly. Co. v. Fielden (5) ; Higgins v. Manning (6). FOURNIER, J.:- The application for security for costs in this case ought to have been made within the time allowed for filing the statement of defence.
The Crown has asked for and obtained an extension of time to file a statement w of defence, and has thereby waived its right to demand security costs.
Application for security for costs in this Court must made within the time allowed for filing a statement in defence, except under special circumstances. The power of ordering a party to give security for costs being a matter of discretion, and not one of absolute right, and it appearing that the Government offered by letter from the Secretary of the Public Works Department the sum of $3,950 to the suppliant in settlement of his claim-in the exercise of my discretion, I, on this ground also, refuse the application, as in my opinion, the doing so cannot subject the Crown to any inconvenience, whilst its allowance might cause great hardship to the suppliant.
The summons is therefore discharged.
Costs to be costs in the cause to the suppliant.
Summons discharged. Solicitors for suppliant: Cockburn 4- Wright. Solicitors for respondent:
Mowat, Maclennan ) Downey.
MARSHALL WOOD............................SuPrPLIANT; HER MAJESTY THE QUEEN..............RESPONDENT. . VII. I EXCHEQUER COURT OF CANADA. lishment of the Parliament square, at the city of Ottawa; that he had done so, and superintended the work and construction Woon of said improvements for six months. He claimed $50,000 for the value of his work. 31 Tic., ch. 12 by sec. 7 provides that, THE when executory contracts are in writing they shall have cer tain requisites, such as signing, sealing and countersigning to be binding; and by sec. 15 provides that before any expenditure is incurred there shall have been a previous sanction of Parliament, except for such repairs and alterations as the public service demands; and. by see. 20 requires that tenders shall be invited for all works, except in cases of pressing emergency, or where from the nature of the work it could be more expeditiously and economically executed by the officers and servants of the department.
Held,-]. That the Crown in this Dominion cannot be held responsible under a petition of right on an executory contract entered into by the Department of Public Works for the performance of certain works placed by law under the control of the department, when the agreement therefor was not made in conformity with the above 7th section of 31 Vic., ch. 12.
2. That under sec. of said Act, if Parliament has not sanctioned the expenditure, a petition of right will not lie for work done for and at the request of the Department of Public Works, unless it be for work done in connection with repairs and alterations which the necessities of the public service demanded.
3. That in this case, if Parliament has made appropriations for these works and so sanctioned the expenditure, and if the work done was of the kind that might properly be executed by the officers and servants of the department under sec. 20 of said Act, then no written contract would be necessary to bind the department, and suppliant should recover for work so done.
THIISwas a petition of right by which the suppliant alleged:
"That on or about the first day of January, in the year of Our Lord one thousand eight hundred and seventy-five, the Government of the Dominion of Canada became, and were, and still are, indebted to your suppliant in a large sum of money, to wit, the sum of fifty thousand dollars; for that your suppliant, then being a sculptor, and engaged extensively in works of art at the city of London, aforesaid, was employed by P Lu. the Government aforesaid to prepare plans, models, specifications and designs, for the laying out, improvement and establishment of the Parliament Square, at the city of Ottawa, aforesaid.
"That your suppliant did make and deliver to the said Government of Canada, and at their request, numerous plans, specifications, models and designs, for the purpose aforesaid, and did, at the request of the said Government, superintend the work and construction of said improvements, for a long time, to wit, for six months; and your suppliant also, at the request of the said Government, made numerous voyages and journeys to and from and between London, aforesaid, and Ottawa, aforesaid, in and about the said works, and in and about the obtaining of materials for .the same; and also for that your suppliant was engaged by the said Government to superintend the completion of the said works in accordance with said drawings, specifications, models and designs, and your suppliant did accordingly commence, and in part perform the said work, and was always ready and willing to do and complete the whole of the said work, yet the Government aforesaid refused to permit your suppliant to proceed with or complete the said works, and wrongfully discharged and prevented your suppliant from so doing.
" Whereby your suppliant lost the price of the work so done, and the profits, which would otherwise have accrued to him from the completion of the said work. " Also for that the Government aforesaid are indebted to your suppliant in a large sum of money paid out and expended in and about the said drawings, models and work and journeys by your suppliant, for them, the said Government, at their request.
"Your suppliant, therefore, humbly prays that relief EXCHEQUER COURT OF CA1ADA. be granted to him, and that right be done in the premises, agreeably to the provisions of " The Petition of Right Act of Canada, 1875."
In answer to the said petition Edward Blake, Her Majesty's Attorney General for Canada, on behalf of Her Majesty, made the following defence:
"1. I deny that the Government of Canada ever was indebted to the suppliant, as alleged in said petition. " 2. I deny that the suppliant ever was employed by the Government of Canada, to prepare plans, specifications or designs, for the laying out, improvement and establishment of Parliament Square in the city of Ottawa as alleged.
" 3. I deny that the suppliant made or delivered to the Government of Canada,at their request, numerous plans, specifications, models and designs, for the purpose aforesaid, or that he did, at the request of the said government, superintend the work and construction of the said improvements for a long time, to wit, for six months, or that, at the request of the said government, he made numerous voyages and journeys,to and from and between London and Ottawa, in and about the said works, and in and about obtaining materials for the same, or that he was engaged by the government to superintend the completion of the said works in accordance with the said drawings, specifications, models and designs, or that he did commence and in part perform the said work, or that the government wrongfully discharged and prevented him from proceeding with or completing the said works.
"4. I deny that the Government of Canada is indebted to the suppliant for money paid out, and expended in and about the said drawings, models, works and journeys, at the request of the said government.
.' 5. I say that no lawful contract or agreement was ever S. C. I. made by or on behalf of the Government of Canada with the suppliant for any of the pretended services or matters in the said petition mentioned, or for the payment 'to the suppliant of any sum of money therefor, except as hereinafter stated, and there is no record in the Department of Public Works, or 'in any of the other Departments of the said Government, of any such contract or agreement.
" 6. By the express terms of the 7th section of the Act, 31 Vic., ch. 12, entitled " An Act respecting the Public Works of Canada," any such contract or agreement must have been signed and sealed by the Minister of Public Works and countersigned by the Secretary of the Public Works Department, and I charge that no such contract or agreement ever was in fact so signed, sealed, or countersigned.
" 7. The employment alleged by the suppliant would have involved the expenditure of a large sum of money, and by the express terms of section 15, of the last mentioned Act, such expenditure would have required the previous sanction of parliament, and no such previous sanction had been given.
" 8. 1 believe the suppliant did, in fact, some time in the year 1873, upon the strength of some informal communications with some officers of Government, commence the preparation of plans, models and specifications for laying out and ornamenting said Parliament square, in the expectation that such plans, models, and specifications would be adopted by the Government, and that he would be employed in executing the same, but I say that the same were not in fact adopted, and that they were found, for various reasons, not to be suitable, and were rejected, and the suppliant was then informed by the Department of Public Works that his services would not be required in connection with the said works.
VOL.
" 9. The suppliant thereupo o made a claim for payment for alleged services in preparing models and other w-D matters, of a large sum exceeding $30,000, which the Department of Public Works refused to recognise. "10. The department, nevertheless, having considered that, although the suppliant had no legal claim to any payment whatever, yet, as he had been at considerable expense in preparing plans and models in expectation of their being adopted, and of being employed in the execution of the work, proposed to the suppliant to make him some moderate reasonable compensation therefor, and offered to pay him the sum of $3,950, which the suppliant refused to receive.
" 11. Her Majesty is still willing to pay the suppliant the said sum of $3,950 by way of compensation as aforesaid, but without admitting any legal right thereto on the part of the suppliant; and on behalf of Her Majesty, but without prejudice, I hereby offer and submit to pay him the said sum.
" 12. On behalf of Her Majesty, I pray that the said petition may be dismissed with costs."
The suppliant joined issue on all allegations and statements contained in the answer of Her Majesty's Attorney General for Canada, filed in this cause.
And, besides taking issue thereon, the suppliant demurred to the statement contained in the sixth paragraph of the answer which, he said was bad in law on the grounds following:
" That it is no answer to the suppliant's claim, which is for work and labor, moneys expended and benefits conferred, to say that there was originally no sufficient contract, inasmuch as the case does not now rest on contract; but, on a quantum meruit for such work and services, and that the seventh section of the said Act does not apply to executed contracts and works of the description mentioned in the petition.
"And the suppliant also demurs to the seventh paragraph of said answer which, he says, is not sufficient Ta in law on the following grounds:
" 1st. That it is no answer to suppliant's claim, that parliament had not sanctioned the expenditure referred to. No contractor could be expected to enquire into such a preliminary condition;
" 2nd. And, that the statement contained in said seventh paragraph is inconsistent with the tenth and eleventh paragraphs, which go to show that the Crown must have had authority for such expenditure;
" 3rd. And, that the wrong-doing of Ministers of the Crown, in entering into contracts without such authority cannot be set up to avoid the contract itself." Mr. Cockburn, Q.C., for demurrer:
Petition of Right will lie for unliquidated damages from breach of contract: Thomas v. The Queen (1). In Smith v. Upton the cases are collected in which petitions of right will lie against the Crown for simple contract debts. Actions against Municipal Corporations are analogous to the present case. Pim v. Municipal Corporation of Ontario in appeal, settles the law in this province as to liability of corporation in executed contracts without corporation seal; and numerous cases since in the Ontario Courts follow it as the leading authority.
" The Crown can not only speak through an authentication under the great seal, but also by a written or parol direction from the Board of Admiralty :" see Buron v. Denman
In the same sense the Minister of Public Works, who has by Stat. 31 Vic., ch. 12 the management and direction of the Public Works of the Dominion, and under whom (sec. 3) engineers, super- VOL.
intendents and other officers are to be appointed for the construction, maintenance, use and repair of the public works and buildings, can order and direct by parol any works to be done for the public service, and when so done, the price or value thereof can be named. Sec. 7 only provides, that when executory contracts are in writing they shall have certain requisites, such as signing, sealing and countersigning, to be binding. This section cannot be held to apply to executed contracts of which the Government have reaped the benefit. Sect. 15, provides, that before any expenditure is incurred there shall have been a previous sanction of Parliament, except such repairs and alterations as the public service demands.
Sec. 20, requires that tenders shall .be invited for all works, except cases of pressing emergency, or where from the nature of the work it could be more expeditiously and economically executed by the officers and servants of the department.
Sec. 41, relating to arbitration, provides that upon claims arising out of contracts in writing, the written stipulations shall be observed, the inference to be drawn is that in respect of unwritten contracts a different mode of estimating the damages shall be adopted. In point of fact an appropriation was voted for the year 1873 (when these services were rendered) which though general-" Miscellaneous works not otherwise provided for "-might well be taken to cover the work done here; at all events this item shows that Parliament does not require that there shall be specific appropriations in all cases. We have, a right to look at the practice of the department; we see by papers laid before Parliament, as shown in its journals and proceedings, that works involving much larger sums than is in question here, are being carried on without tenders, contracts or specific appropriations. In the case now before the court, the services were rendered by the who by statute has authority over all the public works, and under the windows of whose department the work was done
It cannot be that the liability for services so rendered can be now repudiated by the Crown. Mr. Maclennan, Q.C., for the Attorney-General: The suppliant sues the Crown for work, labor and materials, and his claim may be divided into two parts, viz.: work, of which the Government has had the benefit, and work, &c., which they refuse to accept, both having been done at the request, as is alleged, of the Department of Public Works.
The demurrer admits that no contract, such as is prescribed by the Public Works Act, was made with the, suppliant, and the real question is, whether the Crown is liable for the services referred to, supposing them to have been ordered in an informal manner by an officer of the Department.
We contend it is clear the Crown is not liable;-the suppliant has argued that Petition of right lies for breach of contract, but that is not disputed. The real question is, whether or not there was any contract. The suppliant has argued also that the cases establishing the liability of corporations on executed agreements are applicable, and govern this case, such as Pin v. Ontario, but he cited no authority for that position, and it is submitted that none can be found. None of the cases in the English courts on petition of right support that view.
In England there are certain well known modes in which the undertakings of the great departments of State are entered into, either prescribed by statute or so VOL. YII.
well established by long usage as to have acquired the force of law, and whenever contracts are made in any of these recognized modes they are binding on the Crown, and may be enforced by petition of right. In this country the departments of State, and all their powers and acts, are conferred and regulated by statute. There is no such thing as usage, nor can the usage of the Imperial Departments govern here on any intelligible principle.
The Dominion Parliament has thought fit, doubtless for very good reasons, to regulate. this whole matter very completely, even to the most minute particular. The several sections of the Public Works Act provide for every kind of case
The combined effect of these three sections is: 1st. There must be previous authority from Parliament for the expenditure, before a contract is made which involves ii.
2nd. All contracts must be in writing, and be signed and sealed by the Minister or his Deputy, and countersigned by the secretary. 3rd. All works are to be let by tender, except in cases of pressing emergency, or where it can be better executed by the officers and servants of the department. 4th. In cases of necessity the Minister may cause expenditure not previously sanctioned by Parliament, but he is not authorized to do this without a contract in the prescribed form.
So careful has the legislature been to prevent contracts being made in a loose, informal way, that by the Act 31 Vic., ch. 35, they have regulated the mode of entering into all the small contracts connected with the departments.
The object of the Legislature was to maintain an efficient control over the public expenditure, and to 6 Appendix to EXCHEQUE1R COURT OF CANADA.
hold that a suit such as this can be maintained would defeat all their efforts.
Sir 0.
The questions arising under this demurrer are:- 1. Can the Crown in this dominion be made responsible, under a petition of right, on an executory contract entered into by the Department of Public Works, for the performance of certain works placed by law under the control of that department, when the agreement therefor was not in writing, nor signed or sealed by the Minister of Public Works or his deputy, or countersigned by the secretary ?
2. If work has been done for and at the request of the department, will a petition of right lie for the value of such work which causes an expenditure not previously sanctioned by Parliament ?
The Public Works Department in this Dominion, being a department of state, presided over by a minister of the Crown, responsible to Parliament for the conduct of the business of his department, may, I have no doubt, as the agent of or representing the Crown in all matters under the charge of that department, make agreements and enter into contracts which would bind the Crown, unless there is some legislative enactment or, perhaps, Orders in Council, controlling and limiting such power. The language used by Chief Justice Cockburn in Church ward v. The Queen and by Lord Blackburn in Thomas v. The Queen indicates that in England the admiralty and the war department were understood to possess the power so to bind the Crown. But I am not aware that there are there any legislative restrictions limiting the -right contended for. So that the matter here comes up for decision as to the effect of I. Q.
the 7th and 15th sections of the Dominion statute 81 Vic. ch. 12, respecting the public works of Canada. The 7th section is as follows:
Though the words used are " to be binding on the department," that must mean binding on the Crown, for the department is not a corporation, but a department of state; and under the following section 8 all actions for the enforcement of any contract in respect of any work or property under the control of the depart. ment must be instituted in the name of Her Majesty's Attorney General for Canada.
I at first was inclined to think that the seventh section was merely directory, for the purpose of pointing out the proper means for verifying the contracts entered into by the department, but not essential to the validity of the contract itself. But the words " no contract shall be binding on the department unless signed and sealed by the minister or his deputy " seem to me to indicate the intention of the legislature in an unmistakable manner. In many of the cases where the question has been discussed whether the statutory provision is to be considered directory or imperative, it is said in argument, though the statute points out the manner of doing an act, yet it does not say if it is not so done it shall he void. But here the words are express -"it shall not be binding."
I am of opinion, that the contract set out in the sup. pliant's petition is not binding as such, and under it he would have no right to recover damages for not being allowed to complete the work referred to in his petition. I do not think, however, that the 7th section would pre- -MXCHEQUER vent the suppliant recovering for the actual value of the work done by him and accepted by the department. I see no reason why the law may not imply a contract to Rpay for work done in good faith, and which the depart- Ricds, ment has received the benefit of.
Suppose, instead of work done the contract had been to furnish a quantity of lumber, the lumber had been supplied and worked up by the workmen of the department in finishing one of the public buildings; suppose for some reason the department repudiated the verbal contract and refused to be bound by it, could it be said that the property of the suppliant could be retained and used for the purposes of the department, and he not be paid for it beeause the statute said the contract on which it was furnished was not deemed binding on the department?
I should say not. The contract which is binding is that which arises from the nature of the transaction; having received the benefit of the contractor's property he ought to be paid for it under the new contract which the law implies. For the same reason, for the value of all services actually rendered by the suppliant before he was notified not to do any further work he ought to be paid. If only the seventh section were considered, I should, as at present advised, say the suppliant is entitled to recover what the services rendered by him were worth under the implied contract. It-may be, that on further consideration my views as to the suppliant's right on this point would be less favorable.
But it is said, the 15th section of the statute prevents the suppliant's recovering, because it would be an expenditure not previously sanctioned by parliament, and not for such repairs and alterations as the necessities of the public service demanded. The words are: " The Minister shall direct the construction, maintenace and repair of all canals, harbors, roads, or parts of roads, bridges, Appendi, to I slides, or other public works, or buildings in progress, or constructed, or maintained at the expense of Canada, and which by this Act are, or shall hereafter be, placed P. under his management and control; but nothing in this 0Richards,1 Act shall give authority to the Minister to cause expenditure not previously sanctioned by parliament, except for such repairs and alterations as the riecessities of the public service may demand."
The history of the Churchroard case is given at considerable length in Mr. Todd's book on parliamentary Government, commencing at page 498, and it appears that parliament refused to grant the money to carry out a contract entered into with the Government for carrying the mails, there being a provision in the contract that the paying of the money shoiild be subject to a vote of parliament. The general doctrine of the necessity of an appropriation of money by parliament to justify an expenditure is discussed, and though it is laid down that Ministers often do expend money without a special appropriation, it is often done by taking monies from some other fund and applying afterwards to parliament to restore it. I am not aware that the rule in- England arises from any specific enactment. It is laid down in resolutions of the House of Commons, and, I think, in Treasury Orders. It certainly seems derogatory to the office and position of a Minister of State to hold, that he could not cause an expenditure, however trifling, for public purposes without the same having been previously sanctioned by parliament, and that any person doing work for his department, however trifling in amount, by order of a Minister, must be compelled to enquire before he undertakes the work if the proper sanction for the expenditure has been obtained, or be placed in a position in which he cannot enforce fAppendi to E)XHEQUER COURT OF CANADA.
his claim by a petition of right, if necessary, if he accepts the employment or does the work.
Very many people undoubtedly do undertake work for the different public departments Without enquiring if the expenditure has been sanctioned, and they are generally paid for the work they do. Even if each person were told'when undertaking any work (whether great or small), that he must depend on the approval of parliament of the expenditure before he could claim compensation, very few, if any, would hesitate to undertake the work. The question, however, is what are the legal rights of parties who undertake such work, the expenditure for which has not been previously sanctioned by parliament?
Have they a right to claim compensation dirough a petition of right, or, having trusted to the Minister of the Crown that he had the right to incur the expense, though in truth he had it not, must they further trust to the faith of parliament to indemnify them, as was suggested by Lord Mansfield in MacBeath v. Haldinand (1).
It is no doubt of the greatest importance, that public works should not be undertaken which will cause the expenditure of money not previously sanctioned by parliament, and there is no doubt that sudden emergencies may arise when it would be the daty of a government to incur such expenditure for the public service and trust to parliament to indemnify them. That seems to be the rule in England, and it is probable that no contracts would be there entered into by any public department without a proviso being inserted, that the expenditure to be incurred should be first sanctioned by parliament; under such circumstances, until the money was voted, I doubt if a petition of right could be maintained, and if no such provision were made and an absolate agreement entered into, the authorities to which I have referred show, that the suppliant in a petition ought to
If the Minister of Public Works is to be considered the agent of the Crown, and his power is to be restricted ch. by the Act of parliament, and the analogy of ordinary agency is to be applied to him, he could not bind the Crown by his acts which were contrary to the provisions of the statute, nor legally incur expenditure not previously authorized by parliament.
The practice in relation to matters of legislation and .government in England is so much followed in this country, that it is proper to refer to the practice there in illustrating the intentions of our own legislature. The rule which is laid down in England as to unauthorized expenditure of the public money was no doubt well known to the framers of the statute establishing the department of public works, and knowing that by far the largest expenditure of money would be made through that department, they may have thought it wise to prevent the expenditure of public money until an appropriation for such expenditure had been made by parliament.
They at the same time excepted out of the prohibitory provision expenditure for such repairs and alterations as the necessities of the public service might demand.
It seems to me, that the most effectual way to carry out the intention of the legislature in this respect is to hold, that persons claiming money, the expenditure of which has not been sanctioned by parliament, cannot recover the same through a petition of right until parliament has sanctioned the expenditure, and in this view I think the plea must be held good against the demurrrer.
It was assumed on the argument, and no doubt correctly so, that the services and works claimed for were rendered by the suppliant in relation to works and properties under the control and management of u the minister of public works. The 20th section of the the statute refers to the advertising for tenders for the u.j.
expenditure of all works, except in cases of pressing emergency, or when from the nature of the work it could be more expeditiously and economically executed by the officers and servants of the department.
It may be, that the work and services done by the suppliant would come under the latter part of that section, which evidently contemplates works being done when laborers and overseers would be employed by the day or month, and as to which the contract referred to in the 7th section might not be considered as necessary to be made with that class of persons. Still the 15th section would equally apply if the expenditure had not been previously sanctioned by parliament. I assume the parties desire the opinion of the court on the broad question whether the suppliant can recover, and in the view I take of the 15th section the suppliant can only recover if the work and services rendered come under the exception referred to in that section, and in which necessity would also justify the omitting to advertise for tenders under the 20th section.
The sixth paragraph of the answer is, in my view, a sufficient answer to that part of the suppliant's petition which complains of his wrongful discharge from the work and of the loss of profits, and taking the analogy of pleading at common law, I think it may be taken as distributive, and therefore is not wholly bad.
As to the demurrer to the 7th paragraph of the answer, I think the answer sufficient and the demurrer bad.
It was contended on the argument, that parliament has made appropriations for these works and so sanctioned the expenditure.
If that be so, and the work done was of the kind that might properly be executed by the officers and servants of the department, then T . I apprehend no contract would be necessary to bind the department for work done, and so suppliant should Ricas, recover for work so done; and in my view also for the work actually done if the expenditure was previously sanctioned by parliament.
That of course is a matter of fact, and must be proved as any other matter of fact.
Demurrer disallowed.
Solicitors for suppliant: Cockburn 4- Wright.
Solicitors for respondent: Mowat, Maclennan
Downey.
IN THE MATTER OF THE PETITION OF
RIGHT OF
EDWARD TYLEE
..............
of 7-Statute of 9-Buying tiles-Public
1-6 necessary for making and completing said canal, but only some 20 acres were actually necessary and used for canal purposes. .
Grace McQueen died intestate, leaving Alexander McQueen, her husband, and Wdliarm MaQueen, her eldest son and heir-at-law, her surviving. After her death, on the 31st January, 1832, Alexander McQueen releasod to William McQuie all his interest in the said lands, an.l on the 6th February, 1832, William McQueen granted to Col. By all the lands previously granted to his mother.
Col. By died on the 1st February, By 6 William IF., ch. 16, persons who acquired title to lands used for the purposes of the canal after the commencement of the works, but who had purchased before such commencement, were enabled to claim compensation.
By the Ordnance Vesting Act, 7 Vic, ch. Canada, the Rideau canal and the lands and works belonging thereto, were. vested in the principal officers of H. M. Ordnance in Great Britain, and by sec. 29 it was enacted : " Provided always, and be it enacted, that all lands taken from private owners at Bytown under the authority of the Rideau Canal Act for the uses * of the canal, which have not been used for that purpose, be restored to the party or parties from whom the same were taken."
By the 9th Fic., ch. 42, Canada, it was recited that the foregoing proviso had given rise to doubt as to its true construction, and it was enacted that the proviso should be construed to apply to all the land at Bytoton set out and ascertained and taken from Nicholas Sparks, under 8 IV., ch. 1, except certain portions actually used for the canal, and provision was made for payment of compensation to Sparks for the land retained for canal purposes, and for the re-investing in him and his grantees of the portions of lands taken but not required for such purposes.
By the 19th and 20th Yic, ch. 45, the Ordnance properties became vested in Her Majesty for the uses of the late Province of Canada, and by the British North America Act they became vested in Her Majesty foi* the use of the Dominion of Canada. The suppliants, the legal representatives of Col. By, brought a petition of right, alleging the foregoing facts, and seeking to have Her Majesty declared a trustee for them of all the said lands not actually used for the purpo-es of the said canal, and praying that such portion of said lands might be restored to pendix to
O[. VII.
them, and the rents and profits thereof paid, and as to any parts sold that the values thereof might be paid together with the rents and profits, prior to the selling thereof.
By his statement in defence, the Attorney General con- Ta tended, among other things, that (par. 5) no interest in the lands set out and ascertained by Col. By passed to William McQueen, but the claim for compensation or damages for taking said lands was personal estate of Grace 1cQueen, and passed to her personal representative; that (par. 6, 7 and 8,) the deeds of the 31st of Jan. and 6th February, 1832, passed no estate or interest, the title and possession of the lands being in His Mijesty, but that such deeds were void under 32 Hy. VIII., ch. 9; that (par. 9) Col. By was incapable, by reason of his position, from acquiring any beneficial interest in said lands as against His Majesty; that (par. 10, 11, 12 and 13,) Col. By took proceedings under 8 Geo. IV., ch. 1, to obtain compensation for the lands in question, but the arbitrators and also a jury summoned under the Act decided that he was entitled to no compensation by reason of the enhancement of the value of his other land and of other advantages accrued by the building of the canal, and that this award and verdict were a bar to the suppliants clAim; that (par. 14 and 15,) the proviso of 9 Vic., ch. 42, was confined to Nicholas Sparks and did not extend to the lands in question; that (par. 16, 17, 18 and 19,) by virtue of 2nd Vic., ch. 19 (Upper Canada) and a proclamation issued in pursuance thereof, all claims for damages which might have been brought under 8 Geo. IV., ch. 1, by owners of lands taken for the canal, including claims of the said Grace McQueen or Col. By, or their respective representatives, were, on and after the Ist April, 1841, for ever barred; that (par. 26, 27 and 28,) the suppliants were barred by their own laches ; and that (par. 27) they were barred by the Statute of Limitations. On a special case stated on the pleadings for the opinion of the Court,
Held,-1. The Statute of Limitations was properly pleadable under sec. 7 of the Petition of Right Act of 1876.
2. William McQueen took the lands by descent from his mother, if she died before the lands were set out and ascertained for the purposes of the canal. If she died afterwards, he did not, as they were vested in the Crown under 8 Geo. IV., ch. 1, secs. I and 8, and her right was converted into a claim for compensation tuder the 4th section.
3. This right of compensation or damages, if asserted under the 4th sec. of Geo. IV., ch. 11, would go to Grace McQueen's personal W.
representatives, but if the land was obtained by surrender under the 2nd sec. of the statute, then the heir-at-aw of Grace would be the person entitled to receive the damages and execute the surrender.
4. The deeds of the 31st January, 1832, and 6th February, 1832, are void as against the Crown so far as they relate to the acres in dispute, except so far as the same may be considered as a surrender to the Crown under the 2nd sec. of the Rideau Canal Act. 5. The 9th paragraph of the statement in defence is a sufficient answer in law to the petition.
6. The defence set up in the ]0th, 11th, 12th and 13th paragraphs of the statement would be sufficient in law, supposing the statements therein to be true.
7. The proviso of 9 Vic., ch. 42, sec. 29, was confined in effect to the lands of Nicholas Sparks only.
8. If the claim is to be made by Grace McQueen's personal representatives under the 4th section of the Ridean Canal Act (and any claim by her could only be under that section) the Acts referred to in the 16th, 17th, 18th and 19th paragraphs of the statement in defence have an application to this case and would constitute a bar against all claims to be made under the Rideau Canal Act. As to the claims to be made by the heirs of Col. By, they have no claims under any of the statutes.
9. If the Ordnance Vesting Act vested the 110 acres in question in the heirs of Col. By, the Court was not prepared to say that their claim had been barred by laches on the statement set out in the petition. But the statute had not that effect, nor had Col. By or his legal representatives ever had for his or their own use and benefit any title to these 110 acres.
THIS was a petition of right brought by the heirs of Col. By's estate for the purpose of obtaining restitution of certain lands appropriated by the Government of Upper Canada in the construction of the Rideau canal in 1823.
The petition set forth inter alia that:
" 4. On the 17th day of February, 1827, was passed an Act of the Provincial Parliament of the said province of Upper Canada, (8 Geo. I V., c. 1), commonly referred EOXHEQUEl COTRT CANADA. 69S to as the Rideau Canal Act, and intituled, 'An Act to confer upon His Majesty certain powers and authorities necessary to the making, maintaining, and using the canal intended to be completed under His Majesty's direction, for connecting the waters of lake Ontario with the river Ottawa, and for other purposes therein mentioned.'
" Lieut.-Col. John By, of the Royal Engineers, was the officer employed by His Majesty to superintend the work of making the said Rideau canal, and he set out and ascertained certain part of the said parcels or tracts of land comprised in the said two deeds of grant to one Grace McQueen, dated 20th May, 1801, and 10th June, 1801, respectively, amounting altogether to 110 acres or thereabouts, as necessary for making and completing the said canal and other purposes and conveniences mentioned in the before stated Act; and the land which he so set out and ascertained, as aforesaid, is described on a certain plan lodged by the said Lieut.-Col. By in the office of the Surveyor General of the said late province of Upper Canada, and signed by the said late Lieut.- Col. By, and now fyled in the office of Her Majesty's Crown Land Department for the Province of Ontario. " 6. Some time after the passing of the said Act, and before the date and execution of the deed poll next hereinafter stated, the said Grace Mc Queen died intestate, being at the time of her death possessed of the said parcels or tracts of land comprised in the said two several hereinbefore stated deeds poll respectively, or of so much thereof as had not been set out and ascertained for the purposes of the said canal as before mentioned; and she left Alexander McQueen, of .Edwardsburg, in the district of Johnstown and Province of Upper Canada aforesaid, Esquire, her husband, and William Mc Queen, of the same place, Esquire, her eldest son and heir-at-law, respectively, her.surviving. And on the 31st day of January, 1832, the said Alexander McQueen by a certain deed poll T V. in writing of that date, under his hand and seal, and which was afterwards duly registered in the proper register office of the said province, for the consideration therein mentioned, released -unto the said William Mc- Queen all his right and interest to and in the said parcels or tracts of land, to hold the same unto and to the sole and proper use and behoof of the said William Mc Queen, his heirs and assigns forever.
"' 7. By an indenture dated 6th day of February, 1832, made at Bytown, in the township of Nepean, in the Bathurst district, in the said late Province of Upper Canada, between the said William Mc Queen, therein described as heir at law to the late Grace McQueen, of the one part, and the said Col. By, therein described as of the town, township, district and province aforesaid, of the other part, and which indenture was afterwards duly registered in the proper register office within the said province, the said William Mc Queen, for the consideration therein mentioned, granted, conveyed and confirmed unto Col. By, his heirs and assigns forever, all the said parcels or tracts of land comprised in the said two several hereinbefore stated deeds of grant respectively, as aforesaid, by the description of 'All and singular, those certain parcels or tracts of land and premises situate, lying and being in the township of Nepean, in the county of Carleton, in the district of .ohnstown, containing by admeasurement 200 acres, be the same more or less, being lots D and E in the broken concession D on the Rideau river, which said 200 acres of land are butted and bounded, or may be otherwise known as follows, that is to say:' (Then follows a description of boundaries similar in all respects to that contained in the before-stated deed of grant of V k.
the 10th day of June, 1801)
'And also all that other parcel or tract of land situate in the township of Nepea, in the county of Carleton, in the district of v* Johnstown, containing by admeasurement 400 acres, be the same more or less, being lots lettered E and D, in the concession called C, in the said township of Nepean, which said 400 acres of land are butted and bounded, or may be otherwise known as follows, that is to say: (rhen follows a description of boundaries similar in all respects to that contained in the before stated deed of grant of the 20th day of May, 1801.)
Together with the appurtenances and all the estate, right, title, interest, claim, property and demand whatsoever, either at law or in equity of him the said William 11TcQueen, of or to or out of the same and every party thereof : to hold the same with the appurtenances freed and discharged from all incumbrances whatsoever, unto the said John By, his heirs and assigns, to the sole and proper use, benefit and behoof of the said Johin By, his heirs and assigns forever, under the reservations, limitation and conditions expressed in the original grant from the Crown. The said lastly stated indenture contains no exception or reservation to the said William Mc Queen of any part of the said parcels or tracts of land expressed to be thereby conveyed, or of any estate or, interest therein, but, on the contrary, it was intended to pass, and actually did pass to Colonel By all the estate and interest whatsoever of the said William McQueen in the land therein described, including any right which he had or might have to a restoration of any part of that portion thereof taken for the uses of the said canal, which was not actually used for that purpose.
" The R.deau canal was completed and opened traffic throughout its entire length some tine in the month of May, 1832.
"11. Colonel By died on the 1st day of February, 1836, and being at the time of his death possessed ToVENor entitled to all the property conveyed to him by the before-stated indenture of the 6th day of February, 1882, and which is hereinafter referred to as 'Colonel 'By's Canada Estate,' subject only as to some part thereof, including portions of what was set out and ascertained as necessary for the purposes of the said Rideau canal, to certain leases thereof made by him to different persons, and which have since expired. And he left Esther By, his wife (who afterwards died in the year 1838) and two daughters his only children, namely, Esther March By, and Harriet Martha By, and his said two brothers, George By and Henry By, respectively him surviving; and his will was on the 15th day of March, 1886, duly proved by his said two brothers and the said. Wiliam Roper, the executors therein named in the Prerogative Court of the Archbishop of Canterbury.
" 12. On the 20th day of April, 1836, was passed an Act of the Prpvincial Parliament of-the late Province of Upper Canada William IV., ch. for the purpose of altering and amending the said Rideau Canal Act, and it was thereby amongst other things enacted in effect (section III) that persons claiming compensation for damages done to their lands on the Rideau canal should not be debarred from receiving such compensation by reason of their having acquired title, after the commencement of the works, under a purchase made before such commencement, provided such persons were the real owners of the property damaged, and had. not acquired the same for the purpose of preferring such claim, and provided also that when the former owner had compromised or waived his claim, or been satisfied therefor, the assignee should not be entitled to compensation, and that in all cases of a sale EXCHEQUElI COURT OF (ANA A. of property after the commencement of the works the compensation should be made either to the former owner or to the assignee, as might appear just to the arbitrators under the facts proved.
"13. No payment or compensation was ever made to the said Grace Mc Queen, or to her son and heir Ihe said William McQueen, or to Col. By, in respect of the land set out and ascertained as necessary for the purposes of the said Rideau canal, as before stated.
"14. On the 9th day of December, was passed an Act Vic., ch. 11) of the Provincial Parliament of Canada (constituted under the authority of an Act of Great Britain for re-uniting the Provinces of Upper and Lotoer Canada), which Act is commonly referred to as 'The Ordnance Vesting Act,' and is entitled, 'An Act for vesting in the principal officers of Her Majesty's Ordnance the estates and property therein described, for granting certain powers to the said officers, and for other purposes therein mentioned,' and thereby the lands and other real property therein mentioned or referred to including the said Rideau canal and the lands and works belonging thereto, were vested in the principal officers of Her 1Majesty's ordnance in Great Britain and their successors in the said office, subject to the provisions of the said 'Ordnance Vesting Act,' and in trust for the service of the said department, and it is thereby provided and enacted (sec. 29) as follows (that is to say) : "'Provided always, and be it enacted, that all lands taken from private owners at Bylown under the 'authority of the Rideau Canal Act, for the uses of the 'canal which have not been used for that purpose, be 'restored to the party or parties from whom the same 'were taken.'
"15. The property adjoining to Col. By's Canada estate belongs, or formerly belonged, as before mentioned, to one Nicholas Sparks. A portion of this was set out and ascertaimed as necessary for the purposes of the said canal, and was accordingly taken from the said Nicholas Sparks under the authority of the said Rideau Canal Act. After the passing of the.said Ordnance Vesting Act, the said Nicholas Sparks applied for a restoration of part of the land so taken from him, and thereupon was passed an Act of the Provincial Parliament of Canada (9th Vic., ch. 42), intituled ' An Act to explain a certain provision of 'the Ordnance Vesting Act, and to remove certain diffi- 'culties which have occurred in carrying the said pro- 'vision into effect.'
" 30. In the month of July, 1856, Charles William By representing the heirs of the late Col. By, presented to the Governor General of British North America in Council a memorial.
" The statements contained in the said memorial were true, and your suppliants refer to them for the purpose of showing how your suppliants make out their title to the relief which they now claim.
No reply has been returned to the said memorial, and no part of the land has been restored to your suppliants or any of " 82. On the 19th day of June, 1856, was passed an Act of the Provincial Parliament of the Province of Canada (19 and 20 Vic., ch. 45,) intituled 'An Act for transferring to one of Her Majesty's principal Secretaries of State the powers and estates and property therein described, now vested in the principal office: s of Her Majesty's Ordnance, and for vesting other part of the ordnance estates and property therein described in Her Majesty the Queen, for the benefit, use and purposes of this province;' and thereby, after reciting the said ' Ordnance Vesting Act,' it is, amongst other things, enacted as follows:
EXCHEQUER COJRT "'Sec. VI. Immediately on and from the passing of 'this Act, all and every the lands and other real property 'in this province comprised in. the second schedule to 'this Act, annexed being a portion of the messuages, 'lands, tenements, estates and hereditaments comprised 'within the provisions and meaning of the said in part 'recited Act of the seventh year of the reign of her pro- 'sent Majesty, which prior to the passing of this Act 'were by the said recited Act, or otherwise, vested in 'the said principal officers of Her Majesty's Ordnance 'and their successors in the said office, and which have 'been used and occupicd for the service of the )rdnance 'Department, or for military defence, by whatever mode 'of conveyance the same shall have been so purchased 'or taken either in fee or for any life or lives, or for any ' term or terms of years, or any other or lesser interest, 'and all erections and buildings which now are, or which shall or may hereafter be erected and built 'thereon, together with the rights, members, easements 'and appurtenants to the same respectively belonging, 'shall by virtue of this Act be and becom3 and remain 'and continue absolutely vested in Her Majesty the 'Queen for the benefit, use and purposes of this pro- 'vince, according to the respective nature and quality 'of the said lands and other real property, and shall be 'subject to the provisions of the Act passed by the 'Legislature of this province in the 16th year of the ' reign of her present Majesty, intituled, an Act to amend 'the law for the sale and settlement of the public lands, 'and any further provisions which the Legislature of 'this province may from time to time enact in respect 'thereof, and shall be held used, conveyed and dealt 'with accordingly, but subject nevertheless to all sales, 'agreements, lease or leases, agreement or agreements 'for lease, already entered into with or by the principal Y L. VII. 'officers of ordnance, or by any other person or persons 'authorized or empowered by the said principal officers TaQam 'to exercise the powers and authorities of the said in ' part recited Act of the seventh year of the reign of her 'present Majesty, of or in respect of any such lands and 'other real property.'
"' Sec. VII. Frovided always and beuit further enacted, 'that nothing herein contained shall be taken to affect 'the rights of any parties claiming any of the lands, ' buildings, or other property referred to in the next ' preceding section, and in the said second schedule, ' and that all actions now pending against the said ' principal officers in relation thereto may be proceeded ' with to final judgment, in the name of the said prin- 'cipal officers, and as if the appointment of the said ' principal officers had not been revoked by Her Majesty, ' and it shall be lawful for Her Majesty's Attorney Gen- ' eral to appear in any such case on behalf of the Crown, ' and the Crown and all other persons whatsoever shall 'be bound by the final judgment of the Court in which 'such suit may have been commenced.'
"39. The suppliants are now the only persons interested in Colonel B 's Canada estate, and as such are entitled to have such part of the said tracts or parcels of land comprised in the said two several before stated deed of grant respectively as aforesaid, as was formerly taken for the use of the Rideau canal, but is not used for that purpose, restore d to them. The quantity of land so taken was 110 acres or thereabouts, but the quantity of such land as is actually used for the purpose of the said canal does not exceed 20 acres or thereabouts; however your suppliants have never hitherto been able to obtain the restoration of any part of the said land, notwithstanding the before stated application for that purpose.
EXOJEQUER COURT OF CANADA. " 40. Your suppliants allege that it is doubtful whether or not the said 90 acres are not so. taken or used for the uses of the said canal ever passed to or T became vested in Her Mijesty, and your suppliants submit that the estate therein never passed to Her Majesty, and that the same passed to and is vested in your suppliants, as if the said canal had never been made and the said Acts had never been passed, yet Her Majesty's Government in Canada has assumed that the same did vest in Her Majesty, and have acted accordingly, and have all along since the construction of the said canal taken and held possession of the said acres, and still hold posssession thereof, and have taken the rents and profits thereof, and they have sold parts thereof, and made conveyance thereof to purchasers thereof, and given possession to such purchasers, and have received the purchase money thereof, and your suppliants submit that Her Majesty should deliver possession of the said land unsold to your suppliants, and should pay the rents and profits thereof to your suppliants, and as to the portions of the said lands so sold should pay the value thereof,.but if it should be held that the said land did become vested in Her Majesty, then your suppliants in addition to the foregoing submit that they should have a reconveyance of all such lands as have not been sold as aforesaid. " 41. Under and by virtue of an Act of the Parliament of the United Kingdom of Great Britain and Ireland, known as " the British North America Act, 1867," the said lands and hereditaments became the property of the Dominion of Canada, or purported to convey the same to the said Dominion of Canada.
" 42. In any case Her Majesty was and is a trustee for your suppliants of all of the said lands that were actually used for the purposes of the said canal, and it should be so declared.
"Your suppliants therefore humbly pray that all such parts of the said two several parcels or tracts of land comprised in the said two several herein- -u before stated deeds of grant dated respectively the 20th day of May and the 10th day of June 1801, as aforesaid, as were supposed to be taken for the use of the said Rideau canal, but not used for that purpose, may be restored to, and if necessary be revested in your suppliants, according to their respective rights and interests to and in the same; and that possession thereof may be delivered to your suppliants ; and that an account of the rents and profits thereof may be taken, and, together with the costs of this petition, be paid to your suppliants; and as to such portions thereof as have been sold,.that the values thereof may be paid to your suppliants, and also the rents and profits thereof prior to the selling thereof by Her Majesty, as aforesaid, and for the purposes aforesaid, that all necessary orders and decrees may be made and accounts taken."
In answer and for defence to the said petition, the Honourable Edwoard Biake, Her Majesty's Attorney- General for the Dominion of Canada, on behalf of Her Majesty, said :
" 1. I admit the letters patent hearing date respectively the 20th day of May, 18O I, and the 10th day of June, 1801, mentioned in the 1st and 2nd paragraphs of the said petition, wheieby certain lands were granted to Grace AfcQueen, in the said petition mentioned, but I crave leave for greater certainty to refer thereto, when the same shall be produced to this honourable court. "2. I admit the passing of the Act of Parliament of the late Province of Upper Canada (being the Act 9, Geo. IV., chap. 1,) referred to in the fourth paragraph of the said petition, to which I also crave leave for greater certainty to refer.
"8 . I admit that Col. By, in the 15th paragraph . of the said petition named, was the officer employed by Q His late Majesty to superintend the work of making the said canal, and that he set out and ascertained certain parts of the said parcels of land comprised in the said letters patent, comprising altogether 110 acres or thereabouts, as necessary for making and completing said canal, and other purposes and conveniences mentioned in the said Act; and that the land which he so set out and ascertained as aforesaid is described in a plan lodged by Col. By, in the office of the Surveyor- General of the late Province of Upper Canada, and signed by him, and I crave leave for greater certainty to refer to the said description and plan.
" 4. I admit that the said Grace McQueen died intestate some time before the 31st day of January, 1882, and after the passing of the said Act, but I deny that she died seized or possessed of the whole of the said parcels of land; and I charge that the parts thereof set out and ascertained by Col. By, as required for the uses and purposes of the said canal, were at the time of her death vested in His Majesty, and His Majesty was then in possession thereof for the purposes of the said canal. " 5. 1 admit that the said Grace McQueen left her husband, Alexander Mc Queen, her surviving, and also William McQueen her eldest son and heir-at-law, but I deny that any estate or interest in the said lands set out and ascertained by Col. By as aforesaid descended to the said -William McQueen; and I submit that the claim against the Crown for compensation or damages by reason of the taking of the said lands was personal eslate of the said Grace McQueen, and passed at her death to her perzonal representative and not to her heir-at-law.
U06 VII. I . c. 6. I admit the execution of the deeds of the 31st day of January, and the 6th day of February, 1832, and I crave leave for greater certainty to refer thereto respectively when produced to this honourable court; but I charge that no estate or interest in the lands now in question passed thereby, or by either of them, the title and possession thereof being then as the fact was in His Majesty.
" I charge that at the respective times of the making and execution of the said respective deeds none of the parties thereto were, or was, in possession of the lastmentioned lands, or of any part thereof, or in the receipt of the rents and profits thereof, nor had they or any or either of them, or any of their respective ancestors, been in such possession or in such receipt of the rents and profits for one whole year next before the said respective times, and I charge that the said transactions, so far as they related to the lands in question in this suit, were respectively a selling of pretended titles, and that the same were to that extent respectively void as in contravention of the statute passed in the 32nd year of the reign of His Majesty King Henry ch. 9, and other statutes against maintenance and bracery, and the buying of pretended titles.
" 8. I deny, for the reasons aforesaid, that the indenture of the 16th day of February passed to Col. By any estate or interest in the land in question, or any right to compensation or damages for the taking of the said lands, or any right to a restoration of any portion thereof taken as aforesaid which was not used for that purpose.
"9. I submit and charge that Col. By, having been as he was at the date of the said indenture of the 6th day of February,1832, an officer in the service of His Majesty, and having in charge for His Majesty the said canal and Apndiz to the works connected therewith, and the lands set apart and taken therefor, including the lands in question, he was incapable of acquiring any beneficial interest therein, as against His Majesty, and the pretended purchase of the said lands by him was a breach of duty, and could not and did not constitute any valid claim against His Majesty.
I am informed and charge the fact to be that some time after obtaining the conveyance of the 6th day of February, 1832, Col. By took proceedings under the said Act of IV., ch. 1, to obtain by arbitration, compensation, or damages from His Majesty in respect of the lands comprised in the said conveyance of the 6th day of February, 1832, and that therein he claimed compensation or damages for the lands now in question. I am informed and charge that an award was duly made in writing in the course of the said arbitration proceedings, whereby it was awarded and determined that by reason of the enhancement of the value of his other land, and of other benefits and advantages accrued to him from the construction of the canal, as provided in the 9th section'of the said Act, Col. By was not entitled to any sum from His Majesty in respect of his said claims for compensation and damages under the said Act.
" 12. I am informed and charge that afterwards Col. By, being dissatisfied with the said award, duly caused a j ury to be summoned under the provisions of the said Act, to assess the said damages and compensation claimed by him, and that the jury duly delivered their verdict to the same effect as the said award, to wit, that Col. By had sustained no damage and was not entitled to any compensation in respect of the said claims.
" 13. I charge that the said award and verdict have ever since remained, and now are in full force and virtue, VUb. VII. and were and are binding on Col. By and his heirs and other representatives, and are a bar to the claim of the" suppliants in the said petition.
"14. admit the Act of the Provincial Parliament of Canada, passed in the year 1843, (7 Vic, ch. 11,) and the proviso contained in section 20 thereof, as stated in the 14th paragraph of the petition; and I also admit the Act passed in the year 1846, (9 Vic, ch 42,) to explain the said proviso, and I crave leave for greater certainty to refer to the said Acts.
" 15. I submit and charge that upon the true construction of the said proviso, and of the Act explaining the same, the benefit of the said proviso was and is confined to Nicholas Sparks, therein mentioned and that the same did not extend to the lands in ques- " 16. By an Act of the parliament of the late Province of Upper Canada, passed on the 11th day of May, 1839, (2 Vic., ch. 19,) it was expressly enacted that from and after the 1st day of April, 1841, all and every, the powers, provisions and remedies in the said Act of the 8th year of King George IV., ch. 1, in relation to claims for damages already sustained by owners of lands in consequence of the said then intended canal, locks and other constructions being cut and constructed in and upon the same, should in respect of claims brought forward after that period, cease and determine.
" 17. It was further by the last-mentioned Act enacted that claims made before the said lst day of April, but not duly prosecuted as required by the said Act, should thenceforward be barred as if they had never been made.
"18. It was further by the last-mentioned Act enacted, that it might be lawful for the Lieut -Gov. to issue Her Majesty's Royal Proclamation requiring all persons to prosecute their claims within the time so limited, or that such claims should thereafter be barred. "19. Afterwards, and on the 9th day of September, in the last-mentioned year, such proclamation was duly made by the ieut -Gov. in Her Majesty's name, and the same was published in the Official Gazette on the 10th day of October following; and I claim, on behalf of Her Majesty, the benefit of the said Act and Proclamation, and I submit that thereby all claims of every kind against Her Majesty, in respect of the said lands, by the said Grace McQueen or her personal representatives, or by Col. By or any persons claiming through or under them or either of them, including the suppliants, became, and were and are forever barred on and after the 1st day of April, A.D. 1841..
"20. I admit that in pursuance of the Acts of 1844 and 1846, some part of the lands taken from Nicholas Sparks for the said canal was restored to him, and that no part of the land in question was ever restored to Col. By or his heirs or assigns; and I charge that neither was any land taken for the canal from any other person restored to the owners under the said proviso and Acts.
" 21. 1 have been informed by Col. Coffin, an officer of the Governmeift, that he has some recollection of some such memorial as mentioned in the 80th paragraph of the petition having been handed to him by Sir Edmund Head, when he was Gov.-Gen: of British North America, with a request to report thereon, and that he, the said Col. Cofin, did report against the claim therein preferred, but I am informed and charged that there is no trace of the said memorial or report among the public records, or of the same ever having been submitted to the Gov.-Gen. in Council.
" 22. I admit the passing of the Act of the 19th of COtJRT
V 0. June, 1856 (19 and 20 Vic., ch. 45), and I crave leave '1 for greater certainty to refer to its provisions, and I ** admit that by virtue thereof the lands in question became vested in Her Majesty for the uses of the late Province of Canada.
" 22. I admit that by the B. N. A. Act the same lands, or so much thereof as had not previously been sold or disposed of, are now vested in Her Majesty for the use of the Dominion of Canada.
" 24. I deny that Her Majesty is a trustee for the suppliants of the said lands or any part thereof. " 25. I have no knowledge of the several Acts, occurrences, and instruments alleged in said petitions, constituting the claim of the suppliant's title under Col. By, and I deny the same respectively, and put the petitioners to such proof thereof as they may be advised.
"26. From the original setting apart and taking of the said lands, until the year 1843, the said lands were vested in Her Majesty in right of Her Imperial Crown, during all which time Col. By and his representatives might have proceeded against Her Majesty by petition of right or otherwise, in Her Majesty's Courts in England, but they never did so.
" 27. From the year 1843 to the year 1856 the lands in question were vested in the principal officers of Her Majesty's Ordnance, and the said principal officers of Her Majesty's Ordnance were also during all the times last mentioned in possession thereof, and the suppliants or those under whom they claim title might, during all the last-mentioned time, have sued and impleaded the said principal officers in the courts of the late Province of Canada for the recovery or restoration of the said lands, but they neglected so to do.
"28. I charge that the suppliants, and those under VuO
O CANADA. whom they claim, have been guilty of such laches and delay in respect of their said claims as preclude them in TyiE equity from now prosecuting the same.
, Q'an. "29. By virtue of the 7th section of the Petition of Right Act, 1876, I claim, on behalf of Her Majesty, the benefit of the statutes of the Province of Ontario, commonly known as the Statutes of Limitations, and I submit that the' suppliants, and those under whom they claim, having been, as the fact is, out of possession of the said lands for upwardb of 40 years, next before the commencement of the suit, their claims are barred by lapse of time and the provisions of the said statute. " 30. On behalf of Her Majesty I submit that the said petition shows no grounds for relief against Her Majesty, in respect of any of the matters contained therein, and shows no legal or equitable title in the suppliants, or any or either of them, to the said lands or any part thereof, and I crave the same benefit of this objection as if I had demurred to the said petition.
" 81, I submit that under no circumstances is Her Majesty, as representing the Dominion of Canada, answerable or responsible to the suppliants or any of them, for or in respect of any of the said lands heretofore sold or disposed of, or in respect of the rents and profits of any of the said lands; and I deny that the petitioners are entitled to any such account as prayed for in the said petition.
" 32. I pray that the said petition may be dismissed with costs."
The follovwing case was then submitted for the opinion of the court under General Order III:
" 1. Is the Statute of Limitations at all pleadable under section 7 of the Petition of Right Act of 1876 ? " 2. Did William Mc Queen take the lands in question or any of them by descent by the facts set out in the petition: (1) if his mother died before the lands were set out and ascertained for the purpose of the canal; (2) if she died afterwards ?
.
" If Grace Queen had at the time of her death any right or interest in the lands taken or any right to compensation or damages by reason of the taking thereof, did such right descend to her heir-at-law or to her personal representative ?
"4. Are the deeds dated 31st January, 1832, and February, 1832, respectively named in the petition, valid or void as regards the lands in question under the statutes and facts set out in the 7th paragraph of the statement of defence?
" 5. Is the 9th paragraph of the statement of defence a sufficient answer in law to the petition ?
" 6. Would the defence set up in the 10th, 11th, 12th and 13th paragraphs of the statement of the Attorney- General be sufficient in law supposing that the state. ments therein were true?
" 7. Whether the effect of the acts set out in the 14th paragraph of the statement of defence is as stated in the 15th paragraph of the statement of defence ?
" 8. Whether the acts referred to in paragraphs 16, 17, 18 and 19 have any application to this case, and if so whether they would not constitute a bar to the plaintiffs' claim, regard being had to the statements in the petition and in paragraph 19 of statement of defence?
" 9. Are the petitioners barred by laches on the statement set out in the petition ?
"(a) It is agreed that the statements herein above referred to and set out in the petition and statement of defence as being admitted for the purpose of this special case are not finally binding on either party, but are to be used for the purpose of enabling the court to decide the questions of law raised hereby.
It is also agreed that either party may appeal from the judgment to be pronounced in the above case as upon a demurrer.
. It is also agreed that upon the decision being given, (whether in the first instance or on appeal), if against the petitioners that they may amend their petition and proceed as they may be advised, or, if against Her Majesty that she may be at liberty to file a supplemental statement of defence as the Honorable Attorney General may advise.
M. C. Cameron, Q.O., E. Fit2gerald, Q and A. J. Christie for the suppliants.
The learned counsel cited Rustomjee v. The (1); King v. The Co. of Witham Navigation (2); Mc- Kenzie et. al. v. Fairman ; Reiner v. The Marquis of Salisbury (4); Mutlow v. Bigg (5); Burdick v. Garrick Mr. Maclennan, Q C, for the Crown.
The learned counsel cited Banning on Limitations (7); Richards v. Atty. Gen. of Jamaica (8); Frewen v. Frewen
KeEch v. Sandford (10) ; Cooper Phibbs
See Mazwell on Statutes (12).
Sir W. B. J.:- The case submitted for the opinion of the Court in this petition of right, was argued Monday, 15th March, 1878. M. C. Cameron, Q.C., and Fitzgerald, Q C., of the Ontario bar, for the suppliants, and J. Maclennan, Q C., of the same bar for the Crown.
The first question is, can the Statute of Limitations ihds,be pleaded on bhaf of the Crown in a proceeding on a petition of right under section of the Petition of Right Act of 1876 ?
The section is different from that contained in the Imperial Statute, 23 and 24 Vic., ch. 31, and the Dominion Act, 38 Vic., ch. 12, which last Act was repealed by the statute of 1876. The 7th section of the Imperial statute makes the law and statutes in force in certain matters in actions between subject and subject applicable and extend to the petition of right, amongst others enumerated, those as to costs, set off, special cases, etc. In Rustomjee v. The Queen (1) it was urged in argument that the Crown, though not mentioned, might take advantage of the statute of limitations, and Chity on the Prerogatives of the Crown (2); Tobin v. The Queen (3); Story's Conflict on Laws (4); Huber v. Steiner (5); Harris v. The Queen (6); were cited.
At p. 49 Blackburn, J., said, the Statute of Limitations has relation only to actions between subject and subject, the Crown cannot be bound by it.
Lush, J, said, " and sec. of 23 and 24 Vic., ch. 34 (which has been referred to) extends to a petition of right, set off inter alia but not the Statute of Limitations."
Cockburn, C.J., said at p. 492: "as to the statute of limitations that was disposed of in the course of the argument. The observations of my brother Blackburn were quite sufficient to dispose that, namely: that the Crown cannot be bound by acts of parliament which have relation only to the course of procedure between subject and subject."
The seventh section of the Petition of Right Act of 1876 reads as follows: "The statement in defence or " demurrer may raise beside any legal or equitable "defences in fact or in law available under this Act any 'legal or eq-ditable defence which would have been "available, had the proceeding been a suit or action in a competent court between a subject and subject; and "any grounds of defence which would be sufficient on " behalf of Her Majesty may be alleged oi behalf of any " such person as aforesaid."
There is no doubt that in a suit between subject and subject in a competent court in relation to these matters, the statute of limitations might be set up by the defendant. I see no reason why the Crown may not invoke the aid of such a statute. It is suggested it would be beneath the dignity of the Crown to do so. But the reasons which apply to the quieting of titles by individuals apply with equal force to the title of the Crown. In fact, as a general rule in this country, the rights and interests of the Crown are quite as likely to suffer from want of attention as the rights of individuals. Lord Plunkett's celebrated reference to time destroying the evidence of titles applies to cases like the one before us as far-as-the rights of the Crown are concerned, as it would between party and party.
Can any one doubt if Col. By were now living, or evidence could be procured as to the circumstances under which he took the conveyance from McQueen, that the right of the Crown to this land would be put in a different light from what- it is now presented by his heirs. His death and the lapse of time EXOHEQUER COURT OF CANADA.
since the event took place prevents the fact from being ascertained whether in purchasing the 630 acres Col. By intended to obtain the 110 acres taken for the use of the canal in the same way that he obtained the land referred to in the Act of Vic., ch. 42, from Nicholas Sparks "for the purposes of the canal."
I think the words of the 7th section give the right to the Crown to set up the statute, and I see no reason why it should not be set up. Mr. Justice Blackburn in the case referred to expressed his opinion that it would be proper, right and judicious for the Legislature to give such a right. I think they have given it here. As to the first question submitted in the special case the answer is, that the statute of limitations can be pleaded under the 7th section of the Petition of Right Act of As to the second question, the first part of it I suppose admits of no discussion; that William Mc Queen would take the land by descent from his mother if she died before the land -were ascertained and set out for the purposes of the canal. The latter part of the second question is covered by the third question. If Grace Mc Queen had at the time of her death any* right or interest in the land or any right to compensation or damages, by reason of the taking thereof, did such right descend to her heir-at-law or to her personal representative? "
The Rideau Canal Act of Upper Cana la, 8 Geo. IV., ch. 1, gives the necessary powers to the officer employed by His Majesty amongst other things, to enter into and upon the land of any person or persons, and to survey and set out and ascertain such parts thereof as he shall think necessary and proper for making the said canal, locks, aqueducts, tunnels and all such other improvements, matters and conveniences as he shall think t proper and necessary for making, effecting, preserving, improving, completing, and using in, the said naviga* Ty a tion; and also to make, build, erect, on the said canal or on the lands adjoining to or near the same so many bridges, reservoirs, drains, wharves, quays, landing places and other works, ways, roads and convenienccs as the officer aforesaid shall think requisite and convenient for the purposes of the said navigation;
and also from time to time to alter the route of the canal and to amend, repair, widen or enlarge the same * * * and also to construct, make, and do all other matters and things which he shall think necessary and convenient for the making, effecting, preserving, improving, completing and the said canal in pursuance and within the true meaning of this Act, doing as little damage as may be in the execution of the several powers to him hereby granted.
"Section 2. After any lands shall be set out and ascertained to be necessary for making and completing the said canal and other purposes and conveniences hereinbefore mentioned, the officer is empowered to contract and agree with all persons who shall occupy, be possessed of or interested in any lands or grounds which shall be set out or ascertained as aforesaid for the absolute surrender to His Majesty, his heirs and successors of so much of the said land as shall be required or for the damages which they may reasonably claim in consequence of the said intended canal, locks and other constructions and erections being out and constructed in and upon his, her or their respective lands, and all such contracts, agreements, surrenders shall be valid and effectual in law to all intents and purposes whatever, any law, statute or usage to the contrary notwithstanding."
"Section enacts that, "such parts and portions of EXCHEQUER COURT OF CANADA. fYO. VII. land, or lands covered with water as may be so ascer- TrEB tained and set out by the officer employed by His Qn Majesty as necessary to be occupied for the purposes of -d the said canal, and also such parts and portions as may Ri.
,upon any alteration or deviation.from the line originally laid out for the said canal be ascertained and set out as necessary for the purposes thereof, shall be for ever thereafter vested in His Majesty, his heirs and suecessors.".
The statute of Upper. Canada, 6 Win. IV., ch. 16, provides that if in the construction, keeping up and repairing, of the canal, any stone, earth, wood, timber or other materials shall have been or may be thereinafter taken under the authority of the Act of 8 Geo. IV., ch. 1, the owners thereof or of the land from which the same shall have been taken, shall receive compensation for all damages by means thereof, the same as with respect to any other damage done by making, completing or repairing of the said navigation, to be settled, adjusted, ascertained and determined in the same manner as provided by the Act with respect to damage done by the making, completing or repairing of the said navigation.
Section 2 gives damages to owners of mill sites for injury from penning back or diverting water, &c. Section Purchasers purchasing land before the commencement of the work not debarred from receiving compensation through acquiring title after the commencement : Provided the persons claiming are the real owners of the property damaged and have not acquired the same for the purpose of preferring such claim. Further proviso: when former owner has either compromised or waived his claim or has been satisfied therefor, the assignee shall not be entitled to compensation under the Act.
And in all cases of a sale of property made after the commencement of the works, the compensation shall be made either to the former Trun owner or to the assignee as it may appear just to the arbitrators under the facts proved to them.
Under the first and third sections of the Ride au Canal c. . Act, the portions of land ascertained and set out by Col. By (the officer employed by His Majesty) as necessary for the purposes of the canal seem to me to have been vested in His Majesty King George the Fourth. The words are express that the portions of the land so set out " shall be for ever thereafter vested in His Majesty, his hoirs and successors."
I see nothing in the statute to induce me to give a different interpretation to it in this respect from what the words plainly impart. It might perhaps be, if the officer employed to superintend the work, before agreeing with the owner of the land for the surrender thereof, under the second. section of the statute, had become satisfied that a smaller quantity of land than what had been originally set out was required for the purposes of the canal and should take the surrender of the lesser quantity, that might be considered as having relation back to the original setting apart, and so the surplus would not be considered as vesting in the Crown.
But if nothing occurred after the original setting apart of the officer in charge to shew any intention to change or alter his original determination, and the land so set.apart was actually taken possession of and such possession maintained by him on behalf of the Crown, as I understand was the case with regard to the land in question, then it seems to me the land must be considered as vesting in the Crown and the right of the former owner was converted into a claim for compensation under the fourth section of , the statute.
With regard to claims for compensation the statute EXCHEQUER COURT OF CANADA. VOL. VII. S. of Upper Canada 2 Vic., ch. 19, provides that from and Tu after the 1st day of April, 1841, all the powers and prow .
visions of the statute (8 IV, ch. in relation to claims for damages then sustained by the owners of ji 6,lands in consequence of the canal and the remedies therein contained, in so far as respects any such claims for damages as should be advanced or brought forward after that period, should cease and determine.
The effect then of the statute of George the Fourth authorizing the construction of the canal was that the lands set out and ascertained by'the officer employed by His Majesty to superintend the work as necessary to be occupied for the purposes of the canal were forever vested in His Majesty, his heirs and successors. And after the lands were so set out and ascertained, the officer employed to superintend the work under sec. 2, was authorized to contract and agree with the owners of such land for the absolute surrender to His Majesty, his heirs and successors of so much of said land as should be required, or for the damages they may reasonably claim in consequence of the intended canal being constructed on their land, and all such contracts, agreements and surrenders should be valid and effectual in law.
Though the lands were vested in the Crown by being ascertained and set out as necessary to be occupied for the purposes of the canal, yet Col By was under the 2nd section of the statute authorized to contract and agree with Mrs. Mc Queen for the absolute surrender of so much of such land as should be required, and a surrender by her would under that section be valid and effectual.
It may be that a surrender by her heirat-law would ba equally effectual, for the statute seems to contemplate something more than the mere disharge of the Crown from the damages in consequence of the canal being constructed on the land.
Tra It speaks of the absolute surrender to the Crown of the lands themselves and this could only be by the person who, but for the right of the Crown, would be j.c.hd the owner of the land, and that was William Mc- Queen.
I therefore think that Col. By on behalf of the Crown could contract for the absolute surrender of the land with William McQueen
Suppose then he had entered into a contract with Wiliam McQueen for the- absolute surrender to the Crown of the 110 acres in dispute, as set apart for the use of the canal by him as the officer employed to superintend the work, can there be any doubt that he would be held in equity to have contracted on behalf of the Crown?
And if the instrument had been a mere conveyance to himself absolutely ought to be declared a trustee on behalf of the Crown; and certainly would have been declared such trustee, if the money of the Crown at the rate of £2 an acre had been paid to Mc Queen for it. Now look at the circumstances of the case here. Some 600 acres of wild land owned by Mc Queen, of which 110 had been set out and ascertained as necessary for the purposes of the canal. If he had not agreed as to the amount of compensation to be paid him for his damages after the completion of the canal, the question of compensation for property taken would have been referred to arbitration, and in assessing the damages the arbitrators would take into consideration the benefit likely to accrue to him from the construction of the canal by its enhancing the value of his property. No one acquainted with this part of the country at that time can for a moment doubt that the 500 acres left of the six hundred were increased very EXOHEQUER COURT OF CANADA.
much in value beyond the worth of the 100 acres taken by the construction of the canal. The matter must have been presented this light cQueen. assume was so presented because it would have been Col. -By's ;.j. 'duty so to have presented it.
Assuming this to be so and that Col. By contemplated purchasing the remainder of the six hundred acres as an investment for his personal advantage, he would estimate its value independent of that of the 110 acres and would pay McQueen for it on that basis. If he did this he in fact paid Mc Queen for the 110 acres by the increased value which was paid on the remainder of the land, and this increased value was given to it by the money expended by the Crown in building the canal.
It cannot be assumed that Col. By, in ascertaining and setting out these 110 acres as necessary for the purposes-of the canal, did not act in good faith, and those claiming under him cannot properly be allowed to set up that he was not acting in good faith. If that be so, in taking the conveyance of these 110 acres from McQueen, he must have done it for the benefit of the Crown. Otherwise it would appear that he was guilty of a fraud on McQueen in setting apart more land than was needed for the purpose of enabling himself to purchase this land from Mc Queen under pretence that these 110 acres were needed for the canal.
I think we must assume that Col. By was acting in good faith throughout the whole transaction.
That he believed the whole 110 acres were necessary for the purposes of the canal, and that in acquiring the title to these 110 acres, though the deed vas taken in his own name, he was doing so for the benefit of the Crown and was performing the duty cast upon him by the second section of the statute'to obtain the surrender of the land EXOREQUER required for the purposes of the canal.
That we are bound to assume Col. By's " honesty and integrity of purpose " throughout this transaction is sustained byTa the language used by Lord Westbury in Cooper v. Phibbs referred to on the argument
The rule in equity that when persons acting in the fiduciary capacity acquire renewals of leases, it will be decided that such renewals shall enure to the benefit of cestid que trust, is one of public policy to prevent persons in such situations from acting so as to take a benefit to themselves.
Many of the cases are referred to in the notes to Keech v. Sand/ord
The same principle applies to Col. By in the position in which he was placed as the officer employed by His Majesty to superintend the work of constructing the Rideau canal. The same rule of equity obtains in the United Slates and is referred to Keech v. Sandford in the American edition of White and Tudor's equity cases. I make a short quotation from the American notes No. 62 :- The same doctrine is in effect enunciated in another form of words: " That no man shall be allowed to put "himself in the position where his duty and his interest VL. VIL "may conflict."
Here it was the duty of Col. By under the statute to obtain the absolute surrender from Mc- Tas Queen to the Crown of the 110 acres of land thAt he had hd set out as necessary to be occupied for the purposes of J.c. the canal, it was his interest to purchase it for his own speculative purposes. This on principle he could not be permitted to do and the title nominally obtained in his name must really be for the Crown.
At the time of the conveyance by McQueen to Col. By the land had been set out for the purposes of the canal, and as I understand it was then in the actual possession of the Crown and was by the statute vested in the Crown. It was suggested it was in Col. By's possession, but that was only as the officer employed to construct the work, and such possession must have been the possession of the Crown.
This conveyance was void as to the 110 acres under the statute 32 Henry VIII, ch. 9. That principle was established in numerous cases in Upper Canada, both before and since the date of the deed from Mc Queen to Col. By, and was the well settled law of the land until the passing of the statute in 1849, legalizing the conveyance of a mere right of entry into or upon lands whether immediate or future, vested or contingent. ,The cases referred to in Robinson and Josfph's Digest under the head of Champerty settle the law as above stated. The Bishop of Toronto v. Cantwell and Smith et al v. Hall are amongst the latter cases there referred to where many of the decided cases were cited.
I do not think 3rd section of the Upper Canada statute, 6 William IV, ch. 18, which allows purchasers to claim compensation who acquire title after the commencement of the works can make any difference; that section applies to such purchasers having acquired the title under V .
XCHEQUER COURT OF CANADA.
.
a purchase and before the commencement of the works. In fact it seems only to have provided that the equita. * ,ble owner of the land should receive the compensation, Ti but it deprives him of such compensation where the R former owner had compromised, or waived his claim, or had been satisfied therefor.
In addition to this, after the 110 acres had been ascertained as liecessary for the canal, they were under the 3rd section of the Act of IV, as I have already mentioned, vested in His Majesty, and all that remained in Grace McQueen, except the right under the second section of the statute of absolute surrender of the same to His Majesty, was the right to compensation under the statute, and this right was a right to receive money, which on her death vested in her executor and not in her heir-at-law.
As already intimated, the special power to surrender under the second section of the statute might have been exercised by Mrs. Mc Queen after the land had been set out for the canal, and I am inclined to think by William Queen as her heir-at-law, at any time before the completion of the canal.
The general doctrine that land sold by the owner of an estate before his death, but which has not been paid for or conveyed, is considered converted into personalty seems well established. Many cases are referred to in Williams on Executors as sustaining that doctrine. merely refer to one 1arrer v. The Earl of Winterton (1). Whether compensation for lands taken under the compulsory power given to railways and commissioners is impressed with the character of realty depends much on the terms of the statutes authorizing the taking. I think the view taken by the Privy Council in Richards v. The Altorney General of Jamaica (2) correct (1) 5 1.
(2) P. C. C.
{Appen and applies to the compensation for lands taken under the Rideau Canal Act, when the compensation T * enforced under the 4th section of the statute. By the laws in force in Jamaica slaves were considered real s' estate, and could only pass under a will as such. The testator, by a will not properly executed to pass real estate, bequeathed his title and claim to compensation for his share of the compensation fund for the emancipation of such of his slaves as might be living on 1st August, 1834, to the appellants. The Privy Council held, that treating the slaves as real estate, the Legislature became purchasers, under the Imperial Statute 3 and 4 William IV., from the time of its passing, and the money to be received under the compulsory sale of the slaves was converted into personal estate and passed to appellants as specific legatees under the will which was properly executed to pass the personal estate.
In re Lincolnshire Railway Act ex parle Flamank (1) before Lord Cranworth, then Vice Chancellor, where lands were taken under the compulsory clauses of the Railway Act, he held the compensation for the lands of a lunatic was not impressed with the character of realty.
Whether the compensation money for these 110 acres was impressed with the character of realty or not, in .
the view I take, is not of much consequence, for I think the land was vested in the Crown whoever was entitled to compensation, and the right to recover the compensation, after the 1st of April, 1841, was to cease and determine under Upper Canada statute Vic., ch. Up to the time of the passing of the Ordnance Vesting Act of 1843 as to these .110 acres of land I think then the following the proper view to take:
EXCHEQUER COURT By being ascertained and set out by Col. By as necessary for the purposes of the canal, and being taken possession of and retained for that purpose, they became forever vested in His Majesty, his heirs and successors. That without the authority to absolutely surrender these 110 acres to His Majesty, a conveyance of the'same by Mrs. Mc Queen, or by her heir-at-law, was void under the statute of Henry the Eighth, if made to any one but the Crown.
That the conveyance by William McQueen to Col. By of the 5th February, 1882, as to the 110 acres was void unless made for the benefit of the Crown, and I think I am bound to hold it was made for the benefit of the Crown, and so, that any right acquired under it was for the Crown. If not, then, it was void, and Col. By acquired no title to these 110 acres, and his heirs cannot claim them now either under the deed or the statute. We now come to the consideration of the question arising under the Ordnance Vesting Act of 1843, Statutes of Canada, 7 Vic., ch. 11. It purports to have been passed for vesting in the principal officers of Her Majesty's Ordnance certain lands and other real property used and occupied for the purpose of the Defence of the Province and vested in Her Majesty, and also certain lands in Bylown purchased with funds belonging to the military chest, and the Rideau canal and for other purposes. The 29th section of that Act is as follows: "And be it enacted that it shall be lawful for the said principal officers to grant to any.censitaire holding lands or other real property within the censive of any seigniory vested in them under the provisions of this Act a commutation of all seigniorial rights, burdens and charges on such lands or real property, on the same terms and conditions on which such commutation might be granted by Her Majesty without this Act; EXCEQUTER COURT OF but the lands or real property with regard to which such commutation shall be granted, shall thereafter be Eheld in franc aleu toturier, as shall also any lands or real property which being within the boundaries of any seigniory vested in the said principal officers under the provisions of this Act, shall be granted or conveyed by them to be holden otherwise than en censive; pro. vided always that nothing herein contained shall prevent the said principal officers from granting any lands or real property within any such seigniory to be held en censive if they and the grantee shall so agree." " Provided always and be it enacted that all lands taken from private owners at Bytown under the authority of the Rideau Canal Act for the uses of the canal, which have not been used for that purpose be restored to the party or parties from whom the same were taken." This last proviso of the 29th section seems to have no connection whatever with the rest of the section which refers to land situate where the seigniorial tenure prevailed, and that tenure never prevailed in Bytown. Taken as it stands literally and giving it its full effect, without in any way referring to matters outside of the special case before us, it seems to me it can in no way aid the claims of the petitioners, for the land was not taken from Col. By or his heirs, and the statute directs the land to be restored to the party or parties from whom the same was taken. The reference is to land taken from private owners. If this land had been taken from Col. By, who was then a public officer, whose duty it was to obtain the property for the Crown, would he be a person who would come within the description of private owner?
I think no person who knew anything of the difficulties as-to land in Bylown taken under the authority of the Rideau Canal Act would imagine that this proviso S. C. R. I was passed by the Legislature with intention of restoring land to Col. By or his heirs.
The proviso is so bald and disconnected that it is not a matter of surprise that it caused difficulty and liti- gation, and an explanatory Act was necessary to interpret it.
We find on referring to the statute of the Province of Canada, 9 Vic., ch. 42, that an Act was passed in the very next session of the legislature for explaining and amending the Act, but that statute was reserved for the Royal assent, which was not given, and in the next following session the statute of 9 Vic., ch. 42, was passed. It contains a very long preamble, recites and quotes the last proviso to the 29th section of the Act of 1848 and states that doubts had arisen as to the true intent and meaning of the same and as to the land to which it was intended to apply, and further recites the passing of the Act reserved for the Royal assent for the purpose of explaining and amending the said Act as far as regards the effect of the proviso and of setting such doubts at rest, and that it had not received the Royal assent. It further recited that as well the principal officers of Her Majesty's ordnance as the private parties interested, were desirous that the doubts should be removed and all matters of difference between them should be fairly and amicably settled. The statute then proceeded to enact that the proviso in the preamble should be construed to apply to all the land at Bytown set out and ascertained and taken from Nicholas Sparks of the said town, Esquire, under the provisions of the statute 8 Geo. IV, except so much thereof as was actually occupied as the site of the Rideau canal as originally excavated at the Sappers' Bridge and of the basin and By-wash as they stood at the passing of the Ordnance Vesting Act, and excepting also a tract of feet in breadth on each side of the said canal, the portion of the said land so excepted having been freely granted the said Nicholas Sparks to the late Col. By of the Royal Engineers for the purposes of the said canal, and cj sexcepting also a tract of sixty feet round the said basin and By-wash which is freely granted by the said Nicholas Sparks to the said principal officers for the purposes of the said canal, provided no buildings be erected thereon. And that notwithstanding any thing in the last cited Act Geo. IV, or the statute of 2 Vic., or any decision of any court of law or equity, all the land to which the proviso was applicable should, if retained by the principal officers of the ordnance under the provisions. of that Act, be paid for by them in the manner provided by that Act, and any parts thereof not so retained and paid for, should be and were thereby declared to be absolutely revested in the said Nicholas Sparks or the parties respectively to whom the same may have been conveyed by him before the 10th day of May, 1846, to his or their own proper use forever, and such conveyances should not be invalidated by any want of possession in the said Nicholas Sparks, or adverse possession by the said principal officers at the time they were respectively made.
The second section"provides that the principal officers should within a month obtain a certificate from the Commander of the Forces in the provinces setting forth what parts of the land to which the proviso was applicable it was 'necessary to retain for the service of the Ordnance Department for military or canal purposes, and such parts now to be retained by and remain vested in the said principal officers in trust for Her Majesty, and the remainder, if any, should be immediately thereafter absolutely revested in~ the said Nicholas Sparks or the parties claiming under him to his and their proper use forever.
8. C.
The Act provided for the appointment of arbitrators to determine the compensation to be paid for the land T , retained, whose award was to be final.
** All the legislation on the subject from the passing of the Rideau Canal Act to and including Vir., ch. 42, I RWrs think shews that the lands set out by Col. By as necessary for the canal were considered as vested in the Crown. The statute 6 William IV. seems to have been considered necessary to enable persons who acquired title to the lands after the commencement of the works, though purchased before such commencement, to claim compensation. Then the Ordnance Vesting Act speaks of the land that has not been used for the canal being restored to the party or parties from whom the same was taken.
Then the statute of 9 Vic. refers to the land to be retained by the principal officers of the ordnance and any parts not retained should be absolutely revested in the said Nicholas Sparks, or the parties to whom the same may have been conveyed by him before the 10th May, 1846; then follows these words (clearly indicating that the legislature considered that such conveyances would be void under the statute of Henry VIII, unless made good by legislative enactment,) and " such conveyauce shall not then be invalidated by any want of possession in the said Nicholas Sparks, or adverse possession by the said principal officers at the time they were respectively made."
If, after the execution of the deed from Mc Queen to Col. By and before the passing of the Ordnance Vesting Act of 1843, a claim for compensation on the part of Col. By or the trustees of his estatal for damages for the land taken for the canal had been referred to arbitration, and the arbitrators had decided that no . compensation should be paid in consequence of the EXCREQUER OF increased value of the rest of the land, that would be a good reason why he should not entitled to the land not used the canal, but rather that should go to -the person from whom the land had been taken, all the more so if this conveyance as to the acres was void under the statute of Henry VIII
But the fact that Mc Queen was paid by Col. By the full value of all the land at the time of the execution of the conveyance-which I think may be assumed as an historical fact-would be some reason for inferring that the Legislature did not intend to restore land to parties who had been paid their full value, but rather to persons, like Sparks and those claiming under him, who had never received any compensation for any of the land taken from him for the purposes of the canal. Though not necessary in the view I take of the case to decide more than that the second proviso of the 20th section of the Ordnance Vesting Act does not under the facts and law applicable to the case as to the 110 acres in dispute give any title to the suppliants as representing the estate of Col. By; yet, as at present advised as to the proviso referred to, interpreted by the admitted facts of the case and the subsequent statute explaining it, I think it was only intended to apply to the lands of Nicholas Sparks at Bytown that had been set out and ascertained and taken under the Rideau Canal Act. Perhaps in interpreting these statutes I am going too far as to the external and historical facts which it is permitted to call in aid in interpreting statutes. But in a country which advances with such rapidity as Canada has for the last 50 years, where the value property and the supposed object of parties in relation to the purchase or sale of it is to be considered, we must endeavour to place ourselves in the position the parties were at the time the transactions took place; and in interpreting the Acts of the Legislature, we must endeavour to understand the circumstances to which they had relation and the sense with which the expressions were used. If we do not do this we shall fall short of doing justice between parties litigant. Having some historical knowledge of the difficulties arising between the Ordnance Department and persons residing at Bytown in relation to property taken for the purposes of the canal, having been retained as counsel in some of the suits arising out of those diffi. culties, I have no recollection of any dispute as to property there taken except what related to property that had belonged to Nicholas Sparks.
I am not aware that Col. By before his death, or that those claiming under him, until several years after his death, asserted any right to lands in Bylown set apart by him for the purposes of the canal, nor that Mrs. McQueen or her heirs had in any way asserted an interest in the 110 acres until long after the passing of the Ordnance Vesting Act and the Act explanatory thereof.
Referring to the statutes themselves and the facts appearing on the case, I think, as I have already stated, the proviso in the Ordnance Vesting Act was only intended to apply to the lands in Bytown taken for the uses of the canal which had belonged to Nicholas Sparks; any historical knowledge I have on this subject leads me to accord with this view.
I say nothing as to the propriety of Col. By acquiring for speculative purposes a property in the vicinity of a great public work constructed under his superintendence, which was likely to be increased in value by the money which was expended under his direction. Assuming this to be all correct and proper, there can be no doubt of this fact, that the 600 acres of land purchased by Col. By from William McQueen for, it is said, £1,200, have enormously increased in value, and that T this increase has been greatly contributed to by the expenditure in one way and another in Bytown, Otawa as it is now called, and its vicinity of very large sums of the public money, and the value of these 600 acres is estimated at hundreds of thousands of dollars. Those who inherit this property from and through Col. *
By, which has become valuable not by his or their labors, but chiefly through the expenditure of the pub. lic money and the energy and enterprise of the residents of the country, claim, in addition to what in this country may be called an enormous fortune, the 110 acres which it was Col. By's duty to have acquired for the Crown, whose servant he was and which he could only have, at the time it was conveyed to him, acquired the title to for his own benefit by a breach of his duty or by a fraud on the heirs of the former owner of the property. I do not believe he ever intended to perpetrate a fraud on the former owners of the property, or to acquire the title to the 110 acres for himself as against the Crown. I think what I have written disposes of the questions suggested in the case submitted, but I will refer to them by their number:
1. I am of opinion the Statute of Limitations is properly pleadable under section 7 of the Petition of Right Act of 1876.
2. William Mc Queen did take the lands by descent from his mother, if she died before the lands were set out and ascertained for the purposes of the canal. If she died afterwards, I think he did not, .
as they were vested in the Crown by statute when they were set out and ascertained for the purposes of the canal.
3. The right of compensation or damages, if asserted AedxtoI
YOndL II EXCHEQUER COURT OF CANADA. under the fourth section of the Rsdean Canal Act, would go to her personal representatives.
But if the land was obtained by surrender under the second section of the statute then I think the heir- -at-law of Grace Mc Queen was the person who would be entitled to receive the damages and execute the surrender. The distinction between money paid into court under different sections of the same statute is referred to in thejudgment of Kinderley, V C. in Re Harrop's estate (1).
4. The deeds of the 31st of January, 1832, and 6th February, 1832, are void as against the Crown so far as relate to the 110 acres in dispute, except so far as the same may be considered as a surrender to the Crown under the second section of the Rideau Canal Act.
The 9th paragraph of the statement of defence is a sufficient answer in law to the petition.
6. The defence set up in the 10th, 11th, 12th and 13th paragraphs of the statement of the Attorney General would be sufficient in law, supposing the statements therein were true.
7. The effect of the Acts set out in the 14th paragraph of the statement of defence is as stated in the 15th paragraph of the same statement.
8. If the claim is to be made by Grace McQueen's personal representatives under the 4th section of the Rideau Canal Act-and if any claim could have been made by her after the completion of the canal it could only be made under that section-I am of opinion that the Acts referred to in the 16th, 17th, 38th and 19,h paragraphs have an application to this case and would constitute a bar against all claims to be made under the Rideau Canal Act. - As to the claims to be made by the heirs of Col. Ts
By, I have already expressed my opinion, they have 9* no claims under any of the statutes.
If the Ordnance Vesting Act vested these 110 acres of land in the heirs of Col. By, I am not prepared to say that their claim has been barred by laches on the statement set out in the petition. But I do not think the statute had that effect, or that By or his legal representatives ever had for his or their own use and benefit any title to these 110 acres.
I am therefore of opinion, on the case submitted to me, that the suppliants fail, and that the Crown is entitled to judgment againt them with costs.
Petition dismissed with costs. Solicitors for suppliant : Pinhey, Christie ( Hill. Solicitors for respondent : Mowat, faclennan 4 Downey. IN THE MATTER OF THE PETITION OF RIGHT OF
JAMES ISBESTER ........
........ ...................
of-Extra for-Damages-31 Appendi
U TO
A A
YOL.II.' EXCHEQUER COURT OF
A00ADA. for the erection inter alia of certain engine houses according to plans and specifications deposited at the office of the chief engi- "I-, neer at Ottawa. J. I. tendered for the erection of an engine e. house at Afatepediac, and in October following he was instructed THE by the commissioners to proceed in the execution of the work, according to his accepted tender, the price being $21,989. The work was completed and delivered to the Government in Oct., 1874. The specification provided as follows: "The commissioners will provide and lay railway iron, and will also provide and fix cast-iron columns, iron girders, and other iron work required for supporting roof."
In September, 1873, J. I. was unable to proceed further with the execution of his work, in consequence of the neglect of the commissioners to supply the iron girders, &c., until March following, owing to which delay he suffered loss and damage.
During the execution of the work, J. I. was instructed and directed by the commissioners or their engineers to perform, and did perform, certain extra works not included in his accepted tender, and not according to the plans, drawings and specifications.
By his petition of right, J. L claimed $3,793.75 damages in consequence of the delay on the part of the commissioners to provide the cast-iron columns, &c., and $8,505.10 for extra works. The Crown demurred and also traversed the allegation of negligence and delay, and admitted extra work to the amount of $5,056.60, and set up the 18th sec. of 31 Vic., ch. 13, which required the certificate of the engineer-in-chief as a condition precedent to the payment of any sum of money for work done on the Intercolonial railway. By 37 Yic., ch. 15, on the lst June, 1874, the Intercolonial railway was declared to be a public work vested in ier Majesty and under the control and management of the Minister of Public Works, and all the powers and duties of the commissioners were transferred to the Minister of Public Works, and sec. 3 of Vie., ch. 13, was repealed, with so much of any other part of the said Act as might be in any way inconsistent with 37 Vic, ch. 15.
Held-lhat the tender and its acceptance by the commissioners constituted a valid contract between the Crown and J. I, and that the delay and neglect on the part of the commissioners acting for the Crown to provide and fix the cast-irin columns, &c., which were, by the specifications, to be provided and fixed by them, was a breach of the said contract, and that the Crown was liable for the damages resulting from such breach.
2. That the extra work claimed for, being for a sum less than $10,000, R. THIS was a petition of right by which suppliant claimed from the Government of Canada the sum of $8,060 17 for extra work and damages in connection with the erection of an engine house at Mdlapidiac Road, on the Intercolonial Railway.
The petition alleged inter alia :
" That in or about the month of January, one thousand eight hundred and seventy-two, the Intercolonial Railway Commissioners advertised for tenders for the erection of station buildings at Gacouna, Isle Verte, Trois Pistoles, St. Simon, St. Fabien, Bic, Rimouski, Ste. Luce and M6lapediac Road, and also for tank houses and wood sheds at Isle Veire, Trois Pistoles, Bic, Rimouski and Mitapddiac Road, and also for the erection of engine houses - at Riviere du Loup, Rimouski and Metapddiac Road, on the line of the said Intercolonial Railway, the said advertisement being as follows, to wit:
"The Commissioners appointed for the construction of the Intercolonial Railway give public notice that they are prepared to receive tenders for the erection of station buildings at Cacouna, Isle Verle, Trois Pistoles, St. Simon, St. Fabien, Bic, Rinouski, Ste. Luce and YOL.
Milapddiac Road; and also for tank houses and wood sheds at Isle Verte, Trois Pistoles, Bic, Rimouski and Milapidiac Road; also, for engine house at Rividre dun . Loup, Rimouski and Mdtapidiac Road.
"Plans, specifications and forms of tender may be seen on and after 20th February, at the office of the Chief Engineer, Ottawa, at Rivibre du Loup and Rimouski.
"Tenders may be for the whole or any less number of these buildings, and will be received, marked "Tenders for Buildings," at the Commissioner's Office, Ottawa, up to 12 o'clock noon, of the 20th day of March next.
"A. WALSH,
"ED. B. CHANDLER, " 0 J. BRYDGES, " A. W. McLELLAN. "Commissioner's Office, Ottawa,
" January 12th, 1872."
"That according to the said advertisement, plans and specifications, your suppliant, in or about the month of March, eighteen hundred andseventy-two, tendered for the erection of the engine house at Mdtapddiac Roid;that his said tender was on a form furnished by the said Intercolonial Railway Commissioners, was signed by the said suppliant, then carrying on business as ' James Isbester 4- Co.,' and by his two sureties, Alexander Macdonnell and .Martin Lynch, and was for the sum and price completed of twenty-one thousand nine hundred and eighty-nine dollars, current money of Canada.
" That subsequently, to- wit, in or about the month of September, eighteen hundred and seventy-two, your suppliant was duly notified by the said Intercolonial Railway Commissioners that his said tender had been accepted, to wit, his tender for the erection and completion of an engine house at Mdlap6diac Road, according T to the plans, specifications and conditions exhibited as aforesaid, for the said sum or price of twenty-one thousand nine hundred and eighty-nine dollars, current money of Canada.
"That subsequently, to wit, in or about the month of October, one thousand eight hundred and seventy-two, your suppliant was instructed by the said Intercolonial Railway Commissioners to proceed to the execution of the said work, according to his said accepted tender, although no other writteii contract or document had been prepared, or ever has been prepared, up to the present time, for the signature of your suppliant. - "That your suppliant has always been willing to sign a contract according to his said accepted tender and to the specification aforesaid, but was never requested to do so by the said Commissioners.
"That upon being duly advised of the acceptance of his said tender, and being notified as aforesaid to proceed to the erection of the said engine house, your suppliant did immediately proceed to the execution of the said work according to his said accepted contract and in strict accordance with the plans and specifications furnished to your suppliant by the said Intercolonial Railway Commissioners.
"That by the said specifications, it is provided as follows:-' The commissioners will provide and lay railway iron, and will also provide and fix cast iron columns, iron girders and other iron work required for supporting roof.'
"That on or about the thirtieth day of August, 1873, your suppliant notified the said commissioners through Samuci 114aZeroood, Esquire, their district engineer, that the said engine house was then so far completed VOL. VII. I EXCHEQUER OF as to be provided with the cast iron columns, iron girders and other iron work required for supporting the roof, and that he, the said suppliant, could not proceed further with the execution of his said work until the said cast iron columns, iron girders and other iron work required for supporting the roof were so provided and fixed.
"That nevertheless the said commissioners and their duly authorized agents and engineers neglected and refused to comply with your suppliant's request, and that the said cast iron columns, iron girders and other iron work required for supporting the roof were only provided and fixed on or about the first day of March, one thousand eight hundred and seventy-four, in consequence of which delay and detention your suppliant was caused great inconvenience, expense, delay and loss of time and labor, and other consequent loss and damages, as detailed in the following statement, to wit:- The demolishing and re-building three engine pits left exposed and entirely destroyed by ice and frost for want of roof, 70 cubic yards, at $16.00............ $1,120 00 To 48 days of bricklayers' repairing damagedJparts throughout rest of buildings at $4.00........ .........
..........
172 00 To 43 days of laborer attending, at $1 25
58 75 To brick and mortar used at repairing, &c.
To 6 months' salary paid to foreman to retain his services till following spring, to complete the work, at $100 per month
600 00 To 6 months' keep of horses and man attending for same reasons, at $50.00 per month............
.
.........
300 00 To months' time of suppliant, at $250.. 1,500 Amounting in all to the sum of three thousand seven hundred and ninety-five dollars and seventy-five cents. " And your suppliant further alleges that your suppliant also, during the execution of the said work, was put to great expense and obliged to. perform a large quantity of extra work and provide labor and materials not included in the said accepted tender, and not according to the plans, drawings and specifications furnished to him at the time of the letting out of the said works by the said commissioners, but which, in consequence of alterations and modifications made in the drawings and plans of the building by the said commissioners or their engineers, and in consequence also of orders specially given to your suppliant by the said commissioners or their engineers and agents, your said suppliant was instructed and directed to perform and provide and did perform and provide.
" That the extra work, labor and materials performed and provided, as above stated by your suppliant, by order of said commissioners or their engineers and agents, duly authorized and duly accepted by them, and for the value of which he claims payment 'from the Government of Canada, are as follows, to wit: To fencing removed and put up (654 lineal feet) at 5 cts.........
......
$
32 70 To clearing and grubbing site of engine house .................
..........................
50 00 To digging test pits.................
10 00 To 8,150 lineal feet of cedar, at 10 cts., as culvert off-take drain, 600 feet long.....
815 00 To 766 cubic yards excavation for do.
handled twice, at 40 cts....................
806 40 To 75 cubic yards excavations in sinking well in engine house, at $2...............
150 00 POL. VII.
To 1,260 cubic yards excavation in engine house, hauled and placed on bank, at 25 cts......
................... To 47 cubic yards of masonry in curb of well, at $8......
.. .. ............ To 56 cubic yards brick work in extension of engine wall pits under track stringers, at $12...........
...... To carriage of roof of engine house from Rinouski to Ste. Flavie..................... To 20 cubic yards brick work in extra thickness of engine pits wall, caused by allowing for narrow gauge, at $16. To 24 cubic yards cut stone for base of columns, got out 15 in. square; new ones substituted 21 in. square, at $2... To more work for the support .of bricks on the outside of lintels over 4 windows, at $6.........
.............. To 83 cubic yards rubble; masonry to foundations of walls forming shops in engine house, at $8.....
......... To 33 cubic yards of additional brick work in engine pits, at $16............... To 131 cubic yards of brick work in walls forming shops, at $16............... To four-pannel doors, complete to shops, at $12..................
...... To enlarging two main doors, viz.: demolishing brick work and re-building same, lengthening frames, making two new doors, and additional work to roof in consequence of said alterations $3,635 10 528 00 2,096 00 72 00 To changing track stringers from broad to narrow gauge............
................
To extra cost of stone and dressing to 24 window sills, in consequence of their being the full thickness of the-walls, at $12.............
.........
To putting stove-pipe rings on 11 smoke stacks, at $4 ......
............
To reducing height of 11 smoke stacks so as to give sufficient height to engine, at $2 ...............
........
To 180 squares furring to ceiling for plastering, at $2.50 ..............
To 8 cubic yards of brick to beam filling, at $16 ....................
To 18 squares of double partitions with large sliding doors, at $6..................
78 00 $8,505 10 "Amounting in all, for the said extra work, labor and materials, performed and provided as aforesaid by your suppliant, to the sum of eight thousand five hundred and five dollars and ten cents.
" That the prices claimed for the said extra work, labor and materials are according to the- true value thereof, and~are based on the estimates made by and certified to from time to"time by the engineer of the said commissioners in charge of the said work (a copy of one' of said estimates, including prices, being hereunto annexed, and marked Exhibit B), and are, moreover, in proportion to the sum or price completed, asked by your suppliant in his said accepted tender.
" That in or about the month of October, one thousand eight hundred and seventy-four, the erection of the said engine house, together with the said extra works YOL. VIl. and materials, were completed by your suppliant, and that the said engine house and all extra works and extra materials performed and provided as aforesaid, were then and there delivered to and accepted by the Minister of Public Works of Canada, or his duly authorized agents and engineers, in the name of Her Majesty, the said Minister then acting in virtue of the statute pasied in the thirty-seventh year of Her Majesty's reign, by the Parliament of Canada (37 Vic., ch. 15,) intituled: ' An Act to amend the Act respecting the construction of the Interoolonial Railway,' by which statute the powers of the said Intercolonial Railway Commissioners were transferred to and vested in the said Minister of Public Works of Canada, from and after the first day of June, one thousand eight hundred and seventy-four. That all orders given to your suppliant relating to the erection of said engine house and extra works and materials thereon, after the said first day of June, one thousand eight hundred and seventy-four, were so given by and under the authority of the said Minister of Public Works, acting under the said statute, or by his duly authorized engineers and agents, and all estimates prepared and certified to after the said date were so prepared and certified to under the said statute and under the authority of the said Minister.
"That the accepted tender of your suppliant having been for the sum of......$21,989 00 "His aforesaid claim for damages,expense, loss of time and labor, and other consequent loss and damages as detailed above, being for the sum of........ ......
3,795 75 "And his claim for extra work and labor and extra materials, as detailed above, being for the sum of........................
8,505 10 $34,289 "The total is thirty-four thousand two hundred and ISBEsr eight-nine dollars and eighty-five cents, from which, deducting the sum of twenty-six thousand two hundred and twenty-nine dollars and sixty-eight cents, -eceived by your suppliant at different dates, there emains due to your suppliant by the Government of Canada a balance of eight thousand and sixty dollars and seventeen cents ($8,060.17)."
To this petition Her Majesty's Attorney General for the Dominion of Canada filed the following demurrer and statement of defence:- " I, the honourable Tousaint Rudolph La/lamme, Her Majesty's Attorney-General for the Dominion of Canada, on behalf of Her Majesty, by protestation, not confessing or acknowledging all or any of the matters or things in the said petition contained to be true in such manner and form as the same are therein set forth and alleged, do demur thereto and to the several paragraphs thereof; and for causes of demurrer state:- " 1. That no sufficient case is shown in said petition, or in any of the several paragraphs thereof, for any relief against Her Majesty.
" 2. That it does not appear in and by the said petition that the contract under which the suppliant claims the amounts mentioned and set out in his said petition from Her Majesty was ever sanctioned by the Governor in Council, as required by section sixteen of the Act of the parliament of Canada, entitled " An Act respecting the construction of the Intercolonial Railway," passed in the thirty-first year of Her Majesty's reign.
" 8. That it does not appear in and by the said petition that the Chief Engineer of the Intercolonial Railway has certified that the work for or on account of which the suppliant claims to recover in his said petition, or any part thereof, has been duly ixecuted, or that the suppliant is entitled to be paid therefor or any part thereof, nor that such certificate has been approvd of by the commissioners of said railway, as required by section twelve of the said " Act respecting the Intercolonial Railway," or by the Minister of Public Works of the Dominion of Canada, to whom the duties and powers of the said Commissioners were transferred by an Act of the parliament of Canada, passed in the thirty-seventh year of Her Majesty's reign, intituled " An Act to amend the Act respecting the construction of the Intercolonial Railway."
" 4. That Her Majesty is not responsible in a proceeding by way of petition of right for the damages or injuries mentioned in the said petition, or any part thereof.
" 5. That if the said Commissioners, or their engineers or agents, or any of them, exacted or required the suppliant to perform any or different work, or to supply any more or different material than that included in the suppliant's tender, or not according to the plans, drawings, and specifications furnished to him at the time of letting, the performance or supply thereof by the suppliant was voluntary, and Her Majesty is not responsible therefor.
"And I, the said Tousaint Rudolph Laflamme, on behalf of Her Majesty, not waiving any of my said several causes of demurrer, but wholly relying and insisting thereon,-for defence to so much of the said petition as I am advised it is material or necessary for me to make answer, say as follows:
" 1. I admit, on behalf of Her Majesty, paragraphs 1, 2, 8, 4, 5, 6, 1, 8 and 9 of the suppliant's petition.
I deny that on the thirtieth day of August, one thousand eight hundred and seventy-three the said engine house was then so far complete as to be ready EXCREQUER COURT OF CANADA.
ou. VI. for the cast iron columns, iron girders, and other ironwork required for supporting the roof, and that the said ' suppliant could not proceed further with the execution of the said work until the said cast iron columns, iron girders, and other ironwork required for supporting the roof were so provided and fixed; but, on the contrary, I say that the said building was not ready for the iron work until much later in the year.
" 8. I deny that the said Commissioners, or their agents. or engineers, neglected or refused to comply with the suppliant's request to supply the said cast iron columns, iron girders, and other iron work for supporting the roof, alleged in paragraph eleven of the suppliant's petition, or that the suppliant was occasioned the loss or damage alleged in said paragraph, or any loss or damage, in consequence of any delay upon the part of the commissioners, their agents or engineers, in providing or fixing the said columns, girders and other iron work; but, on the contrary, I say that if the suppliant suffered any loss or damage in consequence of the said columns not being fixed until about the first day of March, A. D. 1874, it was entirely because of the fact that he had not the building ready to enable the fixing of the said columns, girders, and the other iron work in connection with the said roof to be proceeded with by the agents or workmen of the said commissioners, earlier than the day last mentioned.
"4. I admit that the suppliant performed some extra work and provided some labour and material not embraced in the plans, drawings, and specifications, with respect to which he entered into his said contract with the commissioners, but I say the commissioners took account of all such work, labour and materials, and recommended payment for so much thereof as was not OF CANADA. within the said contract, at fair and reasonable and proper prices.
"5. The amount recommended and fixed by the said commissioners to be paid to the suppliant in respect of the said extra work, labor and materials so performed and supplied by him as aforesaid, was the sum of $5,056.60, and I say, save the work, labour and mate. rials so allowed for by the said commsssioners, there was not any other work, labor or materials performed or supplied by the suppliant, not embraced in his said contract, and I say that the sum of $5,056.60 was, and is, a fair, reasonable, and proper sum or allowance for the said work, labor and materials.
" 6. I deny that the extra work, labor and materials performed and provided by the suppliant, at the request of the commissioners, is. as is set out and described in paragraph thirteen of the suppliant's petition, or that the prices claimed by the suppliant for the extra work so set out and mentioned, as set forth in said paragraph are according to the true value of the extra work, labor and materials done and provided by the suppliant, or that they are based on the estimates made and certified to from time to time by the engineer of said commissioners, as stated in paragraph fourteen of the suppliant's petition; but, even if they be so based, I say the said estimates made and certified by the said engineer were merely progress estimates, and were not binding upon the said commissioners, or upon Her Majesty.
" 7. The said suppliant was paid, from time to time, various sums of money, amounting in the whole to the sum of $26,228.70, including a sum of four hundred dollars which it was agreed between the suppliant and the commissioners should be deducted from the amount coming to the said suppliant in respect of his said contract and works, for transportation of material by the said commissioners for the said suppliant.
.
" 8. In and by section twelve of the Act of the Parliament of Canada entitled "An Act respecting the construction of the Intercolonial Railway of Canada " under the provisions of which the said contract was entered into and the said work, labor and materials done and supplied, it is provided " that no money shall be paid to any contractor until the chief engineer shall have certified that the work for or on account of which the same shall be claimed has been duly executed, nor until such certificate shall have been approved of by the commissioners-and I say the chief engineer of the said railway has not certified, save to the extent of $792.06 as hereinbefore mentioned, that the work for on account of which the sums sought to be recovered by the suppliant in his petition are claimed has been duly executed, nor has any such certificate been approved of by the said commissioners or the Minister of Public Works of the Dominion of Canada.
" 9. I deny that there is remaining due to the suppliant for and in respect of the work, labor and material performed under his contract or otherwise as in his said petition is alleged, the sum of $8,060.17, but on the contrary I say there is only due to the said suppliant the said sum of $792.05, which Her Majesty offered to pay but which the suppliant refused.
" 10. I charge and submit on behalf of Her Majesty, having regard to the terms of the said Act of Parliament and of the said contract and to the facts and circumstances of the case, there is nothing due from Her Majesty to the suppliant save the afbresaid sum of $792.05, which,on behalf of Her Majesty, I hereby tender him and that save as to that sum he has no just claim in to1
EXCHEQUER COURT OP CANADA. the premises and that the said petition ought to be dismissed with costs."
Mr. H. T. Taschereau, Q.0., appeared for the sup.TtrQuneg. pliant, and Mr. A. F. McIntyre for the Crown.
Fournier, J. over-ruled the demurrer for the following reasons;
"Consid6rant que la d6fense au fonds en droit (demurrer) produite par 1'hon. Procureur G6n6ral au nom de Sa Majest6, d6fenderesse en cette cause, est dbrig6e contre toutes et chacunes des all6gations de la petition en cette cause dont le renvoi en entier eat demand6 par la dite d6fense au fonds en droit;
" Consid6rant qu'il eat formellement admis de la part de Sa Majest6 que la somme de $792.05 eat due au p6titionnaire pour la balance de sa r6clamation, et que le paiement d'icelle somme lui a 6t6 offert par la dfense en cette cause;
" Consid~rant que l'offre de payer la dite somme eat en r6alit6, quant A cette partie de la demande, une r6nonciation aux moyens invoqu6s par la d6fense au fonds en droit; que partant la conclusion d'icelle eat trop g6n6rale en ce qu'elle s'attaque 6galement i cette partie de la demande admise comme susdit, pour laquelle dans tous les cas, jugement devrait intervenir conform6ment & la dite admission, en faveur du p6titionnaire;
La cour renvoie la dite d6fense au fonds en droit (demurrer) avec d6pens."
And on the 23rd December, 1878, judgment was delivered on the merits.
J.:- In the month of January, 1872, the commissioners appointed for the construction of the Intercolonial rail- Appendit way gave public notice that they were prepared to receive tenders for the erection of certain railway stations and engine houses according to plans and H specifications deposited at the office of the chief engi- J.neer, Ottawa, and at other places mentioned in the public notice.
In the month of March following, the suppliant tendered for the erection of the engine house at Metapediac Road on the required form, and it was only in the month of September following that his tender was accepted.
In the month of October following the suppliant was duly instructed by the said Intercolonial railway commissioners to proceed to the execution of the said work according to his accepted tender. The contract price was $21,989.
This contract was entered into simply by the commissioners' acceptance of the suppliant's tender to execute the works according to the plans and specifications which had been made. The works under contract, the details of which appear in the plans and specifications, were completely executed and delivered to the Government, who took possession of them in the month of October, 1874.
The specifications contain a clause that the works were to be completed on the 15th September, 1873, but the tender having only been accepted in September of that year, and instructions to proceed with the work only in October following, it is evident that the condition was waived as being impos. sible to be carried out.
The suppliant's claim is as follows:-[The learned judge then read the items of the claim as stated in the petition.] (1).
On the execution of the contract thus entered into, the only question which arises is that which has reference to the suppliant's claim for damages in conse. quence of the commissioners' delay to proceed with a part of the works which they had contracted to pro' amI33N. vide and execute themselves.
These works are thus Fou-ierJ. enumerated in the specifications:
About the thirtieth day of August, 1878, the suppliant notified the commissioners through Samuel Hazlewood, Esquire, their district engineer, that the said engine house was then so far completed as to be provided with the cast-iron columns, iron girders and other iron work required for supporting the roof, and that he the suppliant could not proceed further with the execution of his work unless the cast-iron columns, iron girders and other iron work required for supporting the roof were provided and fixed in accordance with the specification.
The commissioners and their agents neglected to comply with this request, and it was only about the first of March, 1874, that the iron works were provided. This delay caused great damage to the sup.
pliant, and his claim for the same is alleged as follows in the petition of right:
The Crown answered the petition by a demurrer which has been adjudicated upon.
The Crown also pleaded to the merits, admitting paragraphs 1, 2, 8, 4, 5, 6, 7, 8 and 9, and denying the remaining paragraphs, and specially the allegation that the building was ready on the 30th of
August, 1873, to receive the iron columns and iron girders which were necessary to support the roof, but, on the contrary, that the building was not ready till a -e long time afterwards.
The defence also avers that there was no delay or negligence on the part of the commissioners to comply with the suppliant's request to provide the necessary iron work, and denies that the suppliant suffered any damage; the Crown, on the contrary, asserts that if the iron columns and iron girders were only fixed on the 3rd of March, 1874, it was solely because the building was not ready before that time.
The 4th and 5th paragraphs of the defence admit that extra works were performed by order of the commissioners and by the engineer, but the amount to be paid for them had been fixed and determined by them at the sum of $5,056.60.
By the 8th paragraph the Crown pleads that by the Intercolonial Railway Act of Canada, in virtue of which the,present contract had been entered into, it is enacted in the 12th section (this is an error, it ought to be the 18th section):- That in this case the chief engineer's certificate was only given for the sum of $792.05, which amount the Government has tendered to the suppliant, who refused In this case the following questions are to be determined:
1st. Was there on the part of the commissioners in providing the iron works, which were by the specifications to be provided and fixed by them, such delay and COURT OF neglect as to cause damages to the suppliant ? and to what amount should be fixed the damages?
2nd. Is the Crown responsible for damages resulting like these from breaches of the contract ?
Were the extra works claimed by the suppliant J. duly ordered, and has the suppliant the right to claim their value? What extra works were performed and what value was proved?
The contract having been completely executed, no question can now arise as to its legality.
It is not for the Crown now to aver that it is not a valid contract, becanse it was not passed in conformity with all the provisions contained in the Intercolonial Railway Act of Canada. The Government by accepting the work thereby waived all irregularities which may have taken place in making the contract, and has also lost any right to attack its validity. Considering, therefore, the contract as unimpeachable, it only remains for me to ascertain if the suppliant has established by the evidence that the commissioners have really been guilty of the delays and negligence with which they are charged. After the most careful consideration of all the evidence of this part of the case, I have come to the conclusion that the suppliant has clearly established his contention on this point. In support of my view of the case, I will give the following extracts of the evidence of the principal witnesses :- J. Young, foreman employed by the suppliant, says: L PII. do work outside then in the bad weather. The walls were all ice, a and were destroyed by the frost on the top. They had to be all fixed over. That work could not be done before spring on account TiE of frost. If we bad had the roof there in September we would have o had the building finished by the time we commenced.in the spring. Fournier, J.
Supposing the building of the roof had been gone on with when we were ready, we would have been ready to complete the building in the winter. We would have had a roof over us during the winter. It was possible to complete the roof before the bad weather came on: It would take from three weeks to a month to put up the roof. It took me that time to pub up one at Thunder Bay, Fort William. John Lindsay, C. E.:
Present to a conversation between Hazlewood (district engineer in charge of the work) and Isbeater about the detention and delay caused to him by the Government. This was about September, 1873, The iron girders were not ready when required to proceed with the building. Visited the building with Hazlewood, and found the work stopped. I heard Bazlewood say it was a very unfair thing that Mr. labeater should be delayed in his work, he was ready for it, and he should certainly be remunerated for the time he was delayed and detained.
This conversation took place in July or August before my visit on September. The work was then stopped, and it was on account of that.
Henry J. Cambie, C. E., employed by the Department of Public Works: - Was in charge of the work in question in this case, under Hazlewood. Went on the spot twice or three times a month. He is aware that the building was ready for the iron work before the iron work was commenced. He gives a detailed description of the advanced state of the work, and says that the brickwork of all the walls was a considerable height up. To the ques- If the iron girders and other iron work had been ready then would the iron work have been proceeded with?
He answers :
It would have taken a very short time to have finished any particular piece that was wanted.
nOL.
OF CA
A. Shortly afterwards, on the 17th September, 1878, he laid out the pillars and gave him (fsbester) centres on them. Judging from his memoranda, part was not ready in the beginning of September, but it might have - .been at any time it was wished. He (Isbester) could have got ready any part that was wanting ready in less than a week.
Do not these witnesses prove positively that early in September the work was sufficiently advanced to receive the iron work? This fact was known by the commissioners, as stated by Cambie, the engineer put in charge of the works by them. On the 17th Septembert Cambie directed where the iron columns were to be placed, but the iron work provided by the commissioners was not put on the spot till it was too late for the contractor to avail himself of the end of the season in order to complete his work before the bad weather of the fall.
At the time the roof was fixed, in January, 1874, it was impossible to finish the work still necessary to do outside. He was obliged to wait till spring, and the entire winter was lost for the work which he could have proceeded with had the roof been put on earlier; and when it was put on, the walls were then covered with ice and damaged by the frost. evidence clearly shows that the roof could have been put on in three weeks, so that the commissioners had, before the bad weather of the autumn could set in, all September and October to execute the part of the work which they had contracted to perform. By not proceeding with the work at the proper time they not only prevented the contractor from going on with his works without interruption, but they obliged him to suspend his works in September, and to spend the whole winter idle. That on account of this negligence and delay the suppliant suffered damages there can be no doubt, and the evidence on this point is conclusive, and in support of this fact I will cite the following extracts
William Henry Stevenson, contractor:
Worthington, contractor:
The suppliant's claim for these damages are detailed in items 27, 28, 29, 30, 31, 82 and 33 of the petition. I will further on state the amounts which have been established by the evidence.
2. I have thus far shown that the suppliant has suffered damages in consequence of a breach of contract on the part of the commissioners, acting for the Crown, in not providing in time the necessary iron work; it now remains for me to consider whether contrary to the respondent's contention, the Crown can be made responsible for such damages. This all important question, fortunately for me, is not a new one. It has before been contended that a petition of right will not lie for a breach of contract claiming unliquidated damages. In the case of Thomas v. The Queen the question was decided affirmatively by the Court of Queen's Bench in England. In that case the suppliant who was an inventor of a system of heavy rifled artillery, had entered into an agreement with the Secretary of State for War to refer his invention to the Ordnance Select Appendix
EXCHEQUBR COURT OF CANADA. Committee at Woolwich, and to furnish the committee with such descriptions and drawings or models as might be necessary to enable the committee to give an opinion on the subject, and also attend the committee in order to give his personal explanation. The con- F sideration of the agreement was that in the event of the invention being approved of and being adopted by Her Majesty's service, a reward in that behalf should be given to the suppliant and the amount of the award should be determined by Her Majesty's Master General and Board of Ordnance.
He averred also having incurred heavy expenses in perfecting the invention, that Her Majesty's government promised that in event of certain trials, then about to be made, being successful, his expenses should be reimbursed to him by the government. He also averred that although all conditions precedent had been fulfilled, yet the amount of the reward had not been determined, not had the same nor any part thereof been paid to the suppliant. There was a demurrer to the petition and the Attorney General on the argument having declined to press any objection which could be covered by an amendment, the question argued before the court was stated as follows. That a petition of right will not lie for any other object than specific chattels or land, and that it will not lie for breach of contract nor to recover money claimed either by way of debt or damages.
Mr. Justice Blackburn delivered a most elaborate judgment on these questions, but I will only refer to such parts of his judgment which are applicable to the point under consideration, viz., whether a petition of right will lie for a breach of contract resulting in unliquidated damages (1); he says:
\l20
EXCKEQTIER COURT OF CANADA.
and the Attorney General, sueing on her behalf, can enforce those 'm contracts against the subject; and if the subject has no means of enforcing the contract on his part, there is certainly a want of re- TuE QUiN. ciprocity in such cases. But it is quite settled that on account of her dignity no action can be brought against the Queen redress, if any, must be petition of right, which is now regulated by 23 & 24 Vic., ch. 34.
If the suppliant ultimately recovers, ho obtains, under section 9, a judgment of the court that he is entitled to such relief as the court shall think fit, and this form of judgment would be applicable to the case in which it appeared to the court that the plaintiff was entitled to be paid damages for the non-fulfilment of a contract. It appears that at the time of the passing of the Act there was a general impression that a petition of right was maintainable for a debt due or a breach of contract by the Crown; the opinion to that effect, expressed in Lord Soner's argument in the Banker's case (1) has been adopted by Chief Baron Comyna. (1 Com. Dig Prerogative, D. 68) and by Sergeant Manning in his treatise on the Practice of the Court of Exchequer, where he says, (2) that " chattels, personal debts or unliquidated damages may be recorded under it * * *." Indeed, the framers of the Act appear to have considered its chief utility to consist in the applicability of its improved procedure to petitions on contracts between subjects and the various Public Departments of the Government, so vastly on the increase in recent years, both in numbers and importance; whilst petitions of right, in respect of specific lands or chattels, must for the future be exceedingly rare.
But, as the Ith section of the Act just cited expressly provided that " nothing in the statute shall be construed to give the subject any remedy against the Crown in any case in which he would not have been entitled to such remedy before the passing of the Act," it became necessary to determine the correctness of the general impression referred to, and whether, before the passing of that statute, a petition of right lay in respect of the non-fulfilment of a contract made by an authorized agent of the sovereign.
The decision on this point is of the greatest importance here as by our Act (39 Vic., ch. 27) making further (1) 14 How. St. T. p. 39.
(2) Page 84.
M. C. R. ' provision for the institution of suits against the Crown by petition of right, it is enacted (1) that " the Act shall give to the subject here only such remedy against THE . the Crown as he would have been entitled to in Eng- land under 23 and 24 Vic., ch. 34.
This last statute only gave a remedy in a case in which the subject would have been entitled to such remedy by the laws in force there prior to its passing. It necessarily follows that, if prior to the passing of the 23 and 24 Vic., ch. 34, the subject in England had no right to petition for the non-fulfilment of a contract, the subject in Canada would be in the same position, as our Act declares that the rights of the subjects are the same.
Mr. Justice Blackburn, after a most full and elaborate review of all the arguments and authorities on this question, decides it in the affirmative. I will only cite his concluding remarks (2):
In Comyns' Digest, Prerogative, D. 78, it is said that petition lies if the King does not pay a debt, wages, &o. citing Lord Somers' argument 85 i and Chief Baron Comyns expresses no doubt to the soundness of the doctrine thus cited by him. It appears in Aacbeth v. Haldeman (3) that Lord Thurlow and Buller, J. (both obiter, it is true), expressed an opinion that a petition of right lay against the Crown on a contract; and a similar opinion seems to have been expressed by the Barons of the Exchequer, in Qldham v. Lords of the Treasury (4), and in Baron de Bode's case (5), in which the point was raised, though not decided. Lord Deiman declares "an unconquerable repugnance to the suggestion that the doors ought to be closed against all redress and remedy," a doctrine much resembling what Lord Somers calls Lord Hoet's "popular opinion," that if there be a right there must a remedy. In Viscount Canterbury v. Attorney General (6), it was decided that the sovereign could not be sued in petition of right for negligence i and in Tobin v. The Queen (7), (I) -Sec. p. 3.
(4) 6 Sim. 220.
(2) P. 43.
(5) 8 Q.
B. 274.
(3) 1 T. R. 178.
(6) 1 Phill. 306.
(7) C. B. N. S. 310.
that petition Four-r, In accordance with this decision and the authorities there cited, I hold that in the case of the non-fulfilment of a contract the Crown is responsible for the damages resulting to the other contracting party.
The damages claimed by the suppliant in this case are enumerated in the petition under items 27, 28, 29, 30, 81, 32 and 83, and amount in all to the sum of $3,792, but the suppliant has failed to prove several of these items. As to item 27 for work demolished and rebuilt in consequence of damages caused as above stated, it is proved by the evidence of James Young, foreman, Lindsay, Smitlee & Worthington, viz. : $1,120.
Item 28, taking Young's evidence, should be reduced to 36 days at $3 per day, viz., instead of $ 172, $108; also item 29 to be reduced to $36.
As to item 30, there is no evidence as to the quantity of mortar, &c., used, and having nothing to base an estimation I cannot allow anything.
Item 81, for six months' wages paid to Young, foreman, during the stoppage of the work, I think I must refuse the amount, although there is evidence that it has been paid. The suppliant, wishing to secure Young's services, engaged him at $100 per month until the contract would be completed, without stipulating, in case the works for some reason or other might be (1) 6 B. &
(2) 1.
VII. 1 EXCHEQUER COURT OF CANADA.
stopped, that he might dispense with his services.
is more on account of the bargain made than on account of the delays catsed by the Commissioners in executing the work they were obliged to make, that J. the suppliant paid the amount.
As to item 32, I will not allow anything for the keep of the horses, but as there is evidence that it was necessary to have a watchman to look after the suppliant's property during the stoppage of the works, I will allow $1.25 per day during the six months to the watchman, viz., $227.
There is no evidence as to item 38.
The total amount of damage, according to the evidence, to which the suppliant is entitled amounts to $1,491.
Now, as to the extra work claimed.
The evidence is conclusive, especially that of Mr. Schrieber, assistant engineer-in-chief, that orders to execute these extra works were duly given, with the exception of a few items to which I will refer later on, and which
Mr. Schrieber says formed part of the contract, the total amount of the extra work claimed amounting in all to $8,305.
The Commissioners had power to order it without being bound by the provisions of the Intercolonial Railway Act which have reference to contracts over $10,000.
On this point of the case there can be no legal difficulty, the only one which exists is as to the value of the extra work executed, as there is a wide difference of opinion between certain witnesses.
In order to justify the conclusion, at which I have arrived, to adopt the prices-charged by the suppliant in most cases, I will cite certain parts of the evidence.
As to the brickwork, Robert White says, the brick was worth at Ottara in the fall of 1872 $14 per 1000,
OL II.nd paid that price himself. Would have charged at Ottawa $12 per cubic yard.
James Young says the brick cost from $12 to $14 per thousand at Rimouski. That was the current price. Fouer, J. was an awfully high rate to haul brick from Rimouski to S.e. Claire, either $14 or $16 per thousand. I think it was more than the value of the brick. To lay it when on the spot cost $8 or $4.
James Isbester, suppliant, examined by the crown, says: Manufactured brick at Ste. Claire, which cost various prices, some as high as $16 per thousand. The first batch was burnt 4,000 in one kiln. The last batch cost him from $10.50 to $11 per thousand, Manufactured a very little quantity, all told not over 80,000, and there are about 300,000 in the building. Bought 40,000 in Rimouski which was brought down there (at Ste. Claire). There were no bricks manufactured there until he manufactured some, and the reason they cost so much was that there was no skilled labour. Had to train all the men, and wages were very high. Purchased at different times from 60 to 80,000 at $9.00 a thousand at Rimouski. They cost him $10 a thousand for teaming them, that is what he paid Michel Lepage for hauling the bricks.
To this evidence I shall add that of Mr. Samuel Haalewood, engineer in charge of the said works, who in all his progress estimates puts down the price of the brick at $16 per cubic yard. Although generally speaking progress estimates are not made to establish the exact value of the materials and the labor, but more properly for the purpose of determining the amount of advances to be made, it is neverthelss certain that they are evidence of the approximate value of the same.
No person was in a better position than Mr. Iazlewood to know the special difficulties the contractor had to overcome EXCHEQUER COURT OANADA.
in order to procure brick, stone and other materials, and his opinion on this point is consequently of great weight. The only contradictory evidence put in by the crown is that of Mr. Schrieber, who, without allowing anything for the peculiar circumstances in which the contractor Fournier, J. was placed, reduces by one-half the amount claimed, and determines the price to be allowed for these extra to be that currently given for brick in ordinary circumstances.
This would be an injustice to the suppliant, as I have shown by the evidence that the suppliant was situate under exceptional circumstances.
Considering, therefore, that the value of the brickwork has been proved, and as it has been put down in Mr. Sanuel
Hazlewood's progress estimates as being a reasonable charge under the peculiar circumstances, I am of opinion that for brickwork-the quantity being admitted by the Crown-the following items should be allowed at the prices claimed in the petition, viz.:
Items 2 ....... ..... ..................
$628
8.................................
2,096 00
22.................................
672 00
........
......... ... 1,120
- $4,960 00
Item No. 15 as to masonry put down as $8 per cubic yard is reduced to $7, in accordance with Schrieber's evidence, as the suppliant did not examine any witness to corroborate the price fixed by
S. Hazlewood in his estimates, making instead of $264......................231
Items 18 and 19.-The weight of evidence as to these items is in favor of the suppliant's prices.
Robert White, coutrac- PO {. tor, and Tames Worthington, contractor, both established the value claimed, whilst Schrieber's valuation is not supported by any other witness, viz. Item 18............................................. 72 00 ........................... 800 00 $6,068 00 Item 20-Two witnesses were examined. Mr. Schrieber puts the value of the work down at $40, whilst James Young valuates it at $100. I have adopted the mean between the two amounts, and will allow 70 00 $6,188 00 The following items are admitted in full by Mr. Schrieber as to quantity and as to price, viz.:
Items 26............
......
$78 00 1 ...............................
F2 70 2........
.............
50 00 3........
............
10 00 4 ...........
.......
815 00 5 ..................
306 00 6 ...............
...
150 00 7 ...........
........
20 00 8 ..................
315 00 $7909 70 Also items 9.............. ........... $376 00 ......
400'00 13..........................
48 00 14............
...........
24 00 $8,757 70 Off item 27 already allowed................... 1,120 00 $7,637 70 The following items, viz.: 21, 22, 23, 24 and 25, making a total sum of $932, are those which Mr. Schrieber states are comprised in the " contract," T. in the specifications which detail the work to be executed. In his evidence as to these items, he gives the uniform and laconic answer " covered by contract." But on reading carefully the specification, it is impossible to find any mention of these items as forming part of the works detailed. Mr. Lindsay,C.E.,contrary to his opinion declares items 21 and 22 to be extras. Speaking of the
"belt course," which by Bazlewool's order was made the same width as the wall, he says:
I see nothing in the specification or the plans that would call for that work, though the inside of the wall. It is to be bricked up with brick. The words in the specification are: "the inner face being lined with brick."
There is no mention that the sills should be of the width of the wall. It is also proved that of the different engine houses built on the road, this is the only one which had the window sills of the full thickness of the walls. The omission in the specification and Mr. Lindsay's evidence must consequently have more weight than Mr. Schrieber's opinion gives without explanation.
This item will, therefore, be allowed, with a reduction as to price, viz., $8 instead of $12, making $192.
The same reasoning also applies to items 22 and 28, viz., $14, $22.
Item 24, according to
Mr. Schrieber's opinion, is also covered by the contract, but there is nothing said as to this item in the specification: as to " plastering " I find that " the whole of the roof to be lathed and plastered two coats." Furring is an important work and the omission to specify it penix EIGHEQUER COURT OF CANADA.
YOL. VI. must have struck the suppliant when he tendered for the work, and in consequence of this omission he fixed Ts QuN.his price.
Both Mr. Worthington and Mr. White, the first a contractor and the latter a ibuilder, contrary to J. Mr. Schrieber's view of the case, declare furring in this work is extra. I adopt this opinion, and will allow this item as it has been proved to be worth the amount claimed, viz, $450. The specification is also silent as to item 25; all that can be found in it concerning this item is as follows: "The walls and pillars above formation level to be of the dimensions shown on the plan, and to consist of good sound bricks laid in best common lime mortar."
The witness Worthington says that he cannot form an opinion on this point, and concludes thus:
It seems to me, however, that by looking at the plan on which there is no "beam filling" traced, and that being in accordance with the specification, that it was forgotten. There is no witness that states that according to usage the work done is considered necessary to complete the building of a wall like the one in ques- James Young, examined as to this, declares it to be contrary to usage. He says:
If there was any doubt in the matter, it should be interpreted against the parties who were stipulating for themselves, that is to say, the commissioners, according to the rule of law: " In doubt the contract is interpreted against the party who makes the condition and in favor of the party who contracts the obligation."
For these reasons I allow this item, viz., $128.00.
The whole amount allowed for these extra works make a total sum of $8,470.70, out of which must be lfr8 deducted the sums already paid by the government on Iaman account of these works.
T TnQuumr., 4. Having determined the amount which the sup- pliant has a right to claim, it now remains for me too r decide the question, whether this claim, though legitimately due, should not be dismissed for the sole rea on that the certificate of the engineer-in-chief has not been produced. In 31 Vic., ch. 13, " An Act respecting the construction of the Intercolonial Railway," by section 4, it is enacted that:
The Governor shall and way appoint a chief engineer to hold office during pleasure, who, under instructions he may receive from the commissioners, shall have the general superintendance of the works to be constructed under this Act.
This Act was amended and repealed in part by 87 Vic., ch. 15, in the following manner:
Section three of the Act passed in the thirty-first year of Her Majesty's reign, intituled " An Act respecting the construction of the Intercolonial Railway," with so much of any other part of the said Act as authorizes the appointment of any commissioner or commissioners for the construction and management of the said railway or the continuance of such commissioner in office, or as may be in any way inconsistent with this Act, shall be repealed from and after the first day of June, 1874; and from and after the said day the said Intercolonial Railway shall be a public work vested in Her Majesty, and under the control and management of the Minister of Public Works, and all works and property, real or personal, thereunto appertaining or constructed, or required by the commissioners under the said Act, shall be vested as aforesaid and under the control and management of the said minister.
The second section transfers to the Minister of Public Works all the powers and duties of the Commissioners, and declares that all contracts, agreements, obligations and bonds lawfully entered into shall be for the benefit of Her Majesty, and may be enforced and carried out under the authority of the Minister Ts
J.
By the 5th section, the powers transferred by the previous section are declared to be additional to those already vested in the Minister under the Act last cited, and in that section we read the following:
From what I have just cited it is evident that the intention of the Act was to subject the construction and management of the Intercolonial Railway to the provisions contained in the Act respecting the Public Works of Canada. The control and management of the road is transferred to the Minister of Public Works It is quite true that all the powers vested in the Commissioners are vested in him, but these are only given to him as additional powers to those he had already as the head of the Department of Public Works, and obviously with the view of surmounting any difficulty which might arise in executing agreements entered into under the provisions of the said Act.
It is clear that it is for that reason that he was given the option of exercising any power under either of the Acts. But as there necessarily would be provisions in one Act inconsistent with provisions in the other, if only the sections relating to the Commissioners powers and duties had been repealed, the Legislature wisely enacted that all provisions in the Act amended which might be in any way inconsistent with the Act amending were also repealed.
Amongst other provisions which should be considered as repealed by this Act, is the one having reference to the appointment of a Chief Engineer for S. 0.
the construction of the Intercolonial as well as the 1,78 delining his power and duties.
One of the most important of his powers was that which makes ea. his certificate a necessary and precedent condition to the payment of any money under the Act, and which F is evidently inconsistent with the control and management of the road transferred to the Minister of Public Works. If this power was still vested in the engineerin-chief, it would create a conflict of authority between the head of the department and his subordinate. The first could enter into agreements and engagements, the execution of which might be stayed on account of the latter refusing to grant his certificate for some reason or other.
But this conflict of authority cannot exist, for in order to continue to the engineer-in-chief his powers, it would have been necessary to add a provision (which does not exist) transferring him from the control of the commissioners to that of the Minister of Public Works.
This provision was not inserted, no doubt, because the 37 Vic., ch. 15, in abolishing the commissioners and all employees substituted for them the officers of the Department of Public Works. The provisions relating to the commissioners are not therefore the only provisions repealed, those also referring to the engineer-in-chief and to the secretary of the commissioners must also be declared as inconsistent with the dispositions of the Act respecting the Public Works of Canada. The second section of this last Act provides for the appointment of a chief engineer whose duties under section 6 consist in preparing maps, plans and estimates for all public works, which are about to be -constructed, altered or repaired by the department; in reporting for the information of the minister on any question relating to the public works which may be submitted to him, to examine and revise the plans c. A. estimates, and recommendations of other engineers and Ismeran officers, and generally to advise the department on all T
.
Qmu. engineering questions affecting the Public 1rks of the Dominion.
The office of engineer-in-chief of the Interounj r, J. colonial havirig ceased to exist, it is to the engineer-inchief of the department and to the other engineers of the department that the Minister of Public Works must apply for advice when required. There being no provision in law requiring the certificate of the Chief Engineer of the Public Works to effect a valid payment, the suppliant who completed his works and delivered, them to the Minister of Public Works after the 1st of June, 1874, cannot therefore be said to have been obliged to produce such certificate, or one from the engineer-in-chief of the Intercolonial whose office had been abolished.
But even admitting that 87 Vic., ch. would not have Ihe effect of abolishing the office, the suppliant coull not, in this case, be obliged to produce such a certificate, for this condition was not embodied in his contract as a condition precedent.
We have before seen that the Commissioners entered into this contract by accepting the suppliant's tender to execute the works according to the plans and specifications referred to in the above notice. In none of these divers documents which constitute the contract do we find the condition precedent that no payment shall be made to him unless certified to by the engineer-in-chief. The 18th section of 31 Vic., ch: 18, which necessitates this certificate, was not embodied, as in other contracts, in the agreement with the suppliant as a condition precedent imposed on the contractor. Had the suppliant signed an agreement in which this provision was inserted, as it was generally in all the contracts passed by the Commissioners, he would no doubt have been bound by it. But the Commissioners have not thought fit and proper to impose this condition, and have also dispensed with many other provisions of the statute in making their contract, and in my opinion it is now too late to exact that the suppliant should be subjected to such a con- Fournier, J dition. It would be changing the contract, making it more onerous without the consent of one of the contracting parties, which the Crown, any more than any other pirty, has no right to do.
For these reasons I have arrived at the conclusion that it was not necessary for the suppliant to produce a certificate from the Engineer-in-Chief of the Intercolonial Railway as a condition precedent to the payment of the amount he claims.
Appreciating the evidence as I do, I am of opinion that the suppliant is entitled to the following amounts:
-That the accepted tender of the suppliant having been for the sum of ....... $21,989 90
Damages, expenses and labor resulting from breach of contract made on the part of the commissioners as to the iron work
.......................
1,491 00
Value of extra works .......
.........
8,470 00
Naking a total of..................
81,950 70
From which deducting the sum of $26,229.68, received by the suppliant at different dates, leaves the sum of $5,721.02 as the amount to which the suppliant is entitled to with costs.
Judgment for $5,721.02 with costs. Solicitor for suppliant : Benry T. Taschereau.
Solicitor for respondent: A. F. McIntyre.
in mother of deceased child - 409 of deceased person when
ROLL-Amendment of-Triennial
RAILEE-Right to hold goods for unpaid
ENGINEER-When sary as
COLLISION-Appeal and cross-appeal from the
Maritime Court of Ontario- Collision with anchor -of a vessel-Contributory negligence- Damages apportionment the 27th April, at Port K., on Lake Erie, where vessels to load timber, staves, and where the
Erie Belle, the respondent's vessel, was in the habit of landing and taking passengers, the A.
Upper, the appellant's vessel, was moored at the west the dock, and had her anchor dropped distance out in continuation the direct line of the east end of the wharf, thus bringing her cable directly across the end of the wharf from east to west, and without buoying the same or taking measure to inform incoming vessels where it was. The Erie Belle came into the wharf safely, and in backing out the wharf came in contact with the anchor of the
. Upper, making a large hole in her bottom.
petition the owner of the Erie Belle, in the Maritime Court
Ontario, to recover damages done to his the schooner Upper, the judge who tried the found, on the evidence, that both vessels were to blame, and held that each should pay one-half the damage Sustained the Erae
Belle. appeal by owner of Upper and cross-appeal owner of Erie Belle to the
Supreme Court of Canada: Held, per Ritchie, and Fournier and Taschereas, JJ., that the Erie Belle being managed with care and skill, went to the wharf in the usual way, and came out in the usual way, and as the C.
Upper had wrongfully and negligently placed her anchor (as much a part of the vessel as masts) where it ought not to have and without indicating, by a buoy or otherwise, its position to the Erie Belle, the owner of the Erie Belle was entitled to full compensation, the ff. Upper should pay the whole of the damage. Per Strong, Henry and Gwynne, JJ., that the Upper had a right to have her anchor where it was, and that it was not in the line which the Erie Belle entered and which could have backed out; that the strain on the anchor chain when the of the M. Upper were haulinig on it the time the Erie Belle was at Port K. sufficiently indicated the position the anchor, and therefore that the accident happened through no fault or negligence on the part of the C. Upper. The court being equally divided, the appeal and cross-appeal were missed without costs, and the judgment of the Maritime Court of Ontario
Caowx.
(P. Arts. to recovery qf tmoney for extra ---- 2-Waiver of ---- - Petition of right
Intercolonial Railway contract-31 ch. 18-Certificate of Chief Engineer-Condition precedent to recovery of money for extra work-Petition of right wilt not against the Crown for tort, for the fraudulent misconduct of its servants- Forfeiture and penalty-Liquidated damages.] the 25th .J. and contractors, entered into a contract with the Intercolonial Railway Commissioners (authorized to construct and complete section 7 of the said Intercolonial Railway for the Dominion of Canada, for a bulk sum of During the progress of the work, changes various kinds made. The works were ciently completed to admit of rails being laid, the line opened for traffic on the 11th Nov., The total amount paid on the 10th was the amount of the contract. The contractors tnereupon presented a claim to the Commissioners amounting to extra work, beyond what was included their contract. The Commiseioners, after obtain. ing a report from the Chief Engineer, mended that an additional sum of a sum of tor timber bridging [8. C. it
Continued.
executed, and for under drain taken contractors' hands) paid to the contractors receiving a full discharge all every kind or description under the contract.
The balance was tendered to suppliants and refused.
The contractors thereupon rby petition of right, claimed as due the
Crown to them for extra work done them outside of beyond the written contract, alleging that orders of the Chief Engineer additional work and alterations were required, but these orders were carried out only the understanding that such alditional work and alterations should paid extra; and alleging. further, that they were put to large expense and compelled to do much extra work which they were enti led to paid for, in consequence of misrepresentations plans and bill of works exhibited at time of letting. the profile plan it was stated that the best information in possesof the Chief Engineer respecting the probable quantities of the several kinds of work would be found in the schedules accompanying the plan,
" but contractors must understand that these quantities are not guaranteed * " and in the bill works, which purported to be an abstract infoimation in possession of the Commissioners and ChiefEngineer with regard to the quantities, it was stated. '" the quantities herein given as ascertained the best data obtained are, far as known, approximately accurate, but at the same time they are not warranted accurate, and no claim of any kind will allowed though they may prove inaccurate.'I The contract provided inter alia, that it should distinctly understood, intended and agreed that the said price or consideration should te the price of, and held to full compensation for all the works embraced in, or contemplated by the said contract, which might required in virtue of any of its provisions, or law, and that the contractors should not, upon any pretext whatever, entitled reason of any change, alteration addition made in to such works, in said plans and specification, or reason the exerof any of the powers vested in the Governorin-Council the said Act, intituled, " An respecting the construction of the Intercolonial
Railway,' or in the Commissioners engineer, the said contract or by-law, to claim demand any further or additional for extra work, or as damages or otherwise, the contractors thereby expressly waiving and abandoning all and any such claim or pretention, to all intents purposes whatsoever, except as provided the fourth section of the contract, relating to alterations the grade or line location;
and that the said contract and the said cation should in all respects subject to the provisions of the Act first cited in the said contract, intituled, " Act respecting the construction of the Intercolonial Railway,"
and also, in as far they might be applicable, to the provisions of " The Railway
Continued.
Act of enacts "that no money shall paid to any contractor until the Chief Engineer shall have certified that the work, for or on account which the same shall claimed, has been duly executed, nor until such certificate shall have approved of the Commissioners.
certificate was given the Chief Engineer of the execution of the work. Held the Exchequer Court of Canada (Ritchie, J.) : That the contract requiring that any work done on the road certified to the Chief Engineer, until and such certificate was approved the Commissioners, the contractors weie not entitled to paid anything.
That if the work in question was extra work, the contractors had the contract waived all claim for payment any such work. If such extra work was of a character peculiar and unexpected as to be considered dehora the contract, then there was no such contract with the Commissioners as would give the contractors any legal claim against the Crown; the Commissioners alone being able to bind the Crown, and they only as authorized by statute.
That there was guarantee, express or implied, to the quanties, nor misrepresentations respecting them. even if there had a petition of right will not lie against the Crown tort, or for a claim based on an alleged fraud, imputing to the Crown the fraudulent misconduct of its servants. -In the contract it was also provided that if the contractors failed to perform the works within the time agreed upon in and the said contract, to wit, let July, the contractors would forfeit all money then due and owing to them under the terms of the contract, and also the further of per week for all the time during which said ks remained incomplete after the said July, way liquidated damages for such default. The contract was not completed till the end of August, Held: That if the Crown insisted requiring a decree for the penalties, time being declared the essence of contract, the damages attached, and the Crown was entitled to a sum of per week n the Ist July, till the end of August, for liquidated damages. The Crown subsequently waiving the forfeiture, iidgment was renderei in favor of the suppliants the of being the amount tendered the respondent, less the costs of the Crown in the case to taxed and deducted Ti
2-Petition of Right-Tender for work Intercolonial Railway-Acceptance Commissioners-Contract, liability of Crown for breach of-Extra work, claim for-Damage--81 13-37 ch. of-Works pleted June, 1871-Certijicate of Engineer- Condition precedent, waiver qf-Demurrer.] January, the Commissioners of the Intercolonial Railway gave public notice that they were prepared to receive tenders for the erection INDbEX
CONTRACT.-Continued.
inter alia certain engine houses, according to plans and 3pecifications deposited at the the Chief Engineer at Ottawa. T. I. tendered for the erection of an engine house at Afatapedia, and in October following was instructed the Commissioners to proceed in the execution of the work, according to his accepted tender, the price being
The work was pleted and delivered to the Government in Oct.,
The specification provided as follows:
" The Commissioners will provide and lay railway iron, and will also provide and cast-iron columns, iron girders, and other iron work required for supporting
In September,
J. I. was unable to proceed further with the execution work, in consequence of the neglect of the Commissioners to supply the iron girders, until following, owing to which delay loss and damage. During the execution of the work, J. I. was instructed and directed the Commissioners, or their engineers, to perform, did perform, certain extra works not included in his accepted tender, and not according to the plans, drawings and specifications.
his petition of right, J I.
claimed damages, in consequence the delay the part of the Commissioners to p rovide the cast-iron columns, and or extra works. The Crown demurred, and also traversed the allegation of negligence and delay, and admitted extra work to the amount and set up the of Ilc., ch.
which required the certificate ofthe Engineerin-Chief a condition precedent to the payment of any sum of money for work done the Intercolonial Railway.
ch. the lst
June, the Intercolonial
Railway was declared to be a public work vested in
Majesty and under the control and management of the inister of Public Works, and all the powers and duties of the Commissioners were transferred to the Minister Public Works, and of ch. was repealed, with much of any other part of the said Act as might in any way inconsistent with
Heldby the ExchequerCourt of Canada (Fournier,
J.) : That the tender its acceptance the
Commissioners constituted a valid contract between the Crown and J. L, and that the delay and neglect on the part of the Commissioners acting for the Crown to provide and the cast.
iron columns, which were, the specifications, to provided and was a breach of the said contract, and that the Crown was liable for the damages resulting such breach.
2. That the extra work claimed for, being for sum less than the Commissioners had power to order the same under the statute ch and J. I. could recover, petition of right, for such part of the extra work claimed as he had been directed to perform.
That the of ch.
not having been in the agreement with . I., as condition precedent to the paypent of any sum for work executed, the Crown
CONTRACT.-Coninued.
could not now rely on that section the statute work done and accepted and received the Government. That the effect of 37 was to abolish the of Chief Engineer of the Intercolonial Railway, and work performed and received on or after the let June, to dispense with the necessity obtaining, as a condition precedent to the pay. ment for the same, the certifleate of said Engineer. in-Chief, accordance with of 3- Executory- --- - - - Petition -of Right lication for security for costs, when to made.] Where, letter addressed to the suppliant. the Secretary of the Public Wo ks Department stated, that was desired the inister of Public Works to the full settlement of the suppliant's claim against the department; an application behalf of the Crown for security for costs was refused, the ground that the power of ordering a party to give security costs, being a matter of discretion and not f absolute right, the Crown this case no inconveniencefrom not gettinz security, as well as on the g*ound of delay making the application. Application security for costs in the Exchequer Court must he made within the time allowed for filing statement d-fenee, except under special circumstances. By Richards, in the Exchequer Court of Canada. - 1n appeal-Court equally divided-Appeal without
COUNTS-Mijoinder of in an indictment - 897 Se
CROWN-Petition of right-Non-liability of the Crownfor the negligence of its servanta-Urown carrier-Payment of Statutory Dues
Held: 1st That petition right not lie to recover compensation from the Crown public work.
That an express or implied contract is not created with the Crown because an individual pays tolls imposed statute the of a public work, such as slide dues passing logs through Government slides. That in a case Her Majesty cannot held liable as a carrier.
t'. Not liablefor tort
Liability offor breach qf contract ly7 (8. C. R. Vor,. VII. ROWNi.-anftfwed.
4-Forfeiture and penalies, right to'recow.
er
See CoNraCT 1.
DA
RGES-Apportionaent of in case of
- - - - - - 2-Liquidated
8-Resultingfrom breach of contret e CowSaTr 2.
DBTS issued Trustees under statetory authority
&0 STAwas.
ELECT0N PZTION - Balo- Srutiny-87
Vie., 9, eo. 43, 55 and 80; 41 Vie., 6, cce.
of set of duty a deputy returning o i
S7.11., cL0, see . 64 and 66-Recrimainatory cas.] In ballot papera containing the names of four candidates, the following ballots were held valid: 1. Ballots containing two crosses, one on the line above the first name and one on the line above the second name, valid for the two first named candidates - 2. Ballots containing two crosses, one on the line above the first name and one on the line dividing the second and third compartments, valid for the first named candidate; . Ballots containing properly made croases in two of the compartments of the ballot paper, with a slight lead pencil stroke In another compartment; 4.
Ballots marked in the proper computtments thus X.
The following ballots were held invalid: 1. Ballots with a cross in the right place on the back of the ballot paper, instead of on the printed sidle; 2. Ballots marked with an r inatead of a a recount the
County Court Judge, .1, the appellant, who iniritv of accurding to the retutm the retur'iing ofit-er. was declared elected, an4 the batll,.is cat at three polling dstHcts, in the appellant had polled only 3st votes and the respoudeat, B.1, having struvk out gn l that the deputy returning oiffcer negleo-td to place his inhials 111)>ou the back of th.' inho.t appeal t
(hurtu f
. E. harl.
it prnved that the retusig re hI the conteifailves*lure ballotpaperto voter,and efterwar l'-, pevious to'his putting b-alot had detached and destroyed countefoil, and that the ballots the same as those had supplied to the voters, aud Mr. Justice Peters held that the ballots of the said three polls ought to be counted and did count them. Thereu
J.
appealea to the Supreme Court of Can it was Held, affirming the judgment of Justice Peters, that in the present case, the deputy returning offioer having had the means of identifying the ballot paper as being those supplied
ELION PNMOIO.-Cns3ttaMed.
by him to the voters; and the neglect of the deputy returning ofcers to put their initials on the'backof these ballot papers not having alfnoted the result of the election, or caused substantial Injustice, did not invalidate the election. (The decision in the Monck Election Case commented on and approved of.) In this case ., the appellant, claimed under sec. 66 of ch. that if he was not entitled to the seat the election should be declared void, on the ground of Irregularities in the conduct of the election generally, but fyled no counter petition, and did not otherwise comply with the provisions of Vic., ch. The Dominion Controverted Elections Act Held: That sec. 66 of Vic., ch.1, only applies to cases of recriminatory charges, and not to a case where neither of the parties or their agents are charged with doing any wrongful act. Quasre: Whether the County Judge can object to the validityofaballot paper when no objection has been made to the same by the candidate or his agent, or an elector, in accordance with the provisions of see. 86, lur., ch. at the time of the counting of the votes by the deputy returning Jxxmas r.
EVIDENCE-"DIbate Conptes" - Sale stock-in-trade a/ether to has son-Onus probandi-Affidavit qfaperso since deceased not evidenceJ In a dibats comptee" between A. G. (appellant), in his quality of tutor to 1. L. H. 0. ., a minor, and Dame H. P. (respondent), universal legatee of her late husband L. R., who had had possession of the minor's property (his grandchild) as tutor, the following items, via :-$5,466.63 (for stock of ds sold by L. R. to his son) and $451.07 and
0.76 for " cash received at the counter," charged by the respondent in her account, were contested. In L. L. R., the minor's father, married one M. C. G., and by contract of marriage obtained from his father, L A two immovable properties, en avancement At the same time Z. I the father, retired from business and left to L. L. R., his son the whole of his stock-in-srade, which was valued at $5 466 making an inventory thereof. L L. . died in leaving o-e child, said K. L. H . B., and L. R., her grandfather, was appointed her tutor. There was no evidence that the stock-in-trade had been sold by the father and purchased by the son, or that the father gave it to his son. However, when L R., In his capacity of tutor to his grandchild, made an Inventory of his son's succession, be charged his son with this amountof $5,466.63. Held (reversing the judgment of the court below), that it was for the respondent to prove that there had been a sale of the stock-In-trade by L. R. to his son L L. A the minor's father, and that there being no eviaence of such a sale, the respondent could not legally charge the minor with that amount. As to the other two Items, these were granted to the respondent by the Court of Queen's Beach on the ground that, although they had been entered as cash receive4 at the counter, there was evidence that they had already entered in the ledger. The only evidence to support this fact was the davit of one Hbert, the book-keeper L. R., with the reddition comptea notary, prior to institution of this action.
Held
(reversing the judgment of the court below), that the affidavit of Hdbert was inadmissible dence, and therefore these two items could not be charged against the minor.
Paics - ----- - - 2-Manslaughter-1Whether as to adi, sible
- -- - - 807
Nee
WORK-Claim for, Petition
Right
- - - - - - CoxnacT
INDICTMENT-Criminal Appeal-Indictment- Allajoinder ofcounta-Evidence.] An indictment contained two counts, one charging.the prisoner with murdering M. .1. T. on the November, other with manslaughter of the said
J.
the same day.
The Grand Jury found true bill."
motion to quash the indictment for misjoinder was refused, the counsel for the prosecution electing to proceed on the first count only.
Held (affirming the judgment.of the court a guo), that the indictment was sufficient.
The prisoner was convicted manslaughter in killing his who died the November,
The immediate cause of her death was acute inflammation of the liver, which the medical testimony proved might be occasioned a blow or a fall against a hard substance.
About three weeks before her death
October preceding), the prisoner had knocked his down with a bottle; fell against door, and remained the floor insensible time; was confined to her soon afterwards dnd never recovered.
Evidence was given of frequent acts of violence committed the prisoner upon his within a year her death, knocking her down and kicking her in the side. the reserved questions, whether the evidence of assaults and violence committed the prisoner upon the deceased, prior to the toth November or the October, was properly received, and whether there was any evidence to leave to the jury to sustain the charge in the first count of the indictment?
Held (affirming the judgment of the Supreme
Court of runsoick), that the evidence was properly received, and that there was evidence to submit to the jury that the disease, which caused her death, was produced the injuries inflictedby the prisoner. Quass 397
- INSOLVENOY-Insolvent Act, Trader- Pleading.] This was an appeal from a judgment of the Supreme Court of Aova Scotia, making the rule taken out the respondents absolute to set aside verdict plaintiff and enter judgment for the defendants. The action was brought by as assignee of L. P. F., under the Insolvent Act of for several trespasses alleged to have been committed on the property known as the Shubenacadie Canal property, and for conversion al to their own use of the ice taken the lakes through which that canal was intended to run. The declaration contained six counts, the plaintiff claiming as assignee F.
Among the pleas were de-ials of committing the alleged wrongs, of the property being that of the plaintiff, and of his possession of it, the last plea being that "the said plaintiff was not, nor is such assignee as alleged.
After the trial both counsel declined addressing the judge, and it was agreed that a verdict should entered for the plaintiff with damages, subject to the opinion of the court, that the parties should entitled to take all objections arising out of the evidence and minutes, and that the court should have power to enter judgment for or against the defendants with costs.
rule trial to be granted accordingly, and rule was taken out as follows :-" On reading the minutes of the learned judge who tried the cause, and the papers herein, and motion, it ordered that the verdict entered herein formally cobsent subject to the opinion of the court, with power to take all objections arising out of the evidence and minutes, and with power to the court to enter judgment for against defendants, with costs, be set aside with costs, and a new trial granted herein." This rule was made absolute the-following terms: argument, etc., it ordered that the rule nisi made absolute with costs and judgment entered for the defendants against the plaintiff, with costs."
Thereupon plaintiff appealed to the Supreme Court of Canada, and it was Held (Henry, J., dissenting), that traversing the allegation of plaintiff being assignee, the ants put in issue the fact implied in the averment, that the plaintiff was assignee in insolvency, and that F. was a trader within the meaning the Insolvent Act and the evidence did not establish that F bought or sold in the course of any trade business, or got his livelihobd buying and selling, that the plaintiff failed to prove this issue.
Per Gwynne, J. : Assuming F. to trader, still the defendants were entitled to judgment upon the merits, which had been argued at length.
That the agreement at nisi authorized the court to render a verdict plaintiff or defendant according as they should consider either party upon the law and the facts entitled; that the court, having exercised the jurisdiction conferred upon this agreement, and rendered judgment the defendants, this court was also bound to give judgment on the merits, and as judgment the court below in favor of the defendants was substantially correct to sustain it; and it having been objected that as the rule niai asked for a new trial, the rule absolute in favor of defent. INEX.
MIIOLVENCY.-Ootinued.
ants was erroneous, that such an oblection was too technical to allowed to prevail, and that the rule nisi, having, it did, recited the agreement at nisiprius, and the court below having rendered a verdict for the defendants, it should upheld, except as to the plea of liberum tenementum, which should found the plaintiffor struck the record, and that to order new trial could but protract a less litigation at great
-- - - - - $48
JURISDICTION-Maritime
Court of Ontario, jurisdiction of-Rev. State. Ont. 128-Collision-Nejligence, causing death-Action in rem mother of child-Master and servant ]
'the appellant's child, a minor, was killed in a between two vessels the negligence the charge of one of them-The Garland. Petition against The Garland-libelled under the Maritime Court Act at the port
Windsor-on behalf of the appellant, claiming damages her, owing to the death her and servant, caused the negligence of the in charge said
Garland.
The respondent intervened, and demurred on the ground that the petition did set forth a cause of action against The Garland within the jurisdiction the court.
Hell,
(Fourner and Taschereau, JJ., dissenting), that
Court of Ontario has no jurisdiction apart from R. 8. 0. (re-enacting that
Province Campbell's Act and ch.
in an action personal injury resulting death, and therefore the appellant had no locus stands, not having brought her action as the personal representative of the child. Per Fournier,
Taschereau, Henry and JJ., (reversing the judgment of the Maritime Court Ontario), that Vice-Admiralty Courts in British sons and the Court of Ontarso have whatever jurisdiciion
High
Admiralty over " any claim for damages done any whether to person or to property."
Per Fournzer and Taschereau, JJ., dissenting, that apart and independently of ch.
Stats. Ont., the Court of Ontario has jurisdiction a proceeding in rem against a foreign the recovery of damages injuries resulting death; that the appellant, either in the capacity of pat ent or ofmistress, was entitled damages for the loss her or servant.
e. lU n
---- - - Right of actionfor of ser at
- - - - - O
2-Cansing
3-Of servants of the Crown
- - - - - - - EIGHT-Executory contractnon-liability' on-Recovery of value of work if expendsture unauthorized Parliament-31 c and 20.] his petition of right, W, sculptor, alleged that he was employeg the Dominion Government to prepare plans, models, specifications and designs, out, improvement and establishment of te Parliament square, at the city Ottawa * that had done and superintended the wor and construction of said improvements for six months.
claimedt$50,000for the value of h work.
provides that, when executory contracts are in writing they shall have certain requisites, such signing. sealing and countersigning binding; and sec. provides that before any expenditure incurred there shall have been a previous sanction of Parliament, except for such repairs and alterations as the public service demands; and requires that tenders invited for all works, except in cases of emeror where the nature of the work it more expeditiously and economically executed the and servants of the department. Held, the Exchequer Court Canada (Richards, C.J.,)-1. That the Crown in this Dominion cannot held responsible under a petition of right on an excutory contractentered into the Department of Public Works for the performance of certain works placed law tinder the control of the department, when the agreement therefor was not made in conformity with the above section , ch. That under see of said Act, if Parliament has not sanctioned the expenditure, a petition right will nit for work done for and at the request of the Department of Public unless it for work done in connection with repairs a d alte ations which the necessities the public service demanded That in this case, if Parliament made appropriations for these works and sanctioned the expenditure, and the work done was of the kind that might perly executed the and servants the department under of said Act, Ihen written contract would necessary to bind the department, and suppliant should recover for work so done. v 2- St-tur-s 3.
U'4O
R.
.
O.
YL. VII.J
RIGHT.-Continued.
--------wrong-doers
Writ ofprohibition to municipal corporation-Asessment roll, amendment qf- Arts. and municipal P. I The municipal corporation of the coun'y of II., the Province of made an assessment roll according to law in triennial assessment roll was made, and the property subect to assessment was assessed at tl,745,588.58.
In without declaring that it was an amendment of the roll of the corporation made another assessment in which the property was as.
sessed at
Among the properties that contributed towards this augmentation were those of appellants, who, their petition, or requ8te libell-e, addressed to the Superior Court, P Q., alleged that the Secretary-Treasurer of the county of was about selling their real estate for taxes under the provisions of the municipal for the Province of sec. et and prayed have the assessment roll of in virtue of which the of the munici alty was proceeding to sell, clared invalid and null and void, and that a writ of prohibition should issue to prevent the respondents proceeding to sell.
Superior Court directed the issue of the writ restraining the defendants as prayed, butupon the merits, held the roll of valid an amendment of the roll of
The Court of Queen's
Bench reversed this judgment on the merits, held the roll of to substantially a roll, and therefore null and void. Held:
Henry, Taschereau and JJ., the judgment of the Court of Queen's that the roll of not being a triennial assessment roll, or an amendment of such a roll, was illegal and null, and that respondents were titled to an order from the Superior Court as prayed for, to restrain the municipal corporation selling their property, and the writ which issued, whether correctly styled " writ of prohibition " or not, was properly issued and should maintained.
Per Ritchie, Strong
Fournier, JJ., that a writ of prohibition under art. as was the writ issued in this case, will only lie to an inferior tribunal, and not to a municipal
[The court being equally divided, the judgment appealed from was confirmed, butwithout costs.] V.
CASE-In election petition l41 REPLEVIN-Possession as against arong-doer- Mixture logs.] L. et aL, claiming certain lands in township of Hortoa under a paper title, built barn camp in commenced and continued logging all that winter and subsequent years. In McD., setting up a title under certain proceedings adipted at a meeting of the inhabitants of the township held for the porpose of making provision for the poor, which certain commissioners were authorized to sell vacant lands, entered upon and cut on the lands in question trees, which put on the ice outside and inside L. et al's mixing them with some logs already in said boom and cut L. et al, in such a way that they could not distinguished. McD. then claimed the whole as his own, and resisted L. et al's attempt to remove them. an action of replevin bro!!ght by L. et al logs cut on said lands. Held: That L. al's possession of the lands in question was cient to entitle them to recover, in the present action against McD., who was a wrong-doer, all the logs cut on the lands in question. Per Strong, J.: When party wrongfully intermingles his logs with those of another, all the party logs are intermingled can require that should permitted to take from the whole an equivalent in number and quality those which originally possessed. OFFICER-Yeglect of duty- SALE offish storage-Right to hold goods by baillee for unpaid purchase money-Delivery qf part ] Action of trover charging the appellants with converting barrels of mackerel, which were the property of R. the respondent's assignor.
of the branches of appellants' business was supplying merchants who were connected with the fishing business in the country, and who in return sent them which sold the proceeds placed appellants to credit of their customers. One who so dealt with appellants, in October, sent them 77 barrels of herring and barrels of mackerel. 3rd November 8. sold all the had, including those mackerel, to one R. at $8 a barrel, when were delivered, leaving barrels in the appellants' store, and in payment received and a promissory note for at four months.
This note was given to appellants on account of his general indebtedness.
the 4th R. became solvent and the respondent who was subsequentappointed assignee, demanded the barrels mackerel and brought an action to recover the same. After issue was joined, the appellants proved against the estate of R. on the note and received a dividend it. The Chief Justiceat the trial gave judgment for less 10 one month's insurance and six months' age, and found that the appellants had knowledge that the sued were included by the ALE.-ContinueL insolvent in the statement of his assets, and made no objection thereto known to the assignee or creditors at the meeting. Held (Strong,
J., dissenting), that the appellants having failed prove the right of property in themselves, upon which they relied at the trial, the respondent had against the appellants' a right to the immediate possession of the
That S. had not stored the with appellants way security for a debt due him, and as the appellants had knowledge that the sued for were included the insolvent in the statement of his assets, to which statement they made no objection, but proved against the estate for the whole amount of insolvent's note, and received a dividend thereon, they could not now claim the set up a claim for lien thereon.
-- - - - - ---- of-16 1ic.,
Debentures isuedby Trustees of the Turnpike Roads-Legislative recognition of a debt- Trustees-Parliamentary agents, liability of the
Crown for acts feld (Ritchie, U.J., and
J, dissenting), that the trustees of the orth Shore Turnpike Trust, appointed under ordinance, when issuing the debentures in suit, under 1ic , were acting as agents the Government of the late Province
Canada, and that said Province became liable t> provide the payment of the principal of said debentures when they became due.
Per Henry
Taschereau, JJ., that the Province
Canada had, its conduct and legislation, recognized its liability to pay the same, and that respondents were entitled to succeed on their appeal to interest the date the maturing the said debentures.
Per Ritchie,
O.J., and Gwynne, J., that the trustees, empowered the ordinance to borrow moneys
" on the credit and security of the tolls thereby authorized to and of other which might into the possess'on and at the disposal of the said trustees, under and virtue of the ordinance, and not to paid out or chargeable against the general revenue this Province," the debentures did not create a liability the part of this Province respect either the principal or interest thereof.
appeal to ihe Privy Council, the judgment of the
Supreme Court was reversed, and tie construction put statute Ritehie, 0.J., and
Petition ofRight Act, 7-Slatute of Limitations-32 Henry 171., 9-Buying pretended titles-Public lWo-kn-Rideau Canal
Act, IV, 1-6 ch. 16-Trustee, contract by-Coipensation for lands taken for canal purpoases-2 19-7
4ie.,
Under the provisions of 8
STATUTE.-Continued.
IV., ch. 1, passed the February, the Provincial Parliament of Upper Canada, and generally known as the Rideau Canal Act, Lt.-Colonel By, who was employed to superintend the work of making said canal, set out and ascertained acres.or thereabouts, part of acres or thereabouts theretofore granted to one Grace necessary making and completing said canal, but only acres were actually necessary and used I canal purposes. Grace McQueen died intestate, leaving Alexander MeQueen, her husband, and William Queen, her eldest son and heir-at-law, her surviving. After her death, on the 31st Jan., Alexander eQueen released to William McQueen all his interest in the said lands, and the 6th February, William McQueen granted to Col. By all the lands previously granted to his mother, Grace
Bydied on the lst February,
William IV. ch. persons who acquired title to lands the purposes of the canal after the commencement the works, but who had purchased such commencement, were enabled claim compensation.
the Ordnance Vesting Act, Canada, the Rideiu canal and the lands and works belonging thereto, were vested in the principal of fl. M1. Ordnance in Great Britain, and sec. it was enacted: " Provided always, and be it enacted, that all lands taken from private owners at Bytown under the authority of the Rideau Oanal Act for the uses of the canal, which have not been used for that purpose, restored to the part or arties whom the same were taken."
the 9th Canada, it was recited that the foregoing proviso given rise to doubt as to its true construction, and it was enacted that theproviso should construed to apply to all the land at set out and ascertained and taken from Nicholas Sparks, under IV., 1, except certain portions actually used for the canal, and provision was made for payment of compensation to Spzrks for the land retained for canal purand for the re-investing in and his grantees of the portions of lands taken but not required for such purposes. the and ch. the Ordnance properties became vested in Her for the uses of the late Province of Canada, and the British North America Act they became vested in Her Majesty for the use of the Dominion of Canada. The suppliants, the legal representatives of brought a petition of right, alleging the foregoing facts, and seeking have Her declared trustee for them of all said lands not actually for the purpose ofthe said canal,and praying that such portion of said lands might restored to them, and the rents profitathereof paid, and as to any parts sold that the value thereof might paid together with the rents and profits, prior the selling thereof. his statement the Attorney-General contended, among other things, that (par. interest the lands set out and ascertained Col. By passed to lifDEi.
BTA'ITES.-Chnuasued.
William McQueen, but the claim for compensation or damages for taking said lands was personal estate of Grace McQueen, and passed to her personal representative that (par. and
8) the deeds of the of Jan. and 6th Feb., passed no estate or interest, the title and possession of the lands being Majesty, that such deeds were void under Hy. VIII., ch. that (par. Col. By was incapable, reason of his position, from acquiring any bentficial interest in said lands against that (par. and By took proceedingsunder8 Geo.I.,ch. 1,tobtaincompensation for the lands in question, but the arbitrators, and also a jury under the Act, decided that was entitled to no compensation reason of the enhancement of the value his other land and of other advantages accrued the building of the canal, and that this award and verdict were a bar to the suppliant's claim; that
(par. and the proviso of ch.
was confined to Nicholas Seaike and did extend to the lands in question; that (par.
and virtue of 2nd
(Upjer Canada), and a proclamation issued pursuance thereof, all claims for damages which mi lht have been brought under IV., owners of lands taken for the canal, including claims of the said Grace MQcueen or Col.
By, or their respective representatives, and after the April, for ever barred;, that (par. and the suppliants were barred their own laches; and that (par.
they were barred the Statute of Limitations.
On a special case stated the pleadings the opinion of the court, Held; the Exchequer
Court of Canada (Ripharde, 0.J ,) f-1. The Statute Limitations was properly pleadable under sec.7 of the Petition Right Act of 18'f.. 2. William McQueen took the lands desceni his mother, she died before the lands were set and ascertained for the purposes of the canal.
If died afterwards, not, as they were vested in the Crown under IV., 1,
1 and and her right was converted into a claim for compensation under the section.
This right of compensation or damages, asserted under the 4th IV., would go to Grace McQueen's personal representatives, but the land was obtained surrender under the 2nd of the statute, then the heirat-law of Grace McQueen would the person entitled to receive the damages and execute the surrender. The deeds of the 31st January, and 6th February, are void as against the Crown so far as they relate to the acres diapute, except far as the same may sidered as a urrender to the Crown under the of the Rideau Canal Act. S. The 9th paragraph of the statement in defence a cient answer in law to the petition.
defence set up in the and paragraphs of the statement w,.uld in law, supposing the statements therein to be true. 7. The proviso of
BTATUTES.-Obtinued.
was confined in effect to the lands of Nichols Sparks only.
If the claim to made Grace MeQueen's personal representatives under the 4th section of the Canal Act (and any claim her could only under that tion) the Acts referred to the 16th, and 19th paragraphs of the statement in defence have an application to this and would stitute a bar against all to made under the Rsdeau Canal Act.
As to the claims to be made the heirs of Col. By, they have no claims undet* any of the statutes.
If the Ordnance Vesting Act vested the acres question in the heirs of By, the court was not prepared to say that their claim had been barred laches on the statement set out in the petition. But the statute had not that nor Col. By or his legal representatives ever had for his or their own and benefit any title to these acres.
Quass 3-31 and - 5-31 , 15; - 690 State
T- Reo. Stats. (N.S.), series, 8-37 and Via, ch. and TORT-Petition of right not lie for &ee
-Regis ration- Notice - Rev. Stats, N.S., series, and R. (the appellant) brought an action against H (the respondent) having erected a brick wall over and upon the upper part of the south wall cornice of appellant's store, pierced holes. H pleaded inter alia, special leave and license, and that h- had done a valuable consideration paid him, and equitable rejoinder alleging that plaintiff those throufh claimed had notice the defendant a title to this easement at the time they obtained their conveyances.
In one C, who then owned R's property, granted to H. the privilege of piercing south wall, carrying his stovepipe into the and erecting a wall above the south wall the building to form at thath -ight the north wall of respondent's building, which was higher than R's
R. purchased in the property from the Bank of Nova Sotis, who got it one F., to wh C. had conveyed it-all these conveyances being valuable consideration. The from C. to H was not recorded until and R's solicitor in searching the title, S. O. K. Voa. VII.]
did not search under 0's name after the registry of ihe deed which the title passed outof 0.
and did not therefore observe the creating the easement in favor of plaintiff
There was eviden-e, when attention was called
.to it, that respondent had separate wall, and the northera wall above appellant's building could seen. ileld: That the continuance
Illegal burdens onR's property sinee the had been acquired. by him, in law, fresh and distinct trespasses against him, unless he was bound the license or grant of 0
That the deed creating the easement .was an instrument requiring registration under the provisions of the
Nova Scotia Registration Act, series,
Stats., N sees 9 and and was defeated the prior registration of the subsequent purchaser's inveyance for valuable consideration, and therefore from the date of the registration of the conveyance f. to P., that the of grant to H became void at law against F. and all those claiming title through kim.
That to defeat a registered deed there inustbe actual notice or fraud, and there was no actual notice given R in this such as to dtsentitle to insist equity on legal priority acquired under the statute. Per
J., dissenting: That upon the pleading. they stood the record, question of the Registry
Act did not arise, that as the incunibrance complained of had legally created in
Its mere continuance did constitute a trespass, and that the action as framed should not be sustained.
HjrE
--- - - - -Contr -ct and purchueer-Tua disponendi-Delioery.] WF., a commission merchant residing at Toleo, Ohio, purchased and shipped a cargo of corn the order of et al., distillers at Belleville, and drew on them at ten from date for the price, feight and insurance.
This draft was transferred to a bank in Toledo the amount of received the bank, and the corn, having insured W. for his own benefit, was shipped by him wider a bill of lading, which, together with the policy of insurance, was assigned him to the same bank. bank forwarded the draft, policy, and bill of lading to their agents at Belteville, with instructions that the corn was not to delivered until the draft was paid.
The draft was accepted et at bat the cargo arriving at Belleville in a damaged and heated condition, between the dates of the acceptance and the maturity of the said draft, 0 et al. refused to .receive it afterwards to pay draft atmaturity.
The-eupon the bank and W. sold the cargo for behalf whom it may concern, credited 0. et al. with the proceeds account of draft, and W a bill to recover balance and interest. Held ing the judgment of the Court of Appeal Ont rio (Strong, dissenting), that the contract not one of agency and that the property in the corn remained the act of W. in and his assignees, until after the arrival of the corn at Belleville and payment of the draft and the damage to the corn having occurred while the property in it continued t > in W. and his assignees, et al. should not bear the WORDS-7onstruction of-Trader
-
Cases cited
- Ibid Ibid
Statutes and regulations cited
-
Unresolved citations
- s. 152
- section 146
- section 194
- section 5
- section 10
- section 4
- section 15
- Section 6
- section 11
- section 14
- section 6
- section 8
- section 20
- section 7 of the Petition of Right Act
- Section 2
- section 9
- section 7