Majority
Bench, appeal side(1), affirming the judgment of Routhier C.J. in the Superior Court, District of Quebec, dismissing the appellants' petition of right with By their petition of right, the appellants, as transferees of The Atlantic and Lake Superior Railway Co. and of The Baie des Chaleurs Railway Co., claimed $155,000, as the unpaid balance of subsidy granted in aid of the construction, completion and equipment the Baie des Chaleurs Railway.
The appellants claimed that, under the statutes of the Province of Quebec, 54 Vict. ch. 88, sec. sub-sec. (j), and 60 Vict. ch. 4, sec. 12, the subsidy was attributable to the first eighty miles of the railway beginning at Metapedia and extending towards Gaspe Basin; that the land subsidy was of a special character subject only to the conditions enumerated in the second part of said sub-section (j), and that, as the Lieutenant-Governor in Council had exercised the discretion of making cash payments in lieu of the land subsidy given by the statute and effected a compromise for the payment of the last thirty-five cents per acre, at the rate agreed upon by the compromise, the Provincial Government was bound by the terms of that transaction.
It was contended by the respondent that the subsidy was attributable to the eighty miles of the railway beyond the first one hundred miles of the line, viz., the part extending from Paspebiac to Gasp6
Basin; that payment was conditional on the completion of the works to Gasp6 Basin, which condition had not been fulfilled, and that, in any event, such payment was a matter of grace and was not obligatory upon the Crown.
In the courts below, the petition of right was dismissed and it was held that the subsidy applied to the eighty miles of the railway which terminated at or near Gasp6 Basin, and that a different construction placed upon the statute by the officers of the Crown, in effecting a compromise and making part payment of the subsidy in money, gave the appellants no right to recover the balance claimed from the Crown.
After hearing counsel on behalf of the parties, on the appeal, the Supreme Court of Canada reserved judgment and, on a subsequent day, dismissed the appeal with costs for the reasons given in the court below.
Charles Lanctot K.C. for the respondent.
- Executor and trustee - Moneys of testator-Sale by executor- Under value--Jurisdiction of Probate
ACTION-Title to land-Promise of sale ferance-Squatter's rights der of deed-Restrictive conditions- Evidence-Commencement de preuve par crit-Pleading and practice-Arts.
412, 419, 1204, 1233,
The appellants, plaintiffs, are the grantees of the lands in question, part of the Seigniory of Metapediac, the former proprietors of which had an agent resident in the seigniory, who administered their affairs there.
It had been customary, on applications by intending settlers for the purchase of their wild lands, for this agent to take memoranda of their names and permit them to enter upon the lands, and this was done in respect to the lots in question and the applicants were allowed to hold possession and make improvements thereon without notice of any special conditions limiting the titles which might, subsequently, granted to them the owners.
The defendants, respondents, quired the rights of these applicants and, when the plaintiffs tendered deeds of the said lots to them, they refused to accept them on the ground that conditions were inserted which had not been stipulated for at the time of the original entries upon the lots and of which no notice had been given.
In actions, au pititoire, the defendants pleaded that their possession had been in good faith in expectation of eventually receivina titles without restrictive conditions sought to be imposed and that, in the event eviction, they were entitled to full compensation for the value all necessary improvements made on the lands without deductions in respect rents, issues and profits.
Held, affirming the judgment appealed from (Q.R. K.B. 127), the Chief Justice and Duff J. dissenting,
(1) that the memoranda made by the agent were commencements de preuve par dcrit and, having been followed by possession the lots, were equivalent to a binding promise sale without unusual conditions in limitation of any titles which might granted; that the entries made upon the lands, the thereof held by the defendants and their auteurs and the works done by them thereon could not held to be in bad faith nor with knowledge of defective title; that, under the circumstances and notwithstanding that the defendants had actual notice of prior title, the plaintiffs could not maintain actions au pititoire, although they might titled to declarations in confirmation the deeds tendered, if approved, and to recover the price of the lots; and that the defendants could not be evicted without compensation for the full value the necessary and useful improvements so made upon the lands with the knowledge and consent of the agent, and subject to being retained the proprietors, without any deductions in respect the rents, issues and profits derivable from the lands.
Price v. Neault (12 App. Cas. followed-; Lajoie v. Dean Dor. discussed.
Per Fitzpatrick C.J.-Under article. 412 the Civil of Lower Canada, the good faith a possessor of land is dependent upon a grant sufficient to convey real estate or transmit an interest therein. 2-Possessory action-Trouble de pos- -Expiration of license non-use- Tacit reneoal-Cancellation of agreement-Recourse for damages.] A possessory action will not lie in case where the trouble de possession did not occur in consequence of the exercise an adverse claim of right or title to the lands in question, and is not of a permanent or recurrent nature.
and Idington JJ. dissenting, were opinion that, under the circumstances the case, a possessory action would lie.-P. brought an action au possessoire against the company for interferwith his rights in a stream, damages and for an injunction against the commission or continuance of the acts complained of.
service prothe company ceased these acts, admitted the rights and title of P., alleged that they had so acted in the belief that a verbal agreement made with P.
years previously gave them permission to do that this license had never been cancelled but was renewed from year to year and that, although the privilege had not been exercised by them during the two years immediately preceding the alleged trespass in was then still subsisting and in force, and tendered in compensation for any damage caused by their interference with P.'s rights.
142),
Davies and Idington JJ.
dissenting, that, as there been no formal cancellation of the verbal or withdrawal of the license thereby given, it bad to regarded, notwithstanding non-user, having been tacitly renewed, that it was still in force in at the time of the acts complained of and that P. could not recover in the action as instituted. The
Chief Justice, on his view of the evidissented from the opinion that the agreement had been tacitly renewed for the year
V. .....................
3-Constitutional law of statute -"Crown
Procedure Act"
R.5.B.C. ministers of the Crown-Refusal to submit petition of right-Tort-Right action-Damages-Pleading-Practice- Withdrawal of case from jury-New trial-Costs.1 Under the provisions the "Crown Procedure Act," R.S.B.C.
an imperative duty is imposed upon the Provincial Secretary to submit petitions of right for the consideration the Lieutenant Governor within a reasonable time after presentation and failure to do so gives a right of action to recover damages.-After a decisive refusal to submit the petition has been made, the right of action vests at once and the fact that a submission was duly made after the institution of the action is not an answer to the plaintiff's claim. a case where it would open to a jury to find that an actionable wrong had been suffered and to award damages, the withdrawal of the case from the jury is improper and a new trial should had.-The Supreme Court Canada the judgment appealed from B.C. Rep. 476), which had affirmed the judgment at the trial withdrawing the ease from the jury and dismissing the action and allowing the plaintiff his costs up to the time service of the statement defence, costs being given against the defendant in all the courts and a new trial ordered.
Davies and Maclennan JJ. dissented and, taking the view that the refusal, though illegal, had not been made maliciously, sidered that, on that issue, the plaintiff was entitled to nominal damages, that, in other respects, the judgment appealed from should affirmed and that there should be no costs allowed on the appeal to the Supreme Court Canada. Non- ...................
4-Defamation ghost haunting premises-Slander The reckless publication of a report as depreciation in the value of the property, loss of rent and expenses incurred in consequence publication. Barrett v. The Associated Newspapers judgment anpealed from was affirmed, the Chief Justice dis- . . . .....................
Maintenance unsuccessful defence-Damages.] defendant against whom a lawsuit has successfully prosecuted cannot recover the costs incurred for his defence as damages for the unlawful maintenance the suit by a third party who has not thereby been guilty maliciously prosecuting unnecessary
Bradlaugh v. Newdegate 1) distinguished;
Giegerich v. Fleutot
Can. S.C.R. referred to. Judgment
B.C.
...................
6-Municipal corporation-Illegal expenditure-Action ratepayer-Intervention of Attorney-General--Validating
Act-Right of appeal.]
Prior to the passing of the Act the Legislature
Nova Scotia, 7 Edw. VII. the City
Council of Halifax had no authority to pay the expenses of the mayor in attending convention of the Union
Canadian
Municipalities.
a municipal council illegally pays away money municipality one its officers action to it back may, if the council refuses to allow its name to used, brought a ratepayer suing on half all the ratepayers and need not in the name the Attorney-General.
-Pending such an action the legislature passed an Act authorizing payment the council of any sums for principal, interest and costs incurred the fendant "in the event of judgment ing finally recovered the plaintiff."
Held, per Fitzpatrick C.J. and Maclennan
J., that the meaning of the words quoted was that the action might proceed to a finality including any competent appeal and that they did not put an end to the appeal to this court.-Per Fitzpatrick C.J. and
Maclennan
J.*--Quawre.
Should not the action have been brought on behalf of all the ratepayers and inhabitants of the municipality?
ment appealed from N.S. Rep.
7-Tramway-Con tract with raunicipality-Limited tickets - Specific performvance-Injunction-Right of action- ...............
8-Railway aid-Provincial subsidy- Construction of statute-60 V. 12
Breach of condition - Compromise by Crown officers-Obligation binding the Crown-Right of action-Application of subsidy to extension of line railway.] v. KiNG.682 ADMINISTRATION.
Time limit for appeal to King's Bench-Opposite party appealing to Court of Review-Arts. 927, 1209 0.P.Q.-Practice-Injunction-Discretionary order-Reversal on appeal- Question of costs only.] appeal from a judgment of the Superior Court, rendered on the trial a cause, will lie to the Court of King's Bench, appeal side, if taken within the time limited article of the of Civil Procedure of Quebec, notwithstanding that, in the meantime, on an appeal the opposite party, the Court of Review may have rendered a judgment affirming the judgment appealed from.-Although the granting of an order for injunction, under article of the of Civil Procedure Quebec, is an dependent on the exercise of judicial discretion, the Supreme Court of Canada, on an appeal, reversed the order on the ground that it had been improperly made upon evidence which shewed that the plaintiff could, otherwise, have obtained such full and complete remedy as he was entitled to under the circumstances the case.
Tdington
JJ. (dissenting)
, were of opinion that the order had been properly merits of the appeal, Davies and Idington JJ. dissented from the majority the court on the ground that, as a question costs only was involved on the it should not entertained. .... Appeal-Stated case-Provincial legislation--A ssessment-ilnicipal tax Halifax."] An Ontario company resisted the imposition of a license fee for "doing business in the City Halifax" and Supreme Court of Nova Scotia for opinion as to such liability. On appeal APPEAL-Continued.
the Supreme Court Canada council for the City Halifax contended that to the Supreme Court of the Province, and, therefore, and because the proceedings did not originate in a superior court, the appeal to the Supreme Court
Canada did not lie.
Held, per Fitzpatrick C.J. and Duff J., that as the appeal was from the final judgment the court last resort in the Province, this court had jurisdiction under the provisions of the Supreme Court Act and it could not taken away by provincial legislation.-Per
Davies J.-Provincial legislation cannot impair jurisdiction conferred this court the Supreme Court Act. In this case the
Supreme Court of Nova Scotia had jurisdiction under Order XXXIII, Rule 1 the Judicature Act.-Per Idington J.- If the case was stated under the Judicature Act Rules the appeal would lie but not if it was a submission under the charter for a reference to judge at reratepayer.
3-Right of appeal-Denial provincial statute.]
Supreme Court
Canada refused to quash an appeal the ground that the riaht of appealing had been taken away of 'The
Mechanics' and Wage Earners' Lien Act,"
. . ....................
(Leave to appeal to Privy Council
4-Cross-appeal between respondents- Practice.] The action was against the two defendants, jointly, and the plaintiff obtained a verdict, at the trial, against both.
The Court of Appeal confirmed the verdict as to and dismissed the action as to the other defendants.
appealed to the Supreme Court Canada, making the other defendants respondents on his appeal. Held, that the plaintiff, respondent, was entitled cross-appeal against the said defendants, respondents, to have the verdict against
APPEAL-Continued.
them at the trial restored.
McNIcnot 5-Evidence-Provincial laws in Can- As an appellate tribunal for the Dominion of Canada, the Supreme Court Canada requires no evidence the laws in force in any of the provinces or territories of Canada.
It is bound to take laws prevailing in every province or territory in Canada, even where they may not have been proved in the courts below, or although opinion judges of the Supreme Court Canada may differ from the evidence adduced upon those points in the courts below. Cooper v. Cooper
App. Cas. 6-Controverted election-Right of appeal-Fixing time for trial.] No appeal lies to the Supreme Court of Canada from an order of the judges assigned to try an election petition fixing the date Record on appeal-Supreme Court Rules-Decree or order of court below.] See remarks on absence from the record the decree of the court of original jurisdiction, per Davies J. at page Findings of jury-Questions of fact Operation of railicay-Unnecessary combustibles left on right of way- "Railway Act, 1903," ss. 118(j) and R.S.C. ss. 151(j) and fire-Point of origin- .Charge judge-Finding juryappeal-Supreme Court Act, as. and ...
.........................
TAXES-Municipal corpora tion-Montreal city charter-52
V. s. (Que.)-Construction statute-"Current year"-Limitation
Local improvements
Special
By section of the charter the City of Montreal
) the right to recover taxes is prescribed and extinguished by the lapse of "three years, in addition to the current year, to counted from the time at which such tax, etc., became due."
special assessment for local improvements became due on the 14th of March, and action was brought to recover the same on the 4th of February, from (Q.R. K.B. 479) the 'Chief Justice and Duff J. dissenting, that the words "current year" in the section question, mean the year commencing the date when the tax became due and that the time limited for prescription had not expired at the time of the stitution of the action.
....................
legislation-Assessment-Municipal tax
Halifax."] An Ontario company resisted the imposition of a license fee for ing business in the City of Halifax" and
Supreme Court of Nova Scotia for opinion as to such liability.
On appeal the Supreme Court of Canada counsel for the City of Halifax contended that to the Sunreme Court of the Province, and, therefore, and because the proceedings did not originate in a superior court, the appeal to the Supreme Court
Canada did not lie. Held, per Fitzpatrick C.J. and Duff J.. that as the appeal was from the final judgment the court last resort in the Province, this court had jurisdiction under the provisions the Supreme Court and it could not taken away provincial leEislation.-Per Davies J.-Provincial legislation cannot impair the jurisdiction conferred on this court by the Supreme Court Act.
In this case the Supreme Court Nova Scotia had
1 of the Judicature Act.
Per Idington
TAXES-Con. lie but not if it was a submission under the charter for a reference to a judge at request of a ratepayer.-By section of the said charter amended by
44, "Every insurance company or association, accident and guarantee company, established in the City of Halifax, having any branch or agency license fee as hereinafter mentioned. * association or agency doing business in the City of Halifax (banks, insurance companies or associations, etc., excepted) an annual fee of one hundred dollars."
the words "every other company" in the last clause were not subject to the operation of the ejusdem generis rule but applied to any company doing business overuled on this point.-A carriage company agreed with a dealer in Halifax to supply him with their goods and give him the sole right to sell the same, a territory named, on commission, all monies and securities given on any sale to the property of the company and goods not sold within a certain time to returned.
The goods were supplied and the dealer assessed for the same his personal property.
Held, Davies, and Maclennan JJ. dissenting, that the company was not "doing business in the City of Halifax" within the meaning of section of the charter and not liable for the license fee of one hundred dollars thereunder.
Judgment of the Supreme Court of Nova Scotia N.S. Rep. 403)
affirmed, but reasons overruled.
- Assignment by mort- Preferences Act, s.
After judgment for foreclosure of mortgage / or redemption judgment creditors of the mortgagor executions sheriff's hands were added as parties the Master's proved their claims.
The Master's report found that they were the only incumbrancers and fixed a date for payment by them of the amount due to the mortgagees. After ASSIGNMENT-Continued.
confirmation of the report obtained assignments these judgments and was added as a party.
He then paid the amount due the mortgagees and the
Master took a new account and appointed a day for payment by the mortgagor of the amount due on the judgments as well as the mortgage.
This report was confirmed and the mortgagor having made an assignment benefit creditors before the day for redemption an order was made a judge in chambers adding the assignee as a party, extending the time for redemption and referring the case back to the Master to take a new account and appoint new day. Held, affirming the judgment of the Court Appeal (13
Ont. L.R. that under the provisions section of the Assignments and
Preferences Act the assignee of the mortgagor could only redeem on payment the total sum due to under the mortgage and the judgments assigned to him.
Scorr v. ................
of cheque-Deposit in private bank- Application of funds to debt due banker
-Sinister intention-Payment to creditor-R.S.O. s. (1).]
a merchant in insolvent circumstances although not aware of that fact, sold his stock-in-trade and deposited the cheque received for the price to the credit his account with a private banker to whom he was indebted, at the time, upon an overdue promissory note that had been, without his knowledge, charged against his account a few days before the sale. Within two days after making cheque to cover the amount of the note.
cheque, so deposited, set aside as preferential and void:
that the transaction was a payment to a creditor within the meaning the statute, R.S.O.
sub-s. 1, which was not, under the circumstances, void as against creditors.
RoniNson,
& V. &
.............................
ATTORNEY-GENERAL -Municipal corporation-Illegal expenditure-Action by ratepayer-Intervention of Attorney-General.] Where a municipal council illegally
ATTORNEY-GENERAL-Continued, pays away money of the municipality to one of its officers an action to recover it back may, if the council refuses to allow its name to be used, be brought a ratepayer suing on behalf all the ratepayers and need not in the name of the Attorney-General. Taxing costs to Crown-Fees to counsel and solicitor-Salaried officer representing the Crown. .............
ities province at confederation- Special funds-Rate of interest-Trust funds of debt-Dominion arbitrators- Award of 1870-B.N.A.
Act, ss. .......................
BILLS NOTES-Promissory note- Protest in London, England-Notice dishonour to indorser in Canada-Knowledge of address-First mail leaving for Canada-Notice through agent-Agreement for time-Discharge of surety- Appropriation of payments-Evidence.] Notes made in St. John, were protested in London, England, where they were payable.
The indorser lived at Richibucto, Notice of dishonour the first note was mailed to the indorser at Richibucto, and, at the same time, the protest was sent by the holders to an agent at Halifax, N.S., instructing him to take the necessary steps to tain payment.
The agent, on the same day that he received the protest and instructions, sent, post, notice of dishonour to the indorser, at Richibucto. As the other notes fell due, the holders sent them and the protests, the first packet from London to Canada, to the same agent, at Halifax, by whom the notices of dishonour were forwarded to the indorser, at Richibucto. Held, Idingsending of the notice of dishonour the first note direct from London to Richibucto, with the precaution of also sending it through the agent was an indication that the holders were not aware of the correct address of the indorser and the fact that they used the BILLS NOTES-Continued.
proper address was not conclusive of their knowledge or sufficient to compel an inference imputing such knowledge
Therefore, the notices in respect to the other notes, sent through the agent, were sufficient.-Per Idingholders had failed to shew that they had adopted the most expeditious mode of having the notices of dishonour given to the indorser.-The maker the note gave evidence of an offer to the holders to settle his indebtedness, on certain terms and at a time some two or three years later than the maturity the last note, and that the same was agreed to the holders.
The latter, in their evidence, denied such agreement and testithat, in all the negotiations, they had informed the maker that they would do nothing whatever in any way to release the indorser.
Held, that the evidence did not shew that there was any agreement the holders to give time to the maker and the indorser was not
If the existence of an agreement could gathered from the evidence, it was without consideration and the creditors' rights against the sureties were reserved.-Per Idington and
Duff JJ. that a demand note given renewal of a time note and accepted the holders is not giving of time to the maker which the indorser is
Judgment of the Supreme
Brunswick
N.B.
LEOD....... .........
...........
2-Promissory note-Fraud in procuring-Discount-Good faith - L. and others signed promissory notes each for the amount of ten shares in a company formed to manufacture rotary engines under an invention of the payee who fraudulently misrepresented to them the prospects and intentions of such pany.
At the same time each maker signed an application for ten shares.
The payee and T., the assignee of his patent of invention, induced W. to discount these notes and received a portion of the proceeds, part being retained
W. in payment of debts due him from these two parties.
the trial of tions W. on the notes the evidence of T., who had absconded, was taken under commission and he swore that the form application signed by the respective defendants had been shewn to W.
BILLS NOTES-Continued. before the notes were discounted. W. denied this and swore that he had been told that the notes were given in payment of stock held by the payee. that the evidence of on whom the onus of proof rested, could not be cepted; that the whole testimony and attendant circumstances shewed that W. suspected that the proceeds of the notes belonged to the company; and, having discounted them without inquiry as to the right of the payee and T. to receive these proceeds, he was not in good faith and could not recover.
... .......................
Instalments of interest - Transfer after default to pay interest--"Overdue" bill-Notice-Holder in good faith Bills of Exchange Act - Common law rule.] Where interest is made payable periodically during the currency of a promissory note, payable at certain time after date, the note does not come overdue within the meaning of tions and of the "Bills of Exchange Act," merely by default in the payment of an instalment of such interest.-The doctrine of constructive notice is not applicable to bills and notes transferred for value.
Judgment appealed from reversed, Idington and Maclennan JJ. dissenting.
..............
Promissory note-Illegal consideraproof-Findings of trial judge. Ross v. BOUNDARY-Order for bornage-Evidence-Ecisting posts and blazing-Expertise-Reference to surveyors-Reports and plans-Costs in action on bornage.] BROKER-Insurance-Sprinkler system -Damage from leakage or discharge- ... ... ....................
BUILDING - Construction-Collapse - Vis major. .......................
BUILDING UPPER BY-LAW-Municipal Act-Vote on law-Local option
Ward divisions - Single or multiple voting-R.S.O.
245, s. 141-3 Edw. VII.
s.
. . .......................
CASES-Attorney-General of Ontario
Attorney-General of Canada Ex.
C.R. affirmed. ................
2-Barrett v. Associated Newspapers
Times L.R. distinguished 340
3-Boultee, Davies & Co. v. Canadian
Casualty & Boiler Ins. Co. Ont. L.1.
4-Bradlaugh v. Newdegate
1) distinguished .................
5-Cameron Royal Paper Mills Co.
(Q.R. 273) affirmed ....... 365
6-Caadian
Pacific Ry. Co. v. Grand
Trunk Ry. Ont. L.R.
af- 7-Canadian Pacific Ry. v. Ottawa
Fire Ins. Ont. L.R. 493; Ont.
...............
8-Canadian Pacific Ry. Co. v. Parish of Notre Dame de Bonsecours ([1899]
referred to.............476
9-Carruthers v. Canadian Pacific Ry.
Man. R. affirmed ...... 251
Charlevois Election Case (Cout.
Dig. followed ..............
11-Cliche v. Roy (Q.R. K.B.
CASES-Continued.
12-Clinton Wire Cloth Co. v. Dominion Fence Co. Ex. C.R. affirmed .......... Corbett v. McNeil (41 N.S. Rep. 14--Cooper v. Cooper App. Cas. 15-Day
Crown Grain Co. Man. R. 366) reveised ..................
DeGalindez v. The King (Q.R. K.B. 320) affirmed..............682 17-Elk River Lumber v. Crow's Nest Pass Coal B.C. Rep. 433) 18-Federal Life Assce. Co. v. Stin- ..... 19-Fleming McLeod Rep. 20-Furry
Boscowitz B.C. Rep. Giegerich v. Fleutot Can. R. referred to ...............
22-Groves V. Wimborne
([189a] 402) followed ...............
23-Halifax, City of, v. McLaughlin Carriage N.E. Rep. 403) affirmed ............... 24-Hamilton, City of, v. Hamilton St. Ry. Ont. L.R. 642; Ont. L.R. 594) affirmed. . . .................
CASES-Continued.
25-Hart v. MacIlreith N.S. Rep.
....................
26-Hawthorne & v. Canadian
Casualty & Boiler Ins. Ont. L.R.
27-Hildreth v. McCormick Manufacturing Ex. C.R. 378) affirmed
...................
28---Jarvis Great Western Ry.
U.C.C.P. 280) followed.........621
See 4.
29-Kirstein v. Cohen Ont. L.R.
30-Lajoie v. Dean Dor. K.B.
discussed . . . ....................
31-Laurentide Mica v.
Fortin
(Q.R. K.B. 432) affirmed........
Madden v. & Fort Sheppard Ry. Co. referred
.. ........................
33-Maddison Alderson
App.
Cas. referred to .............
34- Malcolm v. McNichol
Man.
R.
affirmed with variation.. .
35---ontreal, City of, Vanier (Q.R.
K.B. 479) affirmed.............
36-Montreal Rolling Mills Co. v. Corcoran (26 Can. S.C.R. 595)
distinguished. . . ........................
37-Nagy Manitoba Free Press
Man. R. 619) affirmed........340
CASES-Continued.
38-ewswander V. Giegerich B.C. Rep. 272)
39-Norton V. Fulton B.C. Rep. 476) reversed . ...................
40- North American Life Assce. Co. v. Lamothe (Q.R. K.B. .... .. 41-Price v. Neault App. Cas. 42-Robinson v. McGillivray Ont. L.R. 232)
43-Ross Gannon N.S. Rep. ...............
See 4. 44-inclair v. Town of Owen Sound Ont. L.R. affirmed ........ 236 45-Spencer Bros. v. The King (10 Ex. C.R. 79) affirmed .............. 46-Tooke v. Bergeron Can. C.R.
.......... Turcotte Ryan (Q.R. K.B. 472) affirmed . . ....................
48-Valiquette v. Fraser Ont. L.R. 57; Ont. L.R. affirmed ........ 1 Maintenance cious motive-Cause of action-Coets unsuccessful defence - A defendant against whom lawsuit has been successfully prosecuted cannot recover the costs incurred for his defence as damages for the unlawful maintenance of the suit a third party who has not thereby been guilty of maliciously prosecuting unnecessary
CHAMPERTY-Continued.
Bradlaugh v. Newdegate
1) distinguished;
Giegerich v. Fleutot
Can. S.C.R. referred to. Judgment appealed from B.C. Rep. 272)
Preferential transfer of cheque-Deposit in private bank-Application of funds to debt due banker-Sinister intention-Payment to creditor-R.S.O.
......................
CIVIL CODE-Arts. 412, 417,
(Possession in good faith) ..........
2-Arts.
Arts. (Sale) ......
4- Art. 406
(Ownership) Arts.
(Servitudes) .................
5-Arts.
(Dissolved corporations). . .......................
6-Art.
(Improvements on lands)
......................
1043-1046
(Negotiorum gestio) . . . .......................
Art. (Subrogation) .....
9-Arts.
2001, 2009 (Privileges and hypothecs) . . ...........
PROCEDURE-Art.
........
Art. (Reviewing judgments) . . . ........................
CIVIL PROCEDURE-Con. Art.
(Appeal from judgments) .. . ...................
4-Arts.
424, facts) . . . ........................
COLLOCATION-Liquidation of insolvent corporation-Distribution and collocation -Privileged claim-Expenses for preservation of estate-Fire insurance premium s-Practice-Ex parte inscription- Notice-Arts. 373, 1043-1046, 1994, 2009 Provincial laws in Canada - Judicial notice-Conflict of laws-Negligence- Common employment statute -"Longshorcman"-"Workm an." 2-Negligence-Railways-Breach statutory duty-Nova Scotia Railway Act, R.S.N.S.
s. Employers' Liability Act-Fatal Injuries Act ...
. ......................
LAW-Liquidation of insolvent corporation-Distribution and collocation-Privileged claim--Empenses for premiums-Practice-Ex parte inscription-Notice-Arts. 419. M. acquired the factory and plant of insolvent company which had been under execution by the sheriff and, pending litigation during the winding-up the company, operated and maintained the factory as a going concern. sheriff's sale was set aside and then abandoned the property to the curator of the estate, and filed a claim, as a privileged creditor, for necessary and useful expenses incurred him in preserving the property for the general benefit of the mass of the creditors, including therein charges for moneys paid premiums on policies of fire insurance during time he had held possession.
LAW-Continued.
the absence evidence to shew that such insurances had been so effected otherwise than for his own exclusive interest, could not collocated special privilege, on the distribution the proceeds estate, for the amount of the premiums.-When the appeal first came on for hearing upon inscription ex parte, on suggestion one of the creditors, not made a party to the appeal, the court ordered the postponement of the hearing in order that all interested parties might notified.
2-Trust-Extra remuneration-Ultra vires act of directors-Ratification-Recovery of moneys illegally paid-Mistake of law.] By a resolution of the directors, the secretary of the company had been authorized to sell the company's bonds, for which he was to paid a commission at the rate of per cent.
the amounts received.
Subsequently, at a time when they had no authority to the dirnetors converted the preferred stock held certain shareholders into bonks, and paid the secretary his services in making the conversion at the rate of per cent. on the amount bonds thus disposed of.
to recover back from the secretary the moneys received by him as commission. Held. that, although the secretary had received the eommissions under mistake of law. yet, as he must be assumed to have had knowledge of the illegality of -the transaction, the moneys could recovered back by the company.-Subsequentlv the scheme of conversion was apnroved of bv a resolution of the shareholders. but it did not anpear that they had been fully informed as to the arrangement for the payment of a commission to the secretary in that resnect, in addition to his regular salary. Held, that the resolution the shareholders had not the effect of ratifying the payment of the commissionq.
6....
3-Provincial legislation-Assessment
Municipal tax-Foreign company
"Doing business in Halifax.".......
4- Constitutional companies' powers-Operations beyond
LAW-Continued.
province-Insurance against fireperty insured-Standing timber-Return of premiums-B.N.A. Act, s. . . . -Title to land-Pro nise of sale-Entry in land-register- Tenant sufferance-Squatter's rights in good faith-Eviction- Compensation for improvements-Rents, issues and profits-Set-off .......... CONDITION-Supply of electric light- Cancellation of contract-Condition for terminating service-Interest in premises ceasing-"Heirs"-"Assigns".. .'. CONFLICT LAWS - Evidence-Provincial laws in Canada-Judicial notice -Conflict of laws.] As an appellate tribunal for the Dominion of Canada, the Supreme Court of Canada requires no the provinces or territories of Canada. It is bound to take judicial notice the statutory or other laws prevailing every province or territory in Canada, even where they may not have proved in the courts below, or although the opinion of the judges of the Supreme Court of Canada may differ from the evidence adduced upon those points the courts below.
Cooper Cooper App.
Cas.
LEE.311 companies' powers-Operations beyond Insurance against fire-Property insured-Standing timber-Return of 'premiums-B.N.A. Act, s. . . . ......................
3-Grand
Trunk Railway of Canada- Passenger tolls-Third-class fares-Construction of statutes-Repeal--16 V. s. (Can.)-Amendments by subsequent railway legislation .......... Breach of contract - ...................
CONSTITUTIONAL LAW-Liabilities province at confederation-Special funds
-Rate of interest-Trust funds or debt of 1870-B.N.A. Act, ss.
and 142.]
Among the assets of the
Province of Canada at Confederation were certain special funds, namely,
Grammar School Fund, Building
Fund and U.C. Improvement Fund, and the province was a debtor in respect thereto and liable for interest thereon.
By section of the B.N.A. Act, the Dominion of Canada succeeded to such liability and paid the Province of tario interest thereon at five per cent.
up to
In the award made in and finally established in 1878, on the arbitration, under section
Act to adjust the debts and assets
Upper and Lower Canada, it was adjudged that these funds were the property Ontario. In 1904 the Dominion
Government claimed the right to reduce the rate of interest to four per cent., if that was not acceptable to the province to hand over the principal.
appeal from the judgment of the Exchequer Court in an action asking for a declaration as to the rights of the province in respect to said funds.
affirming said judgment
292), Idington J. dissenting, that though before the said award the Dominion was obliged to hold the funds and pay the interest thereon to Ontario, after the award the Dominion had a right to pay over the same with any accrued interest to the province and thereafter free from liability in respect thereof.- Held, also, that until the principal sum was paid over the Dominion was liable for interest thereon at the rate of per cent. per annum.
Construction of statute-"Crown responsible ministers of the Crown-Re- Right action-Damages.] Under the provisions of the "Crown Procedure Act,"
R.S.B.C. an imperative duty is imposed upon the Provincial Secretary to submit petitions of right for the consideration of the Lieutenant Governor within a reasonable time after presentation and failure to do so gives a right
CONSTITUTIONAL LAW-Continued. of action to recover damages.-After a decisive refusal to submit the petition has been made, the right of action vests at once and the fact that a submission was duly made after the institution the action is not an answer to the plaintiff's claim.
Provincial companies' powers - Operations beyond province-Insurance against fire-Property insured-Standing timber-Return of premiums-B.N. Act, s. 92(11).]
Held, per Idington, Maclennan and Duff JJ., Fitzpatrick C.J. and Davies J. contra:- That a company incorporated under the authority of a provincial legislature to carry on the business of fire insurance is not inherently incapable of entering outside the boundaries of its province of origin into a valid contract of insurance relating to property also outside of those limits.-Per Fitzpatrick C.J. and Davies J.-Sub-section of section B.N.A.
empowering a legislature to incorporate
'companies for provincial objects," not only creates a limitation as to the objects a company so incorporated but confines its operations within the geographical area of the province creating it.
And the possession the company a license from the Dominion Government under V. c.
(R.S. c. 4) authorizing it to do business throughout Canada is of no avail for the purpose. Girouard J. expressed no opinion on this Co..............405 - Railways-Legislative jurisdiction -Application of statute-"The Prairie Fires Ordinance"
Con. Ord. N.W.T. (1898)c. s. 2-N.W.T. Ord. 25 (1st sess.) and (2nd sess.)- Works controlled Parliament-Operation of Dominion railway.] The provisions of sub-s. (2), of 87, as amended by the N.W.T. Ordinances, c. (1st sess.) (2nd sess.) of in far as they relate to fires caused by the escape of sparks, etc., from railway locomotives, constitute "railway legislation," strictly CONSTITUTIONAL LAW-Continued.
so-called, and, as such, are beyond the competence of the Legislature of the
North-West
Territories.
Canadian Pacific Railway
Parish of Notre Dame de Bonsecours
( (1899)
and Madden v. The
Nelson and Fort Sheppard Railway
( judgments appealed from were reversed,
Idington J. (dissenting)
.
v. .........
CONTRACT-Specific performance-Tender for land-Agreement for tender- One party to acquire and divide with other-Division plan-Reservation portion of land from grant.] By agreement through correspondence the G.T.R.
was to tender for a triangular piece of land offered for sale the Ontario
Government containing acres and convey half to the C.P.R. which would not tender. The division was to made according to a plan of the block of land with a line drawn through the centre from east to west, the C.P.R. to have the northern half. The G.T.R.
quired the land but the Government reserved from the grant two acres in the northern half.
In an action the
C.P.R. for specific performance of the ment of the Court of Appeal
Maclennan and Duff JJ. (dissenting)
, that the C.P.R. was entitled to one half of the land actually acquired the G.T.R. and not only to the balance of the northern half as marked on the plan.-The Court of Appeal directed a reference to the Master case the parties could not agree on the mode of division.
Held, that such reference was unnecessary and the judgment appealed against should varied
Co....... 220
2-Construction of contract-Sale machinery-Agreement for lien-Delivery.]
The company sold R. an entire outfit second-hand threshing machinery, for taking from him three so-called promissory notes for the tire price.
Two days before giving the notes, R. had signed an agreement setting out the bargain, in which the following provisions appeared-"And for the purpose of further securing payment of the price of the said machinery and interest to the vendor, at the time of the delivery of the said machinery as herein provided or upon demand, a mortgage the said lands (i.e. lands described at the foot of the agreement), in the statutory form containing also the special covenants and provisions in the mortgages usually taken the vendors. And the purchaser hereby- further agrees with the said vendors that the vendors shall have a charge and a specific lien for the amount of the purchase money and interest, or the said amount the purchase price, less the amount realized, etc., should the vendors take and re-sell any other land the purchaser now owns shall hereafter own or interested in, until the said purchase money and all costs, charges, damages and expenses, and any and all notes or renewals thereof, shall have been fully paid, and the said lands are hereby charged with the payment of the said purchase money, obligations, notes and all renewals thereof, and interest and all costs, charges, damages and expenses as herein provided, and, for the purpose of securing the same, the purchaser hereby grants on default, all moneys hereby secured shall at once become due, and all powers and other remedies hereby given shall enforceable."
In an action to recover the amount of the notes past due and to have a decree for lien and charge upon the lands therefor under the agreement.
judgment appealed from, that the right of the company to enforce the lien pended upon the interpretation the whole contract; that the provision as to the lien only became operative in the case of a complete delivery pursuant to the contract, and that the alternative words "or upon demand" must taken as meaning upon a demand made after complete
RusTIN . . . . ...............
ocation of mineral claims-Construction of contract-Fictitious signature-Unauthorized use of a firm name -Transfer by bare trustee-Statute Frauds-R.S.B.C.
ss. 50, Where acting as principal and for himself only, signed a document containing the following provision: "We hereby agree to give F. one-half [S.C.R. You. XXXIX. non-assessable interest in the following claims" (describing three located mineral claims), in the name of "J. B. & Sons,"
without authority from the locatees two the claims which had been staked in the names of other persons, and without their knowledge or consent.
that, although no such firm existed and notwithstanding that two the claims had been located in the names of the other persons, who, while disclaiming any interest afterwards transferred them to the latter was personally bound by the agreement in respect to all three claims and F. was entitled to the half interest therein.-A subsequent agreement for the reduction of the interest F. from one-half to one-fifth, which had been drawn up in writing.
but was not signed by F., was held void under the Statute of Frauds.
Mc- 4--nsurance against fire-Property insured-Standing timber-Return premiums.]
An insurance company corporated under the laws Ontario insured a railway company, a part whose line ran through the State
Maine, "against loss or damage caused locomotives to property located the State Maine not including that of the assured."-By a statute in that state the railway company is made liable for injury so caused and is given an insurable interest in property along its line for which it is so responsible.
Held, affirming the judgment of the
Court of Appeal which maintained the verdict at the trial
Ont. L.R. 493) that the policy did not cover standing timber along the line railway which the charter of the insurance company did not permit it to insure.-Held, also, Fitzpatrick C.J. and
Davies J. (dissenting)
, that the policy was not on that account of no effect as there was other property covered by it which the railway company had an insurable interest; therefore the latter was not entitled to recover back the pre- ......................
Insurance-Sprinkler system receipt.] A policy of insurance covered loss by leakage or discharge from a sprinkler system for protection against fire but provided that it would not injury resulting, inter alia, from freezing. The water in a pipe connected with the system froze and, the pipe having burst, damage was caused the consequent of water.
judgment the Court of Appeal Ont. L.R. Davies J. dissenting, that the damage did not result from freezing and the insured could recover the policy.-In the Hawthorne case the majority the court dismissed the appeal on the same grounds.
The policy in that case was sent to the brokers who had applied for it on behalf of the assured shortly before, and the latter did not it until the loss occurred. per Davies J. that the contract insurance was not contained in the policy, which the assured had no opportunity to accept, but in what took place tween the brokers and the agent of the insurers on applying for it and, as the latter informed the that damage frost was insured against, the in- ............ 6-Supply of electric light-Cancellaelectric company and entered into an agreement for the supply of electric lighting in a hotel for ten years from May, and it was provided that either party might cancel the agreement by notice in writing, if, after the expiration of years, neither nor his heirs, executors, administrators assigns should owner, tenant or cupier of the hotel, alone or with other The lease to extended only until 1st May, 1907; it gave him no right to a renewal, and had no other interest in the building. He sold a half interest in the lease to two persons with whom he formed a partnership in the hotel business. which was carried till when the partnership terminated by his death, and the defendants were appointed administrators of his intestate estate. The affairs of the partnership were settled between the fendants and the surviving partners who became transferees the business, exclusive owners of the lease and sole cupants the hotel for the unexpired term.
The defendants gave notice to the plaintiffs to cancel the agreement on 1st May, and, on that date, the surviving partners obtained new lease of the premises under which they tinued in occupation and possession.
Held, that, after 1st May, the new tenants the hotel were not assigns of and, consequently the defendants were entitled to cancel the agreement for electric lighting by notice according to the proviso.
Co.....567
7-Breach of contract-Measure damages-Notice of special circumstances
-Collateral enterprises-Loss of primary and secondary profits-Costs.1 The plaintiffs sold defendant a boiler to be used in mill to set up in connection with his lumbering operations and guaranteed its efficiency for that purpose.
When livered it proved inefficient, and, while necessary alterations and repairs were being made, two months elapsed during which the defendant was deprived the use his mill, was obliged to keep a gang men idle and under expense for wages and board, and, in unsuccessfully attempting to carry on his operations, temporarily hired another boiler.
On being sued for the price the boiler, the defendant counterelaimed for damages and, at the trial, was awarded
$427.11, being $277.11 for wages, board and expenses incurred in consequence of the failure of the boiler to satisfy the guarantee, and also for damages for the "loss of the use of the mill."
By the judgment appealed from the first item for wages, etc., was rejected and the item for "loss of the use of the mill" only allowed.
Held. per Fitzpatrick Davies and Maclennan
JJ., Idington J. contra, that, as the loss of primary profits directly resulting from the breach of the contract only should have been allowed, the item for loss of anticipated profits should be rejected as being merely secondary, speculative and uncertain; but that the item assessed by the trial judge in respect the wages. board and other expenses should be allowed, as they were direct and immediate results of such
Duff J. was of the opinion that the appeal should allowed and the judgment the trial judge restored. The judgment appealed from was reversed with costs and the judgment at the trial restored to the extent of but, in the special circumstances the case, no costs were allowed in respect of the appeal to the court below. COBIN v. THoursoN . ............. Tramway-Contract with municipality-Limited tickets performance-Injunction-Right of action 9-Railay aid-Provincial subsidy- Construction of statute-60 V. s. condition-Compromise by 10-Possessory action-Trouble de pos. Expiration of license by non-use-Tacit 11-Breach of contract-Conspiracy- 12-Agreement for sale of land-Prinmissioner"-Specific performance.. contract-Time for filing claim-Construction of statute-R.S.M. 36-Right appeal 14--Landlord and tenant-Negligence Cross-appeal between respondents - Negligence-Electric lighting - Dangerous currents-Trespass-Breach of contract-Surreptitious installations
-Liability for damages . . .........
- Municipal corporation-Sale corporate property-Committee of council1-Authority to sell-Ratification 586
Question
Per Davies and Idington JJ. dissent- As the appeal involved merely a question as to costs, it should not be entertained.
Champerty-Maintenance unsuccessful defence-Damages.] A fendant against whom a lawsuit has been successfully prosecuted cannot recover the costs incurred for his defence as damages for the unlawful maintenance of the suit a third party who has not thereby been guilty of maliciously prosecuting unnecessary
Bradlaugh v. Newdegate 1)
distinguished; Giegerich v. Fleutot
Can. S.C.R. referred to. Judgment appealed from B.C. 272)
........
Discretionary order-Revision assessment of damages-Refusal of costs on appeal to court below.]
The judgment appealed from was reversed with costs and the judgment at the trial restored to the extent of $277.11, but the special circumstances the case, no costs were allowed in respect of the appeal to the court below.
..... .
.................
4--Taing costs to the Crown-Fees to counsel and solicitor-Salaried representing the Crown.]
As the statutes Canada defining the duties and salaries of the Attorney-General and his deputy deny additional compensation for services rendered by them in connection with litigation affecting the Crown, it is improper to allow counsel fees solicitor's fees in respect services ren- COSTS-Continued.
dered in such capacities either these officers on the taxation of costs awarded in favour of the Crown. Jarvis v. The Great Western Railway Co. (8 U.C.C.P. 280), and The Charlevoix Election Case (Cout. Dig.
of statute-"Crown Procedure Act" minister of the Crown-Refusal to submit petition of right-Tort-Right of ac- Damages-Pleading-Practice - Withdrawal of case from jury trial-Costs . .
.. ................
COUNSEL-Taming costs to Crown-Fees to counsel and solicitor-Salaried representing the Crown .
.......... See CosTs 4.
COURT-Time limit for appeal to King's Bench - Opposite party appealing to Court of Review-Arts. 927, 1203, C.P.Q.-Practice-Injunction - Discretionary order-Reversal on appeal-Question of costs only . . . .............. Executor and trustee-Moneys testator-Sale executor-Under value -Jurisdiction of Probate Court.....122 CROWN-Taxing costs to the Crown- Fees to counsel and solicitor-Salaried officer representing the Crown.] As the statutes Canada defining the duties and salaries of the Attorney-General and his deputy deny additional compensation for services rendered by them in connection with litigation affecting the it is improper to allow counsel fees or solicitor's fees in respect services rendered in such capacities either of these on the taxation of costs awarded in favour the Crown. Jarvis v. The Great Western Railway U.C.C.P. 280), and The Charlevoix Election Case (Cout. Dig. CROWN-Continued.
2-Railway aid-Provincial subsidy- Construction of statute-60 V. s.
of condition-Compromise by v. KING.........6.
CROWN GRANT-Specific performance
-Tender for land-Agreement for tender-One party to acquire and divide with other-Division plan-Reservation of portion of land from Crown grant.
......................
CROWN, MINISTER OF-Constitutional law-Construction of statute-"Croun of action-Damages ....... 202
CROWN PROCEDURE - Constitutional law-Construction of statute-"Crown
Right of action-Damages-Pleading- Practice-Withdrawal of case from jury trial-Costs ..............
- Customs Act-Importation of cattle-Smuggling-Clandestinely introducing cattle into Canada-Claim for return of deposit made to secure release cattle
Bos.
report of ghost haunting premises-Slander of title-Fair comment-Disparaging property-Special damages-Evidence - Presumption of malice-Right of action.]
The reckless publication of a report as depreciation in the value of the property, loss of rent and expenses incurred consequence of such publication.
Barrett v. The Associated Newspapers
DAMAGES-Continued.
judgment appealed from Man. R. was affirmed, the Chief Justice dis- . . . .......................
2-Champerty-Maintenance unsuccessful defence.]
defendant against whom a lawsuit has been successfully prosecuted cannot recover the costs incurred for his defence as damages for the unlawful maintenance of the suit by a third party who has not therebeen guilty of maliciously prosecuting unnecessary litigation.
Bradlaugh v. Newdegate distinguished; Giegerich v. Fleutot Can. S.C.R. 327) referred to. Judgment appealed from B.C. Rep. affirmed. 3-Breach of contract-Measure Notice of special circumstances-Collateral enterprises-Loss primary and secondary profits-Costs.] The plaintiffs sold defendant a boiler to used in a mill to set up in connection with his lumbering operations and guaranteed its efficiency for that purpose.
When delivered, it proved inefficient, and, while necessary alterations and repairs were being made, two months elapsed during which the defendant was deprived of the use his mill, was obliged to keep a gang of men idle and under expense for wages and board, and, in unsuccessfully attempting carry on his operations, temporarily hired another boiler. On being sued for the price the boiler, the defendant counterelaimed for dama--s and, at the trial, was awarded $427.11. being $277.for wages, board and expenses incurred in consequence of the failure of the boiler to satisfy the guarantee, and also for damaeps for the "loss the use the mill."
By the judprnent an- Pealed from the first item for wages, etc.. was rejected and the item for "loss the use of the mill" only allowed. Held. ver Fitzpatrick and Davies and Maclennan Idinaton J. contra, that, as the loss of primary profits resultin contract only should have been allowed. the item $150 for loss of anticinated merely secondary.
speculative uncertain;
but item DAMAGES-Continued.
sessed the trial judge in respect the wages, board and other expenses should allowed, as they were direct and immediate results such breach.
Duff J. was of the opinion that the appeal should be allowed and the judgment the trial judge restored.
TnoursoN . . ...................
4-Breach of contract-Conspiracy- 5-Possessory action-Trouble de possession-Right of action - Actio nega- Recourse for damages...............81
6-Rights appurtenant to dominant tenement-Construction of ice-house of servient tenement-Aggravation servitude-Injunction nuisance-Arts. 549
7of statute-"Grown Procedure Act"minister of the Crown-Refusal to submit petition of right-Tort-Right action-Pleading-Practice-Withdrawal case from jury-New trial-Costs
......
. . . . .................
8-Common fault-Concurrent findings
-Apportionment of damages ......
-Preferential transfer of cheque-Deposit in private bank-Application tention-Payment to creditor s. 3(1).]
a mer- 'chant in insolvent circumstances, although not aware of that fact, sold his stock-in-trade and deposited the cheque received for the price to the credit his account with a private banker to
DEBTOR CREDITOR-Con. whom he was indebted, at the time, upon an overdue promissory note that had been, without his knowledge, charged against the sale.
Within two days after making cheque to cover the amount the note. cheque, so deposited, set aside as preferential and void:
that the transaction was a payment to a creditor within the meaning the statute, R.S.O.
sub-s. 1, which was not, under the circumstances, void as against creditors. & V. & . .........................
Assignment mortgagor for benefit of creditors-Priorities-Assignment of claims of execution creditors-Redemption-Assignments and Preferences Act, s. (Ont.) ................
Liquidation of insolvent corpora- Privileged claim-Expenses for preserva- -- Practice-Ex parte insoription-No- DEED-Construction of deed-Title to land
Servitude
-Estoppel conduct-Actio negatoria servitutis-Operation of waterworks.] R. the right of building a reservoir connection with a system of waterworks, laying pipes and taking water from a stream on his land, and in executed a deed lease of the same land to him with the right, for the purposes the waterworks established thereon, sur tout terrain le droit d'y conduire des tuyaux, y faire des citernes et autres travaux rapport an dit aqueduc et aux rdparations d'icelui."
Held, that the deed executed in gave R. the right of bringing water from adjoining lands through pipes laid the lands so leased (Q.R. 16 K.B. affirmed).
Roy. 2-Supply of electric light-Cancella- DEED-Continued.
-"Heirs"
- The electric company and entered into an agreement for the supply electric lighting in a hotel for ten years from 1st May, and it was provided that either party might cancel the agreement notice in writing, if, after the expiration of years, neither nor his heirs, executors, administrators or assigns should owner, tenant or occupier hotel alone or other lease extended only until
1st May,
1907;
it gave him no right to a renewal, and he had no other interest in the building.
He sold a half interest in the lease to two persons with whom formed a partnership in the hotel business, which was carried till 1904, when the partnership terminated by his death, and the defendants were appointed administrators of his intestate estate.
The affairs of the partnership were settled between the defendants and the surviving partners who became transferees of the business, exclusive owners of the lease and sole occupants of the hotel for the unexpired term.
The defendants gave notice to the plaintiffs of intention to cancel the agreement on 1st May, and, that date, the surviving partners tained a new lease of the premises under which they continued in occupation and possession. Held, that, after 1st May, the new tenants of the hotel were not assigns and, consequently the fendants were entitled to cancel agreement for electric lighting by notice
Co...567
3-Title
Entry in land-register-Tenant by sufgood faith-Eviction-Tender of deed- Restrictive conditions-Evidence-Comrnencemeat de preuve par Scrit-Pleading and practice-Arts. 412, 417,
419, C.C......47
4-Title ss. and 7-Part performance- DEED-Continued.
...................
ghost haunting premises - Slander -......... DELIT.
DELIVERY-Construction contract- Sale of machinery-Agreement for lien ....................
- Trust-Company law- Extra remuneration-Ultra vires act directors
Ratification moneys illegally paid-Mistake of law. -......... ORDER-Time limit for appeal to King's Bench-Opposite party appealing to Court of Review- .P.Q.-Practice- Injunction-Reversal on appeal-Question of costs only. .................
DISTRIBUTION Liquidation of insolvent corporation - Distribution and collocation-Privileged claim-Expenses for preservation of estate-Fire insurance premiums-Practice-Ex parte inscription-Notice - Arts. 419, 1043-1046, 200 . ..............
ARBITRATORS -Constitutional law - Liabilities of province at confederation - Special funds-Rate interest-Trust funds of debt-Award 1870-B.N.A. Act, ss. and -4........... - Executor and trustee - Moneys of testator - Deposit in bank DONATION-Continued.
Authority to draw against
Gift.]
deposited money in bank in the joint names of himself and a daughter with power in either to draw against it.
daughter never exercised this power and when died she and her co-executor his will, in applying for probate, included said money in their statement the property.of the testator. Held, that the money in bank remained the property of and did .not pass to the daughter on his death.
- Construction of deed
Title to land-Servitude-Acquiescence
-Estoppel conduct-Actio negatoria servitutis-Operation of watertoorks
ELECTION LAW-Controverted election
-Fixing time for trial.] No appeal lies to the Supreme Court of Canada from an order the judges assigned to try an election petition fixing the date
.... .
........
.............
ELECTRIC LIGHTING - Dangerous currents-Trespass of contract-Surreptitious installations
-Liability for damages.]
P. obtained electric lighting service for his dwelling only, and signed a contract with the company whereby he agreed to use the supply for that purpose only, to make no new connections without permission and to provide and maintain the house-wiring and appliances "in efficient condition, with proper protective devices, the whole according to Fire Underwriters' requirements."
He surreptitiously connected wires with the house-wiring and carried the current into an adjacent building for the purpose of lighting other premises by means of a portable electric lamp. While attempting to use this portable lamp, sustained an electric shock which caused his death.
an action by his widow to recover damages for negligence in allowing dangerous currents of electricity cape a transformer through which the current was passed into the dwelling:
judgment appealed from, that there was
ELECTRIC LIGHTING-Continued. no duty owing the company towards deceased in respect of the installation so made by him without their knowledge and in breach of his contract and that, as the accident occurred through contact with the wirin which he had connected without their permission, the company could not held liable in .......... 2-Supply of electric light-Cancella- EMPLOYER EMPLOYEE. ESTOPPEL-Agreem ent for sale of land -Principal and agent--"Land commissioner"-Specific performance. .... 2-Construction of deed-Title to land -Servitude-Acquiescence- Estoppel by conduct-Actio negatoria servitutis - Operation of waterworks.......... 244 EVICTION-Title to land-Promise Evidence-Arts. 417, 1204. .............
EVIDENCE-Provincial laws in Canada -Judicial notice-Conflict of laws.] As an appellate tribunal for the Dominion of Canada, the Supreme Court Canada requires no evidence of the laws force in any of the provinces or territories of Canada. ' It is bound to take laws prevailing in every province territory in Canada, even where they may not have been proved in the epurts below, or although the opinion of the judges of the Supreme Court Canada EVIDENCE-Continued.
may differ from the evidence adduced upon those points in the courts below.
Cooper v. Cooper App. Cas. followed.
2-Customs Act-Importation of cattle
-Smuggling-Clandestinely introducing cattle into Canada-Claim for return deposit made to secure release of cattle seized-Evidence.]
3-Promissory note-Fraud in procur- Discount faith
Onus of proof.]
L. and others signed promissory notes each for the amount ten shares in company formed to manufacture rotary engines under an invention of the payee who fraudulently misrepresented to them the prospects and intentions of such company. At the same tiMe each maker signed an application for ten shares.
The payee and the assignee of his patent invention, induced W. to discount these notes and received a portion of the proceeds, part being retained W. in payment of debts due him from these two parties.
the trial of actions by W. on the notes the evidence of T., who had absconded, was taken under commission he swore that the form of application signed the respective defendants had been shewn to W. before the notes were discounted.
W. denied this and swore that he had been told that the notes were given in payment of stock held the payee.
Held, that the evidence
W., on whom the onus of proof rested, could not accepted; that the whole testimony and attendant circumstances shewed that W. suspected that the proceeds of the notes belonged to the pany; and, having discounted them without inquiry as to the right of the payee and T. to receive these proceeds, he was not in good faith and could not recover.
4-Promissory note-Illegal consideraproof-Findings of trial judge.] Ross
GANNON.........................675
5-Boundary-Order for bornage-Eridence-Existing posts and blaring--Expertise-Reference to surveyors - Re- EVIDENCE-Continued.
ports and plans-Costs in action en born- Title to land-Promise of sale- Commencement de preuve par 6crit- 417, 1204, ..................
7-Possessory action-Trouble de pos- Tacit renewal-Cancellation of agreement -Recourse for damages ........... 8-Promissory note-Protest in London, England-Notice of dishonour to indorser in Canada-Knowledge of adtion of payments . . . .............
9-Findings of jury-Questions of fact ghost haunting premises-Slander perty-Special damages-Presumption malice-Right of action .......... Operation of railway-Unnecessary combustibles left on right of way -"Railway Act, ss.
EVIDENCE-Continued.
12-Title ss. and 7-Part performance- ...................
EXECUTIVE - Construction of statute - "Grown Procedure Act"-R.S.B.C. 57-Duty of action-Damages. .....
EXECUTION-Assignment mortgagor for benefit of creditors-Priorities - Assignment of claims of execution cre- Preferences Act, s. (Ont.) ......
ADMINISTRATORS
-Executor and trustee-Moneys of testator-Deposit in bank-Authority to draw against-Gift-Sale executor-Under value-Jurisdiction of Probate Court.]
deposited money in bank in the joint names himself and a daughter with power in either to draw against it.
daughter never exercised this power and when died she and her co-executor his will, in applying for probate, included said money in their statement the property the testator. Held, that the money in bank remained the property of and did not pass to the daughter on his death.-An executor property of the estate for his wife being the purchaser.
On passing of the accounts the judge of probate found as a fact that the property was worth and ordered that the cutor account for the difference.
that the executor having really sold the property to himself secretly for an inadequate price he was properly held liable to account for its true value.
Held, also, that though the Probate
Court could not set aside the sale had jurisdiction to make such order.
-Where by will money was bequeathed to the testator's daughter "to hold and enjoyed by her while she remained unmarried" with a bequest over in case her decease or marriage: Held, that
ADMINISTRS.-Con. the daughter was only entitled to the income from said money and not to the possession and disposition thereof.-Remarks on the absence from the record the decree the court of original jurisdiction. RE BRowN. Boundary
Order bornage-Evidence-Existing posts and blazing-Expertise-Reference to surveyors-Reports and plans-Costs in action bornage.
FENCES-Negligence - 1903-3 Edw. VII.
s. 237 - Animals at large-Construction of statute-Words and terms-"At large upon the highway or otherwise"-Fencing railway-Trespass from lands not belonging to owner of animals ...... FINDINGS - Dangerous operations-Defective system -Concurrent findings-Common fault.] the unanimous judgments of the courts below, whereby it was held that defendant was liable in damages for injuries sustained the plaintiff through an accident which occurred in consequence of a defective system of blasting rocks with dynamite permitted by his foreman on works where the plaintiff was engaged by him in a dangerous opera- The Montreal Rolling Mills v. Corcoran Can. S.C.R. 595), and Tooke v. Bergeron Can. S.C.R. distinguished.-The plaintiff had guilty of contributory negligence and damages were apportioned according to the practice in the Province Quebec. ................
2-Finding of jury-Questions of fact of appellate court.] Where the question was one of fact, and the jury, on evidence properly submitted to them, accepted the evidence on one side and rejected that adduced upon the other, the Supreme Court of Canada refused to disturb their findings (Q.R. 370, FINDINGS FACT-Continued.
3-Promissory note-Illegal consideraproof-Findings of trial judge.]
Ross
4- Employer and em- -Findings of jury-Charge of judge- Assignment of facts-Practice-Assessment of damages . . ...............
5-Charge judge-Finding of jury trial-Practice-New Evidence
FIRE - Railways-Constitutional law-Legislative jurisdiction-Application of statute-"The Prairie Fires
Ordinance"-Con. Ord. N.W.T.
s. 2-N.W.T. Ord., (1st sess.)
and 30 (2nd sess)-Works controlled Parliament - Operation
Dominion railway . ................
Assignment by mort- Preferences Act, s. (Ont.) .......
Evidence-Provincial laws in Qanada-Judicial notice-Conflict laws-Negligence-Common employment of statute-"Longshoreman"-"Workman." ...............
Trade-mark - Infringement - Inventive term-Coined word-Exclusive use Colourable imitation-Common idea
-Description of goods-Deceit and fraud
-Passing-off
The hyphenated coined words "shur-on" and "staz-on" are not purely inventive terms but are merely corruptions of words descriptive the goods (in this case, eye-glass frames)
to which they were applied, intending them to so described, and, therefore, they cannot properly the subject exclusive use as trade-marks.
trader using the term "staz-on" as descriptive.
FRAUD-Continued.
of such goods, is not guilty of infringement of any rights to the use of the term "shur-on"
another trader his trade-mark, nor of fraudulently counterfeiting similar goods described by the latter term; nor is such a use of the former term a colourable imitation the latter term calculated to deceive purchasers, as the terms are neither phonetically nor visually alike. v. ..............
2-Breach of contract-Conspiracy - 3iof cheque-Deposit in private bank- Application of funds to debt due banker -Sinister intention-Payment to creditor-R.S.O.
s. 3(1). ....... 4-Promissory note-Fraud in procuring-Discount-Good faith-Evidence - Onus of proof....................541 FRAUDULENT
PREFERENCES-Insolvency-Preferential transfer of cheque- Deposit in private bank-Application tention-Payment to creditor-R..O. s. 3(1). ............
FROST-Insurance-Sprinkler systemreceipt. . . ..
...................
TRUNK RAILWAY-Passenger tolls-Third-class fares-Construction statutes-Repeal
(Can.) -Amendments subsequent railway legislation.] The legislation the late Province of Canada and the Parliament of Canada since the enactment section of the statute of Canada, V. TRUNK RAILWAY-Con.
c. in has not expressly or imulication repealed the provisions that section requiring third-class passenger carriages to run every day upon the line the Grand Trunk Railway
Canada, between Toronto and Montreal, on which the fare or charge for each third-class passenger shall not exceed one penny currency for each mile travellY. v.
- Breach of contract- Measure of damages-Notice of special circumstances-Collateral enterprises - Loss of primary and secondary profits - Discretionary order as to costs.....575
HIGHWAY- Negligence-Railway Act,
1903-3 Edw.
-Words and terms-"At large upon the highway or otherwise"-Fencing of railway-Trespass from lands not belonging to owner of animals ...............
HYPOTHECATION-Liquidation of insolvent corporation-Distribution and collocation-Privileged claim-Expenses for preservation of estate - Fire insurance premiums-Notice-Arts. 419,
1043-1046,
CC...... ......................
IMPROVEMENT
INDORSER.
INJUNCTION-Tramway-Contract with municipality-Limited tickets-Specific performance-Injunction-Right of action-Parties.]
HAMILTON...........
2-Boundary-Order for bornage - Evidence-Existing posts and blazing- Expertise-Reference to surveyors-Reports and plans-Costs in action en born- INJUNCTION-Continued.
Time limit for appeal to King's Bench - Opposite appealing to Court of Review-Arts. C.P.Q.-Practice order-Reversal on appeal-Question costs only. .......................
Rights appurtenant to dominant tenement-Construction of ice-house of servient tenement - Aggravation servitude-Damages-Abatement of nuisance-Arts. 406, 549 . . cheque-Deposit in private bank-Application of funds to debt due banker - Sinister intention-Payment to creditor s. 3(1)....281 2-Liquidation of insolvent corpora- Privileged claim-Expnses for preserva- -Practice-Ex parte inscription - Notice-Arts.
419, 1043-1046, 2009 C.C....318 INSURANCE, - Insurance -Sprinkler system-Damage from leakage or discharge-Injury from frost- Application-Interim receipt.] A policy insurance covered loss leakage discharge from a sprinkler system for protection against fire but provided that it would not cover injury resulting, inter alia, from freezing.
The water in a pipe connected with the system froze and, the pipe having burst, damage was caused the consequent water.
not result policy.-In majority the grounds.
The policy in that case was [S.C.R. VOrL. XXXIX. ACCIDENT-Continued.
it on behalf the assured shortly fore, and the latter did not see it until thg loss occurred.
Held, per Davies, J.
that the contract insurance was not contained in the policy, which the assured had no opportunity to accept, but in what took place between the brokers and the agent the insurers on applying for it and, as the latter informed the brokers that damage frost was insured against, the insured could recover
& . ...................
INSURANCE, FIRE-Constitutional law
-Provincial companies' powers-Operations beyond province-Insurance against fire-Property insured-Standing timber
-Return of premiums
1.N.A. Act, s. 92(11).]
Held, per Idington,
Maclennan and Duff JJ., Fitzpatrick
C.J. and
J. contra, that a company incorporated under the authority of a provincial legislature to carry on the business of fire insurance is not inherently incapable of entering outside the boundaries of its province of origin into valid contract of insurance relating to property also outside of those limits. Per Fitzpatrick C.J. and Davies
J.-Sub-section section B.N.A.
Act, empowering a legislature to incorporate "companies for provincial jects." not only creates a limitation as to the objects of a company so incornorated but confines its operations within the geographical area of the province creating it.
And the possession the company of license from the Dominion
Government under V.
(R.S.
4) authorizing it to business throughout Canada is of no avail for the purpose.
Girouard J. expressed no opinion on this question.-An insurance company incorporated under the laws of Ontario insured a railway part ran through the State of Maine, "against loss or damage caused by locomotives to pronerty located in the State of Maine not including that of the assured."
By a statute in that state the railway pany is made liable for injury caused and is given an insurable interest property along its line for which it is resnonsible.
ment of the Court of Appeal Ont.
L.R. which maintained the verdict at the trial Ont. L.R. 493) that the
INSURANCE, FIRE-Continued. policy did not cover standing timber along the line railway which the charter of the insurance company did not permit it to insure.
Held, also, Fitzpatrick C.J. and Davies J. (dissenting)
, that the policy was not on that account of no effect as there was other property covered it in which the railway company had an insurable interest; therefore the latter was not entitled to recover back the premiums it had paid. .............
2-Liquidation of insolvent corpora- Privileged claim-Expeses for preserva- 419, 1043-1046, INSURANCE, LIFE
Life insurance Wagering policy - Misrepresentation - Questions for jury-Arts. 424, C.P. Q.-Charge to jury-New trial.] assignments of facts for the jury were settled in conformity with arts. 424 and but subsequently amended at the trial.
Judgments were entered for the plaintiffs, on the answers the jury (Q.R. K.B. and the appellant relied on misdirection and the irregularity of the amendment the assignment of facts, and asked for a new trial. Without calling upon counsel for respondents, the appeal was dis- AsScE. Co..................323
INTEREST-Bills and notes - Instalments of interest-Transfer after default to pay interest-"Overdue" bill- Notice-Holder in good faith-Bills Exchange
Act-Common law rule.] Where interest is made payable periodically during the currency of a promissory note, payable at a certain time after date, the note does not become overdue within the meaning of sections and of the "Bills of Exchange Act," merely default in the payment of an instalment of such interest.-The doctrine of constructive notice is not applicable to bills and notes transferred for value.
Judgment appealed from reversed, Idington and Maclennan JJ. dis- INTEREST-Continued.
2-Constitutional law-Liabilities province at confederation-Special funds
-Rate of interest-Trust funds of debt of 1870-B.N.A. Act, ss.
JURISDICTION- Municipal tax-Foreign company-"Doing business in Halifax.".. ........
JURY-Life insurance-Wagering policy
-Misrepresentation-Questions for jury
-Arts. 424, C.P.Q.-Charge to jury trial.] The assignments of facts for the jury were settled in conformity with arts. 424 and 425 but were subsequently amended
Judgments were entered for the plaintiffs, the answers by the jury (Q.R.
K.B. and the appellant relied on misdirection and the irregularity the amendment the assignment facts, and asked for a new trial. Without calling upon counsel for respondents,
2--Operation of railway-Unnecessary
"Railway Act, ss. (j)
239-TP.R.C.
ss. 151(j)
and 297-Damages fire-Point origin-Charge judge-Finding jury-Neto trial-Practice - New evidence on appeal-Supreme Court Act,
The question for the jury was, whether or not the place the origin of the fire which caused the damages was within the limits of the
"right of way" which the defendants were, by the "Railway Act, lied to keep free from unnecessary bustible matter, and their finding was that it did, but the charge of the judge was calculated to leave the impression that any space where trees had cut, under the powers conferred by tion 118(j) that Act, might be treated as included within the "right way"
and, in effect made a direction, issues not raised by the pleadings or at the trial, as to negligent exerci-e of the privilege conferred by that section. Held,
JURY-Continued.
that, in consequence of the want of more explicit directions to the jury on the question of law and the misdirection <as to the issues, the defendants were titled to a new trial.-The court refused an application the respondents, the hearing of the appeal, for leave to supplement the appeal case by the production of plans of the right of way which had not been produced at the trial, as being contrary to the established course of the court.
RY. v. ............ 3-Withdrawal of case from jury- Yew trial-Costs. ................
4-Findings of jury-Questions of fact -Duty of appellate court .......... Employer and Findings of jury-Charge of judge-Assignment of facts-Practice-Assessment of damages. ....................
LANDLORD TENANT-Negligence employment-Alterations to plumbing- Cross-appeal between respondents-Prac- In the lease of a shop, the landlord agreed to supply steam heating and. in order to improve the system, engaged a firm of plumbers to make alterations. Before this work was completed and during the absence of the tenant, the plumbers' men, who were at work another part of the same building, with steam cut for that purpose, at the request of the caretaker employed the landlord, turned the steam on again which, passing through unfinished pipes connected with the shop, escaped through an open valve in a radiator and iniured the tenant's Held, that the landlord was liable in damages for the negligent act of his caretaker in allowing steam to be turned on without ascertaining that the radiator was in proper condition to receive the pressure, and that the plumbing firm were also responsible for the negligence their LANDLORD TENANT-Con.
ployees in turning on the steam, under such circumstances, as they were acting in the course of their employment what they did although requested to so by the caretaker.
The judgment appealed from affirmed with a variation declaring the plumbers jointly liable with the landlord.-The action was against the two defendants, jointly, and the plaintiff obtained a verdict, at the trial, against both.
The Court of Appeal confirmed the verdict as to and dismissed the action as to the other defendants.
appealed to the Supreme Court of Canada, making the other defendants respondents on his appeal.
plaintiff, respondent, was entitled to cross-appeal against the said defendants, respondents, to have the verdict against them at the trial restored. McNICHoL
. . .
...
..-....-...
(Leave to appeal refused by Privy
Council.)
LEASE-Possessory action-Trouble de possession-Right of action-Actio negatoria servitutis-Trespas---Interference renewal-Concellation of agreement - 2-Landlord and tenant-Negligence- Damage by steam, etc.-Responsibility
Cross-appeal between respondents-Prac- . ........................
3-Patent law-Canadian Patent Act s. 38-Manufacture-Sale-Lease or license .
4-upply of electric light-Cancella- LEGISLATION-Apeal-Stated case - LEGISLATION-Continued.
Municipal tax-Foreign company-"Doing business in Halifax." .......... 2-Mechanics' lien-Completion of contion of statute-R.S.M. s. 20, 36-Right of appeal ........ 3-Evidence-Provincial laws in Can- Negligence-Common employment-Construction of statute-"Longshoreman"- Railways-Constitutional law - -N.W.T.
Ord.
(1st sess.) and (2nd sess.) -Works controlled by Parliament-Operation of Dominion ....
..-....-...-.
5-Municipal council-Illegal expenditure-Action ratepayer-Intervention of Attorney-General-Validating Act - Right of action.
. ...
.. .657 LIBEL-Defamation-Printing report ghost haunting premises-Slander of title -Fair comment-Disparaging property -Special damages-Evidence-Presumption of malice-Right of action. .. .. LICENSE-Patent law-Canadian Patent Act-R.S.C.
s. 38- Manufacture-Sale-Lease or license 499 LIEN contract-Time for filing claim struction of statute - R.S.M. c. ss. 20 and 36-Right of appeal.j The time limited for the registration of claims for liens section 20 "The Mechanics' and Wage Earners' Lien Act," R.S.M., not commence to run until there has been such performance the contract as would LIEN-Continued.
entitle the contractor to maintain an action for the whole amount due thereunder. The judgment appealed from (16
Man. R. was reversed.-Davies and
Maclennan JJ. dissented on the ground that the evidence was too unsatisfactory to justify an extension of the time.
court refused to quash the appeal on the ground that the right appeal had been taken away section the statute above referred to.
. .
..............
Contract-Sale of machinery
Agreement for lien company sold R. an entire outfit second-hand threshing machinery, taking from him three so-called promissory notes for the entire price.
Two days before giving the notes R.
had signed an agreement setting out the bargain, in which the following provisions appeared-"And for the purpose further securing payment of the price of the said machinery and interest
* the vendor, at the time of the delivery of the said machinery as herein provided or upon demand, a mortgage on the said lands (i.e., lands described at the foot of the agreement), in the statutory form, containing also the special covenants and provisions the mortgages usually taken by the vendors.
And the purchaser hereby further agrees with the said vendors that the vendors shall have a charge and a specific lien for the amount the purchase money and interest, or the said amount of the purchase price, less the amount realized, etc., should the vendors take and re-sell the land the purchaser now owns or shall hereafter own or interested in, until the said purchase money and all costs, charges, damages and expenses, and any and all notes or renewals thereof, shall have been fully paid, and the said lands are hereby charged with the payment the said purchase money, obligations, notes and all renewals thereof, and interest and all costs, charges, damages expenses herein provided, for the purpose of securing the same, purchaser hereby grants vendors said lands
* default, all moneys
LIEN-Continued.
hereby secured shall at once become due, and all powers and other remedies hereby given shall enforceable." an action to recover the amount of the notes past due and to have a decree for a lien and charge upon the lands therefor under the agreement. reversing the judgment appealed from, that the right the company to enforce the lien depended upon the interpretation the whole contract; that the provision as to the lien only became operative in the case of a complete delivery pursuant to the contract, and that the alternative words "or upon demand" must taken as meaning upon a demand made after such complete delivery. Rus- . ............ 3-Liquidation of insolvent corpora- Privileged claim-Expenses for preserva- -Practice-Ec parte inscription-Notice 373, 419, 1043-1046, 2001, 2009 M. acquired the factory and plant an insolvent company which had been sold under execution the sheriff and, pending litigation during the winding-up of the pany, operated and maintained the factory as a going concern.
The sheriff's sale was set aside and M. then abandoned the property to the curator of the estate, and filed a claim, as a privileged creditor, for necessary and useful expenses incurred him in preserving the property for the general benefit of the mass of the creditors, including therein charges for moneys paid as premiums policies of fire insurance effected in his own name during the time he had held Held, that, in the absence of evidence to shew that such insurances had been effected otherwise than for his own exclusive interest, he could not be collocated by special privilege,.on the distribution of the proceeds of the estate, for the amount of the premiums. LIMITATIONS ACTIONS-Municipal corporation-Montreal city charter - Construction of statute-"Current year" and taxes-Local improvements-Special tax.
. ... LAWS-Municipal Act-Vote on by-law-Local option-Division into wards-Single or multiple voting - VII. s. 355.]
Section of the Ontario Municipal Act, Edw.
VII. c.
providing that "when a municipality is divided into wards each ratepayer shall be so entitled to vote in each ward in which he has the qualification necessary to enable him to vote on the by-law" does not apply to the vote on a local option by-law required by section the Liquor License c. 245).
the Court of Appeal Ont. L.R.
affirming that of the Divisional Court v. TowN . ........
OPTION-Municipal Act-Vote on by-law-Ward division9-Single multiple voting-R.S.O.
s. 141-3 Edw. VII. s. 355....236
LONGSHOREMAN-Negligence
- Common statute
Edw. VII.
2, s.-s.
(N.B.)-"Longshoreman" - The plaintiff, a longshoreman, was engaged by the defendant,
Montreal, to act as foreman on his contracts as a stevedore at the port St.
John, N.B.
While in the performance of his work, the plaintiff went into the hold to re-arrange a part of the cargo in a vessel, in the port of St. John, and, in assisting the labourers, stood under an open hatchway where he was injured a heavy weight falling upon him on account of the negligence winchman in passing it across the upper deck.
The winchman had attempted to remove the article which fell, without any order from his foreman, the plaintiff, and with improperly adjusted tackle.
In an action for damages instituted
Superior
Montreal
(
469 ) :
the plaintiff was entitled either under the law the Province or under the provisions of the
New Brunswick Act. Edw. VII. c.
as came within the class of persons therein mentioned to whom the law the latter province relating to the trine of common employment does not apply. ...............
ACT"-Negligence -Railways-Breach of statutory duty- Common employment-Nova Scotia Railway Act, R.S.N.S. s. Employers' Liability Act-Fatal Injuries Act. .........................
Champerty cious motive - Cause
Costs of unsuccessful defence -Dam. ages. ... .......................
Defamation-Printing report of ghost haunting premises-Slander Champerty-Maintenance unsuccessful defence-Damages Negligence-Construction of building tract for construction-Collapse of wall -Building not completed-Vis major.] Held, per Davies and Maclennan JJ.- The owner of a building in course construction owes to those whom he invites into or upon it the duty using reasonable care and skill in order to have the property and appliances upon it intended for use in the work fit the purposes they are to put to. Such duty is not discharged the employment competent architect to prepare plans for the building and a competent contractor to attend to the work of construction.-Per Idington J. fact that the building is in an unfinished state may render the obligation of the owner towards a workman employed upon it less onerous in law than it would in the case of a pleted structure.-Per
Duff J.-Does the rule governing the duty of occupiers respecting the safe condition the premises apply without qualification where the structure is incomplete and the invitee is engaged in completing it fitting it for its intended use?-Per Davies and Maclennan JJ.-In the present case the failure to guard against the effect of a sudden storm so violent MASTER SERVANT-Continued.
and extraordinary a character that could not have been expected was not negligence for which the owner was liable. Judgment the Court of Appeal
Ont. L.R. 4) and of the Divisional
Court Ont. L.R. affirmed, Idingdubitante.
2-Negligent driving - Horse owned servant - Vehicle and harness owned master employee - Liability for damages.] T., an employee of while in discharge the duties .of his employment, driving his own horse attached to a vehicle longing to his employer, who also owned the harness, negligently caused injuries to which resulted in his death.
action for damages the widow and children of C.: Held, affirming the judgment appealed from (Q.R. K.B. 472), that as the injury complained of was caused by the fault of the servant during the performance of duties in the course of his employment, the master and servant were jointly and severally responsible in
...........................
Landlord and tenant-Negligence employment-Alterations to plumbing of contractors-Control of prfmises.] In the lease of a shop, the landlord agreed to supply steam heating and, in order to improve the system, engaged a firm plumbers to make alterations.
Before this work was completed and during the absence of the tenant, the plumbers' men, who were at work in another part the same building, with steam for that purpose, at the request the caretaker employed by the landlord.
turned the steam on again which, passing through unfinished pipes connected with the shop, escaped through an open valve in a radiator and injured the tenant's goods.
Held, that the landlord was liable in damages for the negligeni act of his caretaker in allowing steam to turned on without ascertaining that the radiator was in proper condition to receive the pressure, and that the plumbing firm were also responsible the negligence their.employees in turninq on the steam, under such circumstances. as they were acting in the cour-e their employment in what they did
MASTER SERVANT-Continued. although requested to do so by the caretaker.
appealed from Man. R. was affirmed with a variation declaring the plumbers jointly liable with the landlord. see 4; 4-Negligence-Dangerous machinery -Want of proper protection-Voluntary exposure-Findings of jury-Charge judge-Assignment of facts-Practice- Assessment of damages.] An experienced master mechanic, who was familiar with the machinery in his charge and had instructions to take the necessary precautions for the protection of dangerous places, in attempting to perform some necessary work, lost his balance and fell upon unprotected gearing whicji crushed him to death. In an action his widow for damages, questions were submitted to the jury, without objection by the parties, and no objection was raised to the judge's charge, at the jury asked to specify particular which caused the injury and, by their answers, found that deceased was acting under the instruction and guidance the company's who were his superiors at the time of the accident; that he had control the work to be done but had not full charge, control and management. of the machinery generally; that there was fault on the part of the company, and that he had not unnecessarily or negligently assumed any risk. Field, affirming the judgment appealed from, Davies J. dissenting, that as there was evidence from which the jury could reasonably draw inferences and come to these conclusions, as to the facts, and, as no objec. tion was made to the questions nut to them and to the charge of the judge. the trial, their findings ought not to interfered with on appeal.
Pprrn 5-Negligence - Common emnloyment -Construction of statute-3 Edo. VII. s. s.-s. (N.B.)-"Longshoremnan"-"Workman."]
The Plaintiff, a longshoreman, was engaged by the SERVANT-Continued.
fendant, in Montreal, to act as foreman on his contracts as a stevedore at the port of St. John, N.B.
While in the performance of his work, the plaintiff went into the hold to re-arrange a part of the cargo in a vessel, in the port
St. John, and, in assisting the labourers, stood under an open hatchway where he was injured by a heavy weight falling upon him on account of the negli.
gence of the winchman in passing across the upper deck.
The winchman attempted to remove the article which fell, without any order from his foreman, the plaintiff, and with improperly adjusted tackle.
In an action for instituted in the
Superior
Montreal
:
Held, that the plaintiff was entitled to recover either under the law
Quebec under the provisions the New Brunswick Act, Edw. VII. as he came within the class of persons therein mentioned to whom the law of the latter province relating to the doctrine of mon employment does not apply.
.......................
6-Negligence-Dangerous operations system-Findings of fact- Common fault...................332
7-Negligene-Railways statutory duty-Common employment- Nova
Scotia Railway Act,
R.S.N.S.
s. 251-Employers' Liability Act-Fatal Injuries Act.
..
LIEN-Completion of contion of statute-R.R.M.
MINES MTNERALS-Location o mineral claims-Construction of contract
-Fictitious signature-Unauthorized use of a firm name-Transfer bare trustee
-Statute of Frauds-R.S.B.C.
si. 130.]
Where acting principal and for himself only, signed a document containing the following provision:
"We hereby agree to give F.
MINES MINERALS-Continued. one-half non-assessable interest the following claims" (describing three located mineral claims), in the name "J. B. & Sons," without authority from the locatees of two of the claims which had been staked in the names of other persons, and without their knowledge or consent.
ment appealed from B.C. Rep. that, although no such firm existed and notwithstanding that two of the claims had been located in the names of the other persons, who, while disclaiming any interest afterwards transferred them to B., the latter was personally bound the agreement in respect to all three claims and F. was entitled to the half interest therein.-A subsequent agreement for the reduction of the interest of F. from one-half to one-fifth, which had been drawn up writing, but was not signed F., was held void under the Statute of Frauds. Title to land-Trust-Interest in mining areas-Sale trustee-Becovery of proceeds of sale-Agreement in writing-Statute of ss. and 7-Part performance-Acts referable to contract-Evidence-Pleading.1 transferred to a portion of an interest in mining areas which he claimed was held in trust him by the defendant.
claiming a share in the proceeds of the sale thereof, no deed or note in writing the assignment was produced as required the fourth section of the Nova Scotia Statute of Frauds, and there was no evidence that, prior to the assignment. there had been such a conversion of the interest as would take away its character as real estate. Held, that the subect the alleged assignment was an interest in lands within the meaninr of the Statute of Frauds and not merely an interest in the proceeds of the sale as distinguished from an interest in the areas themelves. and, consequently, that the plaintiff could not on account of failure to comply with that statute.
It was shewn that. settling with intereeted parties. the fendant had given a bond for as his share what had received the sale of the areas.
this act was not unenuivocallv and its own nature referable to some dealing with the mining areas alleged to have [S.C.R. Vom. XXXIX. MINES MINERALS-Continued.
been the subject of the agreement, it could not have effect of takcase out the operation the Statute of Frauds.
Maddison
Alderson App. Cas. 467) referred to.
Judgment appealed from N.S. Rep.
MISTAKE-Trust-Company law-Extra remuneration-Ultra vires act of directors-Ratification-Recovery of moneys illegally paid-Mistake of law.]
By a resolution of the directors, the secretary the company had been authorized to sell the company's bonds, for which he was to paid a commission at the rate per cent. on the amounts received.
Subsequently, at a time when they had no authority to so, the directors converted the preferred stock held certain shareholders into bonds, and paid the secretary for his services in making the conversion at the rate of per cent.
on the amount bonds thus disposed
In an action to recover back from the secretary the moneys so received him as commission:
Held, that, although the secretary had received the commissions under mistake law, yet, as he must be assumed to have had knowledge the illegality of the transaction, the moneys could recovered back by the company.-Subsequently the scheme of conversion was approved a resolution of the shareholders, but it did not appear that they had been fully informed as to the arrangement for the payment of a commission to the secretary in that respect, in addition to his regular salary. Held, that the resolution of the shareholders had not the effect of ratifying the payment the
&
...............
MORTGAGE-Assignment by mortgagor for benefit of creditors-Priorities-Assignm ent of claims of execution creditors
-Redemption-Assignments and Preferences Act, (Ont.).]
After judgment for foreclosure of mortgage or redemption creditors mortgagor with executions in the sheriff's hands were added as parties in the
Master's and proved their claims.
The Master's report found that they were the only incumbrancers and fixed a date for payment by them of the amount due to the mortgagees.
After confirma- MORTGAGE-Continued.
tion of the report obtained assignments of these judgments and was added as a party.
He then paid the amount due the mortgagees and the Master took a new account and appointed a day payment the -mortgagor the amount due on the judgments as well as the mortgage.
This report was confirmed and the mortgagor having made an assignment for benefit of creditors before the day fixed for redemption an order was made a judge chambers adding the assignee as a party, extending the time for redemption and referring the case back to the Master to take a new account and appoint a new day.
Held, affirming the judgment the Court of Appeal Ont. L.R. that under the provisions the Assignments and Preferences the assignee of the mortgagor could only redeem on payment the total sum due to under the mortgage and the judgments assigned to him.
MUNICIPAL CORPORATION-Montreal city charter-52 V. s. (Que.) of statute - "Current year"-Assessment and taxes-Limitation of action-Local improvements - Special tax.]
By section of the charter of the City of Montreal, 52 V. (Que.), the right to recover taxes is prescribed and extinguished by the lapse of "three years, in addition to the current year, to counted from the time at which such tax, etc., became due."
A special assessment for local improvements became due on the 14th of March, and action was brought to recover the same on the 4th February, 1902.
Held, affirming the judgment appealed from (Q.R. K.B. 479) the Chief Justice and Duff J. dissenting, that the words "current year" in the section in question, mean the year commencing on the date when the tax became due and that the time limited for prescription had not expired at the time of the institution of the action.
MONTREAL................151 legislation-Assessment
Municival tax Halifax."] resisted MUNICIPAL CORPORATION-Con.
ing business in the City of Halifax" and
Supreme Court of Nova Scotia for an opinion as to such liability. On appeal the Supreme Court of Canada council for the City of Halifax contended that to the
Supreme vince therefore, because proceedings did not originate a superior court, the appeal to the Supreme Court of Canada did not lie. Held, per Fitzpatrick C.J. and Duff J., that the appeal was from the final judgment of the court of last resort in the Province, this court had jurisdiction under the provisions of the Supreme Court
Act and it could not taken away provincial legislation.-Per Davies J.- Provincial legislation cannot impair the jurisdiction conferred on this court the Supreme Court Act.
In this case the Supreme Court Nova Scotia had
1 of the Judicature Act. Per Idington lie but not if it was a submission under the charter for a reference to judge at request of a ratepayer.-By section of the said charter V. c. as amended by V. 44, "Every insurance company or association, accident and guarantee company, established the City of Halifax, or having any branch or agency fee as hereinafter mentioned
*
*
*
Every other company. corporation, association or agency doing business the City of Halifax (banks, insurance companies or associations, etc., excepted)
shall an annual fee of one hundred dollars."
the words "every other company" in the last clause were not subject to the operation of the ejusdem generis rule but applied to any company doing business
Judgment aprealed from overruled this point.-A carriage pany aureed with dealer in Halifax to supply him with their aoods and give him the sole riaht to sell the same, territory named. on commission, all monies and securities given on any sale to the pronertv the company and goods not sold within a certain, time to
MUNICIPAL CORPORATION-Con. returned.
The goods were supplied and the dealer assessed for the same as his personal property.
Held, Davies and Maclennan JJ. (dissenting)
, that the company was not "doing business in the City Halifax" within the meaning section of the charter and not liable for the license fee of one hundred dollars thereunder.
Supreme Court of Nova Scotia N.S. Rep. 403)
affirmed, but reasons overor 3-Municipal Act-Vote on by-law - Local option - Division into wards - Single or multiple voting-3 Edw. VII. s. 355.]
Section of the tario Municipal Act, Edw. VII. c. providing that "when a municipality divided into wards each ratepayer shall so entitled to vote in each ward which has the qualification necessary to enable him to vote on the by-law" does not apply to the vote on a local option by-law required by section of the Liquor License Act (R.S.O. [18971 c. 245).
Judgment of the Court of Appeal Ont. L.R. 447) affirming that of the Divisional Court Ont. L.R. SOUND..................... 4-Sale of corporate property-Comnittee of council-Authority to sell - Ratiflcatioai committee of municipal council cannot, unless authorized by the council. sell corporate property and if they do an action lies against them by the corporation for any loss curred thereby.
Such illegal sale cannot ratified bv resolution of the council carried by the votes of the members 5-Municipal council-Illegal expenditure-4tion ratepayer-Intervention of Attorney-General-Validating Act - Right of appeal.]
Prior to the passing the Act of the Legislature of Nova Scotia. Edw. VII. c. the City Council of Halifax had no authority to nay the expenses of the mayor in attending a convention of the Union of Canadian Municipalities.-Where municipal council illegally pays away money of the municipality to one its an tion to recover it back may, if the council refuses to allow its name to used, MUNICIPAL CORPORATION-Con.
brought by a ratepayer suing on half of all the ratepayers and need not in the name of the Attorney-General.
-Pending such an action the legislature passed an Act authorizing payment the council of any sums for principal, interest and costs incurred the fendant "in the event of judgment being finally recovered the plaintiff."
Held, per Fitzpatrick C.J. and Maclennan J., that the meaning of the words quoted was that the action might proto a finality, including any competent appeal, and that they did not put an end to the appeal to this court.
Per Fitzpatrick C.J. and Maclennan J.
-Quwre.
Should not the action have been brought on behalf of all the ratepayers and inhabitants of the municipality?
H ..........................
NEGLIGENCE-Construction of building
-Contract for construction-Collapse wall
Building not completed major.] Held, per Davies and Maclennan JJ.-The owner a building course of construction owes to those whom invites into or upon it the duty of using reasonable care and skill in order tochave the property and appliances upon it intended for use in the work fit for the purposes they are to be put to.
Such duty is not discharged the employment of a competent architect to prepare plans for the building and a competent contractor to attend to the work of construction.-Per Idington J.-The fact that the building is an unfinished state may render the obligation of the owner towards a workman employed upon it less onerous in law than it would be in the case of a pleted structure.-Per Duff J.-Does the rule overning the duty of occupiers respecting the safe condition of the premises apply without qualification where the structure is incomplete and the invitee is engaged in completing it or fittine it for its intended use?-Per Davies and Maclennan JJ.-In the present case the failure to guard against the sudden storm of violent and extraordinary character that it could not have been expected was not negligence for which the owner was liable.
ment of the Court of Appeal
L.R. and the Divisional Court (9
Idington J. dubitante.
v. .1 2-Master and servant - Negligent driving-Horse owned servant-Vehicle and harness owned master-Duty of employee-Liability for damages.] an employee of while in discharge the duties of his employment, driving his own horse attached to a vehicle belonging to his .employer, who also owned the harness, negligently caused injuries to which resulted in his death.
In an action for damages the widow and children of C.:
Held, affirming the judgment appealed from (Q.R. K.B. 472), that as the injury complained of was caused the fault the servant during the performance duties in the course of his employment, the master and servant were jointly and severally responsible in damages. Railway Act, 1903-3 Edw. VII s. 237-Animals at large-Construction of statute-Words and terms-"At large upon the highway or otherwise" -Fencing of railway-Trespass from lands not belonging to owner.] horses strayed from his enclosed pasture situated beside a highway which ran parallel to the company's railway, entered a neighbour's field adjacent thereto, passed thence upon the track through an opening in the fence, which had not been provided with a gate by the pany, and were killed a train. There was no person in charge of the animals, nor was there evidence that they got at large through any negligence or wilful act attributable to
Held, affirming the judgment appealed from Man. R. 323), that, under the provisions of the fourth sub-section of section of "The Railway Act, 1903." the company was sustained notwithstanding that the animals had got upon the track while at large in a place other than a highway intersected by the 4-Landlord and tenant-Master and servant-Acts in course of employment -Alterations to plumbing-Damage by steam. etc.-Responsibility of contractors -Control of premises-Cross-appeal tween respondents-Practice.] In the lease of a shop, the landlord agreed to supply steam heating and, in order to improve the system, engaged a plumbers to make alterations.
Before this work was completed and during the absence of the tenant, the plumbers' men, who were at work in another part of the same building, with steam cut for that purpose, at the request of the caretaker employed the landlord, turned the steam on again which, passing through unfinished pipes connected with the shop, escaped through an open valve in a radiator and injured the tenant's
Held, that the landlord was liable in damages for the negligent act of his caretaker in allowing steam to turned on without ascertaining that the radiator was in proper condition to receive the pressure, and that the plumbing firm were also responsible for the negligence of their employees in turning on the steam, under such circumstances, as they were acting in the course their employment in what they did although requested to do so by the caretaker.
The judgment appealed from was affirmed with a variation declaring the plumbers jointly liable with the landlord.-The was against the two defendants, jointly, and the plaintiff obtained a verdict, at the trial, against both.
The Court
Appeal confirmed the verdict as to and dismissed the action as to the other defendants.
appealed to the Supreme Court of Canada, making the other defendants respondents on his appeal.
Held, that the plaintiff, respondent, was entitled to cross-appeal against the said defendants, respondents, to have the verdict against them at the trial re- 5-Evidence-Provincial laws in Canada-Judicial notice-Conflict of latos- Common employmentstatute-3 Edw. VII. s. s.-s. 3
(N.B.)-"Longshoreman"-"Workman."]
As appellant tribunal for the Dominion of Canada, the Supreme Court of Canada requires no evidence of the laws in force in any of the provinces or territories
Canada.
It is bound to take judicial notice the statutory or other laws prevailing in every province or territory in Canada, even where they may not have been proved in the courts low, or although the opinion of the judges of the Supreme Court of Canada may differ from the evidence adduced upon those points in the courts below.
Cooper Cooper App. Cas. 17.-The plaintiff, a longshoreman, was engaged the defendant, in Montreal, to act as foreman on his contracts as a stevedore at the port of St. John, N.B. While in the performance of his work, the plaintiff went into the hold to rearrange a part of the cargo in a vessel, in the port of St. John, and, in assisting the labourers, stood under an open hatchway where he was injured by a heavy weight falling upon him on account of the negligence of the winchman in passing it across the upper deck. The winchman had attempted to remove the article which fell, without any order from his foreman, the plaintiff, and with improperly adjusted tackle.
In an action for damages instituted in the Superior Court, at Montreal
) : plaintiff entitled either under law of the Province of Quebec or under the provisions of the New Brunswick Act, Edw. VII. c. as he came within the class of persons therein mentioned to whom the law of the latter province relating to the doctrine of common employment does not apply.
6-Electric lighting-Dangerous currents-Trespass-Breach of contract - Surreptitious installations-Liability for P. obtained electric lighting service for his .dwelling only, and signed a contract with the company whereby he agreed to use the supply for that purpose only, to make no new connections without permission and to provide and maintain the house-wiring and appliances "in efficient condition, with proper protective devices, the whole according to Fire Underwriters' requirements." He surreptitiously connected wires with the house-wiring and carried the current into an adjacent building for the purpose lighting other premises by means a portable electric lamp.
While attempting to use this portable lamp, he sustained an electric shock which caused his death. In an action by his widow to recover damages for negligence in allow- .
ing dangerous currents of electricity to a defective transformer through which the current was passed into the dwelling:
judgment appealed from, that there was no duty owing the company towards deceased in respect of the installation made him without their knowledge and in breach of his contract and that, as the accident occurred through tact with the wiring which he had connected without their permission, the company could not held liable in damages.
7- Dangerous operations system
Findings fact fault.]
The Supreme Court of Canada affirmed the unanimous judgments the court below, whereby it was held that defendant was liable in damages for injuries sustained the plaintiff through an accident which occurred consequence of a defective system blasting rocks with dynamite permitted by his foreman on works where the plaintiff was engaged by him in a dangerous oneration.
The Montreal Rolling Mills v. Corcoran Can. S.C.R.
and Tooke v. Bergeron Can. S.C.R.
distinguished.-The plaintiff had been guilty of contributory negligence and damages were apportioned according to the practice in the Province of Quebec.
..............
8-Employer and employee-Dangerous machinery-Want of proper protection- Voluntary exposure - Findings of jury
Charge judge facts experienced master mechanic, who familiar the machinery in his charge and had instructions to take the necessary precautions for the protection of dangerous places, in attempting to perform some necessary work, lost his balance and upon an unprotected gearing which crushed him to death.
his widow for damages, questions were submitted to the jury, without objection the parties. and no objection was raised to the judge's charge. at the trial.
The jury were not asked to specify the particular negligence which caused the injury and, their answers, found that deceased was acting under the instruction and guidance of the company's cers, who were his superiors at the time of the accident; that he had control the work to be done but had not full charge, control and management of the machinery generally;
that there was fault on the part of the company, and that he had not unnecessarily or negligently assumed any risk. Held, affirming the judgment appealed from (Q.R. 273) Davies J. dissenting, that as there was evidence from which the jury could reasonably draw inferences come to these conclusions, as to the facts, and, as no objection was made to the questions put to them and to the charge of the judge, at the trial, their findings ought not to be interfered with on ap- Street railway company-Rules - Contributory negligence - Motorman.] Rule 212 of the rules of the London St. Ry. provides that "when the power leaves the line the controller must shut the overhead switch thrown and the brought car on which the lights had been weak and intermittent for some little time passed a point on the time at which there was a circuit breaker when the power ceased to operate.
The motorman shut the controller but, instead of applying the brakes, allowed the car to proceed by the momentum it had acquired and it collided with a stationary car on the line ahead of it. an action by the motorman claiming damages for injuries received through such collision:
Held. that the accident was due to the motorman's disregard the above rule and he could not recover. ..... Breach of statutory Scotia Ry. Act, R.S.N.S. - Employers' Liability Act-Fatal Injuries Act.]
Section of the Railway Act of Nova Scotia provides that when a train is moving reversely in a city, town or village the company shall persons standing on or crossing the penalty for violation such provision. Held, that this enactment is for the protection of servants of the company standing on or crossing the track as well as of other persons.
M1. was killed a train, consisting an engine and coal car, which moving reversely
North Sydney. No person was stationed on the last car to give warning of its approach and as the bell was encrusted with snow and ice it could not heard.
act as brakesman and would have to be on the rear of the coal-car to work the brakes but when the car struck who was engaged at the time in keeping the track clear snow, the conductor was ' in the cab of the engine.
Held, Idington J. (dissenting)
, that an absolute duty was cast on the company the statute to station a person on the last car to warn workmen, as well as other persons, on the track which, under the facts proved, they had neglected to discharge.
The defence under the doctrine of common employment was, therefore, not open
Croves v. Wimborne ([1898]
402), followed.
Held, per Idington J., that the evidence shewed the only failure of the company to comply with the statutory provision to have been through the acts and omissions of the fellow-servants deceased; that the company, therefore, could not be held fore. unnecessary to determine the applicability of the said section of the "Railway Act." as the fellow-servants were guilty of common law negligence which rendered the company liable but only by virtue of and within the limits the "Emnlovers' Liability fAfer- ................
......
Operation of railwuay-Unnecessory combustibles left on right of way- "Railway Act. s. 118(j) and
-R.R.C.
e. ss. (j) and
297-Damages bit fire-Point of origin
New trial-Fractie-Yeo evidence
. . ........................
12-Railrays-Constitutional law - Ord. N.W.T. (1898)
-N.W.T.
Ord., (1st sess.)
and (2nd sess.)-Works controlled
Parliament-Operation of Dominion NEGOTIORUX GESTIO-Liquidation insolvent corporation-Distribution and collocation-Privileged claim-Expenses for preservation of estate-Fire insurance preiiums.-Arts.
419, 1043-1046, 2009 ............................
NEWSPAPER - Defamation-Printing report of ghost haunting premises - Slander of title-Fair comment - Disparaging property-Special damages - Evidence-Presumption malice-Right of action . . . ...................
NEW TRIAL-Tort-Right of action- Damages-Pleading drawal of case from jury-Costs.] In a case where it would be open to a jury to find that an actionable wrong had been suffered and to award damages, the withdrawal of the case from the jury is improper and new trial should had.-The Supreme Court of Canada reversed the judgment appealed from (12 B.C. Rep. 476), which had affirmed the judgment at the trial withdrawing the case from the jury and dismissing the action and allowing the plaintiff his costs up to the time of service of the statement defence, costs being given against the defendant in all the courts and a new trial ordered.
Davies and Maclennan JJ. dissented and, taking the view that the refusal, though illegal, had not been made maliciously, considered that, on that issue, the plaintiff was entitled to nominal damages, that, in other respects, the judgment appealed from should affirmed and that there should no costs allowed the appeal to the Supreme Court of Canada. 2-Life insurance-Wagering policy- Misrepresentation-Questions for jury- Arts. 424, 427 C.P.Q.-Charge to jury. ......... Operation of railway-Unnecessary combustibles left on right of way-"Rail- NEW TRIAL-Continued.
way Act, as. 118(j) and ss. 151(j) and fire-Point of origin
Charge judge-Finding by jury - 73.............................390
NOTICE-Bills and notes-Instalments of interest-Transfer after default to pay interest-"Overdue" bill-Notice - Holder in good faith-Bills of Exchange
Act-Common law rule.1
Where interest is made payable periodically during the currency of a promissory note, payable at a certain time after date, the note does not become overdue within the meaning of sections and of the
"Bills of Exchange Act," merely by fault in the payment of an instalment of such interest.-The doctrine of constructive notice is not applicable to bills and notes transferred for value.
appealed from reversed, Idington and
Maclennan JJ. (dissenting)
.
.........
2-Promissory note-Protest in London, England-Notice of dishonour to indorser in Canada-Knowledge of adtion of payments-Evidence. .
NOTES
3-Evidence-Provincial laws in Can- Negligence-Common employment-Construction of statute--"Longshoreman"- 4- Practice-Ex parte inscription - Notice. . . .......................
5-Supply of electric light-Cancella- 6-Breach of contract - Measure damages-Notice of special circumstances
-Collateral enterprises-Loss of primary
NOTICE-Continued.
and secondary profits order as to costs.................575
NUISANCE-Rights appurtenant to dominant tenement - Construction of icehouse-Change in natural conditions- Flooding of servient tenement-Aggravation of servitude-Injunction-Damages of nuisance-Arts. 406, The construction upon a dominant ner to cause the water from melting stored therein to down upon adjoining lands of lower level and injuriously affect the same is an aggravation of the natural servitude in respect which the owner of the servient tenement may recover damages for the injury sustained and have a decree for the abatement of the nuisance.
appealed from affirmed, Girouard J. dis- V. ...... NULLITY-Municipal corporation-Sale of corporate property - Committee council-Authority to sell-Ratification .......... PARTIES-Liquidation of insolvent corporation-Distribution and collocation- Practice-Ex parte inscription-Notice ......... PARTNERSHIP - Supply of electric light-Cancellation of contract-Condition for terminating service-Interest in premises ceasing- "Heirs" - ......... PATENT INVENTION-Patent law -Canadian Patent Act-R.S.C. 1906, s. 38-Manufacture-Sale-Lease license.]
Under the Canadian Patent Act the holder of a patent is obliged, after the expiration of two years from its date, or an authorized extension that period, to sell his invention to any person desiring to obtain it and cannot claim the right merely to lease it license its use.
Judgment of the Exchiquer Court af- PATENT INVENTION-Con.
. . . .........................
2--P tent law-Novelty-Combination known elements - Infringement - Mechanical equivalents.]
A device resulting in the first useful and successful application of certain known arts and processes a new combination for manufacturing purposes is not unpatentable for want novelty merely because some of the elements combined have been previously used with other manufacturing devices.
Judgment appealed
Preferential transfer of cheque-Deposit in private bank-Application of funds to debt due banker-Sinister intention-Payment to creditor-R.S.O.
3(1).]
a merchant in insolvent circumstances, although not aware of that fact, sold his stock-in-trade and deposited the cheque received for the price to the credit his account with a private banker to whom he was indebted, at the time, upon an overdue promissory note that had been, without his knowledge, charged against his account a few days before the sale. Within two days after making cheque to cover the amount the note.
cheque, so deposited, set aside as preferential and void.
232) that the transaction was a payment to a creditor within the meaning of the statute, R.S.O.
sub- 1, which was not, under the circumstances, void as against creditors. Ron- 2-Promissory note-Protest in London, England-Notice of dishonour to indorser in Canada-Knowledge of address
-First mail leaving for Canada-Notice through agent-Agreement for time - Discharge of surety - Appropriation payments-Evidence ... ............
PETITION RIGHT- Constitutional law-Construction of statute-"Crown
PETITION RIGHT-Continued. of action-Damages-Pleading -Practice-Withdrawal of case from jury-New trial-Costs .
.......... PLANS-Agreement for sale of land- Principal and agent-Estoppel--"Land commissioner" - Specific performance. .......... Specific performance-Tender for land-Agreement for tender-One party to acquire and divide with other-Division plan-Reservation of portion land from Crown grant... . ....... 220 Boundary-Order for bornage - Evidence-Existing posts and blazing- Expertise - Reference to surveyors - Reports and plans-Costs in action bornage.
AICA v. PLEADING PRACTICE-Appeal to the Court of King's Bench-Time limit by opposite party to Court Review-Arts. Pleading and practice - Discretionary order-Reversal on appeal -Possessory action-Trouble possession-Right of action-Actio negatoria servitutis-Trespass-Interference with watercourse - Agreement as to user - Appeal as to question of costs only.] An appeal from a judgment of the Superior Court, rendered on the trial a cause, will lie to the Court King's Bench, appeal side, if taken within the time limited by article of the Code of Civil Procedure of Quebec, notwithstanding that, the meantime, on an appeal opposite
Review may have rendered a judgment affirming the judgment appealed Although the granting of an order for injunction, under article Civil Procedure Quebec, is an act dependent on the exercise of judicial discretion, the Supreme Court of Canada, on an appeal, reversed the order on the ground that it had been improperly made upon evidence which shewed that the plaintiff could, otherwise, have obtained such full and complete. remedy as he was entitled to under the circumstances of the case.
and Idington JJ. dissenting were opinion that the order had been properly granted.-A possessory action will not lie in a case where the trouble de possession did not occur in consequence the exercise of an adverse claim right or title to the lands in question, and is not of a permanent or recurrent nature.
Davies and Idington JJ. (dissenting)
were of opinion that, under the circumstances of the case, a possessory action would lie.-P. brought an action an possessoire against the company interference with his rights in a stream, for damages against the commission or continuance of the acts complained of. On service process, the company ceased these acts, admitted the rights and title of P., alleged that they had acted in the lief that a verbal agreement made with
P. some years previously gave them permission to do that this license had never been cancelled but was renewed from year to year and that, although the privilege had not been exercised them during the two years immediately preceding the alleged trespass in 1904, it was then still subsisting and in force, and tendered in compensation for any damage caused by their interference with P.'s rights.
Idington JJ.
dissenting. that, as there had been no formal cancellation of the verbal agreement or withdrawal of the license thereby given, it had to be regarded, notwithstanding non-user, as having been tacitly renewed, that it was still force in at the time of the acts complained and that P. could not recover in the action as instituted.
Chief Justice, his view of the dence, dissented from the opinion that the agreement had been tacitly renewed for the year
Per Davies and Idington JJ. (dissenting)
.- As the appeal involved merely a question as to costs, it should not be entertained.
CHrcor- 2-Tort-Right of action-Damages- Withdrawal of case from jury trial-Costs.] In a case where it would open to a jury to find that an actionable wrong had been suffered and to award damages, the withdrawal of the case from the jury is improper and a new trial should be had.-The Supreme Court of Canada reversed the judgment appealed from B.C. Rep. 476), which had affirmed the judgment at the trial withdrawing the case from the jury and dismissing the action and allowing the plaintiff his costs up to the time of service of the statement defence, costs being given against the defendant in all the courts and a new trial ordered. Davies and Maclennan
JJ. dissented and, taking the view that the refusal, though illegal, had not been made maliciously, considered that, on that issue, the plaintiff was entitled to nominal damages, that, in other respects, the judgment appealed from should affirmed and that there should no costs allowed on the appeal to the Supreme Evidence-Provincial laws in Canada-.Jdicial notic-Conflict of laws.1 tribunal ion of Canada, the Supreme Court Canada requires no evidence the laws in force in any of the provinces or territories of Canada.
It is bound to take laws prevailing in every province or territory in Canada, even where they may not have been proved in the courts below, or although the opinion of the judges of the Supreme Court of Canada. may differ from the evidence adduced upon those points in the courts below. Cooper v. Cooper App. Cas. followed. R.S.C. c. Ex parte inscription-Parties - Notice.] When the appeal first came on for hearing upon inscription ex parte, on suggestion by one of the creditors, not made a party to the appeal, the court ordered the postponement of the hearing in order that all interested parties might notified.
............
5-Finding of jury-Questions of fact
Where a question was one of fact, and the jury, on evidence properly submitted to them, accepted the evidence on one side and rejected that adduced upon the other, the Supreme Court of Canada refused to disturb their findings affirmed). V.
.........
Employer and em- Findings of jury-Charge of judge - Assignment of facts-Assessment of damages.] An experienced master mechanic, who was familiar with the machinery his charge and had instructions to take the necessary precautions for the protection dangerous places, in attempting to perform some necessary work, lost his balance and fell upon an unprotected gearing which crushed him to death. In an action his widow for damages, questions were submitted to the jury, without objection the parties, and objection raised judge's charge, at the trial.
The jury were not asked to specify the particular negligence which caused the injury and, their answers found that deceased was acting under the instruction and guidance of the company's who were his superiors, at the time of the accident; that he had control of the work to done but had not full charge, control and management of the machinery generally; that there was fault on the part of the company, and that he had not unnecessarily or negligently assumed any risk.
Held, affirming the judgment appealed from (Q.R. 273) Davies J. dissenting, that as there was evidence from which the jury, could reasonably draw inferences and come to these conclusions, as to the facts, and, there was no objection to the questions put to them and to the charge of the judge, at the trial. their findings ought not to interfered with on appeal.
7-Operation of railway-Unnecessary
"Railway Act, as. 118(j) and as. 151(j) 297-Damages fire-Point of origin New trial-New evidence on appeal - Supreme Court Act, ss. and The question for the jury was, whether or not the place of the origin of the fire which caused the damages was within the limits the "right of way" which the defendants were, the "Railway obliged to keep free from unnecessary combustible matter and their finding was that it did, but the charge of the judge was calculated to leave the impression that any space where trees had been cut, under the powers conferred section (j) of that Act, might be treated as included within the "right of way," and, in effect, made a direction, on issues not raised the pleadings or at the trial, as to negligent exercise the privilege conferred that section.
Held, that, in consequence of the want of more explicit directions to the jury on the question law and the misdirection as to the issues, the defendants were entitled to a new trial.-The court refused an application the respondents, on the hearing the appeal, for leave to supplement the appeal case by the production of plans of the right of way which had not produced at the trial, as being contrary to the established course of the court. S-Record on appeal-Supreme Court Rules-Decree or order of court below.] remarks on absence from the record of the decree of the court of original jurisdiction, per Davies J. at page 9-Tramway-Contract with municipality-Limited tickets-Specific performance-Injunction-Right of action - 10-Title
ND EX.
der of deed-Restrictive conditions-Evidence-Arts.
412, 419,
0.0. ...............
Appeal-Stated case-Provincial legislation-Assessment-Municipal tax
Halifax.". .
....................
12-Specifc performance-Title to land
-Division by plan-Reference to master
-Mode of division .
..............
13-contract-Time for filing claim-Construction of statute-R.S.M.
ss. 36-Right of appeal...258
Landlord and tenant-Negligence
Cross-appeal between respondents..
15-Life insurance-Wagering policy- Misrepresentations-Questions for jury- Amendment at trial-Arts. 424, 427
. . ........................
16-Negligence-Concurrent findings- Damages-Common fault . . . ....... 332
17-Breach of contract-Measure damages-Loss of primary and secondary profits-Discretionary order as to
18-Title areas-Sale by trustee-Recovery of proand 7-Part performance - POSSESSION-Title to land-Promise der of deed-Restrictive conditions-Evidence-Arts. 412, 419, 1476, C.0. ...............
2-Possessory action-Trouble de pos- Tacit renewal - Cancellation of agree- POWERS-Municipal corporation-Sale of corporate property - Committee council-Authority to sell-Ratification. ........ Trust-Company law-Extra re- -Ratification-Recovery of moneys il- . 6.... Municipal council-Illegal expenditure-Action by ratepayer-Intervention of Attorney-General - Validating Act-Right of action .
............
PRAIRIE FIRES- Railways-Constitutional law--Legislative jurisdiction - Application of statute - "The Prairie Fires Ordinance" - Con. Ord. N.W.T. s. 2-N.W.T. Ord., (1st sess.) and 30, (2nd sess.) - Works controlled by Parliament - Operation of Dominion railway.....476 Municipal corporation
-Montreal city charter-Construction statute-"Current year" and tames-Local improvements-Special
PRINCIPAL for sale of land-Principal and agent- Estoppel-"Land commissioner"-Specifc performance.] The plaintiffs, as assignees, claimed specific performance an alleged agreement for the sale
-"Fernie,
B.C., June 5th, 1900-D. V.
Mott, Esq., Fernie, B.C.:-Re sale to you of mill site.-Dear Sir:-The Crow's
Nest Pass Coal Company hereby agree to sell to you a piece of land at or near Hosmer Station, on the
Crow's
Nest line, to contain at least one hundred acres of land, at the price of per acre, payable as follows:
When title issued to purchaser, title to be given as soon as the company is in a position to do so.
Purchaser to have possession at
The land to as near as possible as shewn on the annexed sketch plan.
Yours truly, W. Fernie,
Land Commissioner."-The lands claimed were not those shewn on the sketch plan but other lands alleged to have substituted therefor by verbal agreement with another employee of the defendant company, at the time of survey. Held,
B.C. Rep. 433)
but on different grounds, that specific performance could not decreed in the absence of any proof of authority of the agent to sell the lands of the defendant company, and that the mere fact of investing their employee with the title of "Land Commissioner" did not estop the defendants from denying his power to sell lands.
.......................
Insurance-Sprinkler system - Injury from frost
Application terim receipt....................558
PRINCIPAL SURETY-Promissory note-Protest in London, England-No- PRINCIPAL SURETY-Con. tice of dishonour to indorser in Canada -Knowledge of address-First mail leaving for Canada-Notice through agent- Agreement for time-Discharge of surety -Appropriation of payments-Evidence.] Notes made in St. John, N.B., were protested in London, England, where they were payable.
The indorser lived at Richibucto, N.B.
Notice of dishonour of the first note was mailed to the indorser at Richibucto, and, at the same time, the protest was sent by the holders to an agent at Halifax, N.S., instructing him to take the necessary steps to obtain payment. The agent, on the same day that he received the protest and instructions, sent, by post, notice of dishonour to the indorser at Richibucto. As the other notes fell due, the holders sent them and the protests, by the first packet from London to Canada, to the same agent, at Halifax, whom the notices of dishonour were forwarded to the indorser, at Richibucto. Idington and Duff JJ. dissenting, that the sending of the notice of dishonour of the first note direct from London to Richibucto, *with the precaution of also sending it through the agent was indication that the holders were aware of the correct address of the indorser and the fact that they used the proper address, was not conclusive their knowledge or sufficient to compel an inference imputing such knowledge Therefore, the notices in resnect to the other notes, sent through the agent, were sufficient.
Per Idingholders had failed to shew that they had adopted the most expeditious mode having the notices of dishonour given to the indorser. The maker of the note gave evidence of an offer to the holders to settle his indebtedness, on certain terms and at a time some two or three years later than the maturity of the last note, and that the same was agreed to by the holders.
The latter, in their denied testified that, in all the negotiations, they had informed the maker that they would do nothing whatever in any way to release the indorser.
evidence did not shew that there was any agreement by the holders to give time to the maker and the indorser was not If existence of an agreement could be gathered from the evidence, it was without consideration PRINCIPAL SURETY-Con.
and the creditors' rights against the sureties were reserved.
Per Idington and Duff JJ. that a demand note given in renewal of a time note and accepted the holders is not a giving time to the maker which the indorser is
Judgment of the Supreme
Court New Brunswick N.B. Rep.
PRIORITY-Assignment mortgagor for benefit of creditors-Priorities-Assignment of claims of execution creditors-Redemption-Assignments and Preferences Act, (Ont.)
.........
.229
PRIVILEGES-Liquidation of insolvent corporation - Distribution and collocation-Privileged claim - Expenses for premiums-Practice-Ex parte inscription-Notice-Arts. 373, 419,
1994, 2001, 2009 0.C.
...... . . . .....................
PROBATE
PROMISSORY
PROTEST-Promissory note-Protest in
London, England-Notice of dishonour to indorser in Canada-Knowledge of adtion of payments-Evidence .. ......
OFFICER - Taxing costs to
Crown-Fees to counsel and solicitor- Salaried officer representing the Crown,
......................
RAILWAYS-Negligence-Railway
1903-3 Edw. VI1. c. s. 237-Animals at large - Construction of statute - Words and terms-"At large upon the highway or otherwise"-Fencing of railway-Trespass from lands not belonging to owner.]
horses strayed from his enclosed pasture situated beside a highway which ran parallel to the company's railway, entered a neighbour's field adjacent thereto, passed thence upon the track through an opening in the fence, which had not been provided with a gate the company, and were killed a train. There was no person in charge of the animals, nor was there evidence that they got at large through any negligence or wilful act attributable to Man. R. 323), that, under the provisions of the fourth sub-section section 237 of "The Railway Act, the company was liable in damages for the loss sustained notwithstanding that the animals had got upon the track while at large in a place other than a highway intersected the railway. By. 2-Operation of railway-Unnecessary "Railway Act, ss. 118(j) and 151(j) and 297-Damages fire-Point of origin 73.]
The question for the jury was, whether or not the place the origin of the fire which caused the damages with within the limits of the "right way" which the defendants were, by the "Railway Act, obliged to keep free from unnecessary combustible matter, and their finding was that it did, but the charge of the judge was calculated to leave the impression that any space where trees had been cut, under the powers conferred section 118(j) of that Act, might treated as included within the "right way," and, in effect, made direction, on issues not raised the pleadings or at the trial, as to negligent exercise of the privilege conferred that section.
Held. that, in consequence of the want of more explicit directions to the jury on the question of law and the misdirection as to the issues, the defendants were entitled to a new trial.-The court refused an application by the respondents. on the hearing the anpeal. for leave to supplement the appeal case by the production of plans of the right way which had not produced at the trial, as being contrary to the established course of the court.
....
Legislative jurisdiction-Application of statute - "The Prairie Fires Ordinance" c. s. 2-N.W.T.
Ord. (1st sess.) and c.
(2nd sess.)-Works controlled Parlia- ,ment-Operation of Dominion railway.]
The provisions sub-s. (2), c.
Ord. N.W.T. (1898), as amended the N.W.T. Ordinances, sess.) and (2nd sess.) of so far as they relate to fires caused the escape of sparks, etc., from railway locomotives, constitute "railway legislation," strictly so-called, and, as such, are beyond the competence the Legislature the North-West Territories.
The Canadian Pacific Railway v.
The Parish of Notre Dame de Bonsecours
( and Madden v. The
Nelson and Fort Sheppard Railway
( judgments appealed from were reversed,
Idington dissenting.
Ry. KING..........476
Grand Trunk Railway of Canada
-Passenger tolls-Third-class fares - Construction of statutes-Repeal - V. c. s. (Can.)-Amendments by subsequent railway legislation.]
legislation by the late Province Canada and the Parliament of Canada since the enactment of section of the statute
Canada, V. c. in has not expressly or implication repealed the provisions of that section requiring third-class passenger carriages to run every day upon the line of the Grand
Trunk Railway Canada, between Toronto and Montreal, on which the fare or charge for each third-class passenger shall not exceed one penny currency for travelled.
......-.....
Negligence-Breach of statutory
Scotia Ry. Act, R.S.N.S.
s. 251-Employers' Liability Act-Fatal Injuries Act.]
Section of the Railway Act of Nova Scotia provides that train is moving reversely in a city, town or village the company shall persons standing on or crossing the penalty for violation of such provision. Held, that this enactment is for the protection of servants the company standing on or crossing the track as well as of other persons.-M. was killed train, consisting of an engine and coal car, which was moving reversely North Sydney.
No person was stationed on the last car to give warning of its approach and as the was encrusted with snow and ice it could not heard. act as brakesman and would have to the rear of the coal-car to work the brakes but when the car struck who was engaged at the time in keeping the track clear snow, the conductor was in the cab of the engine.
Held, Idington J. (dissenting)
, that an absolute duty was cast on the company the statute to station a person on the last car to warn workmen, as well as other persons, on the track which, under the facts proved, they had neglected to dis- The defence under the doctrine common employment was, therefore, not open to them.
Groves v. Wimborne ([1898]
402), per Idington J., that the evidence shewed the only failure the company to comwith the statutory provision to have been through the acts and omissions the fellow-servants deceased; that the company, therefore, could not held fore, unnecessary to determine the applicability of the said section of the Act," as the fellow-servants were guilty of common law negligence which rendered the company liable but only by virtue of and within the limits the "Employers' Liability Act." ............................
6-Railiay aid-Provincial subsidy- Construction of statute-60 V. C. 4, (Que.)-54 1 (j) (Que.) of condition-Compromise by RATEPAYER- Municipal council-11legal expenditure--Action by ratepayer
- Intervention of Attorney-General - Validating Act-Right of action
RATIFICATION-Municipal corporation
-Sale of corporate property-Committee of council-Authority to sell ......
Trust-Company law-Extra re- -Ratification-Recovery of moneys il- REDEMPTION mort- Preferences Act, s. (Ont.) ...... 229
REVIEW,
RIVERS - Possessory action-Trouble de possession-Right
Actio negatoria servitutis - Trespass-Interference with watercourse as to user-Expiration license non-use-Tacit renewal-Cancellation of agreement - Recourse for
......................
" 1.
SALE-Executor and trustee-Sale trust property to wife - Inadequate consideration
Account
Jurisdiction of Probate Court.]
An executor sold property of the estate for $800, his wife being the purchaser.
On passing of the accounts the judge of probate found as a fact that the property was worth and ordered that the executor account for the difference.
the executor having really sold the pro- SALE-Continued.
perty to quate to account for its true value. also, that though the Probate Court could not set aside the sale it had jurisdiction to make such order.
v. ..................
Municipal corporation-Sale corporate property-Committee of council-Authority to sell-Ratification.] A committee of a municipal council cannot, unless authorized the council, sell corporate property and if they do an tion lies against them the corporation for any loss incurred thereby. Such illegal sale cannot ratified by resolution of the council carried the votes of the members of the committee. ..... 3-Tite ferance-Squatter's rights - Evidence-Arts. 412, 417, 419, 1204, . ............
Agreement for sale of land-Prinmissioner"--Specific performance See SPECIFIC 5-Construction of contract-Sale machinery-Agreement for lien-Delivery. .--...
--- ...........
6-Patent law-Canadian Patent Act 38-Manufacture-Sale-Lease or license . ...... 499 Rights appurtenant to dominant tenement-Construction of icehouse-Change in natural conditions- Flooding of servient tenement-Aggravation of servitude-Injunction-Damages of nuisance - Arts. 406,
The construction upon a dominant tenement of an ice-house a manner to cause the water from melting ice stored therein to down upon adjoining lands lower level and injuriously affect the same is an aggravation of the natural servitude in respect of which the owner the servient tenement may recover damages for the injury sustained and have decree for the abatement the nuisance.
4udgment appealed from affirmed, Girouard
J. dissenting.
V. ..
2-Construction of deed-Title to land
-Acquiescence-Estoppel conduct- Actio negatoria servitutis-Operation waterworks.]
By a deed executed granted to R. the right of building a reservoir in connection with a system of waterworks, laying pipes and taking water from a stream on his land.
and in executed a deed of lease the same land to him with the right, the purposes of the waterworks established thereon, vaquer sur tout terrain et droit duire des tuyaux, y faire des citernes et autres travoux en ranport dit aqueduc aux rdparations d'icelui."
Held. that the deed executed in gave R. the right of bringing water from adjoining lands through pipes laid on the lands so leased.
v. R oy ... ........................
3-Possessory action-Trouble de pos- -Empiration of license non-use - Tacit renewal-Cancellation of agree- SET-OFF-Title to land-Promise of sale
-Entry in land-register-Tenant by sufference-Squatter's rights-Possession in
- Rents, issues and profits ...........
Fictitious signature-Assumed name ......... TITLE - Printing report of ghost haunting premises-Fair comment-Disparaging property-Special damages - Presumption of malice-Right of action.] The reckless publication a report depreciation in the value of the property, loss rent and expenses incurred consequence such publication. Barrett v. The Associated Newspapers 619) was affirmed, the Chief Justice dis- Customs Act-Importation of cattle-Smuggling-Clandestinely introducing cattle into Canada-Claim for return of deposit made to secure release of cattle seized-Evidence.] 2-Promissory note-Illegal consideraproof-Findings of trial judge.] Ross v. SOLICITOR-Toaing costs to Crown- Fees to counsel and solicitor-Salaried officer representing the Crown. .... SPECIFIC PERFORMANCE-Agreement for sale of land-Principal and agent- Estoppel-"Land commissioner"-Specific performance.] The plaintiffs, as asan alleged agreement for the sale "Fernie, B.C., June 5th, 1900-D. V. Mott, Esq., Fernie, B.C.:-Re sale to you of mill site.-Dear Sir:-The Crow's Nest Pass Coal Company hereby agree to sell to you a piece of land at or near Hosmer Station, on the Crow's Nest line, to contain at least one hundred acres land, at the price of per acre; payable as follows:
When title issued to purchaser, title to be given as soon as the company is in a position to do SPECIFIC PERFORMANCE-Con.
Purchaser to have possession at once.
The land to as near as possible as shewn on the annexed sketch plan. Yours truly, W. Fernie, Land Commissioner."
lands claimed were not those shewn on the sketch plan but other lands alleged to have been substituted therefor verbal agreement with another employee of the defendant company, at the time of survey. Held, affirming the judgment appealed from B.C. Rep.
but on different grounds, that speciperformance could not decreed the absence any proof of authority the agent to sell the lands of the fendant company, and that the mere fact investing their employee with the title "Land Commissioner" did not estop the defendants from denying his power to sell lands.
Co.....169
Tender for land-Agreement for tender-One party to acquire and divide with other-Division plan-Reservation of portion of land from grant.]
agreement through correspondence
G.T.R. was to tender for a triangular piece of land offered for sale by the
Ontario Government containing acres and convey half to the C.P.R. which would not tender.
The division was to made according to a plan of the block land with a line drawn through the centre from east to west, the C.P.R.
to have the northern half.
The G.T.R.
acquired the land but the Government reserved from the grant two acres in the northern half.
the C.P.R. for specific performance the agreement:
judgment of the Court Appeal
Maclennan and Duff JJ.
dissenting, that the C.P.R. was titled to one-half of the land actually acquired the G.T.R. and not only to the balance of the northern half marked on the plan. The Court of Appeal directed a reference to the 'Master in case the parties could not agree on the mode of division.
Held, that such referenco was unnecessary and the judgment appealed against should varied
PAcIFIc Ry. ...... 220
3-Tramicay-Contract with municipality-Limited tickets-Specific perfor- I mance-Injunction-Right of action - SPECIFIC PERFORMANCE-Con. Parties. Ry. v. SQUATTERS-Title to land-Promise in good faith-Eviction-Compensation for imiprovements-Rents, issues and profits-Set-off. . . . . .................
STATUTE-Constitutional law ties of province at confederation-Special funds-Rate of interest-Trust funds or debt-Award of 1870-B.N.A. ss. and 142.] Among the assets of the Province of Canada at Confederation were certain special funds, namely, Grammar School Fund, Building Fund and Improvement Fund, and the province was a debtor in respect thereto and liable for interest thereon. By section of the B.N.A. Act, the Dominion of Canada succeeded to such liability and paid the Province Ontario interest thereon at five per cent. up to
In the award made in and finally established in on the arbitration, under section of the Act to adjust the debts and assets Upper and Lower Canada, it was adjudged that these funds were the property of Ontario. In the Dominion Government claimed the right to reduce .the rate of interest to four per cent., if that was not, acceptable to the province to hand over the principal. appeal from the judgment of the Exchequer Court in an action asking a declaration as to the rights of the province in respect to said funds: Held, affirming said judgment
292), Idington J. dissenting, that though before the said award the Dominion was obliged to hold the funds and pay the interest thereon to Ontario, after the award the Dominion had a right to pay over the same with any accrued interest to the province and thereafter be free from liability in respect thereof.
Held, also, that until the principal sum was paid over the Dominion was liable for interest thereon at the rate of five per cent. Municipal corporation-Montreal city charter-52 V. s. 120 (Que.) Construction statute
"Current year"-Assessment and taxes-Limitation of action-Local improvements-Special section of the charter the City of Montreal, V. (Que.), the right to recover taxes is -prescribed and extinguished the lapse "three years, in addition to the current year, to be counted from the time at which such tax, etc., became due."
A special assessment for local improvements came due on the 14th of March, and action was brought to recover the same on the 4th of February, from (Q.R. K.B. 479) the Chief Justice and Duff J. dissenting, that the words "current year" in the section question, mean the year commencing the date when the tax became due and that the time limited for prescription had not expired at the time the institution of the action.
legislation-Assessment-funicipal tax fHalifax."] An Ontario company resisted the imposition of a license fee for ing business in the City of Halifax"
and a case was stated and submitted for an opinion as to such liability.
appeal from the decision of the said court to the Supreme Court Canada council for the City of Halifax contended that the proceedings were really an appeal against an assessment under the city charter, that no appeal lay therefrom to the Supreme Court the Province, and, therefore, and because the proceedings did not originate in a superior court, the appeal to the Supreme
Court of Canada did not lie.
Held, per
Fitzpatrick C.J. and Duff J., that as the appeal was from the final judgment of the court of last resort in the Province, this court had jurisdiction under the provisions of the Supreme Court
Act and it could not taken away
Per Davies
J.-Provincial legislation cannot impair the jurisdiction conferred on this court by the Supreme Court Act. In this case the Supreme Court of Nova Scotia had
1 of the Judicature Act. Per Idington lie but not if it was submission under the charter for a reference to a judge request of a ratepayer.
By section of the said charter
(54 V. amended by V. c. 44, "Every insurance company or association, accident and guarantee company, established in the City Halifax, or having any branch or agency therein shall * annual inafter other company, corporation, association or agency doing business in the City Halifax (banks, insurance companies associations, etc., excepted)
shall annual hundred dollars."
Held, that the words "every other company" in the last clause were not subject to the operation of the ejusdem generis rule but applied to any company doing business
Judgment appealed from overruled on this point. A carriage company agreed with a dealer in Halifax to supply him with their goods and give him the sole right to sell the same, in territory named, on commission, all monies and securities given on any sale to be the property the company and goods not sold within a certain time to be returned. The goods were supplied and the dealer assessed for the same as his personal property. Held, Davies and Maclennan JJ. dissenting, that the company was not "doing business in the City of Halifax" within the meaning of section 313 of the charter and not liable for the license fee one hundred dollars thereunder. ment the Sunreme Court Nova Scotia N.S. Rep. 403) affirmed, but reasons overruled.
4of statute-"Crown Procedure Act" R.S. B.C. 57-Duty of responsible ministers of the Crown-Refusal to submit tition of right-Tort-Right of action- Damages.] Under the provisions of the "Crown Procedure Act," R.S.B.C. c. an imperative duty is imposed upon the Provincial Secretary to submit petitions of right for the consideration of the Lieutenant-Governor within reasonable time after presentation and failure to do so gives a right of action to recover damages.-After a decisive refusal to submit the petition has been made, the right of action vests at once and the fact that a submission was duly made after the institution the action is not an answer to the plaintiff's claim.
..................
5-Assignment mortgagor for benefit of creditors-Priorities-Assignment of claims of execution creditors-Be,, demption-Assignments and Preferences
Act, s. (Ont.).] After judgment foreclosure mortgage or redemption creditors of the mortgagor with executions in the sheriff's hands were added as parties in the Master's and proved their claims.
Master's report found that they were the only incumbrancers and fixed a date for payment them of the amount due to the mortgagees.
After confirmation the report obtained assignments these judgments and was added as a
He then paid the amount due the mortgagees and the Master took a new account and appointed a day payment by the mortgagor of the amount due on the judgments as well as the mortgage.
This report was confirmed and the mortgagor having made an assignment for benefit of creditors before the day fixed for redemption an order was made a judge in chambers adding the assignee as a party, extending the time for redemption and referring the case back to the Master to take a new account and appoint a new day.
affirming the judgment of the Court
Appeal Ont. L.R. that under the provisions of section of the Assignments and Preferences Act the assignee of the mortgagor could only redeem on payment of the total sum due to' under the mortgage and the judgments assigned to him.
6-Municipal Act-Vote on by-law- Local option-Division into wards-Single or multiple voting-3 Edw. VII.
s. 335-R.S.O.
c. 245, s.
Section of the Ontario Municipal
Act, Edw. VII. providing that
"when a municipality is divided into wards each ratepayer shall be entitled to vote in each ward in which he has the qualification necessary to enable him to vote on the by-law" does not apply to the vote on a local by-law required section of the Liquor ,License Act
Judgment of the Court of Appeal (13 affirming that of the Divisional Court
Out. L.R. 488) 7-Negligence-Railway Act, Edw.
C.'s horses strayed from his enclosed pasture situated beside a highway which ran parallel to the company's railway, entered a neighbour's field adjacent thereto, passed thence upon the track through an opening in the fence, which had not been provided with a gate by the company, and were killed by a train.
There was no person charge the animals, nor was there evidence that they got at large through any negligence or wilful act attributable Held, affirming the judgment appealed from
Man. R. 323), that, under the provisions of the fourth subsection of section of "The Railway Act, the company was liable damages for the loss sustained notwithstanding that the animals had got upon the track while at large in a place other than a highway intersected by the rail- . ......................
8-Mechanics' lien-Completion of contion of statute-R.S.M., 1902, ss. and 36-Right of appeal.] The time limited for the registration of claims for liens by section of "The Mechanics' and Wage Earners' Lien Act," R. does not commence to run until there has been such performance of the contract as would entitle the contractor to maintain an action for the whole amount due thereunder. was reversed.
Davies and Maclennan JJ. dissented on the ground that the evidence was too unsatisfactory to justify an extension of the time.-The court refused to quash the appeal on the ground that the right of appeal had taken away section of the statute above referred to.
. . . .......................
Negligence-Common employment
-Construction of statute-3 Edw. VII.
s. s.-s. (N.B.)-"Longshoreman"-" Workman."]
The plaintiff, a longshoreman, was engaged by the defendant, in Montreal, to act as foreman his contracts as a stevedore at the port of St. John,
While in the performance of his work, the plaintiff went into the hold to re-arrange a part of the cargo in a vessel, in the port of St. John, and, in assisting the labourers, stood under an open hatchway where he was injured by a heavy weight falling upon him on account of the negligence of the winchman in passing it across the upper deck.
The winchman had attempted to remove the article which fell, without any order from his foreman, the plaintiff, and with improperly adjusted tackle.
In an action for damages instituted the Superior Court, at Montreal (Q.R.
469) :
Held, that the plaintiff was entitled either under law of
Quebec or under the provisions of the
New Brunswick Act. Edw. VII.
as he came within the class of persons therein mentioned to whom the law the latter province relating to the doctrine of common employment does not
10-Railways-Constitutional law s.
N.W.T. Ord. (1st sess.) and
(2nd sess.)-Works controlled by
Parliament-Operation of Dominion railway.] The provisions sub-s.
of Ord. N.W.T. (1898), amended by the N.W.T. Ordinances, c.
(1st. sess.) and c. (2nd sess.)
in so far as they relate to fires caused the escape of sparks, etc., locomotives, constitute
"railway legislation," strictly so-called, and, as such, are beyond the competence of the Legislature the North-West
Territories.
The Canadian Pacific Railway Co. v. The Parish of Notre Dame de Bonsecours ([1899]
367) and Madden v. The Nelson and Port Sheppard Railway
([1899]
The judgments from were reversed, Idington J. dissent- 11-Patent law-Canadian Patent Act c. 38-Manufacture -Sale-Lease or license.]
Under the Canadian Patent Act the holder a patent is obliged, after the expiration of two years from its date, or an authorized extension that period, to sell his invention to any person desiring to obtain it and cannot claim the right merely to lease it or license its use. ment of the Exchequer Court Ex. 12-Grand Trunk Railway of Canada -Passenger tolls-Third-class fares - Construction of statutes-Repeal-16 V. s. (Can.)-Amendments subsequent railway legislation.] The legislation the late Province of Canada and the Parliament of Canada since the enactment section of the statute Canada, V. c. in has not expressly or implication repealed the provisions that section requiring third-class passenger carriages to run every day upon the line of the Grand Trunk Railway of Canada, between ronto and Montreal, on which the fare or charge for each third-class passenger shall not exceed one penny currency Negligence-Railway-Breach statutory duty-Common employment - Nova Scotia Ry. Act, R.S.N.S. s. 251-Employers' Liability Act- Fatal Injuries Act.]
Section the Railway Act of Nova Scotia provides that when a train is moving reversely a city, town or village the company shall standing on or cros-inv the penalty for violation such provision. Held, that this enactment is for the protection servants of the company standing on or crossing the track as well as of other persons.
Ml. was killed a train, consisting of an engine and car, which moving reversely
North Sydney.
No person was stationed on the last car to give warning its approach and as the bell was encrusted with snow and ice it could not be heard.
act as brakesman and would have to on the rear the coal-car to work the brakes but when the car struck At., who was engaged at the time in keeping the track clear of snow, the conductor was in the cab the engine.
Held, Idington J. (dissenting)
, that an absolute duty was cast on the company the statute to station a person on the last car to warn workmen, as well as other persons, on the track, which, under the facts proved, they had neglected to discharge.
The defence under the doctrine mon employment was, therefore, open to them.
Groves Wimborne,
([1898]
402), per Idington J., that the evidence shewed the only failure the company to ply with the statutory provision to have been through the acts and omissions the fellow-servants of deceased; that the company, therefore, could not held fore unnecessary to determine the applicability of the said section of the "Railway Act," as the fellow-servants were guilty common law negligence which rendered the company liable but virtue of and within the limits the "Employers' Liability Act."
. . ..........................
14-Powers of municipal council - Illegal expenditure-Action by ratepayer
- Intervention of Attorney-General - Right of action-Validating Act.1
Pending the action the Legislature Nova
Scotia passed an Act authorizing payment the council of the City of Halifax of any sums for principal, interest and costs incurred by the defendant
"in the event of judgment being finally recovered by the plaintiff."
Held, per
Fitzpatrick C.J. and Maclennan J., that the meaning of the words quoted was that the action might proceed to a finality including any competent appeal and that they did not put an end to the appeal to this court.
Per Fitzpatrick C.J. and Maclennan J.-Judgment appealed from N.S. Rep. affirmed. Construction of statute-Insolvency-Preferential transfer of cheque- Deposit in private bank-Application tention-Payment to creditor s. 3(1).............281 16-Constitutional law companies' powers - Operations beyond province-Insurance against fire perty insured-Standing timber-Return of premiums-B.N.A. Act, s. ................
17-Taxing costs to Crown-Fees to counsel and solicitor-Salaried officer representing the Groton............... 18-Railway aid-Provincial subsidy- Construction of statute-60 V. 4, s. 12 Breach of condition - Compromise by Crown officers-Obligation binding the Crown-Right of action-Application of subsidy to extens of line of rail- - Location mineral claims - Construction of contract-Fictitious signature - Unauthorized use of a firm name-Transfer by bare trustee - Statute of Frauds ss. Where B., acting as principal and himself only, signed a document containing the following provisions,-"We hereagree to give F. one-half ( /) nonassessable interest following claims" (describing three located mineral claims), in the name of "J. B. & Sons." without authority from the locatees two the claims which had been staked in the names of other persons, without their knowledge or consent.
Held, af- FRAUDS-Continued.
firming the judgment appealed from (13
B.C. Rep. that, although no such firm existed and notwithstanding, that two of the claims had been located the names of the other persons, who, while disclaiming any interest therein, had afterwards transferred them to the latter was personally bound the agreement in respect to all three claims and F. was entitled to the half interest therein.-A subsequent for the reduction the interest of F.
from one-half to one-fifth, which had been drawn up in writing but was not signed F., was held void under the
Statute of Frauds.
.
.....................
2-Title to land-Trust-Interest in mining areas-Sale trustee-Recovery of proceeds of sale-Agreement in writing-Statute of ss. and 7-Part performance-Acts referable to contract- Pleading.] M. transferred to a portion of an interest in mining areas which he claimed was held in trust for him the defendant.
by claiming a share in the proceeds of the sale thereof, no deed or note in writing of the assignment was produced as required the fourth section of the
Nova Scotia Statute Frauds and there was no evidence that, prior to the assignment, there had been such a conversion of the interest as would take away its character as real estate.
subject of the alleged assignment was an interest in lands within the meaning the Statute of Frauds and not merely an interest in the proceeds of the sale as distinguished from an interest in the areas themselves, and, consequently, that the plaintiff could not recover on account of failure to comply with that statute. I
-It was shewn that, on settling with interested parties, the defendant had given
M. a bond for $500, as his share of what he had received on the sale of the areas.
Held, that, as this act was not unequivocally and in its own nature referable to some dealing with the mining areas alleged to have been the subject the agreement, it could not have the of taking the case out of the operation the Statute of Frauds.
Maddison v.
Alderson App. Cas. referred to.
FRAUDS-Continued. STATUTES--30 V.
ss. (Imp.)
(B.N.A. Act, 1867).........14 2-30
V. s. (Imp.) Act, 1867). . ....................
V. s. (Can.) (Grand Trunk Railway Passenger Fares) 4s. (Insurance) ............................
ss. 297 6-R.S.C. s. (Patents of Invention) ....................
7-R.S.C.
ss. (Bills of Exhange Act) .......... (Supreme Court Act)
............ s. (Evidence) ...........................
10-51
(Insurance) 405 Edw.
s. (Assignments and Preferences) ........ STATUTES-Continued.
14-R.S.O.
s. (Assignments and Preferences) ...... .. 281
15-R.S.O.
245, s. (Local Option) ......................
16-3
Edw. VII. s. (Ont.)
(Assignments and Preferences)
17-3
Edw. VII. c. s. (Ont.)
(Voting Municipal By-laws)
18-52
V. s. (Que.) (Montreal City Charter) ...............
19-54
V. s. 1 (j)
(Que.) (Railway Subsidies)
..................
.682
20-60
V. 4. s. (Que.) (Railway
Subsidies) . . . ...
................
21-R.S.N.S.
s.
...................
22-54
V. s.
(Halifax City Charter) ................
23-60
V. 44
(Halifax City
Charter) .........................
21-6
Edw. VII. s. (N.S.)
(Halifax City Council) . ...
....
...
25-3
Edw. VII.
(Workmen's Compensation for Injuries Act)
....................
26-R..M.
(Mechanics' Liens)
...............
STATUTES-Continued.
27-.S.B.C. (Crown Procedure) ..........................
28-R.S.B.C.
ss. 50, (Mineral Act)
...................
29-Con. Ord. N.W.T. s. (Prairie Fires) ................
30-Ord. N.W.T., (1st sess.) (2nd sess.) (Prairie Fires) 476 SUBROGATION - Liquidation of insolvent corporation-Distribution and collocation-Privileged claim-Expenses for premiums-Arts, 373, 419, 1994, 1996, 2001, 2009 ....... Railway aid subsidy-Construction of statute-60 V. s. (Que.)-54 V. s. 1 (j), (Que.)-Breach of condition-Compromise by Crown officers-Obligation binding on the Crown-Right of action-Application of subsidy to extension of line of railway.] SURETYSHIP.
SURVEY -Boundary-Order for bornage-Evidence-Existing posts and blazing-Expertise-Reference to surveyors -Reports and plans-Costs in action TIMBER- Constitutional law-Provincial companies' powers-Operations beyond province-Insurance against fire- Property insured-Standing timber-Return of premiums-B.N.A. Act, s. ..........................
8ee
TITLE LAND-Promise of sale- Entry in land-register-Tenant sufferance-Squatter's rights-Possession in
- Rents, issues and profits-Set-off-Tender of deed-Restrictive condictions-Evidence-Com mencement de preuve par
6crit-Pleading and practice-Arts.
412, 417, 419,
The appellants, plaintiffs, are the grantees the lands in question, part the Seigniory Metapediac, the former proprietors of which had an agent resident in the seigniory, who administered their affairs there.
It had been customary, on applications by intending settlers for the purchase their wild lands, this agent to take memoranda their names and permit them to enter upon the lands, and this was done in respect to the lots in question and the applicants were allowed to hold possession and make improvements thereon without iotice any special conditions limiting the titles which might, subsequently, be granted to them the owners.
The defendants, respondents, acquired the rights these applicants and, when the plaintiffs tendered deeds the said lots to them. they refused to accept them on the ground that conditions were inserted which had not been stipulated for at the time the original entries upon the lots and which notice had been given.
tions, au pititoire, the defendants pleadthat their possession had been in good faith in expectation of eventually receiving titles without such restrictive conditions were sought to be imposed and that. in the event of eviction, they were entitled to full compensation for the value all necessary improvements made on the lands without deductions in respect of rents, issues and profits. Held, the Chief Justice and Duff J. dissenting, memoranda made by the agent commencements de preuve par derit and, having been followed possession the lots, were equivalent to a binding promise of sale without unusual conditions in limitation of any titles which mizht be granted;
that the entries made upon the lands, the possession thereof held the defendants and their auteurs and the works done them thereon could not be held to be bad -faith nor with knowledge of defective
49%
TITLE LAND-Continued. title; that, under the circumstances and notwithstanding that the defendants had actual notice of prior title, the plaintiffs could not maintain actions au pdtitiore, although they might entitled to declarations in confirmation of the deeds tendered, if approved, and to recover the price of the lots; and (4) that the fendants could not evicted without compensation for the full value the necessary and useful improvements made upon the lands with the knowledge and consent of the agent, and subject to being retained by the proprietors, without any deductions in respect of the rents, issues and profits derivable from the lands. Price v. Neault App. Cas. followed; Lajoie v. Dean Dor. 69) discussed. Per Fitzpatrick J.-Under article 412 of the Civil Lower Canada, the good faith of a possessor of land is dependent upon a grant sufficient to convey real estate transmit an interest therein. V. ; RIoux, ......... 2-Specific performance - Tender for land-Agreement for tender-One party to acquire and divide with other-Division plan-Reservation of portion land from grant.] By agreement through correspondence the G.T.R. was to tender for a triangular piece of land offered for sale by the Ontario Government containing 19 acres and convey half to the C.P.R. which would not tender. The division was to be made according to a plan of the block of land with a line drawn through the centre from east to west. the C.P.R. to have the northern half.
The G.T.R. acquired the land but the Government reserved from the grant two acres the northern half. In an action the C.P.R. for speciperformance of the agreement: affirming the judgment of the court appeal Ont. L.R. Maclennan and Duff JJ. dissenting, that the C.P.R. was entitled to one half of the land actually acquired by the G.T.R. and not only to the balance of the northern half as marked on the plan.-The Court Appeal directed reference to the Master in case the parties could not agree the mode of division.
Held, that such reference was unnecessary and the judg- TITLE LAND-Continued.
ment appealed against should be varied
.....
transferred to a portion of an interest in mining areas which he claimed was held in trust for him by the defendant.
In an action claiming a share in the proceeds the sale thereof, no deed or note in writing of the assignment was produced as required the fourth section of the Nova Scotia Statute
Frauds, and there was no evidence that, prior to the assignment, there had been such a conversion of the interest as would take away its character as real estate. Held, that the subject of the alleged assignment was an interest in lands within the meaning of the Statute
Frauds and not merely an interest the proceeds of the sale as distinguished from an interest in the areas themselves, consequently, that the plaintiff could not recover on account failure to comply with that statute.-It shewn that, on settling with interested parties, the defendant had given M. a bond for $500 as his share of what he had received on the sale of the areas.
Held, that, as this act was not unequivocally and in its own nature referable to some dealing with the mining areas alleged to have been the subject of the agreement, it could not have the taking the case out of the operation of the Statute of Frauds.
Maddison
Alderson App. Cas. referred to.
Judgment appealed from N.S. Rep.
Possessory action-Trouble de possession-Right of action-Actio negatorservitutis
Trespass
Interference renewal-Cancellation of agreement-Recourse for damages................81
5-Rights appurtenant to dominant tenement - Construction of ice-house
TITLE LAND-Continued.
of servient tenement-Aggravation of servitude- Injunction-Damages -Abatement of nuisance-Arts. 406, C............................103 6-Agreement for sale of land-Prinmissioner"-Speciftc performance .. 7-Construction of deed-Title to land -Sersitude-Acquiescence-Estoppel conduct-Actio negatoria servitutis-Operation of waterworks . ............
8-Liquidation of insolvent corporation-Distribution and collocation-Privileged claim-Expenses for preservation of estate-Fire insurance premiums- Notice-Arts. 373, 419, 1043-1046. 9-Defamation ghost haunting premises - Slander sumption of malice-Right of action. 340 TOLLS-Grand Trunk Railway of Canada-Passenger tolls-Third class fares of statutes-Repeal-16 V. s. (Can.)-Amendments subsequent railway legislation ..... TORT-Constitutional law-Construction of statute - "Crown Procedure Act" R.S.B.C.*c. 57-Duty of responsible minister of the Crown-Refusal to submit petition of right-Tort-Right of action -Damages-Pleading -Practice-Withdrawal of case from jury-New trial- MARKS-Infringement ventive term-Coined word-Exclusive use-Colourable imitation-Common idea -Description of goods-Deceit and fraud TRADE MARKS-Continued.
-Passing-off
The hyphenated coined words "shur-on" and "staz-on" are not purely inventive terms but are merecorruptions of words descriptive the goods (in this case, eye-glass frames)
to which they were applied, intending them to so described, and, therefore, they cannot properly be the subject exclusive use as trade-marks.-A trader using the term "staz-on" as descriptive of such goods, is not guilty of infringement of any rights to the use of the term "shur-on" another trader his trade mark, nor of fraudulently counterfeiting similar goods described by the latter term; nor is such a use of the former term a colourable imitation the latter term calculated to deceive purchasers, as the terms are neither phonetically nor visually alike.
appealed from Ont. L.R.
BROS............................286
Street railway
Co.-Rules - Contributory negligence - Motorman.] Rule 212 of the rules of the London St. Ry. provides that "when the power leaves the line the controller must shut the overhead switch thrown and the car brought to a the lights had been weak and intermittent for some little time passed a point the line at which there was a circuit breaker when the power ceased to operate. The motorman shut the controller but, instead of applying the brakes, allowed the car to proceed by the momentum it had acquired and it collided with a stationary car on the line ahead of it.
In an action the motorman claiming damages for injuries received through such collision:
Held, that the accident was disregard the above rule and he could not recover.
Co....... 398
Contract with municipality-Limited tickets-Specific performance-Injunction-Right of action-Parties.] HAMIL- TRESPASS.-Possessory action-Trouble de possession- Right of action-Actio negatoria servitietis watercourse-Agreement for user-Ex- TRESPASS-Continued.
piration of license by non-use--Tacit renewal-Cancellation of agreement-Recourse for damages. ................
2-Negligence-Railway Act. Edio.
3-Negligence - Electric lighting - Dangerous currents-Breach of contract -Surreptitious installations - Liability for damages......................326 TRUSTSities of province at confederation-Spec- ;al funds-Rate of interest-Trust funds of debt
Award of ss. and ..............
USER-Possessory action-Trouble de possession-Right of action-Actio nego- Tacit renewal - Cancellation of agree- See AcTroN
PURCHASER - Agreement for sale of land - Principal and agent-Estoppel-"Land commissioner"- Specific performance.] The plaintiffs, as assignees, claimed specific performance of an alleged agreement for the sale
"Fernie, B.C., June 5th, 1900.-D. V.
Mott, Esq., Fernie, B.C.:-Re sale to you of mill site.-Dear Sir:-The Crow's
Nest Pass Coal Company hereby agree to sell to you a piece of land at or near
Hosmer Station, on the Crow's Nest line, to contain at least one hundred acres of land, at the price of $5.00 per acre; payable as follows: When title issued to purchaser, title to be given as soon as the company is in a position to so. Purchaser to have possession once.
The land to as near as possible as shewn on the annexed sketch plan.
Yours truly, W. Fernie, Land
Commissioner."-The lands claimed were not those shewn on the sketch plan but other lands alleged to have been substituted therefor by verbal agreement with another employee the defendant company, at the time of survey.
Held, affirming the judgment appealed from (12
B.C. Rep. 433) but on different grounds, that specific performance could not decreed in the absence of any proof authority of the agent to sell the lands the defendant company, and that the mere fact of investing their employee with the title of "Land Commissioner"
did not estop the defendants from denying his power to sell lands.
.......... . . . . .................
VERDICT.
Junr.
VIS
Negligence-Construction of building-Contract for construction- Collapse of wall - Building not completed.]
Held, per Davies, and Maclennan JJ.-The owner of a building course of construction owes to those whom he invites into or upon it the duty of using reasonable care and skill in order to have the property and appliances upon it intended for use in the work fit for the purposes they are to be put duty not the employment of competent architect to prepare plans for the building and a competent contractor to attend to the work of construction.-Per Idington J. The fact that the building is in an unfinished state may render the obligation of the owner towards a workman employed upon it less onerous in law than it would be in the case of a completed structure.-Per Duff J.
Does the rule governing the duty of occupiers respecting the safe condition of the premises apply without qualification where the structure is incomplete and the invitee is engaged in completing it or fitting it for its intended use ?-Per Davies and Maclennan JJ. In the present case the failure to guard against the effect of a sudden storm of so violent and extraordinary a character that it could not have been expected was not negligence for which the owner was liable.-Judgment of the Court of Appeal and of the Divisional Court Ont. L.R. affirmed, Idington J. dubitante. VOTING-Municipal Act-Vote on law-Local option
Ward divisions - Single or multiple voting-R.S.O. c. s. 141-3 Edw. VII. s. ........ WATERWORKS-Construction Title to land-Servitude-Acqidescence- Estoppel conduct-Actio negatoria servitutis-Operation of waterworks.. .244 WILL-- Legacy--"Aoneys"- Construction of will.] Where by will money was bequeathed to the testator's daughter "to WILL-Continued.
hold and enjoyed by her while she remained unmarried" with a bequest in case of her decease or marriage: Held, that the daughter was only entitled to the income from said money and not to the possession and deposition thereof.
Remarks on the absence from the record the decree of the court of original jurisdiction.
WORDS PHRASES.
"At large upon the highway otherwise.. . . . ..................
"Current year." . . . .. .. .. .. .
4- "Doing business in the City of Halifax." . . . .......................
"Every other company.". . ... ..
"Heirs . . . . ................
WORDS PHRASES-Continued. 7-"Land
Commissioner."........169 "Longshoreman."..... ........ "Moneys"...................122 or crossing the track." "Or upon demand."
....... 14--"Shur-on . . . . .............
"Staz-on." ................
............
WORKMEN