McLean v. Hannon

'June 4.

MICHAEL HANNON..........................RESPONDENT. ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA. In an action of trover or conversion against appellant, High Sheriff of the County of Cumberland, N.B., to recover damages for an alleg. ed conversionby the appellant of certain personal property found in the possession of the execution debtor, but claimed by the respondent, the pleas were a denial of the conversion, no pro. perty in plaintiff, no possession or right of possession in plaintiff, and justification under a writ ot excution against -the execution debtor. The learned judge at the trial told the jury that he " thought it was incumbent on the defendant to have gone further than merely producing and proving his execution, and that if a transfer had taken place to the plaintiff, and the articles taken and sold, defendant should have shown the judgment on which the execution issued to enable him to justify the taking and enable him to sustain his defence."

Held: That the sheriff was entitled under his pleas to have it left to the Jury to say whether the plaintiff had shewn title or right of *PaEsENT.-Ritchie, C. J., and Strong, Fournier, Henry, Taschereau and Gwynne J. J.

This was an action of trover or conversion brought in the Supreme Court of Nova Scotia, by the respondent against the appellant, High Sheriff of the County of Cumberland, to recover damages for alleged conversion by the appellant of certain personal property claimed by the respondent.

The pleas were a denial of the conversion, no property in the plaintiff, no possession, or right of possession in the plaintiff, and a justification under the writ of execution. The cause was tried before Smith, J., and a jury at Amherst.

There was no evidence tendered on behalf of the defendant, and the evidence of the plaintiff 's witnesses showed that part of the personal property, viz: one mare and one two year old colt, belonged to i he execution debtor and was in his possession when the seizure took place. That the balance, viz: a waggon, was left with the execution debtor in exchange for another waggon. That the plaintiff was the son of the execution debtor and claimed the mare and foal, as having purchased it from his brother; and the. waggon from one Witmot.

The learned Judge delivered the following charge to the Jury:

A rule nisi to set aside said verdict was taken out by the appellant, and argued before the Supreme Court of Nova Scotia in banco, which gave judgment discharging ssid rule nisi with costs, from which judgment this appeal was taken.

The appellant was bound to prove the judgment on which the execution issued. See White v. Morris (1), and he should have pleaded that the sale was fraudulent or void against creditors.

In Adams et al v. Kingsmill where a Sheriff justifled under an execution, and alleged that the goods had been fraudulently sold and delivered- to the plaintiffs by the debtor to defeat the execution, the plea was held bad, because it did not show the judgment upon which the execution issued."

:-The Sheriff was not a wrongdoer as against this third party, and the Judge should have left the Jury to decide whether there was any title in this third party, but instead of this the learned Judge says it was incumbent on the defendant to make out his case.]

There was proof of a sale, and even if the transaction was colorable, it was good between themselves, and the Sheriff must show he represented a creditor.

White v. Morris is relied on in Atkinson's Law of Sheriffs (3); and it has also been accepted as the leading case on this point by the Ontario Courts.

:-Your authorities are all good law, but not applicable to this case.]

The sheriff seized under an execution goods which 't08 he found in the execution debtor's possession.

A third party sues the sheriff, claiming the property as his under M 'a an alleged transfer from the execution debtor. The sheriff pleads several pleas, inter alia no property, or right of possession in plaintiff, also a justification under a judgment and execution. The plaintiff gives evidence of a transfer from the judgment debtor, and the sheriff gives evidence which, he contends, shows that such transfer was a mere sham, and that the property and possession never passed, nor was ever intended to pass out of the judgment debtor to the plaintiff. Unless the plaintiff could make out that he had the right of possession, by showing that he had a valid title, how could he recover the property which was not taken from his possession ? And if he had no title, even against the execution debtor, what right of action could he possibly have against the sheriff or anybody else, who might have taken the goods from the judgment debtor. But the Judge, instead of submitting the question of the plaintiff's title to thejury, ruled that the defendant could not succeed, because he did not prove the judgment, as well as the execution under which be seized the goods. If this action had been brought by the judgment debtor for improperly seizing his property, this would be all well enough, but what right has a third party to sue the sheriff and recover against him for taking goods under an execution out of the execution debtor's possession, unless he is able to establish that the goods are his, or that the transfer under which he claims is, as against thejudgment debtor, valid; in which case it might be necessary for the sheriff to shew the judgment, if he contested the validity of the transfer as against creditors.

and TAsoHEREAU, J. J., concurred. J.:

The property having remained in the possession of the father, there was no transfer of it; and that being the MLEa case any body could take it and it would not be for the plaintiff to complain. The first question which should have been put to the jury was, in whose possession was the property; and secondly, who was the owner of it. As the Court below proceeded on White v. Morris (1), it is only necessary to refer to that case. Now, White v. Morris has no application to this case. It proceeded upon its being shewn by the plaintiff that he claimed under a deed executed by the judgment debtor, conveying to the plaintiff the property and right to immediate possession, and which deed was good, valid and indisputable against the grantor and all the world except his creditors. The onus being thus shifted from the plaintiffs to the defendants, it was necessary for them to justify under a judgment. In the case as reported in 11 0. B. Jervis, C. J., as the basis upon which the judgment rests, says the first point urged was on the plea of not possessed; it was contended that no possession passed to the plaintiff by the deed of assignment of the 11th October, 1850, sufficient to entitle him to maintain the action, and in support of this view, Bradley v. Copley and Wheeler v. Montefiore were cited. Then he proceeds:

It fraudulent and void as against creditors (as the Jury have found), it is a perfectly good deed against all persons except creditors. It is MoLEAN an established rule of law,-never doubted until the case of Bessey v. . Windham (1),-that the mere production of the writ and nothing HIAIxox. more, will not enable the Sheriff to show that a deed, good as against all except creditors, is fraudulent and void. He must show that he represents a creditor. For this purpose the mere production of the writ is not enough.

And again:

I think, that, to entitle the defendants in this case todispute the title of the plaintiff, they ought to have produced and proved the judgment.

And 1laule, J., says (2):

The deed was one under which plaintiff was bound to take possession of the goods assigned for the purpose of enabling him to perform the trusts.

And upon this he bases his judgment, that to avoid the plaintiff's title so shewn, it was necessary to shew a judgment as well as a writ.

Cresswell, J., (3), puts it in like manner:

The assignment was clearly an operative assignment as between the parties; it was intended to convey the legal property in the goods to the plaintiff, subject to the trusts. I can understand that parties may go through the ceremony of executing a thing which it is not intended to operate as a deed, but it is not suggested that that is the case here. This assignment can only be disputed by creditors. The question here is one which a Jury alone can determine, namely: whether there was or not any validity whatever in the transaction set up by the plaintiff as the evidence of his title?

As to the pleading, which Mr. Haliburton objects to as insufficient to raise the point, it is well settled that in trover, both writ and judgment can be proved under the plea of not guilty and not possessed, but in reality the case never went so far as to call upon the defendant to show anything.

-Consideratson-Right to recover back paid.]

after having examined a lot, entered into an agreement with the owner, whereby the latter sold all the pine timber standing the lot to "such as will make good merchantable waney-edged timber, suitable for his purpose, at the rate of hundred cubic feet," and paid to W.

" the balance to be paid for before the timber is removed from the lot,"

cut worth of first-class timber, suitable for the market, which was all of that class to found the lot, ana sued to recover back the balance of the namely,

That the true construction the contract was that sold and granted to permission to enter upon his lot, and out all the "good merchantable timber there growing, suitable for his purpose," and not merely first-class timber;' that there was more than

" good merchantable timber" still remaining on the lot to cover the balance of the that there was no evidence to show that the contract been rescinded. Per Taseher.

eau and J., that the payment of the was absolute payment, the plaintiff believing and representing to defendant that there was sufficient timber to cover that amount, if not more, on the faith of which representation defendant entered into the contract, which otherwise would not have done and that if the plaintiff made an error and not the defendant, must the consequences of this error.

2-Special Agreement, non-Juljlment of-Indebitatus counts.] L. sued N. al. to recover them, under specially endorsed the balance of account due under and in pursuance an agreement under seal providing that "L.

was to run according to best art and skill a tunnel of feet for of four dollars per running foot; that houldbe advanced on account of the contract, the balance to be paid on the satisfactory completion of the work."

L. made tunnels, none of which were feet, but claimed had done in all feet.

In addition to the count on the agreement the plaintiff inserted in declaration the counts for work and labor.

(Fournier and Henry, J. J., dissenting.) Query: Can the Dominion Parliament give appeal in a in which the legislature of a province expressly denied it ? V. 2-ourt of Review (P. noappeal direct 3-Order of Court upon its own when obtained a third is a order appealable under it of 4-Election appeal, notice of setting down for hearing, a condition precedent to the exercise of any jurisdiction the Supreme Excaqua Quan's

6-Original Court not a Superior Court- Judgment not appealable-B. N. Act, 99-Supreme and Exchequer Court Act, Held: a motion to quash, that appeal will not lie to the Supreme Court of in cases in which the Court original jurisdiction is not a Superior Court, and that the Court of Wills and Probate for the County of Lunenburg, Nova Scotia, is not a Superior Court within the meaning of the 1I section of Supreme and Exchequer Court Act.

SHIPS-37 1, and St. N.S.-Vessels registered in Halifax not liable.] K. resides and business in the City Halifax, and is owner of ships which are not registered at the City of Halyaz, and which have never visited the Port of Halifa.

Under the authority SHIPS-contined.

1, and

St. N.S., the assessors the City of Halifax valued the property of K.

and included therein the value of said vessels.

Held: That vessels ownea a resident, but never registered at Halifax, and always sailing abroad, did not within the meaning the words " such ships or at time of assessment," and therefore were not liable to be assessed for city

ACT-Sub-sec.

of sec. 9J.] Held: the exclusive power legislation given to Provincial Legislatures sub-sec. of sec. 9!, B. N. Act procedure in civil matters, means procedure civil matters within the powers of the Provin- 2- - - - - - - Se

3-Sec.

1878-Constitutionaty of-Pwers Domanion Parliamentand B.

Act of the Parliament of

Act respecting the traffic in intoxicating liquors' cited " Canada ance Act, is within the legislative authority that body.

That the British North

America Act, plenary powers legislation are given to the Parliament of Canada over all matters within the scope of its jurisdiction, and that they may exercised either absolutely or conditionally; in the latter case the legislation may made to depend upon subsequent event, and brought into force one part of the Dominion and not in the other. That undersub-sec.2 of ,B.N

Act, " regulation of trade and commerce,"

the Parliament of alone has the power probibiting the traffic in intoxicating liquors in the Dominion or in any part it, and the

Court has no right whatever to enquire what motive induced Parliament to exercise its powers.

(Henry J., dissenting , or

C.-Art.

OrPosIioN.

C.-Art

19-- - ------ - - - - - LAND-Right for of Appeal-Supreme and Act, 31-Supreme 6-Court of (P. Q.), appeal from.] The following certificate was fyled the printed case, complying with of the Supreme Court Rules: the undersigned, oint prothonotary for the Superior Court oi Lower Canada, now the Province of do hereby certify that the said defendant has deposited in our the twentieth day of November last, the five hundred dollars, as security in appeal in this case, before the Supreme Court, according to section thirty-first of the Supreme Court Act, passed in the thirty-eighth year of Majesty, chapter second.

Montreal, 17th January,

Signed, Hubert, i Gendron, P..C." Held: motion to quash appeal, that the deposit of the sum of in the hands the prothonotary of the Court below, made appellant, without a certificate that was made to the satisfaction of the Court pealed or any of its judges, was nugatory and ineffectual as security for the costs of the appeal.

Per Taschereau, J, the should sent back to the Court below order that a proper certificate might obtained. Per and Taschereau, J.J., that an appeal does not from the Court Review Q) to the Supreme Court of Canada. [Henry, ... - - - - - - Taova.

ELECTION-Dominion Parliament, plenary powers of legislation of-The Dominion Controverted Elections 1874-Jurisdiction Provincial Superior Courta-Power Dominion Parliament to alter or add to Civil Rights-Procedure- British North America Act, and of and and 129-Dominion Court.] The bominion Parliament,

Dominion Controverted Elections imposed on the Provincial Superior Courts and theJudges thereof the duty of trying controverted elections of the of Commons.

After the General Election of the Respondent fyled an election petition in the Superior Court for Lower Canada against the return the Appellant as the duly elected for the electoral district of Montmorency for the House of Commons. The Appellant objected to the Jurisdiction the Court, held Meredith, U. J., on the ground that " The Dominion verted Alections Act, was ultra vires. Held: affirming the judgment Meredith, O.J., lt.

That Dominion Controverted tions not ultra vires of the Dominion Parliament, and whether the Act established a Dominion Court or not, the Dominion Parliameut had a perfect right to give to the Superior Courts of the respective Provinces and the Judges thereof the ELECTION-continued power, and impose upon them the duty, trying controverted elections of bers the Commons, and not, in utilizing existing judicial and established Courts to discharge the duties to that Act, in any particular invade the rights of the Local Legislatures.

That upon the abandonment the House of Commons of the juiisdiction exercised over controverted elections, without express legislation thereon, the power of dealing would fall, ipso facto, within the jurisdiction of the Superior Courts of the Provinces virtue of the inherent original jurisdiction such Courts over civil rights.

Dominion Parliament the right to inteifere with civil rights, when necessary for the purpose of legislating generally and effectually relation to matters confided to the Parliament of Canada. Per Ritchie, C.J., and Taschereau and Gwynne, J.J., That Dominson Controverte Elections established, as the Act of did, as respects Elections a

Dominton Court.

2-The Dominion Controverted Elections Act,

1874-8ec. 2-Crosa-petstion, delay for presenting.] V. (the appellant), the sitting against whom an election petition had been fyled by L. (the respondent), unsuccessful candidate, presented cross-petition under the 8th sub-sec. 2, of the Dominion

Controverted Election Act, alleging that

L. was guilty, well himself as agents, with his knowledge and consent, corrupt practices at the said election.

This cross-petition was not fyled within thirty days after the publication in the Canada Gazette of the return to the writ of election the Clerk of the Crown Chancery, but within the delay mentioned in the last part of said subsee. see. viz.: fifteen days after the service of the petition upon I', complaining of election and return.

The cross-petition was met a preliminary objection, maintained

U. J., alleging that it was fyled too late. Held, on appeal, that the sitting member cannot a cross-petition, within the delay days mentioned in the last part of said sub-sec. 2 of against a person who was.a candidate and a petitioner.

Per

Fournier, Taschereau and Gwynne, J. J., that the said extra delay of days is given only when a petition has been against the sitting alleging corrupt practices after the return.

(Henry, J., dissenting.)

3-Controverted Elections 1874-Gifts and subscraptions for charitable purposes-Payment of a just debt without reference Election, bribery.] Ilel--1. that if gifts and subscriptions for charitable purposes, made by a candidate who in the habit of subscribing liberally to charitable purposes, are not proved to have been or made as an inducement

ELECTION-continued.

to, or on any condition that, any body men, or any individual, should vote or act in any way at an election, or any express or implied promise or undertaking that such body of or individual, would, consequence of such gift or subscription, vote or act in respect to any future election, then such gifts or subscriptions are not a corrupt practice, within the meaping of that expression as defined .the Election and Controverted Elections Acts, 2. That the settlement payment of a just debt a candidate to an elector without any reference to the election is not a corrupt act bribery, and especially so when the vandidate distinctly swears he never asked the elector's support, and the elector says never promised it and never gave it. Taschereau and Gwynne, J. J., doubting whether the transactions proved were not within the prohibitory provisions of the Act.

Sec.

EVIDENCE-Parol of determination suit byju igment inadmissible.] In an action damages malicious arrest and imprisonment of plaintiff, under a capias, issued oy stipendiary magistrate in Nova Scotia, whose judgment, it was alleged, was reversed in appeal tie Supreme Court of Nova Scotia, oral evidence-" that the decision of the magistrate was reversed," was deemed sufficient evideuce the Judge at the trial of the determination of the suit below. Held: (reversing the judgment of the Supreme Court of -Scotia), that such evidence was inadmissible, and was not proper evidence of judgment of the Supreme Court of Nova Scotia. ------ QuEn's

FOREIGN

INSURANCE-Existing Insurance -Notice to agent-Application and policy.] The plaintiff, desiring to effect further insurance for two months on certain machinery, a pplied to fendants' Company, through one S, their agent at D., authorized to receive applications, accept premiums and interim receipts, valid INDE

'15 INSURANCE-continued.

only for thirty informed S. that there were other insurances on the property, but not knowing the amount that there was the Gore

Mutual, requested him to ascertain it, and signed the application partly in blank, paid the premium and obtained an interim receipt, valid only for thirty failed to do what he promised to do, and what plaintiff had entrusted him to do, and forwarded the application to the head at making no mention of the insurance in the Gore Mutual.

The Company accepted the risk, and, in accordance with their practice, where the risk extended only over a short period, instead of a formal policy, they issued a certificate, which stated that the plaintiff was insured subject to all the conditions of the Company's policies, of which admitted cognizance, and that in the event it would replaced by a policy. The machinery was subsequently destroyed after the thirty days, but within the two months, and a policy was thereupon issued, endorsed with the ordinary conditions, one of which was that notices of all previous insurances should given to the Company and endorsed on the policy, or otherwise acknowledged them writing, or the policy should be of no and another was, that all notices for any purp must in writing. The insurance in the ore Mutual was not endorsed the policy.

Beld: That as the application in writing not contain a full and truthful statement previous insurances, the verbal notice to the agent of the existing policy in the Gore Mutual, without stating the amount, was inoperative to bind the Company; the plaintiff was not entitled to -have the policy reformed the endorsement of the Mutual policy therecould not recover.

Court its when obtained a third party, is a final appealable under qf Under and the Minister of Public Works the of Canada appropriated to the use of the Dominion certain lands Yarmouth

County, known as "Bunker's Island." In accordance with said Acts, on the 2nd April,

A.D. paid into the hands of prothonotary at Balifaz, the of as compensation and interest, as provided those

Acts, to thereafter appropriated among the owners of said island. This was paid at several times, order of the Supreme Court of Nova Scotia, to one as owner, to one as mortgagee, and to others entitled, less ten dollars. the money had remained in the hands the prothonotary of the Court, for time, H., attorney for applied to the Supreme Court for an order of the Court valling upon the prothonotary, to pay over

INTEREST-continued.

the interest upon proportion of the moneys, which interest (H. was informed) been received the prothenotaiy from the bank where had placed the amount on posit.

resisted the application on the ground that was not answerable t the proprietor of the or to the Court, interest, but did not deny that interest been received him.

A rule nisi was granted the Court and made absolute, ordering the prothonotary to pay whatever rate of interest received on the amount. Held: 1. That the prothonotary was not entitled to any interest which the amount denosited earned while under the control of the Court. That, in ordering the prothonotary to over the interest received him, Court was simply exercising the summary jurisdiction which each of the Superior Courts has over all its immediate

(Fournier and Henry, J. J., dissenting.)

LIQUORS-Power prohibit I1EASE-Canellation of - Rendering of count-Art C. P. L.

8. the August, transferred to Appellants(Plaintiffs), as trustees of creditors, his interest an unexpired lease had of a certain hotel in Atontreal, known as the Bonaventure building, and the furniture.

let April, P., the proprietor, after cancelline, with the consent of all concerned, the several leases the said building and premises, gave a lease direct for a term of ten years to one at a year, of the building, and also of the furniture belonging to S's. creditors, and the same day a notarial "agreement and accord," A. P. promised and agreed to pay to appellants, as trustees of S's. creditors, whatever he would receive from the tena-t beyond a year. In February, the premises were burned, with a large proportion of the furniture, and appellants received for insurance on fixtures and furniture, and being the proceeds sale the balance the furniture saved. The lease with was then cancelled, and P., after expending large amount to repair the building, leased the premises to L. P. & for a year from October, Appellants thereupon, trustees of S's. creditors, Respondents representing P., called soon them to rtnder an account of the amount received from and L. & above a year. The Superior Court at Montreal held that appellants were entitled to what P. had received from L, P. beyond and on appeal to the Court LEASE-continued.

Queen's (appeal side) this judgment was reversed.

Held: 1. the judgment the Court of Queen's (appeal side), that the lease to 0. terminated a force and that the obligation of P. to pay appellants the out of the said rent ceased with the said lease.

fact of appellants having alleged themselves in their declaration to the " duly named trustees of S's. creditors," did not give them the right to bring the present action for S's.

creditors, the action, if any, belonging to the individual creditors under Art

P. L.

C. L. C.; Art. U. L C.; Art.

P. L. 0.] In January, R.

sold certain real estate to J. his sister, notprial in which she assumed the qualities of a duly separated as to propcrty of her husband, J.

After the latter's death, J. McC, before a notary, renounced to the communautd which subsisted between her and her late husband.

E. C. K., a judgment creditor of IcC., seized the said real estate as belonging to the vacant estate of the said R. llcC., deceased.

J. McC. opposed the sale the ground that the seizure made super non domino possidente, and setting up title and possession.

he proved acts of possession, and that the prperty had stood for time the books of the municipality in her name.

E. C.

K. contested this opposition the ground that J. McO'a. title was bad in law, and simulated and fraudulent, and that there was no possession.

Held: That her renunciation to the communautd which subsisted between her and her late husband at the date the deed of Januaiy, J. dcU.

divested herself of any title or interest said lands, and could not now claim the legal possession of the lands under that deed or by presciiption, or maintain an opposition because the seizure was super non domino non Poesi- PLEA-Additional-upreme Court power to alow.] D. the respondent, S. W. B. the appellants, recover damages alleged to have sustained reason of the obstruction the River Miramichi appellants'

The pleas were not guilty, and leave and license.

Tua

Co. - - - - - UOUNSEL.

VERBAL-What it should contain WAY-Accretion-Impled Estinction Statute-Goboury Harbour iv, the Cobourg'Barbour Company were authorized to construct a barbour at Cobourg, and also to build and erect all such needful moles, piers, wharves, buildings and erections whatsoever, as should useful and proper for the protectection of the harbour, and to alter and amend, repair and enlarge the same as might expedient. The Harbour Company commenced their work running wharf, southerly frcm the road allowance between lots 16 and of the Townshi9 of Hamalton, which now forms Division Strret in the town of bourg. means of the mud and earth raised dredging and gradual accretions, which were prevented being washed away being confined crib work, the original wharf was widened to the full width of ision Street, and in addition they constructed a store house and placed a fence dividing from the land which appellant (whose fronted on Division Street, and extended to the waters' edge,) had gained by accretion since the addition to the original wharf was made.

Thereupon the appellant a bill complaining that his access to this Alluvial land was obstructed by the store house and INI)EX.

l18

Thkt land gained by alluvial deposits arising from natural or artificial causes, or causes in part natural and part artificial, long as the fact proved that the accretion was gradual and imperceptible, accrues to the owner of the adjacent land. That the storehouse and fence complained of in this case were not constructed any part of Division

Street but an artificial structure constructunaer the authority of a statute on the line of Division Street for harbour purposes, and, therefore, appellant not entitled to indemnified because he is denied access to alluvial land through the premises of the respondents.

ublic right of way from the end of Division hreet to the waters of Lake Ontario, was extinguished necessary implication.

oration Yarmouth v. Smmune h. D.

lowed.

Power Apointment of- Appeal-Juriadiction-Powers ot Local Legislature8-37 241 and N.S., ultra vires-- Letters Patent of Precedence, not retrospective in their efect-U eat &al Province of Nova

Scotia,-40 c. D.] N.S.

the Lieutenant-Governor of the Province Nova Scotia was authorized to ppoint rovincial under the name of

Counsel learned in the law for the

N.., the

Lieutenant-Governor was authorized to grant to any member of the bar a patent precedence in the Courts of the Province of Nova Scotia.

R., the respondent,was appointed the Governor General the December, under the great seal Canada, a Queen's Counsel, and the uniform practice of the Court had precedence over all members of the bar not holding patents prior to his own. letters patent, dated under the great seal the Province, and signed the Lieutenant-Governor and Provincial

Secretary, several members of the bar were appointed

Queen's Counsel for Nova Scotia, and precedence was granted to them, as well as to other

Queen's Counsel appointed the Governor

General after the 1t July, list

Queen's Counsel to whom precedence thus given the Lieutenant Governor, was published the Royal Gazette of the 27th and the name the respondent, was included the list, but it gave precedence and preaudience before him to several persons, including appellants, who not enjoy it fore.

affidavits disclosing the above and other facts, and producing the original commission and letters patent,

., on the

January, obtained a rule nisi to grant him rank and precedence over all Queen's

[S. C. R. VOL. III. COUNSEL-continued.

Counsel appointed in and for the Province Nova Scotia since the December, and to set far they precedence, the lettere patent, dated the 26th This rule was made absolute the Court of Nova Scotia, the and the decision of that Court was substance as follows:-1. That the letters patent of precedence, issued the tenant Governor of Nova Scotia, were not issued under the great seal of the erovince Nova Scotia; 2. of the Acts Nova Scotia, were not ultra sires; That sec. 2. was not retrospective its and that the letters patent of the issued under that Act not affect the precedence of the respondent. the argument appeal fore the Supreme Court of eanada the question of the validity of the Great Seal of the Province of Nova Scotia was declared to have settled legislation, 1), and 2, S.

preliminary objection was raised to the jursdiction of the Court to hear the appeal. Held: 1. That the judgment of the Court below was one from.which an appeal would lie to the Supreme Court of Canada - (Fournier J., disseating.)

Per Strong, Fournier and Taschereau, J.J. :-That N.S., has not a retrospective and that the letters patent issued under the authority of that Act could not affect the precedence of the Queen's Counsel appointed the Crown. Per Henry, and Gwynne, J.J.:- That the Bratish North America has invested the Legislatures of the Provinces with any control over the appointment of Queen's Counsel, and as Her forms no part the Provincial Legislatures as does of the Dominion Parliament, no Act of any such Local Legislature can any manner impair affect her prerogative right to appoint Queen's Counsel in Canala directly, or through representative the Governor General, or vest such prerogative right the Lieutenant Governors of the Provinces; and that and are ultra virea and void. 4. Per Strong and Fournier, J.J. :hat as this Court ought never, except cases when such adjudication indispensable to the decision a to pronounce upon the constitutional power of a Legislature to pass a statute, there was no necessity this case to express an opinion upon the validity of the Acts in question.

COMPANY-Railway Crossing-Calliason-Ar-brakes-Failure with solidated Statutes, Chapter Sections -Negligence-Damage.]

?he Grand Trunk Railway crosses the Great Western Railway, about mile east of the city of London, on a level crossing.

the June, a Grand Truck train, on which plaintiff was board as a conductor, before crossing, was RAILWAY COlPANY-continued.

brought to a stand. The signal-man who was in charge of the crossing, and in the employment of the Great Western Railway Company, dropped the semaphore, and thus authorized the Grand Trunk train to proceed, which it did.

While crossing the track, appellants' train, which hal not been stopped, owing to the accidental bursting of a tube arr-brakes, ran into the Grand Trunk train and injured plaintiff. It was shown that these air. brakes were the best known appliances for stopping trains, and that they had been tested during the day, but that they were not applied at a distance from the crossing to enable the train to be stopped the hand-brakes, in case the air-brakes giving way.

see. Stats. cap.

enacts that "every

Railway Company shall station an at every point their line crossed on the level any othet railway, and no train shall proceed over such crossing until signal has been made to the conductor thereof, that the way clear."

Sec. enacts that

1 every locomotive

*

* or train of cars any railway before crossing the track of any other railway on a level, stopped for at least the space of three minutes "

Held: That the appellants were guilty of negligence in not applying the air-brakes at a distance from the crossing to enable the train to stopped hand-brakes of the air-brakes giving away. That there was no evidence contributory negligenne on the part of the Grand Trunk Railway, they brought their train to stop, and only proceeded to cross appellant's track when authorized to do the in charge the semaphore, who was a servant of the Great

Western Railway Company.

RAILWAY CROSSING - - - - - - RENUNCIATION - - - - - - - - - - - - - - 309

Construction of.

1.-british North America Act, and of

2.-Briish North America

143-- - ------ 4.-The Controverted Elections Act,

5.-32 seec. Ont.

Tam, 1.

STATUTES-continued.

6.-22

PutIc

7.-37

8.-27 and e. 1 AsssssNT

9.-Revied Statutes, N.S., 4th series, cap. - - - - - 10.-31 c. N.B.

Vi., and

12.-40 Vic.,

Election ,nottce of setting for hearing-Power Judge tried petition to grant an extension of time for such notice--Supreme Court Rules a motion to quash the appeal on behalf of the respondent, on the ground that the appellant had not, within three days after the Registrar of the Court had set down the matter of the petition for hearing, given notice in writing to the respondent, or his attorney or agent, of such setting down, nor applied to obtained from the Judge who tried the tition further time for giving such notice, as required the 48th section of the Supreme and Exchequer Court Act. Held: That this provision in the statute was imperative; that the giving of such notice was a condition precedent to the exercise of any jurisdiction the Supreme Court to hear the appeal; that the appellant hiving failed to comply with the statute, the Court could not grant relief under Rules or 69; and that therefore, the appeal could not be then heard, but must struck the lists of appeals, with costs of the motion.

Subsequent to this judgment, the appellant applied to the Judge who tried the petition, to extend the time for giving the notice, whereupon the said Judge granted the application and made an order "extending the time for giving the prescribed notice till the 10th of December then next." was again set down the Registrar hearing the Supreme Court at the February Session fullowing, being the nearest convenient time, and notice of such setting down was duly given within the time mentioned in the order. respondent thereupon moved to dismiss the appeal on the ground that the appellant unduly delayed to prosecute his appeal, failed to briag the same on for hearing at the next and that the Judge who tried the petition no power to extend the time giving such notice after the three days from the first setting down the case for hearing by the Registrar of this Court.

Held: That continued.

the power the Judge who tried the petition to make an order extending the time for giving such notice a general and exclusive power to be exercised according to sound discretion, and the Judge having made such an order in this case, the appeal properly before the

Court for hearing. (Taschereau, J., dissent- -itule6

Se

TAXES-Sale of lendfor taxes-32

O.-Proof of taxes in arrear.] a suit commenced a bill in the Court

Chancery asking for an account of damages sustained certain trespasses alleged to have been committed the appellant (defendant)

for an injunction and for the principal question raised was whether a sale of the land for taxes, which took place on the let through and under which the respondent (plaintiff) claimed title, was valid.

The evidence is fully set out below. Hell:

That there was no evidence to show the land sold had properly assessed, and, theretore, the sate of the land in question was invalid.

1Strong and Gwynne, J., dissenting.] Per Fournier, Henry and Grynne, J. J.:

Where it appears that no portion the taxes have overdue for the period prescribed the statute under which the sale takes place, the sale is invalid, and the defect not cured section of

(Stiong, J., diaenting, holding that applied to a case where any taxes ware in arrear at the date

ORLEn

Foreign corporation-Branch Bank- " Income," as distinguished from "Net Profits"

N.B.] manager the Bank of B. N. foreign banking corporation, having a branch the City of Saint

John, derived such business during the year of income of but, during the period, sustained losses in its business beyond that amount.

having made no gain from said business, disputed the corporation's authority to assess them under and on an income $46,000.

Reld: That

. (S. G R. VOL. III. TAXES-continued.

under the Acts of Assembly relating to the assessing of rates and taxes in the City of Saint toreign banking corporations doing business in Saint John are liable to be taxed the gross income received them during the year; and that L. had been properly assessed. (Henry, J., dissenting.) V. -- 3-Hakfazx taxes

Se

Action of, against Sherif-Transfer property execution debtor-Midirection Jury.] In action of trover or conversion agiinst appellant, High Sheriff the Coun*y of Cumberland, N.., to recover damages alleged conversion the appellant of certain personal properly found in the possession the execution debtor, but claimed the respondent, the pleas were a denial of the conversion, no property in plaintiff, no sion or right of possession in plaintiff, and justification under writ execution against the execution debtor.

The learned ju dge the trial told the jury that " thought it incumbent on the defendant to have further than merely producing and proving execution, and that if a transfer had taken place to the plaintiff, and the articles tiken and sold, defendant should have shown the judgment on which the execution issued to en'tble to justify the taking and enable him to sustain his defence."

Beld: That the entitled under his pleas to have it left to the Jury to say whether the plaintiff had shown title or right of possession to the goods question, and therefore there was misdirection.

WILL-Administratrix with Will annexed, purchase simple when personal f testator to pay ofitncumbrance -Subsequent parol agreement sell part of said Land nutl-Uornpensation Money for land, right to and treated-Revised statutes of Nova (4th Series), About Andrew Mckinn devised his lands to his Mary Aladlin, for with remainder to Maria Kearney. Letters of administration with the will annexed were granted to the widow. At the time of testator's death the lands were mortgaged for £150. A suit to foreclose this mortgage was instituted after the testator's death, it was alleged that under it a closure was obtained, and the property sold, and purchased the administratrix for £905. There was evidence that the administratrix received personal assets of the testator cient to have paid the mortgage, had she chosen to apply them.

The of £725 was lent to the administratrix Ann Kean, her daughter a former marriage. The administratrix then sold the property to the public authorities for £1,750, out of which she paid her daughter 400. from the daughter, WILr-conginued.

with the leave of the administratrix, occupied about J of an acre of the land, until, in under the authority of an expropriation Act, she was ejected from it, the Commissioner taking in all acres Athe of this property, the balance being in the occupation Atoria

Kearney and her husband, Francis Kearney

(the appellants).

These acres Athe were appraised at and that paid into Court to abide a decision as to the legal or equitable rights of the parties respectively.

Ann Kean claimed title to the whole of the land taken, under an alleged parol agreement with her mother, that she should have the land in satisfaction £325, the residue unpaid the loan of the 2725, and obtained a rule nial for the payment to her of the sum of the amount awarded as compensation for the land. In the administratrix executed an informal instrument under seal, pur.

porting to lease of her life estate to the appellants in the whole property, reserving a rental of year and liberty to occupy two rooms in a dwelling house then occupied her. On a motion to make this rule absolute, several affidavits were filed, including those the appellants.

the 18th January, the matter was referred to a master, to take evidence and report thereon, subject to such

WILL-continued.

report being modified the Court or a Judge. The master reported that the appellants had the sole legal and equitable rights in the property. On motion to confirm that report, the ourt made an order apportioning the between Ann Kean and the appellants, the former being declared entitled to paid and the latter, on filing the written consent of Mcin, the residue of the Held: appeal, lst. That the administratrix having personal assets of the testator sueient to discharge the mortage, was bound in the due course her administration to discharge said incumbrance, and that the parol agreement made her with her dau gter was null and void.

That when land is taken under authority et legislative provisions similar to Revised Statutes of Nova (4th Series), at the compensation money, as regards the capacity of married women to deal with it, is still to regarded in equity as land.

1.-" Income "

2.-" Good merchantable timber" -