Majority
APPEAL by the defendant from the judgment of the Court of Appeal for Manitoba (1) dismissing the defendant's appeal from the judgment of Curran J., on the verdict of a jury, whereby the plaintiffs recovered damages for the death of their father, caused through his being struck by an electric tramcar belonging to the defendant. At the conclusion of the argument the Court orally delivered judgment dismissing the appeal with costs.
W. N. Tilley K.C. for the appellant.
R. S. Robertson K.C. for the respondents.
ACTION PETITOIRE-Titles from same owner to more than one person-Priority of title-Good faith-Reimbursement improvements-Evidence-Arts. 417, 462,
1488, 1571, 2098 C.C.
ADMIRALTY
AGENCY-"Space" charter-purty-Stevedores-Engagement by charterer-Liability of owners of vessels-Principal and agent- Actual agency-Ostensible agency.]
.S. Co. v. Co. 423
2 -Contract by correspondence-Offer- Acceptance-Delivery of offer by messenger
-Mailing of acceptance of communication to party - Presumption.]
ALIEN-Debt of Canadian debtor to alien enemy-Money paid into court-Claims by custodian and enemy creditor-Custodian's right to the money-Treaty of Peace (Germany) Order, 1920, Parts I and II, especially clauses 3, 5, 6, 10, 26, 32, 33, 34, 41- Treaty of Peace of Versailles, Arts. 296
297, 298.]
Before the war, P. F., a
German firm, sent to W. Co. in Canada mission.
During the war Co. sold the goods and shortly afterwards, sold its assets to d. Co. which assumed W. Co.'s liabilities, including the liability to P. F.
In June, 1920, C. Co., having notice of competing claims by P. F. and its sequestrator in France, for the amount of said liability, applied for and obtained from the Master in Chambers, in the Supreme
Court of Ontario, an order for the payment of the amount into court. In
November, 1925, P., as attorney for P. F., and the Custodian of Alien Enemy
Property each applied for payment to himself of the money in court.
Mowat J.
(30 O.W.N. 398) ordered payment to the
Custodian, but subject to conditions which the Custodian refused to accept, and each party appealed.
The Appellate
Division (32 O.IN.N. 402) ordered payment to P., subject to a right to the
Custodian to a further enquiry as to certain facts. The Custodian elected against such an enquiry, and appealed to this court.-Held: The Custodian was entitled to the money; it represented an enemy "debt" owing by a debtor in
ALIEN-Concluded
Canada and recoverable by the Custodian under the regulations of Part I of the Treaty of Peace (Germany) Order, 1920. There was an adequate remedy at law, as for money had and received.
It mattered not, for the purposes of the case, whether P. F. looked to C. Co. or to W. Co. as its debtor; and it was none the less a "debt" because, upon the termination of the war, C. Co., being misinformed as to its duty, paid the money into court for the benefit of P. F. or its estate; the money could not by this means be diverted from its legal destination;
nor was the Custodian's right of recovery affected by the fact that, at the time of the payment into court, he, not being aware of the enemy character of the obligation, did not assert his right. Treaty of Peace (Germany) Order, 1920, Parts I and II, especially clauses 3, 5 6 10 26 32, 33, 34, 41; the Treaties of Peace Act of Canada, 1919, (2nd sess.), c. 30, s. 1 (1), (2); the Treaty of Peace of Versailles, arts. 296, 297, 298; the Consolidated Orders Respecting Trading unth the Enemy (P.C. 1023, 2nd May, 1916), ss. 26, 28, considered.
PASSAVANT....................... ANIMALS-Open Wells Act, Sask. (R.S.S. 1920, c. 169, as amended 1924-25, c. 43), s. 4-Obligation not to store threshed grain "accessible to stock"
of other persons, lawfully running at large-Extent of responsibility- Horses injured by eating wheat that had run from granary reasonably fit for storing grain.] The words "accessible to stock" in s. 4 of The Open Wells Act Sask., which enacts that "no person shall have or store on his premises * * * any kind of threshed grain accessible to stock of any other person which may come or stray upon such premises when lawfully running at large," construed with due regard to the provisions of the statute as a whole and the mischief it was intended to remedy, have a qualified meaning and call only for such protection of stored grain as is reasonably fit to prevent access to it by stock.-It was held that defendants were not liable for damages for injury to plaintiff's horses (while lawfully running at large) caused by eating wheat which had run from a granary on defendants' premises, in view of the jury's finding that the granary was reasonably fit for storing the wheat as against animals running at large; which finding this Court, having regard to the evidence, refused to reverse.--Judgment of the Court of Appeal for Saskatchewan (21 Sask. L.R. 494) reversed.
ScHopIELD.................... APPEAL-Appeal to Supreme Court of
Canada-Jurisdiction-Value of matter in controversy-Landlord and tenant-Covenant in lease-Construction-Option of renewal.] A lease of land for a term of 10 years contained a covenant by the lessor that he "shall if requested by [the lessee, his executors, administrators or assigns]
at least three months before the expiration of the term hereby demised, pay to [the lessee etc.] a sum of not more than $500 for the buildings now upon the said property and any further buildings that may be erected or built upon the said property during the term hereby created if being thereon at the expiration of the said term, or else grant a new lease of the aforesaid premises to [the lessee, etc.] for the further term or time of 10 years and also a further renewal for a further term of 10 years at and under the same yearly rent."-Held that under this covenant the lessor had the option of paying for the buildings at the expiration of the term of the lease or renewing the lease; it did not give the lessee an option to require a renewal.-Held further, that this Court had jurisdiction to hear the appeal; the matter in controversy was defendants' right to a lease for 10 years at $50 a year;
the evidence showed that the property had an annual rental value of at least
$400; if defendants' contention (that they had a right of renewal) was correct, plaintiffs would receive a rental of $50 a year, or a sum of $500 for the next 10 years; if plaintiffs' contention was correct they would receive a rental for the next 10 years of probably not less than $4,000;
the difference between these two sums was the value of the matter in controversy, and it was more than sufficient to clothe the Court with jurisdiction.
M cLELLAN.......................
2-Delay in prosecuting-Appearance of bad faith-Motion to quash granted.]
Where an appellant is in serious default in the prosecution of his appeal, and his conduct in defending the action without disclosing that he had parted with his interest in the subject matter, with the result that his transferee would not be bound by the judgment, if maintained, savours of bad faith, indulgence will be refused and the appeal will be quashed at the instance of the respondent. Bow- 3- Appeal to Supreme Court of Canada- Jurisdiction-Crown-Claim against- Reference Minister to Exchequer Court- Jurisdiction-Motion for permission to withdraw reference-Exchequer Court Act,
R.S.C. 1906, c. 140, 8. 82-Claim not arising "in connection with the administration of"
the Minister's department
(Exchequer Court Act, s. 38)-Order in
Council purporting to direct withdrawal of reference-Res judicata-Pleadings- Restriction of statement of claim to claim as referred to the court-Amendment.] The claimant presented, in a latter to the Minister of Railways and Canals, a claim for damages for breach of an alleged contract for sale by the Crown to claimant's assignor of certain land occupied by the Canadian National Railways. The contract involved the erection by the purchaser of a 26 storey building, four floors of which were to be leased to the Canadian National Railways, and five floors to the Department of Customs and Excise, and it was apparent from the claimant's letter that the successful financing of its project depended on these leases being entered into, and that the failure to obtain them was the substantial basis its
Several cabinet ministers took part in the negotiations for the alleged contract, and it was the subject of cabinet discussions and Orders in Council. The Acting Minister Railways and Canals, purporting to act under s. 38 of the Exchequer Court Act, referred the claim, as set out in claimant's letter, to the Exchequer Court. The Crown subsequently moved for permission to withdraw the reference, or, alternatively, for the statement of claim to be struck out, on the grounds: (1) that the reference was not authorized by s. 38, and was, therefore, ultra vires of the Minister of Railways and Canals; (2) that an Order in Council purporting to direct the withdrawal was effective, if the reference had been validly made; and (3) that the statement of claim as delivered was not within the purview of the reference authorized.
The motion was dismissed ([1927] Ex. C.R. 101) and the Crown appealed.-Held, this Court had jurisdiction to hear the appeal, under s. 82 of the Exchequer Court Act; the rejection of the first and second grounds of the motion was tantamount to allowing a demurrer by the claimant to two prospective defences of the Crown, and effectively excluded from issues- moreover, the first ground challengea the Exchequer Court's jurisdiction, and the judgment affirming that jurisdiction was a final judgment. * * * THE COR- 4 - Amount in controversy-Inclusion of interest in computing amount-Supreme Court Act, as. 39, 40.1 Where the judgment of a court of first is affirmed by a provincial court of appeal, the interest running on the judgment of the court of first instance up to the date of the judgment of the court of appeal must be included in computing the 63()
"amount in controversy" (Supreme Court
Act, s. 39) in the defendant's further appeal to this Court.
5 - Criminal law-Motion for leave to appeal from judgment of Second Divisional
Court of Appellate Division, Ont.-Alleged conflict with judgment of an "other court of appeal" in "a like case" (Cr. Code, R.S.C.
1927, c. 36, s. 1025)-First Divisional
Court of same Appellate Division an
"other court of appeal"-Alleged error in trial judge's charge to jury.] The First
Divisional Court of the Appellate Division of the Supreme Court of Ontario is, in relation to the Second Divisional Court, an
"other court of appeal"
within the meaning of s. 1025 of the Cr. Code, R.S.C.
1927, c. 36.-The judgment of the
Second Divisional Court (33 O.W.N. 301)
dismissing an appeal from a conviction on a charge of rape, which conviction was attacked on the ground of error in the charge to the jury, was held not to be in conflict with the judgment of the First
Divisional Court in R. v. Hall (31 O.W.N.
451) or with the judgment of this Court in Brooks v. The King ([1927] S.C.R. 633), neither of them being "a like case"
(Cr. Code, s. 1025) to that in question;
and a motion for leave to appeal to this
Court was refused.
6 - Leave to appeal - Criminal law - Conflict with "any court of appeal"-English decisions-Similar law-Applicalnlity
-Cr. C. as. 995 996 998, 1025 (R.S.C.
[1927], c. 36).]
Upon a motion for leave to appeal under section 1025 of the
Criminal Code and in order to decide whether the "judgment appealed from conflicts with the judgment of any other court of apyeal in a like case," the judge may look at decisions not only of Canadian courts of appeal but also of English courts of criminal appeal, provided the statute governing the matter be to the same effect.-Sections 995, 996 and 998 of the
Criminal Code respecting the "evidence under commission of a person dangerously ill" are taken from the Imperial statute
Court of Crown Cases Reserved in Reg. v.
Shurmer (16 Cox C.C. 94).
This decision strictly applied the Imperial statute above mentioned requiring a notice in writing to the accused. Under the circumstances of this case and inasmuch as there is already an appeal by the appellant before this court, leave to appeal is granted as to the question of the admissibility at the trial of the ante mortem deposition.
7 - Bankruptcy-Application for leave to appeal to Supreme Court of Canada- Application not within time specified by Bankruptcy Rule 72-Insufficient period of notice - Application dismissed unthout prejudice to right to obtain extension of time and renew application.] Where an application to a judge of this Court for leave to appeal from a judgment of a provincial court of appeal in a matter arising under the Bankruptcy Act is not made within the 30 days specified by Bankruptcy Rule 72, or where the specified 14 days notice has not been given to the adverse party, the application must be dismissed; the judge has no power to extend the time (Boivin v. Larue, [1925] S.C.R. 275; In re Hudson Fashion Shoppe Ltd., [1926] S.C.R. 26); but the order of dismissal may reserve any right of the applicant to obtain from the court having jurisdiction to grant it (See Bankruptcy Act, ss. 2 (1) ) an extension of time for making the application or for the service of a notice thereof, and to renew the application in the event of such extension being granted (Order as made in In re Hudson Fashion Shoppe Ltd. followed; see 7 C.B.R. 80).-Remarks on the desirability of amendment of Rule 72 so as to empower a judge of this Court to extend the time for applying for leave to appeal either before or after its expiration. In re
8 - Amount in controversy-Inclusion of interest in computing amount-Supreme Court Act, ss. 39, 40.] When the judgment of a court of first instance for recovery of a sum of money is affirmed by an appellate court (in this case the judgment was varied by reducing the plaintiff's recovery from $3,008.75 to $2,000), the interest running on the judgment of the court of first instance up to the date of the judgment of the appellate court must be included in computing the amount in controversy in the appeal to this court, because the judgment appealed from is necessarily the judgment of the appellate court.
Hamilton v. Evans ([1923] S.C.R. 1) ref.
Bridge v. Eggett ([1928] S.C.R. 154) foll. DomoN 9--Criminal law-Conviction for conspiracy in restraint of trade- Unanimous judgment-Motion for leave to appeal- Alleged conflict with other decisions of appellate court-Sections 498, 1025 Cr. C.] The appellants seek leave to appeal from an unanimous judgment of the appellate court in Quebec dismissing their appeal from their conviction on an indictment laid against them under section 498 Cr.
C., which deals with conspiracies in restraint of trade; and the question at issue in this appeal is whether that section is within the legislative jurisdiction of the
Parliament of Canada.- Held, that leave to appeal cannot be granted, as the judgment appealed from does not conflict with the judgment of any other appellate court in a like case.
(S. 1025 Cr. C.).- Attorney-General for Ontario v. Canadian
Wholesale Grocers Association (53 Ont.
L.R. 627); Attorney-General of Canada v.
Attorney-deneral of Alberta ([1922] 1 A.C.
191), and Fort Frances Pulp & Paper Co. v.
Manitoba Free Press Co. ([1923]
A.C.
695) disc.
Co. v. THE KING..............
- Plea - Paragraph alleging a set off-Judgment striking it out- Final judgment-Substantial right-Supreme Court Act s. 2.]
An appeal lies to the Supreme Court of Canada from a judgment striking off from a plea a paragraph alleging a set off or counter- Co. KING..............
11- Leave to appeal-S. 74 (3) of the
Bankruptcy Act (D. 1919, c. 36)- N.S.
Bulk Sales Act (R.S. N.S. 1923, c. 202)- Meaning of the word "settlements" in s. 60 of the Bankruptcy Act-Grant of stay of proceedings made conditional on the appellants furnishing security.] The appellants had purchased, and paid $1,600 for, the stock-in-trade of one Crouse at a bulk sale, the requirements of the Nova Scotia
Bulk Sales Act (R.S.N.S., 1923, c. 202)
with.
afterwards sold the goods for which proceeds were not ear-marked and were disposed of by them in the usual course of business. The questions at issue in this case were whether the bulk sale was fraudulent and utterly void under the Bulk Sales Act, and whether the trustee in bankruptcy could recover from the appellants the sum of $2,000, being an amount equal to the amount realized on the resale of the stock-in-trade.
Both courts answered these questions adversely to the appellants, the court in banco as to the second question basing its judgment on sections 60 and 65 of 2 he Bankruptcy
The appellants now seek leave to appeal to this court.-Held, that leave to appeal should be granted.
Among other questions, the meaning of the word
"settlements" in section 60 of the Bankruptcy Act appears to be involved in this apeal, the point being whether this word should receive the same construction as that given to it under the English Bankruptcy Act ((1914] 4 & 5 Geo. V, c. 59, a. 42).-Under the circumstances of the case, the granting of a stay of proceedings was made conditional upon the appellants giving security that they would pay the amount adjudged against them in the event of their appeal being dismissed. ........... 12-Leave to appeal-Question of public importance affecting only one province- Proper construction of s. 41, Supreme Court Act-Jurisdiction of an appellate court to grant leave to appeal-Jurisdiction of the Supreme Court of Canda to grant same.] Leave to appeal will not be granted from a judgment solely because it involves the construction of a provincial statute of a public nature where it does not affect some interest outside the province. Every judgment of a provincial appellate court interpreting a statute of purely provincial application is not per se of such general importance as to warrant the granting of special leave to appeal to this court, its construction being prima facie a proper subject for final determination by the provincial courts.-Special leave to appeal may be granted by "the highest court of final resort having jurisdiction in" a province in any case (which in its opinion is otherwise a proper subject for "special leave") if it falls within s. 36 of the Supreme Court Act, i.e., in any case (save those specially excepted in s. 36) in which there has been a judgment of such "highest court of final resort" in a "judicial proceeding" which is either (a) "a final judgment" or (b) "a judgment granting a motion for non-suit or directing a new trial" and in which the amount or value of the matter in controversy in the proposed appeal will not exceed $2,000.- The proviso to s. 41, with its sub-clauses (a), (c), (d), (e) and (f) has no bearing upon the jurisdiction of the provincial court of final resort to grant special leave to appeal, but relates exclusively to, and states the conditions of, the jurisdiction of the Supreme Court of Canada to grant special leave to appeal to it when such leave has been already refused by the highest court of final resort in the province.
& 13- Leave to appeal-Question of public interest involved-Judgment of the appellate court on question of facts only-Doubt as to whether finding of the trial judge should have been reversed.] When a question of public interest is involved in an appeal to this court, although the appellate court did not base its judgment upon it, leave to appeal to this court will be granted, if there is a doubt as to the sufficiency of the circumstances in the case to overcome, as held by the appellate court, the finding of the trial judge.
v. LEFAIVRE ..- -.-....
APPEAL-Concluded
Jurisdiction-Amount in controversy-Action against two defendants for slander-Judgment against each for $1,500
-Judgment set aside and new trial ordered by Court of Appeal-Plaintif's appeal to
Supreme Court of Canada quashed for want of jurisdiction.] Plaintiff's appeal from the judgment of the Court of Appeal for
Saskatchewan
2 W.W.R. 535)
setting aside the judgment below whereby he recovered $1,500 against each defendant for damages for slander, and ordering a new trial was quashed, on the ground that this Court had no jurisdiction, as there were separate judgments against each defendant, and each of those judgments was under the appealable amount.
CAMPBELL.............
- Special leave to appeal - Negligence-Street railway.............
16 - Final judgment - Practice and procedure. CANA- 17 - Order to trustee-Trustee directed to give notice of assignment of moneys- Discretionary nature of the ordr-Appeal
-Jurisdiction-Pecuniary value attached to the order-Supreme Court Act, s. 39.
V. .............
18 - Insurance, life-Action by insurer for cancellation of policies on ground of
ASSESSMENT
TAXATION
Sales Tax-S. 19 BBB of Special War
Revenue Act, 1915 (c. 8), as amended
(Dom.)-Exemption of "nursery stock" in subs. 4 of s. 19BBB-Cut flowers-Potted plants.] Sales by florists of cut flowers and potted plants are not exempt from the sales tax imposed by s. 19BBB of the
Special War Revenue Act, 1915 (c. 8)
(Dom.) as amended, such articles not being covered by the phrase "nursery stock" in subs. 4 of s. 19BBB.
2 - Taxes - Exemption - Industrial company-Cessation of operations-Immovables remaining in same condition-Right to exemption- ,Cities and Towns Act, R.S.Q. (1909) a.
ASSESSMENT AND TAXATION- In order to continue to be entitled to the benefit of an exemption from municipal taxes granted under the Cities and Towns Act (R.S.Q. 1909, s. 5775), a person must actually carry on the industry, trade or enterprise in respect of which the exemption was granted; and the benefit of such exemption is suspended while the industry, trade or enterprise ceases to operate, although the immovables remain available for the same industry. La Cie de Jesus v. La Cite de Montreal ([1925] S.C.R. 120) foll.-Judgment of the Court of King's Bench (Q.R. 44 K.B.
aff. LE 3 land for taxes-Action for damages-Land assessed to son of owner-Son instructed by owner to pay taxes-Inference of owner's knowledge of wrongful assessment-Estoppel -Rural
Municipality Act, (1911-12), s. 290. .......
.
.......... AUTOMOBILES
BANKRUPTCY - Application for leave to appeal to Supreme Court of Canada-Application not within time spectfled by Bankruptcy Rule 72-Insufficient period of notice-Application dismissed without prejudice to right to obtain extension of time and renew application.] Where an application to a judge of this Court for provincial court of appeal in a matter arising under the Bankruptcy Act is not made within the 30 days specified by Bankruptcy Rule 72, or where the specified 14 days notice has not been given to the adverse party, the application must be dismissed; the judge has no power to extend the time (Boivin v. Larue, [1925] S.C.R. 275; In re Hudson Fashion Shoppe Ltd., [1926] S.C.R. 26); but the order of dismissal may reserve any right of the applicant to obtain from the court having jurisdiction to grant it (See Bankruptcy Act, as. 68 (5), 2 (1) ) an extension of time for making the application or for the service of a notice thereof, and to renew the application in the event of such extension being granted (Order as made in In re Hudson Fashion Shoppe Ltd. followed; see 7 C.B.R. 80).-Remarks on the desirability of amendment of Rule 72 so as to empower a judge of this Court to extend the time for applying for leave to appeal either before or after its expiration. re CO.... BANKRUPTCY-Continued
2 - Bankruptcy Act - Petition - Debtor residing and doing business in a judicial district of a province-Petition served in that district, but made returnable in another district-Jurisdiction-S. 2, subs. 1,
4 subs. 4b; 8. 63, subs. ld; s. 64, subs. 5.]
he respondent, residing in the city of Montreal and a creditor of the appellant, served a petition in bankruptcy upon the appellant at the town of
Roberval, district of Roberval, and the petition was made returnable before the uperior Court sitting in bankruptcy at the city of Montreal, district of Montreal.
The appellant contested the jurisdiction of the latter court on the ground that he was residing, practising as lawyer and carrying on business in the town of
Roberval where all his assets were situate and that the competent court of jurisdiction under the Bankruptcy Act was the
Superior Court in the district of Roberval.
-Held that the Superior Court sitting in bankruptcy at Montreal had jurisdiction.
According to s. 63, subs. Id. of the Bankruptcy Act, the court having jurisdiction in bankruptcy matters in the province of
Quebec is the Superior Court of the province, and, according to s. 64, subs. 5 of that Act "each province of Canada shall constitute for the purpose of this Act one bankruptcy district."
So that the Superior Court sitting in any provincial judicial district has jurisdiction to hear a petition in bankruptcy served upon a debtor residing and doing business in any part of the province.-Judgment of the Court of King's Bench (Q.R. 42 K.B. 425) aff.
V. McNuLTY...............
3 - Leave to appeal-S.
(3) of the Bankruptcy Act (D. 1919, c. 36)
-N.S.
Bulk Sales Act (R.S. N.S. 1923, c. 202)-Meaning of the word "settlements" in s. 60 of the Bankruptcy Act- Grant of stay of proceedings made conditional on the appellants furnishing security.] The appellants had purchased, and paid $1,600 for, the stock-in-trade of one Crouse at a bulk sale, the requirements of the Nova Scotia Bulk Sales Act
(R.S.N.S., 1923, c. 202) not having been complied with. They afterwards sold the goods for $2,000, which proceeds were not ear-marked and were disposed of by them in the usual course of business.
questions at issue in this case were whether the bulk sale was fraudulent and utterly void under the Bulk Sales Act, and whether the trustee in bankruptcy could recover from the appellants the sum of
$2,000, being an amount equal to the amount realized on the resale of the stock-in-trade.
Both courts answered these questions adversely to the appellants, the court in banco as to the second question basing its judgment on sections
60 and 65 of The Bankruptcy Act. The
BANKRUPTCY-Concluded appellants now seek leave to appeal to this court.-Held, that leave to appeal should be granted.
Among other questions, the meaning of the word "settlements" in section 60 of the Bankruptcy Act appears to be involved in this appeal the point being whether this word should receive the same construction as that given to it under the English Bankruptcy Act ([19141 4 & 5 Geo. V, c. 59, s. 42).- Under the circumstances of the case, the granting of a stay of proceedings was made conditional upon the appellants giving security that they would pay the amount adjudged against them in the event of their appeal being dismissed. CREDIT MEN'S 4 - Hypothecary action - Payment by president of company with the latter's funds of an hypothecary claim against the company with transfer of the claim to the president on behalf of the company-Company insolvent of the president against the company-Transfer occurring three months before insolvency-Insolvency of the president-Transfer to president set up by president's trustee against the insolvent company-Bankruptcy Act, R.S.C. 1927, c. s. 64-Arts. 1212, 1716 C.C.... BARRISTERS AND SOLICITORS- Company-Solicitor retained to act for company and directors in litigation- Company's liability to solicitor for costs.] The appellant company was a party to certain actions, and, in each case, by resolution of the directors, M. was retained as its solicitor, and also as solicitor for the individual directors where they were made co-defendants.
The actions were settled. The company disputed its liability for payment, in large part of the solicitor's bill, on the ground that the litigation was merely a contest between opposing bodies of shareholders, in which the company, as such, had no interest that the company should have adopted a neutral attitude and merely submitted its rights to the court, and that the retainers in the terms in which they were given were consequently ultra vires and of no effect, and that, even if the solicitor was justified in taking up for the company the burden of the litigation, the bills of costs showed that the services rendered in the negotiations leading to settlement were for the benefit of individual directors whose shares, as a result thereof were sold or transferred, and not for the benefit of the company or under its instructions.- Held: The company was liable. As, in the litigation in which the costs were incurred, certain resolutions directors and issues of shares by the company, which must now, on the record, be taken as valid and regular, were impeached, the costs of defending the company and directors in respect thereof should be borne by the company.
corporate acts of the company were impeached, it could not be said that the solicitor should have held merely a watching brief for it. As to the services rendered in negotiations for settlement, the company had a vital interest in having the litigation speedily terminated, and, on the evidence, it was impossible to hold that they were rendered on behalf of any person other than the company;
the test to be applied, in the circumstances, to determine on whose behalf the solicitor was acting, was not "could he have rendered the services without instructions from some other than the company?"
but rather "were the services reasonably necessary to procure a settlement of the litigation in which the company was involved?"-While it is a well established rule that directors may not use the company's funds in payment of their own costs, although such costs would not have been incurred if they had not been directors (5 Hals., p. 227), yet it is equally well established that directors acting as such within such of the company's powers as are confided to them, and without gross negligence, cannot be called upon to pay out of their own funds the costs of defending resolutions passed them the interests of the company, simply because a plaintiff has chosen to make them individually co-defendants (Breay v. Royal British Nurses' Assn., [1897] 2
Ch. 272).
LIPE AssUn. Co.
oF MCMASTER..........
BILL OF LADING...............
BOARD
OF RAILWAY
COMMIS- SIONERS - Freight rates-Validity of orders-Maritime Freight Rates Act-St. John and Ste.
Rosalie "gateways" - "Eastern lines"- "Select territory"-"Preferred movements"
-Leave to appeal granted by Board- Question of jurisdiction within the Railway
CASES
Allen v. R. (44 Can. S.C.R. 331) ref. . 553
Ashburner v. Sewell ([1891] 3 Ch. 405)
cit...............................
Attorney General v. Birmingham (4 K &
J. 528) cit........................
CASES-Continued
Attorney General of Canada v. Attorney General of Alberta ([1922] 1 A.C. 191) disc..............................
Attorney General of Canada v. City of Toronto (23 Can. S.C.R. 514) disc... 606 See 9. Attorney General for Ontario v. Canadian Wholesale Grocers Association (53 Ont. L.R. 627) disc.................... Ballard v. Tomlinson (29 Ch.
Biggar v. Crowland (13 Ont. L.R. 164) ref ...............................
See MUNICIPAL 5. Boivin v. Larue ([1925]
......... Brandt v. Liverpool &c. Nay. Co. Ltd. 1 K.B. 575) disc............ Breay v. Royal British Nurses' Assn. ([1897]2 Ch. 272) app.............. Brooks v. The King ([1927] S.C.R. 633) ref ..............................
Broughton v. Township of Grey (27 Can. S.C.R. 495) disc.................. Calmenson v. Merchants' Warehousing Co. Ltd. (125 L.T. 129) app......... 264 Carlill v. Carbolic Smoke Ball Co. ([1893] 1 Q.B. 256) app...................
See FIRE 1.
Carpenter v. Bott (15 Sim. 606) disc ... Chasemore v. Richards (7 L.C. 349) ........... See WATERCOURBES 1.
Charing Cross v. Hydraulic Power Co. ([1914]3 K.B. 772) app............ Chorlton v. Lings (L.R. 4 C.P. 374).. 276 Compagnie de Jesus v. La Cite de Montreal ([1925] S.C.R. 120) foll............ Compton v. Allen Thrasher Lumber Co. (39 B.C. Rep. 70) disc............. CASES-Continued
Condogianis v. Guardian Assur.
([1921] 2 A.C. 125) app............
Dean, In re (48 Can. S.C.R. 235) ref. 559
D e eley's Patent, In re ([1895] 1
687).............................
Ch
Dixon v. Yates (5 B. & Ad. 347) ref. .
Dominion of Canada Guaranty & Acciden
Co. Ltd. v. Halifax Housing Commission
([1927] S.C.R. 492) ref .............
Everett v. Grffiths ([1921] 1 A.C. 631)
Fort Frances Pulp & Paper Co. v. Manitoba
Free Press Co. ([1923] A.C. 695) disc. 402
Gibbons v. Lenfestey (84 L.J.P.C. 158)
dist..............................
Glynn v. City of Niagara Falls (29 Ont.
L.R. 517) ref......................
Gouin v. The King ([1926] S.C.R 539)
ref...............................
See CRImina 5.
Halifax v. Tobin (50 Can. S.C.R. 404)
ref.............. ....
......
See CORPORATION
Hamilton v. Evans ([1923] S.C.R. 1)
ref..............................
Hamilton v. Hamilton Distillery Co. (38
Can. S.C.R. 239) disc.............
Hudson Fashion Shoppe Ltd., In re,
([1926] S.C.R. 26) app.............
Hutchinson v.
National Refuges for
Homeless and Destitute Children ([1920]
A.C. 794) disc..................
See WILL 1.
Ibrahim v. R ([1914] A.C. 599) ref.. 553
John Young & Co. v. Bankier Distillery
Co. ([1893] A.C. 691) app ..........
Johnston v. Braham ([1917] 1 K.B. 586)
....
.........
See TENANT 3.
CASES-Continued
Keech v. Smith's Falls (15 Ont. L.R. 300) ref............................... Kilbride v. Cameron (17 V.C.C.P. 373) disc.............................. 27 Lart, In re, ([1896] 2 Ch. 788) disc... 452 Leicester & Co. v. Cherryman ([1907] 2 K.B. 101) ref..................
London Assn. for Protection of Trade v. Greenlands Ltd. ([1916] A.C. 15 ...... London Joint Stock Bank v. British Amsterdam Maritime Agency (16 Com. Cas. 102)............................. 170 Lucas-Tooth v. Lucas Tooth ([1921] 1 A.C. 594..............................
See WILL 1.
Lyon v. Fishmongers' Company (1 A.C. MunicirAL 5. Macintosh v. Dun ([1908] A.C. 480) ref. .................
............. Magann v. Auger (31 Can. S.C.R. 186) dist.............................. Makin v. Atty. Gen. for New South Wales ([1894] A.C. 57 ref ................. Miller v. Toulmin (17 Q.B.D. 603) disc. .. . .. . .. . . .....
McConnell v. Wright ([1903 1 Ch. 546) See TENANT 3. Ontario Metal Products Co. v. Mutual Life Insurance Co. of New York ([1924] S.C.R. 35) a p ....................
Patterson v. Victoria (5 B.C.R. 628) ref. ........
.......
.5.31 Pyot v. Pyot (1 Ves. Sr. 335) dist.... Reg. v. Shurmer (16 Cox C.C. 94) ref. 161 See 6.
Rex v. Baskerville ([1916] 2 K.B. 658) v. Christie ([1914] A.C. 545) ref. 553 CASES-Concluded v. Hall (31 O.W.N. 451) ref... 156 v. Robertson & Hackett Sawmills
Ltd. (38 B.C. Rep. 222) disc ........
Roberts, In re ([1923] S.C.R. 152) ref. 559
Shelley's Case ([1581] 1 Rep. 93b) ref. 330
Skeate v. Slater's Ltd. ([1914] 2 K.B. 429)
..........
Standard Trusts Co. v. Briggs ([19261
1 W.W.R. 832) app...............
Stollmeyer v. Trinidad Lake Petroleum Co.
A.C. 485 app..............
Stuart v. Bell ([1891] 2 Q.B. 341) cit.. 126
Sutton v. Sutton (22 Ch.
Townships of Oxford and Howard, In re
(18 Ont. A.R. 496) dist ............
Victory, Rural Mun. of, v. Sask. Guar. &
Fidelity Co. ([1928] S.C.R. 264 ......
Watson v. McEwan ([1905] A.C. 480) ref.
.................................
Weston v. Middlesex (30 Ont. L.R. 21;
31 Ont. L.R. 148) ref..............
Young v. Kerhsaw (16 T.L.R. 52) cit.
See TRIAL 1.
CIVIL CODE
Art. 407 (Ownership) ..............
2-Arts. 1053, 1054 (Offences and quasioffences) ................. 340,
409,416
See 3, 4, 5.
3-Art.
1141 (Extinction of obligations)
...................
See MUNCIPAL
4-Art.
2013e (Privilege upon immoveables) .......................
5-Art.
2013 (Registration of privilege)
.................................
See PRIVILEGE.
CODE OF CIVIL PROCEDURE Art. 87 (Joinder of causes of action).. 2- Art. 177 (Dilatory exceptions).. 3-Arts. 980, 987, 988 (Corporations) ................................. 4--Art. 1150 (Summary matters). . Sale of common shares - Statement of company's assets and liabilities - Undeclared dividends on preference shares as constituting a liability of the company.] F. gave an option to purchase a block of common shares of a company, which purchase would give purchaser control of the company.
The optionee required that F. furnish an accountant's statement showing the company's assets and liabilities and profit and loss to August 31, 1926, and an affidavit that company's liabilities would not exceed the amount shown by such statement. A statement and affidavit were furnished, and the acceptance of the option was expressed to be based on said statement. Preference shares had been issued by the company, non-participating and non-assessable, entitling the holders thereof to a first, fixed, cumulative dividend of 8 per cent per annum.- Held, that cumulative dividends on preference shares, to August 31, 1926, undeclared and unpaid, constituted a liability of the company within the meaning of the contract, and should have been included as such in the said statement; and that, therefore, upon a certain stated issue, the decision of which, on its proper construction, was held to depend on the determination of said question of law, the said liability should be borne by F.- Judgment of the Appellate Division, Ont (61 Ont. L.R. 305, reversing judgment oi Grant J., ibid) affirmed.
2 - Transfer of shares in oil company with option of re-purchase - Nature of transaction - Construction- Alleged loan and mortgage- Admissibility of extrinsic evidence-Right to dividend accruing during optionperiod.] CONDITIONAL SALE
CONSTITUTIONAL LAW - Senate -Eligibility of women -"Qualified persons " - Meaning -B.
Women are not "qualified persons" within the meaning of section 24 of the B.N.A. Act, 1867, and therefore are not eligible for appointment by the Governor
General to the Senate
Canada.-Per Anglin C.J.C. and Mignault, Lamont
Smith JJ.-The authority of Chorlton v. Lings (L.R. 4 C.P.
374) is conclusive alike on the question of the common law incapacity of women to exercise such public functions as those of a member of the Senate of Canada and on that of their being expressly excluded from the class of "qualified persons"
within a. 24 of the B.N.A. Act by the terms in which s. 23 is couched, so that if otherwise applicable) Lord Broughams' Act (which enacts that "words importing the masculine gender shall be deemed and taken to include females")
cannot be invoked to extend the term
"qualified persons" to bring "women"
within its purview.-Per Anglin C.J.C.
and Lamont and Smith JJ.-The various provisions of the B.N.A. Act passed in the year 1867 bear to-day the same construction which the courts would, if then required to pass upon them, have given to them when they were enacted.
If the phrase "qualified persons" in section 24 includes women to-day, it has so included them since 1867.
But it must be inferred that the Imperial
Parliament, in enacting sections 23, 24,
25, 26 and 32 of the B.N.A. Act, when read in the light of other provisions of the statute and of relevant circumstances proper to be considered, did not give to women the power to exercise the public functions of a senator, at a time when they were neither qualified to sit in the
House of Commons nor to vote for candidates for membership in that House.- Per Duff J.-It seems to be a legitimate inference that the B.N.A. Act, in enacting the sections relating to the "Senate,' contemplated a second Chamber, the constitution of which should, in all respects be fixed and determined by the
Act itself, a constitution which was to be in principle the same, though, necessarily, in detail, not identical, with that of the Legislative Councils established by the earlier statutes of 1791 and 1840; and, under those statutes, it is hardly susceptible of dispute that women were not eligible for appointment.
re
S.
24 B.N.A. ACT............. .276
2 - Fish or salmon cannery-License to operate-Sections 7a and 18 of the Fisheries
Act, 1914-ultra vires-License to fish or to operate a fish or salmon cannery in the province of British Columbia-Whether any resident has a right to receive license or the
Minister of Marine and Fisheries has a discretionary authority to grant or refuse such license.] Section 7a of the Fisheries
Act, 1914, which enacts that "no one shall operate a fish cannery for commercial purposes without first obtaining an
CONSTITUTIONAL LAWannual license from the Minister" and section 18 of the same Act, which enacts that "no one shall operate a salmon cannery
*
*
* in British Columbia for commercial purposes except under a license from the Minister," are both ultra vires of the Parliament of Canada. the absence of any restricting consideration, the right to operate a fish cannery for commercial purposes is a civil right in the province where the operation is carried on, like the right to operate a fruit or vegetable cannery; and the exercise of that right is not restricted or regulated by force of any enumerated Dominion power to which the above sections may be justifiably attributed.-Per Anglin C.J.C. and Newcombe, Rinfret and Lamont JJ.-Under the provisions of the Special Fishery
Regulations for the province of British Columbia (made by the Governor in Council under the authority of s. 45 of the Fisheries Act, 1914), respecting licenses to fish, viz.: subs. 3 of s. 14; par. (a) or (b) of subs. 1 of s. 15, or par. (a) of subs. 7 of s. 24, any British subject resident in the province of British Columbia, who is not otherwise legally disqualified, has the right to receive a license to fish or to operate a fish or salmon cannery in that province, if he submit a proper application and tender the prescribed fee.
As to any person resident in the province of British Columbia, who is not a British subject, he is not eligible for a license of the character described in subs. 3 of s. 14, it being expressly declared by that subsection that "no other than a British subject shall be eligible for such license." none of the other licenses in question shall, as provided by par. (b) of subs. 1 of s. 15, be granted to any person, unless he "is a British subject resident in the province, or is a returned soldier who has served in His Majesty's Canadian Navy or Army Overseas."-Per Duff, Mignault and Smith JJ.-The above sections of the Special Fishery Regulations are subject to the provisions of section 7 of the Fisheries Act which enacts that "the Minister (of Marine and Fisheries) may * * * issue, or authorize to be issued, fishery leases and licenses
*
*
*" and therefore the Minister has a discretionary authority to grant, or refuse, such license to any person who is a British subject resident in the province of British Columbia, or is a returned soldier who has served in His Majesty's Canadian navy or army overseas;
in other words, the authority of the Minister is a permissive one and he is under no legal duty to grant licenses to those who may apply for re op Aar, 1914........ ES.C.Rt. Contract by correspondence - Offer - Acceptance - Delivery offer by messenger-Mailing of acceptance of communication to party-Presumption.]
The defendant, on the 14th of August,
1924, made an offer in writing to the plaintiff to purchase a certain property and handed the document to one B.
representing the plaintiff for delivery to the latter. On the 25th of August, the plaintiff deposes he wrote a letter of acceptance which, duly addressed to the defendant, he gave to his son to post and it was mailed the same day. The defendant denied receipt of this letter. On the
6th of September, the plaintiff received from the defendant a letter withdrawing the offer of the 14th of August. The action is to compel the defendant to carry out the transaction.- Held that the decision of this court in Magann v. Auger
(31 Can. S.C.R. 186) holding that the mailing of the plaintif's letter of acceptance to the defendant constituted communication of it to him has no application to a case where the offer is communicated, as in the present case, not by mail, but by other means.
The Magann
Case was one of contract by correspondence; and, the offer having been sent by mail, that was held to constitute a nomination by the sender of the post office as his agent to receive the acceptance for carriage to him. To make a contract the law requires communication of offer and acceptance alike either to the person for whom each is respectively intended or to his authorized agent.- (Q.R. 43 K.B. 295) reversed.
CnaRm- 2 - Transfer of shares in oil company with option of re-purchase-Nature of transaction - Alleged loan and mortgage-Admissibility of extrinsic evidence-Right to dividend accruing during option period.] H. (appellant), desiring to pay off a debt of $40,000, asked M.
(respondent) for a loan of that sum on the security of 1,600 shares in an oil
M. refused, but negotiations resulted in M. paying the $40,000, taking a transfer from H. of the shares, and giving an option to H. to re-purchase them within one year for $51,280.
This sum had been arrived at by including the said sum of $40,000, the sum of $6,000, being the cash payment on a house which M.
had stipulated that H. should buy from him, and interest for one year on $40,000 at 12% and on $6,000 at 8%. The option to re-purchase was in writing, and recited that M. had purchased from H.
and was now the holder of 1,600 shares in the oil company, and had agreed to give an option for re-purchase for the price and on the terms thereinafter set forth, and it provided that M. "in consideration of the sale of the said shares
CONTRACT--Continued by [H.] to [M.], and other good and valuable considerations him thereunto moving, doth hereby give and grant unto [H.] an opinion, irrevocable within the time for acceptance herein limited, to purchase," etc.; that M. should deposit the share certificates in a certain bank, and that they should be left there so long as the option was open for acceptance; that H. might at any time within the year purchase blocks of not less than 100 shares upon paying $100 for each share so purchased, and receive a transfer thereof, all sums so paid to be deducted from the total purchase price. Before the expiry of the year H. paid the re-purchase price and received a re-transfer of the shares, but in the meantime a dividend had been declared by the oil company, and the question in dispute was as to who was entitled to it. The parties had apparently not contemplated the possibility of the payment of a dividend during the option period, and had not alluded to it m their negotiations or agreement. H. sued to recover it.-Held, (a) that the transaction intended by the parties was in reality a sale with an option to re-purchase, and not a loan or mortgage; having regard to the form in which it was deliberately put, it would require most convincing evidence to justify a contrary conclusion; and the evidence in fact tended strongly to support the view that the form of the transaction represented its real nature; (b) that the evidence of the surrounding circumstances and of the negotiations which resulted in the option being given did not warrant the implication of a provision entitling H. to interim dividends; there may be cases in which a court can say that it is inconceivable that, had the parties adverted to the subject, they would not have agreed to the stipulation contended for, and would then imply it; but this was very far from being such a case.
M. was entitled to the dividend as incidental to his ownership of the shares at the date specified in the declaration of dividend, and no right to recover it from him, cognizable in a court of law and equity, had been shewn.
In the view taken by the court on the evidence, it was unnecessary to decide as to the objection made by M. to the admissibility of the parol evidence relied on by H. The general rules as to admissibility, and the required strength of extrinsic evidence to shew the alleged real nature of the transaction in such cases are discussed by Duff J.-Judgment of the Appellate Division of the Supreme Court of Alberta (23 Alta. L.R. 34) affirming, on equal division of the court, judgment of Ford J. (ibid), affirmed.- Smith J., dissenting held that, as the written document did not, nor purported to, contain the whole bargain, parol CONTRACT-Continued evidence was admissible to shew that the complete bargain was, and the written document must be construed in the light of it; while not finding that the transaction was intended merely as a loan, he held that the terms of the agreement imported that any incidental advantages accruing to the ownership of the shares during the option period should go with the shares to the party who might ultimately become the absolute owner under the terms of the bargain; and H. was therefore entitled to the dividend.
- Findings as to - Estoppel-Pledge of bonds-Dispute as to purpose and conditions of pledge-Effect on rights of present litigants of findings in other proceedings-Parties.] Plaintiffs sued for the return of certain bonds or their value, alleging that they had been pledged to defendant by plaintiff 0. as collateral security for payment of moneys secured by a mortgage from I.T. Co. to defendant, and, by agreement, were to be returned on the mortgage debt being reduced to $31,000, and that the mortgage had been paid, or reduced to an amount less than $31,000.
Defendant contended that the advance made when the bonds were pledged formed no part of the mortgage indebtedness but was an independent advance on pledge of the bonds, and that it was entitled to realize the amount of that advance by sale of the bonds. In certain mechanics' lien proceedings against I.T. Co. (the mortgagor), to which defendant was made a party, but to which 0. was not a party, although as president of I. T. Co. he was cognizant of them, it had been held that the said advance was not made on the mortgage as part of the money secured thereby, but was an independent advance on the bonds.-Held, that the view taken in the courts below (25 Ont. W.N. 43; 29 Ont.
W.N. 185) that the bonds were pledged by 0. as collateral security upon an additional advance on the mortgage, and that 0. was in respect thereof entitled to the rights of a surety, had not been successfully impugned; that the evidence disclosed that, with defendant's concurrence, the mortgaged land was subsequently sold for a sum more than sufficient to pay off the mortgage and all other claims entitled to priority over it;
that defendant had agreed to return the bonds on the loan secured by the mortgage being reduced to $31,000, and it had been so reduced within the meaning of the agreement; that, as a result of above facts, as found, 0. became entitled to return of the bonds, and defendant, who had since disposed of them was accountable for their value.-Held, further, that 0. was not estopped by reason of said holding in the mechanics' lien
CONTRACT-Concluded proceedings from asserting that the advance was secured by the mortgage; he was not a party to those proceedings, he was present at them only as a representative of I. T. Co. (In re Deeley's Patent, [1895] 1 Ch. 687, referred to); neither personally nor as president of I. T. Co. did he derive any benefit from the judgment therein (cases such as In re Lart [1896] 2 Ch. 788, held inapplicable; Leicester & Co. v. Cherryman [1907] 2 K.B. 101, at p. 103 referred to); on the facts established, defendant was not misled to its prejudice by any conduct of 0.; if 0. as a person entitled to redeem the mortgage had a status to intervene, it did not follow that he was obliged to do so; if defendant desired to hold him bound by anything determined in those proceedings it should have taken steps to have him made a party.-Held, further, that, although the plaintiffs other than 0., who claimed as owners of the bonds, had no independent right of action against defendant, and could claim only through 0., yet, as 0. was consenting, the fact of the judgment having been entered for his co-plaintiffs afforded no ground for objection.-Judgment of the Appellate Division, Ont. (29 Ont. W.N. 185), affirming judgment of Mulock C.J. Ex. Ont. W.N.
& BROTHERS......................... 5 - Balance due on purchase price - Sale- Nullity-Fraud of third party -Knowledge-Art.
993 C.C.-Art. 1116 C.N. MfNARD
GPN-RALE................ 6 - Arrangement for selecting, cruising and checking timber berths-Repudiation- Damages-Measure of. v. KNox ...... 7 - Liability to deliver - Liability for payment.-Art. 1202 C.C. HILL 8 - Action against two defendants for price of goods sold and delivered-Question as to which defendant purchased-Fzndings of fact.
........... COSTS-Apportionment of.
See HusBAND Motion for leave to appeal from judgment of Second
Divisional Court of Appellate Division,
Ont.-Alleged conflict with judgment of an
"other court of appeal" in "a like case"
(Cr. Code, R.S.C. 1927, c. 36, s. 1025)- First Divisional Court of same Appellate
Division an "other court of appeal"- Alleged error in trial judge's charge to jury.]
The First Divisional Court of the Appellate Division of the Supreme Court of
Ontario is, in relation to the Second
Divisional Court, an "other court of a ppeal" within the meaning of s. 1025 of the Cr. Code, R.S.C. 1927, c. 36.-The judgment of the Second Divisional Court
(33 O.W.N. 301) dismissing an appeal from a conviction on a charge of rape, which conviction was attacked on the ground of error in the charge to the jury, was held not to be in conflict with the judgment of the First Divisional Court in R. v. Hall (31 O.W.N. 451) or with the judgment of this Court in Brooks v.
The King ([1927] S.C.R. 633), neither of them being "a like case" (Cr. Code, s.
1025) to that in question; and a motion for leave to appeal to this Court was refused.
HILL v. THE KING ........
2- Leave to appeal-Conflict twith "any court of appeal"-English decisions-Similar la-Applicability-Cr. C. ss. 995
996, 998, 1025 (R.S.C. [1927], c. 36).1
Upon a motion for leave to appeal under section 1025 of the Criminal Code and in order to decide whether the "judgment appealed from conflicts with the judgment of any other court of appeal in a like case "
the judge may look at decisions not only of Canadian courts of appeal but also of
English courts of criminal appeal, provided the statute governing the matter be to the same effect.-Sections 995, 996 and 998 of the Criminal Code respecting the "evidence under commission of a person dangerously ill" are taken from the Imperial statute 30-31 Vict., c. 35, ss. 6, 7.
The judgment appealed from which held that the evidence of a dying witness was regularly taken and could be considered by the jury is, if these sections apply (a point on which no opinion was expressed) in conflict with the decision of the English Court of
Crown Cases Reserved in Reg. v. Shurmer
(16 Cox C.C. 94).
This decision strictly applied the
Imperial above mentioned requiring a notice in writing to the accused. Under the circumstances of this case and inasmuch as there is already an appeal by the appellant before this court, leave to appeal is granted as to the question of the admissibility at the trial of the ante mortem deposition.
v. THE
3 - Accomplice - Corroboration - Warning to jury-Duty of
Judge-Dissenting opinion.] The appel- CRIMINAL LAW-Continued lant was convicted on an indictment for manslaughter by performance of an illegal operation on one Alice Couture, causing a miscarriage that resulted in her death and he was sentenced to imprisonment for life. The appellant's appeal to the Court of King's Bench was dismissed, but one judge dissented on the question of law as to whether or not there was error on the part of the trial judge in not having warned the jury as to the danger of convicting on the uncorroborated evidence of the girl Couture an accomplice.- Held that the appellant was entitled to have a new trial.-Per Duff, Mignault, Rinfret and Smith JJ.- Although there is no case in which it has been explicitly laid down that the warning must be given where there is some corroborative evidence to go to the jury, it necessarily follows from the principle laid down in the cases referred to in the judgment now reported, where the evidence of the accomplice is necessary to sustain the conviction and the corroborative evidence may or may not be accepted as sufficient by the jury. In this case, there was in fact no admissible corroborative evidence to be submitted to the jury, and it was the duty of the trial judge to have given the warning. It is not, however, to be taken that the warning would have been unnecessary, had there been some corroborative evidence proper to be submitted to the jury. It is for the jury to say whether or not the corroborative evidence is to be believed, and if it is not believed by the jury, and yet they convict, no warning having been given, they are convicting on the uncorroborated evidence of the accomplice without having been warned of the danger of doing so.
On that ground and also in view of other improper evidence having been introduced at the trial, it cannot be said that the appellant has suffered no substantial wrong.-Per Newcombe J.-The evidence upon which the Crown relied for corroboration of the woman's testimony did not corroborate in the essential particulars; and there was no warning to the jury, such as required by the Court of Criminal Appeal in the well-known case of Rex v. Baskerville ([19161 2 K.B. 658).
K iNo ............................ 4--Conviction for conspiracy in restraint of trade- Unanimous judgment-Motion for leave to appeal-Alleged conflict with other decisions of appellate court-Sections 498, 1025 Cr.
The appellants seek leave to appeal from an unanimous judgment of the appellate court in Quebec dismissing their appeal from their conviction on an indictment laid against them under section 498 Cr. C., which deals with conspiracies in restraint of I2
CRIMINAL LAW-Continued trade; and the question at issue in this appeal is whether that section is within the legislative jurisdiction of the Parliament of Canada.- Held that leave to appeal cannot be granted as the judgment appealed from does not conflict with the judgment of any other appellate court in a like case.
(S. 1025 Cr. C.).-Attorney- General for Ontario v. Canadian Wholesale
Grocers Association (53 Ont. L.R. 627);
Attorney-General of Canada v. Attorney- General of Alberta ([1922] 1 A.C. 191), and Fort Frances Pulp & Paper Co. v.
Manitoba Free Press Co. ([1923] A.C.
695) disc.
SUP- Co. THE KING..............
- Conviction on charge receiving stolen goods-Evidence of statements made by the thieves in presence of accused-Misdirection in judge's charge to jury-Contention that no micsarriage of
Justice (Cr. Code, s. 1014 (2)).]
accused was convicted on a charge of receiving stolen goods, knowing them to have been stolen.
At his trial, evidence was admitted of statements made in his presence by the supposed thieves to a constable. In charging the jury, the judge referred to these statements as evidence that might be regarded, but warned them of the danger of accepting evidence of accomplices without corroboration.
On objection by accused's counsel to the charge, he recalled the jury and said: "I have already warned you in this case it would be most dangerous for you to rely on (the thieves') evidence as against the prisoner without feeling it was corroborated in other respects because
(of) what they said (when) the prisoner was there.
He did not express any particular assent to it and you should reasonably be bound by what he did assent to and I think on the whole it is almost worthless evidence for you."- Held: The conviction should be set aside and a new trial ordered, on the ground of misdirection.
It is only when accused, by "word or conduct, action or demeanour,"
has accepted what they contain, and to the extent that he does so, that statements made by other persons in his presence have any evidentiary value;
and there was no evidence from which a jury might infer anything in the nature of an admission by accused of the accuracy of what was incriminating in the statements in question.
The jury should have been told that, in the absence of an assent by the accused either by word or conduct to the correctness of the statements, they had no evidentiary value whatever as against him and should be entirely disregarded.
It was impossible to say that there had been no miscarriage of justice, and apply s. 1014 (2) of the
Criminal Code; it may be that sometimes
CRIMINAL LAW-Concluded objectionable testimony as to which there has been misdirection is so unimportant that the court would be justified in taking the view that in all human prob T bility it could have had no effect upon the jury's mind, and, on that ground, in refusing to set aside the verdict (Kelly v. R. 54 Can. S.C.R. 220); but here, in a most vital matter, the judge had not only failed to warn the jury to disregard the statements, but had actually stressed them, in that he in effect told the jury that they were "evidence" upon which, if corroborated, they might act.-Canadian Encyclopedic Digest, Ont. Ed., vol. 4, pp. 405, 406-7.; Makin v. Att. Gen. for New South Wales, [1894] A.C. 57, at p. 70; Ibrahim v. R., [1914] A.C. 599, at p. 616; Allen v. R., 44 Can. S.C.R. 331; Gouin v. R., [1926 S:C.R. 539; R. v. hristie, [1914] A.C. 545, referred to.-Judgment of the Court of Appeal for Manitoba (37 Man. R., 367) reversed.
CROWN - Claim against - Reference Minister to Exchequer Court-Jurisdiction -Motion for permission to withdraw reference-Appeal to Supreme Court of Canada -Jurisdiction-Exchequer Court Act, R. S.C. 1906, c. 140, s. 82-Claim not arising "in connection with the administration of" the Minister's department (Exchequer Court Act, s. 38)-Order in Council purporting to direct withdrawal of reference-Res judicata-Pleadings-Restriction of statement of claim to claim as referred to the court-Amendment.] The claimant presented, in a letter to the Minister of Railways and Canals, a claim for damages for breach of an alleged contract for sale by the Crown to claimant's assignor of certain land occupied by the Canadian National
Railways.
contract involved the erection by the purchaser of a 26 storey building, four floors of which were to be leased to the Canadian National Railways, and five floors to the Department of Customs and Excise and it was apparent from the claimant's letter that the successful financing of its project depended on these leases being entered into, and that the failure to obtain them was the substantial basis of its claim. Several cabinet ministers took part in the negotiations for the alleged contract, and it was the subject of cabinet discussions and Orders in Council. The Acting Minister of Railways and Canals, purporting to act under s. 38 of the Exchequer Court Act, referred the claim, as set out in claimant's letter, to the Exchequer Court. The Crown subsequently moved for permission to withdraw the reference or, alternatively, for the statement of claim to be struck out, on the grounds: (1) that the reference was not authorized by s. 38, and was, therefore, ultra vires of CROWN-Continued the Minister of Railways and Canals;
(2) that an Order in Council purporting to direct the withdrawal was effective, if the reference had been validly made; and
(3) that the statement of claim as delivered was not within the purview of the reference authorized.
The motion was dismissed Ex. C.R. 101) and the
Crown appealed.-Held, this Court had jurisdiction to hear the appeal, under s.
82 of the Exchequer Court Act; the rejection of the first and second grounds of the motion was tantamount to allowing a demurrer by the claimant to two prospective defences of the Crown, and effectively excluded them from the issues;
moreover, the first ground challenged the
Exchequer Court's jurisdiction, and the judgment affirming that jurisdiction was a final judgment.- Held, further, that the claim did not arise "in connection with the administration of " the Department of
Railways and Canals, within s. 38 of the
Exchequer Court Act; the project was a governmental undertaking, distinguished from a merely departmental transaction; the Minister of Railways and
Canals, if he executed the contract, was acting, not in the exercise of his administrative powers as such minister, but in the execution of a special authority deputed to him by the Government; the reference was, therefore, unauthorized, and the Exchequer Court had no jurisdiction to entertain the claim.
On this ground, the appeal was allowed.-Dealing with the other grounds of the Crown's motion, it was held, that its contention that the reference had been withdrawn by
Order in Council, was successfully met by claimant's answer of res judicata, this contention having been rejected by the
Exchequer Court on a previous motion;
that, as to the statement of claim, in so far as it might substantially depart from or exceed the claim set out in claimant's letter, it transcended the jurisdiction of the Exchequer Court, which was restricted to the very claim referred to it by the
Minister; but the objection in this respect
(if a proper subject of appeal to this
Court) presented matter for the exercise of discretion as to amendment, rather than a ground for striking out the claimant's pleadings or otherwise summarily determinin its action.
THE KING v.
2 - Collision - Canal - Probable cause of accident - Exchequer
Court Act, s. 20.1
The J.B.K. was proceeding down the Lachine Canal to
Montreal and she had passed through basin No. 1 into lock No. 1 where she was duly moored to the side. While the water in the lock was being lowered to enable her to pass out, the gates between
CROWN-Concluded the basin and the lock, being closed, were subjected to increasing pressure as the water below receded and they gave way releasing the water in the basin and causing the steamer to part her moorings and to break through the lower gates. While the J.B.K. was thus out of control, she came into contact with the respondent's tug V., causing damages for the recovery of which action was taken against the Crown.
The trial judge held that, as it appeared upon the evidence that the breaking of the gates could only have occurred if they were not properly mitred by the servants of the Crown in charge thereof, the court should draw that inference of fact and find liability fo the Crown for negligence under s. 20, subs. c of the Exchequer Court Act.- Held that, upon the evidence, there was a preponderance of probability which constituted sufficient ground for the finding of the trial judge: there was ample evidence that a faulty bevel or mitre-joint would be a not improbable cause of the accident and there was no proof of any competing cause.-Judgment of the Exchequer Court Ex. C.R. 150) aff.
- Crown lands - Timber limits - License-Expiration - Duration - Fire- Damages-Rights of holders.] On the 12th of September, 1918, M. & 0. acquired from the province of Quebec a license to cut timber on the line of the Transcontinental Railway Company, which license expired on the 30th of April 1919
The license, transferred in December, 1918, to 0. & D., the appellants, was not renewed until the 11th of December, 1919.
Such a license could only be granted under s. 3598, R.S.Q. (1909), for a period of 12 months. The appellants claim damages for destruction of timber on the limit covered by the license, arising from a fire in June, 1919, alleged to have occurred owing to the negligence of the servants of the railway company.- Held that the appellants cannot recover from the Crown the damages claimed.
They had no title to the timber at the time it was destroyed by fire and there is no evidence that they were then in possession of the limit nor in such possession alleged. Therefore no retroactive effect can be given to the license subsequently issued i December in such a way as to confer upon the appellants rights as against the railway company.-Judgment of the Exchequer Court of Canada ([1927] Ex. C.R. 154) aff. O'BuEN THE KING
ELECTRIC POWER - Accident - Electric current - Interior installation - Electric power furnished by another person-Electric storm-Transfor- ELECTRIC POWER-Concluded mer out of order-Current of 2,200 volts getting into the interior circuit-Liability- Articles 1053, 1054 C.C.............
Fraudulent conveyance - Husband and wife-Farm transferred by husband to wife, both continuing to occupy and work it-Grain grown thereon subsequent to transfer siezed under execution against husband-Grain claimed by wife- Interpleader- Relevancy of evidence of circumstances of transfer-Transfer alleged to have been in fraud of creditors-Effect as to right to the grain -Exemption
Women's Property Act R.S.M. 1913, c. 123, ss. 5, 2 14-Real Property Act, R.S.M.
1913, c., 171, s. 79-Executions Act, R.S.M.
1913, c. 66, ss. 29, 34-Apportionment of costs.............................
2 - Criminal law - Accomplice - Corroboration - Warning to jury - Duty of Judge-Dissenting opinion .......
3 - Conviction on charge of receiving stolen goods-Evidence of statements made by the thieves in presence of accused-Misdirection in judge's charge to jury-Contention that no miscarriage of justice (Cr.
Code, s. 1014 (2)).]
KING
... ...
.. ... ... .. 533
4 - New trial-Discovery of new evidence as ground for.
EXCHEQUER COURT
EXPROPRIATION
FIRE INSURANCE
See FIRE.
GUARANTEE
- Bond guaranteeing true accounting by liquidator of company-Default by liquidator-Dispute as to extent of guarantor's liability- Moneys received by liquidator as personal agent of a secured creditor of the company under power of attorney given to facilitate realization of securities-Claim against guarantor for interest.] Defendant by its bond guaranteed the true accounting by
L. for what he "shall receive or become liable to pay as official liquidator" of a company "at such periods and in such manner as the Judge shall appoint, and pay the same as the Judge hath by the said orders directed, or shall hereafter direct."
Auditors reported a shortage in
GUARANTEE-Continued
L.'s accounts, and plaintiff, who had succeeded L. as liquidator, was, by order, given leave to proceed against L. under s. 123 of the Winding-up Act (R.S.C. 1906, c. 144) and subsequently an order was made declaring L. guilty of misfeasance and breach of trust in relation to the company, and directing him to pay to plaintiff the amount of the alleged shortage. Defendant, in paying under its bond, refused to pay part of the shortage on the ground that such part did not come within its bond, and plaintiff sued therefor.-Held, affirming judgment of the Court of Appeal for British Columbia (37 B.C. Rep. 373), that defendant was not liable; on the evidence, the moneys in question were received by L. as the personal agent of one 0., a secured creditor of the company, when acting under a power of attorney from 0., authorizing L. to deal with O's securities, and given to facilitate the realization thereof; the moneys never belonged to, and were never accountable for by, the company of which L. was liquidator, and could not properly have been made the subject of a misfeasance order under said s. 123; while some of the moneys in question appeared to have passed into L.'s account kept by him as liquidator, payment thereof into that account was without authority and L. would have been, and was, within his rights as against the company in withdrawing them and placing them to his own personal credit; the condition of the bond had no application to the moneys in question.- A claim by plaintiff for interest was disallowed, in view of the terms of the condition of the bond, and the absence of any order for payment of interest. & 2-Bond guaranteeing faithful discharge of duties by treasurer of municipality incorporated under Rural Municipality Act, Sask. (R.S.S. 1920, c. 89)-Default by treasurer-Liability of guarantor-Representations by municipality in certificates given to secure renewals of bond-Construction of certificates; contra proferentem rule-Certificate of auditor, whether representation of muncipality-Alleged untruth of representations-Jury's findings-Jurisdiction of court of appeal to substitute its findings for those of jury.] Plaintiff was a rural municipality incorporated under The Rural Municipality Act, R.S.S. 1920, c. 89. Defendant executed a bond as security for the faithful discharge by P. of his duties as plaintiff's treasurer. The bond was renewed from year to year on a certificate, signed each year by plaintiff's reeve and auditor, in the form forwarded by the defendant, which contained representa- GUARANTEE-Continued tions, the truth of which, in certificates of
March 1, 1922, and March 16, 1923, was challenged by defendant, to the effect that all moneys in P.'s control or custody had been accounted for, and that he had
"performed his duties in an acceptable and satisfactory manner."
P.
being found short in his cash, plaintiff sued on the bond. The jury found that said representations were material and relied on by defendant, but that they were true, and judgment was given at trial against defendant. This was reversed by the
Court of Appeal (21 Sask. L.R. 551) which held that the jury's finding that the representations were true was perverse.- Held (1): As the members of the Court of
Appeal were of opinion that they had all the facts before them and that no further evidence could be produced which would alter the result, that court had jurisdiction to draw inferences of fact inconsistent with the jury's finding, and to give effect to the same (Sask. Court of
Appeal Rule 44; Calmenson v. Merchants'
Warehousing Co. Ltd., L.T. at
131; Skeate v. Slaters Ltd., 2 K.B.
429; Everett v. Griffiths, 1 A.C. 631).
Even if, as The Rural Municipality
Act now reads, the auditor of a municipality can properly be called an officer thereof, he is not an officer or agent to make any representations binding the municipality; nor did the fact that he signed the certificates constitute a holding out by plaintiff that he was authorized to make any representation on its behalf;
the information required by defendant by the auditor's signature to the certificates was secured at defendant's own risk from the auditor as an individual and not as a representative of the municipality.-(3): Although the truth of the representations was not the subject of warranty (as in Dom. of Canada Guaranty
& Accident Co. Ltd. v. Halifax Housing
Commission, [1927] S.C.R. 492, and other cases referred to), yet, it being found that they were material and were relied upon, defendant was entitled to have the renewal of the bond set aside if it could successfully challenge their truth. (The certificate being framed by defendant, any ambiguity in its language should be construed in plaintiff's favour-Ont. Metal
Products Co. v. Mutual Life Ins. Co.
New York, [1924] S.C.R. 35, at p. 41;
Candogianis v. Guardian Ass. Co. [1921]
2 A.C. 125, at p. 130).
As to the certificate of March 1, 1922, in view of the evidence, and having regard to the questions and answers in the application for the bond, from which the jury would be justified in concluding that defendant knew that plaintiff would depend on the auditor's statement, and as the reeve was not obliged to check the auditor's statement or P.'s books, the jury were entitled
GUARANTEE-Concluded to affirm, as they did, the truth of the representations. But as to the certificate of March 16, 1923, the members of the council of plaintiff municipality knew at that time of a discrepancy between the surplus shown on the auditor's balance sheet and P.'s cash; the reeve should not have been satisfied with P.'s explanation of this, and should not have certified without notifying defendant of the discrepancy; the representation that all moneys in P.'s custody had been properly accounted for was not true, and, even if innocently made, it induced a renewal of the bond, which renewal defendant was entitled to have declared void. In the result, therefore, the plaintiff's appeal was allowed in part, the defendant being held liable only for the sum (with interest) in which the jury found that P. was in default when the bond ws renewed in MUNICIPALITY & FI- Co. LTD................... - Deeds and documents - Illiterate party-Misrepresentation as to contents- Separate obligations-Only one explained -Whether guarantee void is part. J. R. MINKE....... 4 - Mortgage-Action in Manitoba to recover money secured by mortgage-Real Property Limitation Act, Man. (R.S.M. 1913, c. 116), s. 24 (1)-Application of s. 24 (1) in favour of person who joined with mortgagor in personal covenant- Surety-Mortgaged land situate outside Co.
The petitioner was convicted, in July and October, 1928, on charges under the Intoxicating Liquor Act of New Brunswick, and was committed to gaol in York County, N.B.
He applied to a judge of this Court for a writ of habeas corpus, alleging that on and prior to December the Canada Temperance Act was in force in said county, that on that date an Order in Council, passed pursuant to c. 30 of the Statutes of Canada 1917, became effective, suspending the operation of the Canada Temperance Act in said county; that, at the time of the passing of said Order in Council, there was in force the New Brunswick Intoxicating Liquor Act, 1916, referred to in said Order in Council as being as restrictive as the Canada Temperance Act; that in 1927 the New Brunswick Intoxicating Liquor Act, 1927, 3) came into force, which repealed the 1916 Act, HABEAS CORPUS-Concluded and was less restrictive than the Canada
Temperance Act; and he contended that, as a result, the said suspension of the operation of the Canada Temperance Act automatically ceased, and that Act came into force in said county, and that the offences for which he was convicted and committed to gaol were offences against that Act and not against the provincial
Act.-Held (by Mignault J., and, on appeal, by the Court), without pronouncing on the merits of said contention, that a judge of this Court had no jurisdiction to issue the writ applied for, as the commitment was not "in any criminal case under any Act of the Parliament of
Canada" within the meaning of s. 57 of the Supreme Court Act (In re Roberts
[1923] S.C.R. 152; In re Dean, 48 Can.
S.C.R. 235, referred to).
HAWTHORNE......................
2 - Minor child - Possession of - Father claiming child from uncle-Art.
243 C.C.
......
HIGHWAYS - Nuisance- Negligent creation of nuisance on highway by city's servants, causing special damage-Flushing of private sewer undertaken by city in exercise of statutory powers-Nuisance created consisting of dangerous ice on plaintif's houseway leading from street sidewalk, resulting in personal injury to plaintiff-Liability of city-Misfeasance-Liability at common law-Consolidated Municipal Act (Ont.)
1922, c. 72, s. 460-Place of accident not a
"sidewalk" within 8. 460 (3)-Notice of claim and injury not given under s. 460 (4)
-Right of action-Construction and application of s. 460-Breach of private right 309
HUSBAND AND WIFE-Fraudulent conveyance-Farm transferred by husband to wife, both continuing to occupy and work st
-Grain grown thereon subsequent to transfer seized under execution against husband- Grain claimed by wife-Interpleader - Relevancy of evidence of circumstances of transfer-Transfer alleged to have been in fraud of creditors-Effect as to right to the grain-Exemption-Married Women's Property Act R.S.M. 1913, c. 123, ss. 5, 2
14-heal Property Act, R.S.M. 1913, c. 171, s. 79-Executons Act, R.S.M.
1913, c. 66, as. 29, 34-Apportionment of costs.] T., who had bought a farm under agreement of sale, transferred his interest therein (and also his stock and farming implements) to his wife, who subsequently obtained title from the vendor and became the registered owner.
The consideration of the transfer was expressed to be natural love and affection and $1. T. and his wife continued to occupy and work the farm as formerly.
Plaintiff recovered a judgment against
HUSBAND AND WIFE-Continued T., and under execution issued thereon the sheriff seized certain grain which had been grown on the farm since T.'s wife became the registered owner and which grain had been shipped in her name. T.'s wife grain.- (reversing in part judgment of the Court of Appeal for Manitoba, 36 Man. R. 135, and restoring in part judgment of Macdonald J., ibid., Anglin C.J.C. and Mignault J. dissenting): The trial judge's finding that the transfer was made to defraud T.'s creditors should be affirmed; (held, that the evidence presented as to this was open to consideration, having regard to the form of the issue and the course of the trial); therefore (subject to the effect of the Executions Act, Man.) the transfer was void as against them, and as against the sheriff representing them, even though as between T. and his wife, it may have been intended to operate irrevocably as an absolute gift, and, the conveyance being voluntary, it made no difference whether it was a sham or not; hence the creditors could look to T. as having the equitable and beneficial title to the farm, to which the possession and right to the crops were incident (applying the rule derived from the Roman Law, by which, at least as against a purchaser other than a bona fide possessor, the owner of the principal thing becomes the owner also of the fruits; and not adopting the law as stated in certain cases resting upon Kilbride v. Cameron, 17 U.C.C.P., 373 which case is discussed).
T.'s wife could not justify her claim upon the evidence that she directed the farming operations and contributed to the necessary labour in which T. was also engaged. The grain was therefore, liable to seizure under plaintiff's execution, but subject to the Executions Act, R.S.M. 1913, c. 66. The effect of that Act was to exempt from such seizure the grain grown on 160 acres of the farm. The grain seized was the product of 150 acres of wheat and 100 acres of rye, and, having regard to the choice allowed the judgment debtor under the Act (which choice the claimant might justly exercise) the exempted grain should be fixed as comprising all the wheat (the more valuable grain) and lk part of the rye. Costs of the interpleader order to go to plaintiff; all other costs in all courts to be apportioned pro rata according to the value of the grain as to which the parties respectively succeed (Dixon v. Yates, 5 B. & Ad. 347, and other cases referred to).-Per Anglin C.J.C. and Mignault J. (dissenting): The wife, after the transfer to her, actually carried on the farming operations on her own account and without her husband having any "proprietary interest" therein or control thereof.
grain
" property acquired" by her in an "occupation in (64(6
HUSBAND AND WIFE-Concluded which she is engaged or which she carries on separately from her husband, and in which her husband has no proprietary interest" within s. 2 (b) of the Married
Women's Property Act, R.S.M. 1913, c.
As to the bona fides of her claim in that respect, evidence of the circumstances under which she acquired the farm was admissible.
But, once it is found that she so carried on the farming operations, the facts that the transfer of the farm to her was fraudulent and void as against her husband's creditors (if a finding to that effect was justified) and that the husband resided on the farm and aided in the farming, did not prevent her from claiming the crops grown as her own to the exclusion of his creditors (Kilbride v. Cameron, 17 U.C.C.P. 373, and Standard
Trusts Co. v. Briggs, 1 W.W.R. 832, approved on this point). S. 14 of the
Married Women's Property Act had no bearing on the question in issue.
HYPOTHECARY ACTION - Payment by president of company with the latter's funds of an hypothecary claim against the company with transfer of the claim to the president on behalf of the company- Company insolvent-Claim of the president against the company-Transfer occurring three months before insolvency-Insolvency of the president-Transfer to president set up by president's trustee against the insolvent company-Bankruptcy Act, R.S.C.
1927, c. 11, s. 64-Arts. 1212, 1716 C.C.]
Vaillancourt & Co
Limited, had purchased an immovable hypothecated in favour of two creditors, Mercier and
Gr~goire, to whom different instalments of the original purchase price had been assigned. Payment of these instalments was further secured by a right of cancellation of the sale,. stipulated by the original vendor, the assignor of these instalments.
One Dub6 was president and a large shareholder of Vaillancourt &
Co. Limited. Two of the instalments payable to Mercier were in arrears in
October, 1924, and an instalment assigned to Gr6goire was to fall due on November
1 of that year.
The company had enough of funds to pay Mercier, but was not in position to meet the instalment payable to Gr6goire, who threatened proceedings to enforce payment.
Under these circumstances, it was agreed between the company and Dub6 that the latter would pay Mercier with the company's moneys and would take from him a transfer of his hypothecary claim, which he would hold for the benefit of the company, this being done with the hope that Dub6 would thus be in a better position to negotiate for delay with Gr& goire.
This transfer of Mercier's claim to Dubd was made on October 29, 1924.
HYPOTHECARY ACTION-Concluded Less than three months afterwards both Dub6 and the company made an authorized assignment for the benefit of their creditors under the Bankruptcy Act. The evidence was that the company was insolvent at the date of the transfer by Mercier to Dub6 to the knowledge of the latter. After the assignment of the company and of Dub6 under the Bankruptcy Act, Dube's trustee, the respondent, brought an hypothecary action against the company's trustee, the appellant, with the usual conclusions.
On this action the Superior Court and the Court of King's Bench came to the conclusion that the transfer from Mercier to Dub6 was a simulated transaction, and that in view of this simulation the rule applicable was that laid down by art. 1212 C.C., with respect to the effect of contre-lettres, so that, the creditors of Dub6 being third parties, the appellant, trustee of the company, could not set up against the respondent the fact that Dub6 had acquired and held Mercier's claim for the benefit of the company, and not for himself.- Held (without deciding whether or not simulation had been established, or whether or not the mandate between the company and Dub6 could be set up against the latter's creditors), Dub6, being the president of the company, and having moreover acquired Mercier's with the company's moneys, could not obtain for himself any benefit, or acquire any right of action against the company, out of the transfer to him of Mercier's claim, and that Dube's trustee, even as representing the latter's creditors, had no right of action against the insolvent company's estate to enforce payment of the claim acquired by Dub6 from Mercier.-Held, also, that these transactions having taken place less than three months before the authorized assignment of the company, the transfer against the company obtained by Dub6 from Mercier, could not be set up by Dube's trustee against the insolvent estate of the company. (Bankruptcy Act, R.S.C., 1927, e. 11, s. 64).-Judgment of the Court of King's Bench (Q.R. 43 K.B. 557) rev.
INSURANCE,
FIRE-Oral contract of insurance-Alleged contract of re-insurance -Correspondence -Ambiguity - Construction-Offer to re-insure as to risks to be assumed-Contract of re-insurance arising on assumption of risk.] The judgment of the Court of Appeal of British Columbia, 38 B.C. Rep. 161, holding the defendant liable to the plaintiff under a contract of re-insurance, was affirmed.- It was held that there had been a binding agreement of the plaintiff to insure, constituted by an oral arrangement by its agent with the insured prior to the fire; INSURANCE, FIRE-Continued and that, on the construction of the communications between plaintiff and defendant prior to said agreement, the defendant had undertaken to re-insure the plaintiff, to an extent stipulated, in respect of risks to be assumed; and that, under the circumstances, the nature of the defendant's undertaking implied that its obligation was to arise immediately upon plaintiff becoming committed to liability; Carlill v. Carbolic Smoke Ball Co. [1893] 1 Q.B.
256, applied.
Co. LTD v. CO.
AMERICA........................
2 - Arbitration-Fire Insurance Policy
Act 8. 22-Arbitration Act, s. 8-Defendant right to appointment of arbitrator- Stay of action pending arbitration-Waste of time and money in trivial technical disputes.] In an action on a fire insurance policy on household furniture, the appellant respondent's failure to repair or replace the goods as the plaintiff alleged the insurance company had elected to do;
and in the alternative, indemnity for loss of, or damage to, the goods insured.
insurance company having given notice of the appointment of an arbitrator under statutory condition no. 2, and the appellant having refused to appoint an arbitrator, the respondent applied for an order directing such an appointment, and also for an order for a stay of proceedings pending the arbitration. Both applications were dismissed by the trial judge;
and the Court of Appeal allowed both appeals.- Held, that if in fact there had been an election by the respondent to take advantage of the re-instatement clause, the appellant was entitled to enforce the obligation to re-instate, and in respect of the appellant's claim for damages for failure to do so, the arbitration clause would have no operation, and the respondent would not be entitled either to an order directing the appointment of an arbitrator or to a stay. It was ordered that the issue of election or no election should be determined, and on the determination of that issue, further proceedings should take place, as stated in the judgment now reported. Observations upon waste of time and money in trivial and technical disputes, especially where the amounts involved are insignificant.
BULGER v. THE HOME
3 - Warranty - Warehouse-Building to be "used solely for warehouse purposes."]
The appellant was owner of a building formerly occupied by an insolvent company, where machinery and other supplies, its remaining assets, were kept until sold by the appellant.
The premises were insured against fire and, attached to
INSURANCE, FIRE-Concluded each of two policies, was a rider containing the following provision: "Warranted that the building is used solely for warehouse purposes."
The building was totally destroyed and action was brought to recover the amount of the policies.- Held that, upon the evidence, if used at all "for warehouse purposes" within the meaning of the above clause the building was never at any time whife insured by the respondent company solely used for such purposes.-Held, also, that the word "warehouse," whether used as a noun or an adjective, implies a place prepared and used for the storage of goods and effects, whether belonging to the proprietor of the building or to others, and also implies that the building will be properly equipped and managed so as safely to keep the Foods stored in it; and that the expression 'is used solely for warehouse purposes" implies further that the premises will be put to no other use than the storing and safeguarding of such goods and effects.- (Q.R. 45 K.B. 335) aff.
A. A. INSURANCE, LIFE-Action by insurer for cancellation of policies on ground of B. (the original defendant, since deceased) made three applications to plaintiff for life insurance, on each of which a policy was issued. Plaintiff sued for a declaration that the policies were null and void, on the ground that B. knew, when he made the application in each case, that he was not in good health, but fraudulently represented that he was, for the purpose of inducing issuance of the policies.
At the trial, the jury found that B., at the time of the applications, was in ill health, but was unaware of that fact when he signed the first two applications, but knew it when he signed the last one.
On these findings Jenks J. (60 N.S. Rep. 116) dismissed the action as to the first two policies, but directed cancellation of the last one. On appeal, the Supreme Court of Nova Scotia en banc (60 N.S. Rep. 116) held that the jury's findings that B. did not know he was in ill health when he signed the first two policies were perverse, and it directed that the first two policies be also cancelled, upon payment back of all premiums paid. The defendant appealed. that, upon the evidence, the jury's findings that B. did not know he was in ill health when he signed the first two applications were perverse; that [S.C.R1. INSURANCE, LIFE-Concluded the Court en banc had jurisdiction to substitute its own findings of fact for those of the jury and give judgment for the plaintiff; and that its judgment should be affirmed.-On said question of jurisdiction, the Court discussed Order 38,
Rule 10, and Order 57, Rule 5, of the
Rules of the Supreme Court of Nova
Scotia, and Order 40, Rule 10, and Order
58 Rule 4, of the English Rules, and reierred to Miller v. Toulmin, 17 Q.B.D.
603, and R.M. of Victory v. Sask. Guar. &
Fidelity Co. Ltd.
S.C.R. 264.
v. DOMINION LIFE Assu. Co. 582
JOINDER OF CLAIMS ..........
See Quo WARRANTo.
JURY-Jury's findings-Jurisdiction of
Court of Appeal to substitute its findings for those of jury.....................
See GuARANTEE 2.
2-Life insurance-Action by insurer for cancellation of policies on ground of
See LIFE.
3-Waters and watercourses-Power development- Nova Scotia Water Act- Nova Scotia Power Commission Act- Expropriation of land Power Commission for water power development purposes- Amount of compensation-Finding of jury
-Insufficient direction to jury-Factors to be taken into account-New trial .....
See WATERcoURsEs.
LANDLORD AND TENANT-Forfeiture of lease and re-entry-Exercise by lessor, at trial, of option to avoid lease on ground other than that previously claimed-Sufficiency of re-entry.] D. Co. had leased lands to C.S. Co., and, on June 4, 1925, served on it notice of forfeiture for nonpayment of rent. C.S. Co. being in financial difficulties, a committee of its creditors was formed to look after its affairs and this committee negotiated with C.T. Co. for the latter to take a sublease, and it was alleged that a sub-lease was agreed upon for three months at a net rental of $2,400.
C.S. Co. signed a lease, which C.T. Co. refused to accept.
C.T. Co. went into possession on July 9,
On September 28 1925 C.S. Co.
was adjudged bankrupt.' On ctober 1,
1925, C.T. Co. took possession under a lease from D. Co. of that date. An action was brought in the name of the trustee in bankruptcy of C.S. Co. against D. Co.
and C.T. Co. for possession.
The lease from D. Co. to C.S. Co. contained a
LANDLORD AND TENANT-Continued proviso for re-entry by the lessor on non-payment of rent, but the question arose whether D. Co.'s notice of forfeiture was sufficient to terminate the lease and allow it to re-enter without a demand for rent according to the formalities of the common law (which demand was not made), this question depending on whether the lease should be construed as being subject to the Short Forms of Leases Act, R.S. B.C., 1924, c. 234.-Held, without deciding the question last mentioned, the defendants were entitled to have the lease from D. Co. to C.S. Co. treated as void, under a covenant in the lease that the lease would cease and become void, at the option of the lessor, if the lessee became insolvent or made an assignment for the benefit of creditors, D. Co. having, at the end of the trial, exercised its option to avoid the lease on this ground. The taking of possession by C.T. Co. on October 1 as tenant of D. Co. was a sufficient re-entry by D. Co. in so far as requisite.- Held, further, that plaintiff could not recover from C.T. Co. the $2,400 above mentioned, either as for rent or by way of compensation for use and occupation, for the following reasons: that C.S. Co. did not profess to be in possession of the foreshore (part of the lands in question) when, at its instance, C.T. Co. entered on July 9; on the contrary, C.S. Co. was then denying the title of its landlord, D. Co., and endeavouring to obtain a lease of the foreshore from the Crown; there was no demise, and possession was never effectively given to C.T. Co. by C.S. Co.; furthermore, C.T. Co. was obliged to pay to D. Co. for its occupation compensation amounting to the said sum of $2,400.-Judgment of the Court of Appeal for British Columbia (38 B.C. Rep. 401) reversed in part. WINTER CAPiLANo TIMBER Co. ......... 2 - Covenant in lease-Construction- Option of renewal-Appeal to Supreme Court of Canada - Jurisdiction-Value of matter in controversy.] A lease of land for a term of 10 years contained a covenant by the lessor that he "shall if requested by [the lessee, his executors, administrators or assigns] at least three months before the expiration of the term hereby demised, pay to [the lessee, etc.] a sum of not more than $500 for the buildings now upon the said property and any further buildings that may be erected or built upon the said property during the term hereby created if being thereon at the expiration of the said term, or else grant a new lease of the aforesaid premises to [the lessee, etc.] for the further term or time of years and also a further renewal for a further term of years at and under LANDLORD AND TENANT-Continued I LANDLORD AND TENANT-Concluded the same yearly rent."-Held, that under this covenant the lessor had the option of paying for the buildings at the expiration of the term of the lease or renewing the lease; it did not give the lessee an option to require a renewal.-Held further, that this Court had jurisdiction to hear the appeal; the matter in controversy was defendants' right to a lease for 10 years at
$50 a year; the evidence showed that the property had an annual rental value of at least $400; if defendants' contention
(that they had a right of renewal) was correct, plaintiffs would receive a rental of $50 a year, or a sum of $500 for the next
10 years; if plaintiffs' contention was correct they would receive a rental for the next 10 years of probably not less than
$4,000; the difference between these two sums was the value of the matter in controversy, and it was more than sufficient to clothe the Court with jurisdiction.
-Lease
- Action for rent - Counter- Misrepresentation - Several claims based upon distinct alleged causes of action - Jury -General verdict- New trial.] The appellant company, a canning concern, leased a sawmill and equipment to the respondents and brought action under the lease to recover rent.
The respondents, by the lease, covenanted to "take up" the appellant's logging contracts, and in particular one with the
Clayton
Logging respondents' counterclaim based upon three distinct alleged causes of action: first, a claim based upon the allegation that the appellant had induced the respondents to enter into the agreement by falsely and fraduulently representing the contract with the Clayton
Logging Company to be a subsisting contract at the date of the lease; second, a claim for damages for breach of a
.contract to take and pay for box shooks which the respondents by the terms of the lease agreed to manufacture from the box lumber in the yard of the mill at the time of the lease; and third, a claim for damages arising from a series of malicious acts on the part of the appellant.
A general verdict was given by the jury for the respondents for $19,460.
The respondents admit in their factum that they failed to establish either the second or the third of these causes of action.- Held that, under the circumstances of this case, there must be a new trial. The charge of the trial judge was calculated to lead the jury to think that they might properly hold the appellant company responsible as for breach of the agreement to take and pay for the box shooks and, moreover, from some of the judge's observations, they may have received the impression that the respondents were entitled to reparation in respect of the alleged malicious acts. The jury did not disclose by their verdict how much (if any) of the damages awarded should be atrributed to these alleged causes of action now admitted to be without substance; and prima facie, therefore, the observations in the charge cannot be overlooked as innocuous, and they may have led the jury into substantial error. As the verdict was a general one, and as the trial judge gave the jury no guidance concerning the method by which damages should be measured it is impossible to determine how far they may have deviated from the appropriate rule.- Held also, assuming the charge of fraud established as to the misrepresentations by the appellant company touching the Clayton Co.'s contract, the respondents would be entitled to recover compensation for the loss arising naturally and directly from their assumption of the obligations of the lease and the contracts; but they were not entitled to be compensated for loss of profits which they might or would have made if the representations had been true, and which they did not realize because the facts stated to them were non-existent.
The question for the jury was not, "How much would the respondents have gained in profits if the representations had been true," but, "What loss expressed in pecuniary terms, did the respondents suffer, that is directly ascribable to the transactions into which they were induced to enter."
McConnell v. Wright [1903] 1 Ch 546; Johnston v. Braham [1917] 1 K.B. 586.-HFeld, further, that the respondents, if their allegations are well founded, were, on learning the true facts, entitled to repudiate the lease and the contracts, but they were not bound to do so; and, having elected against repudiation, they were entitled to maintain an action for deceit, if the elements of such a cause of action were disclosed by the facts in evidence.- Held, further, that the damages recoverable would include not only sums paid in execution of the obligations entered into, but also all loss reasonably incurred in carrying out those obligations or in measures reasonably taken for that purpose, allowance being made, of course, for moneys received and the pecuniary value of advantages gained.-Held, further, that the present case is one in which effect must be given to the British Columbia Statute, R.S.B.C., c. 58, s. 55. GossE-MILLERD v. DEVINE.... 4 - Repairs due to fire-Clause in the lease-"Repairs"-Art. 1660 C.C. JACOBS.................. LEASE
Privilege-Letters written by medical officer of railway company, while investigationg claim by company's employee to Workmen's Compensation Board-Disclosure of alleged communications by claimant when consulting medical officer as his personal physician-Principles underlying right to protection of privilege.] The underlying principle on which is founded protection for a communication otherwise actionable as defamatory, is "the common convenience and welfare of society."
The communication is only protected when it is fairly warranted by some reasonable occasion or exigency, and when made in discharge of some public or private duty such as would be recognized by people of ordinary intelligence and moral principles, or is fairly made in the legitimate defence of a person's own interests.
It is not sufficient that the person making the statement believes, honestly and not without some ground, that the duty or interest exists. There must, in fact, be such a duty or interest as, under all the circumstances, warrants the communication.-Professional secrets acquired from a patient by a physician in the course of his practice, are the patient's secrets, and, normally, are under his control and not under that of the physician.
Prima facie it is the patient's right that the secrets be not divulged; and that right is absolute unless there is some paramount reason overriding it.-The fact that the disclosure of a patient's secret is made by one physician to another is not a decisive factor to justify it, although in some cases that fact may have significance.-Even where the circumstances may justify a physician in disclosing his patient's secret, the justification does not extend to a wanton disclosure; and the fact that a statement is made unnecessarily (though without malice), may, having regard to its nature, make it a wanton disclosure, and bar the claim of privilege with respect to it.
Also, even where a disclosure of a patient's secret may be justified, the physician should take every practicable precaution to avoid inaccuracy and unfairness, and his failure to do so (though without malice) may be fatal to a claim of privilege.-A medical officer of an industrial concern, charged with investigating an employee's claim made to the Workmen's
Compensation Board
(Ont.), and in preparing the evidence, (and even where any sum awarded will be paid, not by the employer, but by the Dominion Government, by reason of the claimant being a returned soldier), is not so situated that he is under a duty, for the purpose of securing information in preparing his case, to divulge, without the claimant's assent, facts which he has confidentially ascertained from the claimant as his personal medical adviser.-The absolute privilege protecting the testimony of
LIBEL-Continued witnesses in court is applicable to protect statements by an intending witness, as to the nature of the evidence he can give, made to persons engaged professionally in preparing the evidence to be presented in court (Watson v. McEwan, [1905] A.C. 480); but does not extend to such statements made to persons not concerned in preparing the evidence.-Certain statements made by defendant, assistant chief medical officer of a railway company, and charged with investigating a claim made by plaintiff, an employee of the company to the Workmen's Compensation Board (Ont.), which statements were contained in two letters, written, respectively, to an officer of the Department of Soldiers Civil Re-establishment, for information, and to an eye specialist whose opinion was required, and disclosed communications alleged by defendant to have been made to him by plaintiff when consulting defendant as a physician some years before to the effect that plaintiff had had a certain disorder, were held, in the circumstances in question, not to come within the protection of privilege.- Macintosh v. Dun, [1908] A.C. 480, at pp. 390, 398, 399; London Assn. for Protection of Trade v. Greenlands Ltd., [19161 A.C. 15, at pp. 22-23, 2, 29; Stuart v. Bell, [1891] 2 Q.B. 341, at p. 350, and other cases, cited.-Judgment of the Appellate Division of the Supreme Court of Ontario (59 Ont. L.R. 590, reversing judgment of Wright J., 59 Ont. L.R. 385) reversed in part.-Smith J. dissented in part, holding that the second letter was privileged, being written in the performance of defendant's duty of investigating the claim, and submitting facts, as he had gathered them, on which an expert opinion was to be based; that defendant could not properly, under the circumstances, have suppressed the facts (as he understood which he believed would show the claim to be unfounded; as to the first letter, however, the defence of qualified privilege could not prevail; it was a letter seeking information, and there was no necessity of making therein the libellous statement complained of; and in respect thereof the plaintiff was entitled to at least nominal damages. MITCHELL................ 2 - Publication in newspaper - Notice before action-Livel and Stander Act, R.S.O. 1914, c. 71 s. 8-Sufficiency of notice-Pleading-diving of notice a "condition precedent" within Ontario C.R. 146-Refusal of new trial, claimed on ground of excessive damages.] The giving of the notice required by the Libel and Slander Act (R.S.O. 1914, c. 71, s. 8) before an action for damages for a libel published in a newspaper, is a "condition precedent" within the meaning of Ontario LIBEL-Concluded
C.R. 146, and can only be contested if its non-performance is specifically pleaded by defendant.
An allegation by plaintiff in his statement of claim that he gave such notice does not relieve d6fendant from stating in his pleading his intention to contest it; plaintiff's allegation merely expresses what, in its absence, would be implied. The notice must indicate the intending plaintiff with reasonable certainty; but that is accomplished when words are used which are calculated to apprise the addressee of the complainant's identity.-The notice in question was held sufficient, although it was signed with the name "The Woodstock
Sentinel-Review," and not in the name of the plaintiff, viz., "The Sentinel-Review
Co. Ltd.," which published a newspaper at Woodstock called "The Daily Sentinel- Review."-Judgment of the Appellate
Division of the Supreme Court of Ontario
(61 Ont. L.R. 62) setting aside the verdict and judgment recovered by plaintiff for damages for libel published in defendant's newspaper, and dismissing the action, reversed.-The Court refused to allow defendant a new trial, claimed on the ground of excessive damages awarded by the jury.
Co. LTD.
ROBINSON........................
LIEN
LIFE INSURANCE
See LIFE.
Mortgage - Default - Possession-Constructive possession of mortgagor-The Limitations
Act, Ont., R.S.O. 1914, c. 75, as. 5, 24-The
Mortgagors' and Purchasers' Relief Acts,
Ont. 1915, c. 22, as. 2, 3, 4; 1920, c. 38, s.
Land in Ontario was mortgaged to the appellant by deed dated December
18, 1913, for $1,565, payable in instalments of $500, $500, and $565, (with interest at 6 per cent. per annum) on
June 18, September 18, and December 18, respectively, 1914.
The mortgage was declared to be made in pursuance of
The Short Forms of Mortgages Act (Ont.);
the mortgagors covenanted that in default the mortgagee should have quiet possession; the mortgage provided that "the said mortgagee, on default of payment for one month, may, on one month's notice, enter on and lease or sell the said lands,"
that "in default of the payment of the interest hereby secured, the principal hereby secured shall become payable,"
and that "until default of payment the mortgagors shall have quiet possession of the said lands."
The only payment made was of $156 principal and $1.57 interest, on October 3, 1914, and there was no subsequent acknowledgment in any way of the mortgagee's right or title. The mortgagee never gave notice of entry, or took proceedings to exercise its remedies under the mortgage, or had actual possession or occupation. question arose, in a proceeding, instituted April 23, 1926, under The Vendors and Purchasers Act (R.S.O. 1914, c. 122), whether the mortgage was barred by The Limitations Act (R.S.O. 1914, c. 75).- Held: Although the evidence seemed insufficient to establish continuous actual possession by the mortgagors or their successors in title, they always retained constructive possession, of the land, and the mortgagee's right of entry and right to recover out of the land was effectually barred by ss. 5 and 24 of The Limitations Act, unless the application of those sections was precluded by the Ontario "Moratorium Acts."
Their application was not so precluded; s. 2 of The Mortgagors' and Purchasers' Relief Act, 1920, (c. 38), invoked by the mortgagee, by its terms applied only to a mortgage to which ss. 2 and 3 of The Mortgagors' and Purchasers' Relief Act
Mignault and Newcombe JJ. dissented, holding that s. 4. (3) of the Act of 1915 regulated the remedies for the recovery of interest, and did not interfere with the condition for recovery of principal provided by s. 2 of that Act; that the procedure for the recovery of the principal of the mortgage was governed by s. 2 which always applied; hence, s. 2 of the Act of 1920 applied, and it had the effect of postponing payments of principal in respect of which the mortgagors were in default to the date therein prescribed, which became the time when the period of limitation for recovery of the principal began to run; and hence the mortgagee's remedies were not barred.
.................. 2-Action by municipality for possession of land-Municipality's title under Crown grant in trust for public wharf-Statute of Limitations set up as extinguishing municipality's title-Application of statute- Evidence failing to establish dispossession.] Defendant claimed title to land possession, and that plaintiff municipality's title was extinguished by force of the Statute of Limitations. The land was part of a tract granted to the municipality by Crown grant, to hold in trust for a public wharf and public purposes connected therewith.-Held that, on the evidence, the decision of the Appellate
Division, Ont. (61 Ont. L.R. 77), that defendant had failed satisfactorily to establish dispossession, should be sustained.-Semble, the land granted to the municipality was by the terms of the grant dedicated to a public use, which was accepted by the public, and this dedication gave rise to rights of enjoyment by the public, which rights were not, nor was the municipality's title which was given for the purpose of supporting and protecting them, capable of being nullified, in consequence of adverse possession, by force of the Statute of
Limitations. v.
SoUTH..........................
3 - Mortgage-Action in Mantioba to recover money secured by mortgage-Real
Property Limitation Act, Man. (R.S.M.
1913, a. 24 (1)-Application
24 (1) in favour of person who joined with mortgagor in personal covenant- Surety-Mortgaged land situate outside of province.] The limitation of ten years imposed by s. 24 (1) of the Manitoba
Real Property Limitation Act (R.S.M.
1913, c. 116) to an action to recover money secured by mortgage applies to the personal remedy on the covenant in the mortgage deed as well as to the remedy against the land
(Sutton v.
Sutton, 22 Ch. D. 511, followed); and it applies in favour of a person, not a surety, who has joined with the mortgagor in the personal covenant; (Quaere, whether or not it applies to the personal obligation entered into by a surety for the mortgag or.
In the case in question it was held that, on construction of the mortgage agreement, the defendant had not entered into it as a surety but had assumed a personal obligation to the mortgagee to repay the loan); and it applies whether the land charged be within the province of Manitoba or elsewhere.-Judgment of the Court of Appeal of Manitoba (37
Man. R. 215) affirmed.
LoAN Co. 440
MALICIOUS PROSECUTION-Swearing out and executing search warrant-S. 73
(1) Government Liquor Act-Reasonable and probable cause-Malice--Indirect and improper motive-Quantum of damages.
NICKERSON v. MANNING...........
MANDAMUS - Refusal by a municipality to accept payment of money-Debt claimed not to be due- Art.
The appellants seek a mandamus to compel the respondent municipality to accept payment by a third party of an alleged debt of its secretary-treasurer.- Held that the appellants cannot succeed, as they have failed
MANDAMUS-Concluded to bring their case within the terms of article 1141 C.C. or to establish agency of such third party in making the payment for the alleged debtor.---On the first point, the debt of the secretarytreasurer was not admitted by the respondent and was even contested by the former: it cannot then be said that the payment was "for the advantage of the debtor."
On the second point, evidence shows that the payment by the third party was not made by him as agent of the debtor but on his own behalf. -Judgment of the Court of King's Bench (Q.R. 44 K.B. 400) aff.
U. JESUs.................. MARRIAGE
MASTER AND SERVANT - Labour - Wages - Regulation under statute - Male Minimum Wage Act, B.C., 1925, c. 32-Functions thereunder of Board of Adjustment-Invalidity of Board's order fixing minimum wage "for all employees in the lumbering industry."] The Board of Adjustment (constituted under the Hours of Work Act, 1923, c. 22, B.C.) made an order, dated September 29, 1926, under the Male Minimum Wage Act (B.C., 1925, c. 32) fixing 40 cents per hour as the "minimum wage for all employees in the lumbering industry," and defining "lumbering industry" to include "all operations in or incidental to the carrying on of " logging camps, certain kinds of factories, etc.-Held: The order was ultra vires and invalid; it was apparent on its face that the Board had misconceived the nature and scope of its functions under the Male Minimum Wage Act, which dealt, not with the industries or businesses of employers as such, but with the occupations of employees.
The same business or industry might include many different occupations.
The Board, in its order, had regard rather to the general nature of the industries in the carrying on of which the employees covered by it were engaged, than to the particular occupations therein of such employees.
What the Act contemplated was that the Board, in fixing minimum wages, would take account of the nature of the employee's work rather than the general character of the industry or business in the carrying on of which the work would be done.
The ascertainment of an employee's connection with a particular industry would not suffice to determine what would be for him a roper wage.-Judgment of the Court of ppeal for British Columbia ([1928] 2 W.W.R. 1) allowing plaintiff's claim for wages as a "dish washer" and waiter in defendant's logging camp, based on said order, reversed.-Bex v. Robertson & Hackett MASTER AND SERVANT-Concluded
Sawmills Ltd. (38 B.C. Rep. 222) and
Compton v. Allen Thrasher Lumber Co.
(39 B.C. Rep. 70) so far as they are inconsistent herewiti, overruled.
MORTGAGE - Action in Manitoba to recover money secured by mortgage-Real Property Limitation Act, Man. (R.S.M. 1913, c. 116), a. 24 (1)-Application of a. 24 (1) in favour of person who joined with mortgagor in personal covenant-Surety-Mortgaged land situate outside of province.] The limitation of ten years imposed by s. 24
(1) of the Manitoba Real Property Limitation Act) R.S.M. 1913, c. 116) to an action to recover money secured by mortgage applies to the personal remedy on the covenant in the mortgage deed as well as to the remedy against the land
(Sutton v. Sutton, 22 Ch. D. 511, followed); and it applies in favour of a person, not a surety, who has joined with the mortgagor in the personal covenant;
(Quaere, whether or not it applies to the personal obligation entered into by a surety for the mortgagor.
In the case in question it was held that, on construction of the mortgage agreement, the defendant had not entered into it as a surety but had assumed a personal obligation to the mortgagee to repay the loan); and it applies whether the land charged be within the province of Manitoba or elsewhere.-Judgment of the Court of Appeal of Manitoba (37 Man. R. 215) affirmed.
2 - Default - Possession - Constructive Possession of mortgagor-The Limitations Act, Ont.,
R.S.O. 1914, c. 75, ss. 5, 24-The Mortgagors' and Purchasers' Relief Acts, Ont.;
1915, c. 22, 8s. 2, 3, 4; 1920, c: 38, s. 2 213
MOTOR VEHICLE - Injury to passenger - Autobus - Defence of inevitable accident- Knowledge of driver as to icy condition of street.]
appellant's motor "bus" was being driven down a steep incline on a frosty and foggy morning, the street being in an icy condition, when the driver saw that a street car had stopped in front of him.
He tried to stop the "bus" and in order to avoid a collision ran it sharply to the right over the curb and sidewalk, struck a telephone pole and injured the respondent who was a passenger in the bus. The trial judge held that "having regard to the conditions, the short range of visibility, the fact that there was a street car line upon the road, and the condition of the pavement, as it was, or ought to ct been known to the driver, the motor
MOTOR VEHICLE-Concluded bus ought to have been and might have been kept under such control that it could have been stopped without doing any damage " and he gave judgment in favour of the respondent, which judgment was affirmed by the Court of Appeal.- Held, that there was not sufficient evidence to support the finding of the trial judge. Under the circumstances of this case it cannot be reasonably said that the driver knew or ought to have known the icy condition of the pavement, as he had been faced with an unexpected situation such that, had it not existed, no difficulty would have been experienced in negotiating the hill.- Judgment of the Court of Appeal ([1927] 2 W.W.R. 692) rev. PACIIc 2 - Negligence-Motor car hitting pedestrian while running for street car-Duty of motor driver at crossing-Contributory Negligence Act.
3 - Injury to mechanic working on upper floor, when car fell down an elevator shaft-Cause of the accident- Liability of owner of the garage-Presumption of fault-Arts. 1053, C.C .............................. 4 - Automobile accident- Injury to passenger-Presumption of fault -Motor Vehicles Act (R.S.Q. [1925] c. 35, s. 53 (2)-Liability of owner under Arts. 1053 and 1054 C.C................. MUNICIPAL CORPORATION -Workmen's Compensation Act - Municpal employee-Cleaning streets and occasionally working in "dangerous" premises- Injury-Compensation s. 7321-R.S.Q.
(1925), c. 274, s. 2.] An employee of a municipal corporation, whose main duties are those of cleaning streets and repairing sidewalks, but who occasionally does some work on municipal premises "in which machinery is used, moved by power other than that of men or of animals," is not entitled to claim under the
Workmen's
Compensation Act, if he be injured while performing his usual work upon the streets of the municipality.-Ju dgment of the Court of King's Bench (Q.R. 43 K.B. 355 )rev. 2 - Taxes - Exemption - Industrial Cessation of operations immovables remaining in same condstion- Right to exemption-Cities and Towns Act, R.S.Q. (1909), s. 5775.] In order to be entitled to the benefit of an exemption from municipal taxes granted under the Cities and Towns Act
1909, s. 5775), a person must actually carry on the industry, trade or enterprise in respect of which the exemption was granted; and the benefit of such exemption is suspended while the industry, trade or enterprise ceases to operate, although the immovables remain available for the same industry. La Cie de Jesus v. La
Cite de Montreal ([1925] S.C.R. 120) foll.
(Q.R. 44 K.B. 165) aff.
LE
3- Action by municipality for possession of land - Municipality's title under Crown grant in trust for public wharf-Statute of Limitations set up as extinguishing municipality's title - Application of statute failing to establish dispossession.] Defendant claimed title to land by possession, and that plaintiff municipality's title was extinguished by force of the Statute of
Limitations. The land was part of a tract granted to the municipality by Crown grant, to hold in trust for a public wharf and public purposes connected therewith.
that, on the evidence, the decision of the Appellate Division, Ont. (61 Ont.
L.R. 77), that defendant had failed satisfactorily to establish dispossession, should be sustained.-Semble, the land granted to the municipality was by the terms of the grant dedicated to a public use, which was accepted by the public, and this dedication gave rise to rights of enjoyment by the public, which rights were not, nor - was the municipality's title which was given for the purpose of supporting and protecting them, capable of being nullified, in consequence of adverse possession, by force of the Statute of
Limitations.
4 - Construction of roads and ditches by municipality-Alleged negligence in construction, causing flooding of plaintif's lands-Plaintiff's right of action for damages-The Good Roads Act (Man.)
1914, c. 42-The Municipal Act, R.S.M.
1913, c. 133, as. 634, 684.1
Plaintiff claimed damages from defendant (a rural municipality) for the flooding of her land, which, she alleged, was in consequence of negligent defendant of certain roads and ditches.
It was found in the courts below that defendant had negligently failed to provide an adequate outlet for the waters collected, and that to this negligence the damages were due.
These findings this
Court refused to disturb, as defendant had failed to point to any specific error vitiating them. But defendant contended (1) that as the works were constructed under the authority, and in t538-4 accordance with the provisions, of the Good Roads Act, Man., 1914, c. 42, it was not responsible for injury arising from the execution of the works; and (2) that by virtue of ss. 634 and 684 of the Municipal Act, R.S.M. 1913,
133, the plaintiff's only remedy, if any, was by way of arbitration.- Held (1) Defendant's first contention failed, as, on the evidence, it had not shewn that the injury caused by the works executed by it was caused by a work authorized and executed according to plans approved under the provisions of the Good Roads Act; as defendant thus failed on the evidence, it was not necessary to consider what, otherwise, would have been the effect as to plaintiff's right of action.-(2): Defendant's second contention failed, as the provision for compensation in s. 634 of the Municipal Act applies only to damages suffered by reason of diversion of "water from its original course;" that section has no application to flooding by surface water; it contemplates only a diversion of water flowing in a defined water course; s. 684, which deals generally with the right to compensation for damages caused by municipal works, and accords compensation for "damages necessarily resultmg" from such works, had no application.-Judgment of the Court of Appeal for Manitoba (37 Man. R. 26) affirmed. .........................
- Highways - Nuisance-Negligen creation of nuisance on highway by city's servants, causing special damage-Flushing of private sewer undertaken by city sn exercise of statutory powers- Nuisance created consisting of dangerous ice on plaintiffs' houseway leading from street sidewalk, resulting in personal injury to plaintiff-Liability of city-Misfeasance- Liability at common law-Consolidated Municipal Act (Ont.) 1922, c. 72, s. 460- Place of accident not a "sidewalk" within 460 (3)-Notice of claim and injury not given under s. 460 (4)-Right of action- Construction and application of s. 460- Breach of private right.] The servants of defendant, a city corporation, in the course of flushing a private sewer of a neighbour of the plaintiffs, undertaken by the city, in the exercise of its statutory powers, by contract in its capacity as owner and operator of a public water service, negligently created (according to findings sustained by this Court) a nuisance consisting of a patch of dangerous ice on a private houseway, lawfully constructed, leading from the street sidewalk to plaintiffs' residence; the part of the houseway on which such nuisance was created being on the highway and immediately adjoining the sidewalk; and, as a result, one of the plaintiffs (wife of the other plaintiff) fell on such part of the houseway and was injured.
Plaintiffs claimed damages from the city.-Held, that the place of the accident was not a
"sidewalk" within s. 460 (3) of the Consolidated Municipal Act, 1922 (c. 72),
Ont., and, therefore, the question whether the city's servants' negligence amounted to "gross negligence" did not arise.- Held, further, that the plaintiffs' cause of action, being special damages sustained by reason of a nuisance on a highway, negligently created by the city's servants under the circumstances above mentioned, did not fall within s. 460 (1) of said Act, and, consequently, failure to give the notice prescribed by s. 460 (4) for claims based on default within s. 460 (1) was not available as a defence.-The introduction in 1913 of the phrase "whether the want of repair was the result of nonfeasance or misfeasance" into s. 460 (2) (which bars actions based on s. 460 (1) begun after three months from the time when the damages were sustained) did not have the effect that all the provisions of s. 460 should thereafter apply to every liability of a municipal corporation for disrepair on a highway caused by its servants' misfeasance. There existed in Ontario, before the 1913 amendment, a common law right of action against a municipality for a nuisance on a highway caused by its servants' negligence amounting to misfeasance, and which had caused special damage, apart from and in addition to any statutory liability for non-repair;
and the abrogation of a well established common law right should not be inferred from a change of doubtful import, such as that made in 1913 by the introduction of the provision as to misfeasance into a subordinate clause of the section imposing the liability-a clause ex facie dealing only with a limitation of the time for bringing action where the claim rests on the statute. Moreover, if the amending words should be imported into s. 460 (1), their operation would still be confined to the subject matter of that subsection, i.e., actions based on default in discharging the duty of keeping in repair thereby imposed, which entails a liability entirely distinct from, and independent of, that resulting at common law from the creation of a nuisance on a highway.-History of the legislation in question discussed.
Glynn v. City of Niagara Falls (29 Ont.
L.R. 517, at 521); Biggar v. Crowland
(13 Ont. L.R. 164, at pp. 165-6); Keech v.
Smith's Falls (15 Ont. L.R. 300); Weston v. Middlesex (30 Ont. L.R. 21; 31 Ont.
L.R. 148); Halifax v. Tobin (50 Can.
S.C.R. 404); and Patterson v. Victoria
(5 B.C.R. 628, at p. 645; affd. [1899]
A.C. 615, at p. 620) referred to.-Per
Duff J. (concurring in the result): The exercise of the plaintiff husband's right of access was wrongfully made dangerous by a nuisance for which the city was responsible. The right to complain of such a wrong is not limited to the owner, but inheres also in his wife and other members of his family residing with him.
This injuria is an invasion of a private right incidental to the ownership and occupation of property-Lyon v. Fishmongers' Company (1 A.C. 662). S. 460 has no application.-Judgment of the Appellate Division. Ont. (61 Ont. L.R. 246) reversed.
f? MARIE................ 6 - Mandamus - Refusal a municipality to accept payment of money- Debt claimed not to be due-Art. 1141 C.C.] The appellants seek a S andamus to compel the respondent municipality to accept payment by a third party of an alleged debt of its secretary-treasurer.- Held that the appellants cannot succeed, as they have failed to bring their case within the terms of article 1141 C.C. or to establish agency of such third party in making the payment for the alleged debtor.-On the first point, the debt of the secretary-treasurer was not admitted by the respondent and was even contested by the former: it cannot then be said that the payment was "for the advantage the debtor."
On second point, the evidence shows that the payment by the third party was not made by him as agent of the-debtor but on his own behalf.-Judgment of the Court of King's Bench (Q.R. 44 K.B. 400) aff.
...... -Expropriation
- Lane - Value - Fixing of indemnity-Right of the city to take possession-Res judicata-(Q.) 3 Geo. V, c. 54, s. 43-Art. 407 C.C.] Section 43 of 3 Geo. V, c. 54 (Charter of the City of Montreal), which enacts that "the city is authorized to perform in and on any private street or lane any municipal works whatsoever without being held to pay any
*
*
* compensation for the use and possession of such private street or lane
*
* does not entitle the city to turn a private street or lane into a public street without paying to the owner its fair value.-The value to be ascertained by a court in fixing the indemnity to be paid by a municipality for a lot set aside to serve as a lane for the benefit of the owners of the adjoining lots is the value to the owner of the lane excluding any advantage derived from the fact that the municipality must acquire that land in order to carry out its scheme of creating there a public street;
and such value is affected by the fact that there is only one possible buyer, i.e., the municipality, and for only one purpose, i.e., opening of a street.-Judgment of the Court of King's Bench (Q.R.
43 K.B. 213) varied.
LA CITL
8 - Taxation-Sale of land for taxes - Action for damages-Land assessed to son of owner-Son instructed owner to pay taxes-Inference of owner's knowledge wrongful assessment-Estoppel - Rural
Municipality Act,
(1911-12), s. 290.]
appellant's testator, residing at
Philo, Illinois, was the registered owner of a half section of land, upon which he had been paying taxes for many years.
On the 9th of May, 1919, he wrote the respondent Hinde, who was the secretarytreasurer of the respondent municipality, asking for the amount due for taxes.
Notice of the assessment for 1919 and the taxation notice were subsequently sent to the deceased.
In the admission of facts by the parties, it is stated that the father instructed his son "to pay the taxes on said land and (the son) did pay same pursuant to the said instructions for the years 1919 and 1920, and intended to pay the taxes for the year 1921 but overlooked doing so."
The taxes for 1919 were remitted by the son in his own name and an official receipt in the same name was sent to the son, whose post office address was the same as the father's.
Assuming that the son had become the owner of the land, the respondent Hinde made up the 1920 assessment (which carried five years) in the name of the son, prepared and sent the assessment and taxation notices for that year in the name of and to the latter and received payment of those taxes from him. For the succeeding years, the requisite taxation notices in the name of the son were sent to him. No further taxes having been paid, the land was sold under the
Tax Recovery Act, R.S.A.,
The appellant brought an action in damages for the loss of the land by reason of the alleged wrongful acts of the respondents.- Held, Mignault J. dissenting, that the respondents were not liable.-Per Duff, Lamont and Smith
JJ.-The respondent Hinde's delinquency in omitting the father's name from the assessment roll falls wholly within the intendment of the words "error committed in or with regard to such roll"
comprised in section 290 of the Rural
Municipality Act and this curative section applies and has the effect of validating the roll.
Mignault and Newcombe JJ.
contra.-Per Duff and Smith JJ.-The facts admitted afford sufficient evidence to establish, at least prima facie, that the act of the son in paying the taxes of 1920, as demanded from him, that is to say, as taxes payable by him as the person assessed as owner of the land, was the act of the father. That again appears, in the absence of explanation to be sufficient evidence of the assent of the father to the assessment of the land in the name of his son. Either the father assured himself personally in the usual way, by inspection of the notices, of the accuracy of the assessor's calculation, and instructed the son specifically to pay "pursuant to the notice," or he left that business to the son.
The son in either case would know, while, in the first case, both would have actual knowledge that the son was the person assessed. The son's knowledge being knowledge acquired in the course of the execution of his duty in this particular transaction, and being material to the transaction, it must, for the purpose of considering the legal effect of the transaction itself, be imputed to the father (Story par. 140).
Mignault and Lamont JJ. contra.-Per Newcombe J.-The taxes for 1920 were paid upon the assessment of the son, and they were paid by the father as owner of the land, although assessed in the name of the son, because the latter was acting as his father's agent, and therefore it may be inferred there being nothing to the contrary, witl his father's knowledge of the facts relating to the assessment, which had come into the son's possession in the course of his agency; and if the owner intended to question the assessment or taxation, that was surely the time to raise the objection; but no exception was taken, and not unnaturally the municipality proceeded upon the assessment in the following years in the manner which it had adopted in 1920; and the facts which are admitted or in proof should be held to justify a finding of acquiescence, or of leave and license of the respondents to do the acts complained The act is not injurious, and the proof constitutes a defence according to the maxim volenti non fit injuria. Not only is it to be inferred that the owner paid the taxes of 1920 with the knowledge that the assessment, which was a contuing assessment, was against his agent, to whom the statutory notices had been sent, but it would appear from the admission that his instructions continued to extend also to subsequent years covered by the assessment of 1920, or at least to Therefore the municipality was entitled to proceed on the faith of the owner's acquiescence and consent. Mignault and
Lamont JJ. contra.-Per Mignault J.-The appellant is not estopped from objecting to the wrongful assessment. The father did nothing which could in any way lead the assessor to believe that the son had become the owner of the land. Any agency which may have existed between the father and the son did not go further than an instruction to pay the taxes, which presupposed an assessment of the father rendering him liable to municipal taxation.
There was no such assessment, and moreover the respondent Hinde never dealt with the son as an agent of his father, but as the owner of the land, which the respondent
Hinde gratuitously assumed him to be.
No knowledge by the father of the assessment of his son has been established, nor can such knowledge be inferred, the more so as the respondents took no steps to secure the testimony of the son, the onus of proving knowledge, as a basis for estoppel, being on them.-Per Lamont J.
-According to the admission of facts, the son received instructions to pay the taxes in 1919, and "pursuant to said instructions" he paid in 1919 and 1920.
construction to be placed upon the language of this admission is that prior to the time he paid the taxes in 1919, the son had received general instructions from his father to pay the taxes on the land, and that, purusant thereto, he paid them for two years. The admission does not justify the inference that the father gave instructions each year to pay the taxes, or that he had any knowledge that the land was assessed to his son in
If the parties had intended by this admission to state that the father had given fresh instructions to his son each year, the admission would have been couched in different language.- Judgment of the Appellate Division (23
Alta. L.R. 113) aff.
Mignault J. (dissenting)
.
Disra.
No. 220.................
9-Water supply to dwelling house- Right to impose special rate-Halifax City
Charter.) The City of Halifax, in 1919, at the request of one W., laid a water main on a street, and connected it with
W.'s houses, first taking from W. an agreement to pay $269.45 yearly, as a special rate.
This was in accordance with the City's policy, to be satisfied, before laying a main on any street, that there should be a sufficient revenue from the persons taking water therefrom, to defray interest on the cost of the extension, and to require from any person requesting an extension where the number of consumers was insufficient to produce at the usual rates such revenue, an agreement to pay a rate equal to such revenue, such rate to be proportionately reduced as other consumers became connected with the new main. From the year 1920 the City supplied meters for all water services, and all charges were meter rates. In 1922, when the said main. was serving four houses, the plaintiff built a house on the street and applied for water supply.
The City required an agreement from plaintiff to pay a special rate of $53.89, being one-fifth of the said sum of $269.45. Its council passed a resolution, and, later, a by-law, requiring that rate from each house on the street, to be proportionately reduced as additional houses were built. Plaintiff refused to make the agreement and claimed the right to a water suppfy at the rate in general application throughout the city.- Held, that the special rate imposed was valid, and plaintiff was not entitled to water supply without entering into an agreement to pay it. The Halifax City Charter, 1914, especially ss. 671, 525 (1), 676 499 (1), 492, and c. 54 of 1922 (N.S.), s. 9, considered.-Att. Gen. of Canada v. City of Toronto, 23 Can. S.C.R. 514, and City of Hamilton v. Hamilton Distillery Co., 38 Can. S.C.R. 239, discussed and explained.
The references to "uniform" rates in the Toronto case had regard to the essential of uniformity, notin the sense of precise arithmetical equality, but as excluding arbitrary or unjust discrimination;
and were not meant to extend the requirements of the common law, by which a by-law must be intra vires, certain, consistent with the statutes and the general law, and reasonable. It cannot be said, as a principle of law, that a municipal ordinance, which complies with these essentials, must operate uniformly in every part of the municipal area notwithstanding that the diversity of circumstances requires different considerations for special localities.- Judgment of the Supreme Court of Nova Scotia en banc (59 N.S. Rep. 377) reversed.-Lamont J. held, differing in this respect from the majority of the Court, that the plaintiff should be required to pay, not a flat house rate, but only her proportionate share, as determined by the meters in the houses on the extension of the said sum of $269.45. or HAuIAx v. .......... 10---Guarantee-Bond guaranteeing faithful discharge of duties by treasurer of municipality incorporated under Rural Municipality Act, Sask. (R.S.S. 1920, c. 89)-Default by treasurer-Liability of guarantor-Representations by municipality in certificates given to secure renewals of bond-Construction of certificates; contra proferentem rule-Certificate of auditor whether representation of municipality -Alleged untruth of representations - Jury's findings-Jurisdiction of court of appeal to substitute its findings for those of jury.............................. - Waters and watercourses - Drainage-Upper and lower riparian owners- Rights of drainage by upper owner-Pollution of water-Drainage of streets by municipality through sewer into watercourse............ ...
......
NAVIGATION
Motor vehicle-Injury to passenger-Autobus-Defence of inevitable accident- Knowledge of driver as to icy condition of street.] The appellart's motor "bus" was being driven down a steep incline on a frosty and foggy morning, the street being in an icy condition, when the driver saw that a street car had stopped in front of him.
He tried to stop the "bus" and in order to avoid a collision ran it sharply to the right over the curb and sidewalk, struck a telephone pole and injured the respondent who was a passenger in the bus. The trial judge held that "having regard to the conditions, the short range of visibility, the fact that there was a street car line upon the road, and the condition of the pavement, as it was, or ought to have been known to the driver, the motor bus ought to have been and might have been kept under such control that it could have been stopped without doing any damage,"
and he gave judgment in favour of the respondent, which judgment was affirmed by the Court of Appeal.]-Held that there was not sufficient evidence to support the finding of the trial judge. Under the circumstances of this case it cannot be reasonably said that the driver knew or ought to have known the icy condition of the pavement, as he had been faced with an unexpected situation such that had it not existed, no difficuly wouid have been experienced in negotiating the hill.-Judgment of the Court of
([1927]
2 W.W.R. 692) rev.
LTD. v. ......
2---Street railway-Door of moving tramcar, wrongfully opened passenger, striking and injuring person on station platform-Liability of railway company- Granting of "special leave" to appeal- Supreme Court Act, 8. 41.]
While defendant's tramcar which had overshot a a station platform, was backing to it, a passenger, without the knowledge of the motorman or conductor, and while the conductor was collecting fares in the front part of the car opened a rear door by working the handle which was within the conductor's box; the opened door of the moving car struck and injured the plaintiff who was standing on the platform.-Held: Defendant was not liable for the injury.
The cause of the accident was the passenger's wrongful act in operating the handle, which he must have known was intended to be operated only by the conductor.
There was no evidence to warrant the conclusion that the passenger's act should have been anticipated by the defendant. As to alleged disregard of a rule requiring the conductor to go to the rear of the car when being moved reversely it was sufficient to say that, if the rule applied at that point, its breach was not the cause of the accident; moreover, the rule was for an entirely different purpose.- Judgment of the Court of Appeal for Manitoba (36 Man. R. 592) reversed.- Newcombe J. dissented, holding that it was the conductor's neglect of his duty to be at his post at the rear when the car was backing that was the direct cause of the accident; it was a consequence of the lack of the control which he was required to exercise that the passenger opened the door for himself; the passenger's act was natural and should have been foreseen and precautions taken against it.-The court expressed the opinion that the case did not belong to the class of cases in which it was contemplated that "special leave" might be given under s. 41 of the Supreme Court Act.
WINNIPEG ELEcaRic 3 - Accident - Electric current - Interior installation-Electric power furnished by another person-Electric storm- Transformer out of order-Current of 2,200 volts getting into the interior circuit- Liability-Articles 1053, 1054 C.C.] respondent's husband, one Leon Claveau an experienced mechanic, while employed as foreman in charge of the machine shop of the appellant company, was instantly killed by an electric shock as he was holding in his hands a portable electric lamp fixed to an extension cord. In the machine shop the interior installation for electricity was the property of the appellant and was used solely for lighting purposes. The wiring was extremely simple and consisted of two wires running on insulators with, here and there, what is known as rosettes from which lamps were hung. Some of these lamps were furnished with wire sufficiently long to permit of their being used within a certain radius.
These extension lamps were attached to insulated wire, had wooden handles, and the globe itself was protected by a sort of wire basket attached to the wooden handle. At the entrance to the shop there was a cut out with fuses generally known as block switch with fuses, and of the kind generally used in 65g such installations.
The current contracted for and furnished for the lighting system was
110 volts. Outside the shop, the secondary wires passed through the block switch mentioned, and from there lead to a post situated about fifty feet away, and on which was installed a transformer for the purpose of reducing the high tension current of 2,200 volts to the voltage of 110 required and used for lighting. This transformer was the property of La Compagnie de Pouvoir du
Bas St. Laurent, which supplied the current and under whose care and control it was.
Beyond such transformer were the primary wires which carried the high tension current to the transformer where it was reduced to 110 volts and delivered to the appellant at the entrance to its shops.
At the time of the accident a very intensive electric storm was raging and had been for some time. The accident occurred in this way: Claveau was overlooking some repairs to an engine and as it was dark, he picked up a portable lamp. The persons in the shop heard a cry and saw a flash of light, and Claveau fell holding the portable lamp in his hands. Apparently he was holding it by the wire screen used to protect the globe.
Death was practically instantaneous.
The expert evidence showed that the end of one of the primary wires stretching from one of the insulators on the post which held the transformer was broken and burnt, permitting the high tension current to enter the secondary system within the building belonging to the appellant, without passing through the transformer, the breaking and burning of this wire having been caused by a stroke of lightning or some similar occurrence.
The respondent sued well personally as in her quality of tutrix to her four minor children and claimed damages from the appellant company in an amount of $20,000.
The respondent's action, having been dismissed by the trial court, was maintained by the appellate court for an amount of $6,000.- Held that the appellant company was not liable, Duff and Lamont JJ. dissenting.-Held, also, Duff and Lamont
JJ. (dissenting)
, that it was not the lamp, or at least it was not shown to have been the lamp, which caused the accident.- Held also, Duff and Lamont JJ. dissenting, that the burden of proof that the damage was caused by a thing which the appellant had under its care was upon the respondent.
Assuming that Claveau's death was caused by an electric shock emanating from the wires by which the lamp was connected with the source of the electric supply, and seeing that the source of supply and the transmission were under the care and operation of the power company, and not under the care of the appellant, it follows that the burden of proof that the lamp caused the damage is not satisfied, and cannot be discharged, without evidence that the electric current which caused the death of Claveau did not exist apart from the lamp and this has not been established.- Per Anglin C.J.C. and Rinfret J.-In the eyes of the law and under the present conditions of modern life electricity is an industrial product, which is carried from one place to another.
In practice, it has a material existence independent of the metallic wires or conduits through which it is supplied.
It is legislatively recognized as susceptible of being measured, bought and sold, distributed and stolen.- Per Anglin C.J.C. and Rinfret J.-Companies supplying electricity for lighting purposes have under their care the electrical current which they supply; and the responsibility under art. 1054 C.C. for a death caused by an excessive electrical current which has escaped from their primary wires and has found its way in the interior installation of the house of one of their clients rests with such companies and not with the consumer, even if the interior installation through which the excessive electrical current is carried is under the care of such consumer.- Per Anglin C.J.C. and Rinfret J.-The interior installation, comprising the electric current of 110 voltage being the only "thing" which the appelIant had under its care, was not the cause of the accident; the "thing" which caused the death of the respondent's husband, i.e., the excessive electric current of 2,200 volts, was entirely under the care of the power company.-Per Newcombe J.-There was evidence in the case upon which the trial judge might reasonably find as he did, and therefore his judgment should be restored (Supreme Court Act, s. 51).-Per Newcombe J.-If the lamp and the mysterious death-dealing agency, or force, or energy known as the electric current. can be considered as separate entities, it was the latter which was the direct operative cause-the fatal instrument, if it may be so described-and the lamp was no more than a sine qua non.-Per Newcombe J.- The burden of proof that the damage was caused by a thing which the appellant company had under its care was upon the respondent.
Assuming that Claveau's death was caused by electric shock emanating from the wires by which the lamp was connected with the source of the electric supply, and seeing that the source of supply and the transmission were under the care and operation of the power company, and not under the care of the appellant, it follows that the burden of proof that the lamp caused the damage is not satisfied, and cannot be discharged, without evidence that the electric current which caused the death of Claveau did not exist apart from the lamp, and this has not been established.-Per Duff and
Lamont JJ. (dissenting)
.-The appellant company is responsible under art. 1053
C.C. in not having taken all the precautions which a reasonable and competent regard for the safety of its employees would require. The appellant company must be presumed to have known that, unless the transformer was grounded, the employees in the shop were exposed to serious risk of an invasion of the interior circuit the high-tension current.
That risk was created by the connection of the company's installation with the secondary coil of the transformer, and thereby, through the primary coil, with the high-tension current as the source of energy.
It was a risk arising from the tapping of that source of energy, and the connection of it with the shop, for the benefit and by the consent and direction of the appellant company.
Having regard to the gravity of the risk, the appellant incurred an obligation to exercise the highest degree of care; and this obligation was not performed by simply assuming that the power company had not been negligent.
The appellant ought to have ascertained that the proper precautions had been taken before connecting their interior circuit with the transformer.- Per Duff and Lamont JJ. dissenting.
The death of the respondent's husband was "caused" by a thing under the care of the appellant, in the sense of article
1054 C.C.; and the appellant has failed to bring itself within the clause of that article, which, upon certain conditions being satisfied, exonerates it from responsibility. The wires and other appliances of the interior circuit, constituted, in their totality, a thing in the care, and under the control, of the appellant. Its function was that of a conductor of electricity.
The service it performed was to receive energy from the primary circuit, and to distribute that energy to the various points at which it was utilized in the production of electric light. It was by the act of the appellant and solely by its act, that the connection was maintained, through which alone, electrical energy was, or could be transferred, from the high-tension circuit of the power company to the interior circuit. It was from this circuit that Claveau received the discharge.
Whatever other causes may have co-operated, the interior circuit, as the instrument by which the diversion was effected and by which the energy diverted, was directed and conveyed into
Claveau's body and was one of the factors which directly co-operated in bringing about the plaintiff's loss.-Per Duff and
Lamont JJ. (dissenting)
:
A statutory enactment, assigning responsibility, for damage "caused" by a given act or thing, would not, in the absence of a controlling context, naturally be read as limited in its application to damage exclusively so caused; but would ordinarily be considered to apply to damage caused by the designated person or thing functioning in conjunction with other co-operating causes. Charing Cross v. Hydraulic Power Co. ([1914] 3 K.B. 772 at p. 782). There seems to be no good reason for limiting the application of article 1054 C.C., in such a way as to exclude from its scope all damages except such as are exclusively caused by the thing under the care of the person alleged to be responsible.-Per Duff and Lamont JJ. dissenting. Whatever difficulties may be encountered in determining, for the purpose of applying it to other circumstances, the precise limits of the conception denoted by the word "caused" in the first paragraph of article 1054 C.C., there is no doubt that, where the damages are of such a character as to fall within the purview of risks which a person ought to recognize as arising from his maintenance of the thing which is in debate, then that paragraph comes into operation.-Judgment of the Court of King's Bench (Q.R. 43 K.B. 562) reversed, Duff and Lamont JJ. dissenting.
GULF TER- RY. Co. 4 - Automobile - Injury to mechanic working on upper floor, when car fell down an elevator shaft-Cause of the accident- Liability of owner of the garage-Presumption of fault-Arts. 1053, 1054 C.C.] The appellant's son a mechanic and an electrician was working for the respondents on the third floor of their garage, repairing an automobile, when suddenly the automobile started in the direction of the open shaft of an elevator. The car fell to the bottom of the shaft and the appellant's son received bodily injuries which caused his death the same day.- Held, affirming the judgment of the Court of King's Bench (Q.R. 43 K.B. 198), that the respondents were not liable.- Held also that upon the evidence, it could be found that the appellant's son was "the author of his own injury."
As a skilled workman he should have realized the risk to which he was exposed in working upon the unbraked car while in gear, situated as it was and he must have known that the means of avoiding such risk were entirely in his own hands. But, at least, it must be held that the appellant had failed to prove that her son s death was caused by actionable fault of the respondents necessary to entail their liability under article 1053 C.C.-Held, further, that before a plaintiff can invoke a presumption of fault against a defendant under art. 1054 C.C., he is obliged to establish (a) that the damage was in fact caused by the thing in question within the meaning of that article, and (b) that that thing was at the time under the care of the defendant. The automobile on which the deceased was working was safe and harmless while in the position in which he had placed it and it became dangerous only ecause it either started of itself or was put in motion.
If the proper inference from the evidence was that the automobile started of itself, i.e., without the intervention of human agency, owing to something inherent in the machine the ensuing damage might be ascribable to it as a "thing" and be within the purview of art. 1054 C.C.
But if its movement was due to an act of the deceased, conscious or unconscious, the damage was caused, not by the thing itself, but by that act, whether it should be regarded as purely involuntary and accidental or as amounting to negligence or fault. On the latter hypotheses, the provision of art. 1054 invoked by the appellant, does not apply:
either the case was one of pure accident, entailing no liability; or, if there be liability, it must rest on fault to be proven and not presumed. Upon the most likely cause the movement of the automobile was the act of the deceased workman in pressing down the self-starter, probably madvertently, as the car was in gear and unbraked in a place where it was dangerous to start it, and the workman must have known that fact unless he were utterly careless or indifferent as to his own safety.-Quaere whether, upon the facts in this case, the automobile was not, for the purposes of art. 1054 C.C., at the time of the accident under the care of the deceased who was an expert workman, rather than under the care of the respondents.
V. POWER..
5 - Automobile accident - Injury to passenger-Presumption of fault-Motor
Vehicles Act 35, s. 53
Liability of owner under Arts. 1053 and
1054 C.C.]
The appellant claimed damages resulting from an automobile accident and alleged that, while at the invitation of respondent's chauffeur he was a passenger on respondent's truck, he was injured through fault of the chauffeur by being caught between the car and the pavement when the truck struck the curb and broke a wheel.- Held, affirming the judgment of the
Court of King's Bench (Q.R. 43 K.B.
251) that the respondent was not liable.- Held, also, that section 53 (2) (a) of the
Motor Vehicles Act (R.S.Q. [1925] c. 35), which creates a presumption of fault against the owner of a motor vehicle
NEGLIGENCE-Concluded which he must rebut, applies only in the case of a person injured while travelling upon a highway and does not apply in favour of a passenger in an automobile which is driven by the owner's servant.- Held, also, that a presumption of fault cannot be urged against the defendant under article 1054 C.C. on the ground that the injury was caused by a thing under her care. That provision has no application to a case where, as in this case, the real cause of the accident is the intervention of some human agency; the question whether such human agencythat of the driver in this case-is at fault being a question of fact. Damage is not caused by a thing which is in the care of the owner within the meaning of Art. 1054 C.C., where it is really due to some fault in the operation or handling of the thing by the person in control of it.- Hel, further, that the defendant is not liable under art. 1053 C.C. as in the circumstances of this case this court would not interfere with the concurrent findings of the courts below that fault of the driver, a person under the defendant's control, had not been proved
PERUSSE v. STAFFORD....................... 6--Street railways-Non repair of crossing--Injury to pedestrian-Liability of railway company-Sufficiency of inspection -Jury's findings-Appeal.
Co. ScoTT ............
7 - Municipal corporations-Construction of roads and ditches by municipality-Alleged negligence in construction causing flooding of plaintif's lands- Plaintiff's right of action for damages- The Good Roads Act (Man.) 1914, c. 42- The Municipal Act, R.S.M.
NEW TRIAL-Discovery of new evidence as ground for.] A new trial, applied for on the ground that new evidence has been discovered since the trial, should be granted only where the new evidence proposed to be adduced could not have been obtained by reasonable diligence before the trial and is such that, if adduced, it would be practically conclusive. (Young v. Kershaw, 16 T.L.R. 52, at pp. 53-54, cited).-An action for specfc performance of an alleged agreement for sale of a "unit" in a mining syndicate was dismissed at trial. Plaintiffs appealed and, alternatively, asked for a new trial on the ground of discovery of new evi- [S.C. NEW TRIAL--Concluded dence.
The Appellate
Division, Ont., without passing on the main appeal granted a new trial. Defendant appealed to this Court and asked that the judgment at trial be affirmed.- Held: The new trial should not have been granted; the proposed new evidence could have been ascertained with reasonable diligence before the trial; also, it could not conclusively establish plaintiff's case, as the fact proposed to be proved could not affect the judgment unless the relation of vendor and purchaser existed between the parties, and this Court, on the evidence, sustained the trial judge's finding that that relation did not exist. The appeal was allowed, and the tudgment at trial, in its result, restored.
2---Jury-General verdict..........
NUISANCE........
...........
PATENT - Invalidity -Lack of invention
-Combination 'of old elements for old purpose.] The judgment of the Exchequer Court of Canada, [1927] Ex. C.R. 28, dismissing the plaintiff's action infringement of patent, was affirmed, on the ground that the plaintiff's patent (for an appliance for carrying, in a paper manufacturing machine, the paper from the drying rolls to and through the calenders)
invalid, because device, however useful, did not involve invention; the patentee's claim rested on a combination, all the elements of which, and the very purpose for which it was designed, were old and well-known in the art; there was no room for novelty, except possibly in certain features which were not of a nature to justify the patentee's ian & MILTs
2 - Trade-Mark-Grant of exclusive license for Canada as to inventions and trade-mark-Alleged breach of license agreement--Construction of agreement-Licensor's covenant as to proceedings to prevent infringement-Licensee's agreement to operate under the letters patent-Liability for royalties.] Defendant granted to plaintiff the exclusive license to make, use and vend in Canada certain patented inventions relating to improvements in mops, and also the exclusive use in Canada of the trade-mark "0 Cedar" with which the articles manufactured under the patents were to be labelled, and plaintiff agreed to operate in Canada under the letters patent and to use the trade-mark, and to pay a royalty of 10% of the net amount of
O'Cedar products shipped and billed in
Canada. The agreement further pro- PATENT--Continued vided (inter alia) that the defendant should "within one month after receipt of written demand by [plaintiff] institute and prosecute all actions and proceedings necessary to prevent any infringement of the said letters patent
*
* said trade-mark" within Canada, and that if a certain mop patent should, in any action for infringement, be declared invalid, all royalties payable in respect thereof should forthwith cease to be payable. Plaintiff, alleging that defendant had not complied with its demand to take proceedings to enjoin the manufacture and sale of certain mops alleged to infringe the letters patent, and that, as the result of an unsuccessful action by plaintiff and defendant to restrain the use of a certain trade-mark as infringing defendant's trade-mark, the latter had been declared invalid, and that defendant had failed to furnish advertising copy as agreed, sued for damages for breach of contract and for a declaration royalties under the agreement were not payable. Defendant disputed plaintiff's allegations and claims and counterclaimed for an accounting of O'Cedar products sold and payment of royalties.- Held, affirming in this respect (Newcombe J. dissenting) judgment of the Appellate Division, Ont. (60 Ont. L.R. 525), that plaintiff's action failed; defendant was obligated to prosecute actions against actual infringers only, and plaintiff had not established that the mops alleged to infringe the patent actually did so; further, on giving to the agreement its proper construction and effect, the clause obliging defendant to take action to prevent infringement was rendered inoperative by plaintiff's failure to continue operating "under the letters patent," as since 1921, the mops manufactured and sold by plaintiff had not been made under the patent; moreover, if plaintiff did not sell mops made under the patent, it could hardly suffer actual loss by reason of its infringement, and without establishing actual loss it was not entitled to damages; moreover, although the patent had not been declared invalid, as plaintiff was not selling mops made under it there were no royalties payable "in respect of the patent," and therefore nothing upon which the relevant relieving clause could operate; plaintiff's claim for damages for defendant's failure to protect it from infringement of the trade-mark failed, because no demand for action was made pursuant to the agreement, and because of lack of evidence of infringement, or loss suffered thereby; also its claim for breach of covenant to furnish copies of advertising failed upon the evidence. combe J., dissenting, held that the contract did not require that there should be an infringement of the mop patent before PATENT-Concluded the authorized demand could have its contractual effect; defendant had contracted an absolute obligation, in a reasonable case, upon specified demand, to take the necessary proceedings; the trial judge had decided in effect that proceedings were necessary to prevent infringements, and there was adequate evidence to uphold this finding.)
Held, further, reversing in this respect the judgment of the Appellate Division, that the defendant's counterclaim failed, as, on construction of the agreement and on the evidence, the articles in question in respect of which royalties were claimed were not "O'Cedar products" and therefore not liable to royalties.
- Invalidity - Absence of novelty - Combination of old elements-Combination not involving inventive ingenuity. Dun- 4 - Action for infringement - Invali dity of patent-Anticipation-Lack of invention.
v. COR- LIMITED................
- Invalidity - Anticipation - Radio
Art.
ELECTRIC Co. ....... 239
- Invalidity - No patentable invention - Alleged improvements in barking drum for stripping logs in maksng of pulp-Commercial success. GUETTLR uv.
- Invalidity - Lack of invention - Anticipation - Channel rubber runways for slidable windows.
8 - Invalidity-No patentable invention
Golfing tees.
PAYMENT-Sale-Right to inspection- Condition - The Sale of Goods Act,
R.S. N.S. c. 206, s. 35, subs. 2.......319
PETITION OF RIGHT - Expropriation - Injurious affection - Acquiescence
-Equitable rights -Building restrictions- Restrictive covenant - Statutory limita.
ions.
MILLER v. THE KING ......
POWER
PRACTICE AND
PROCEDURE - Pleadings-Refusal of amendment at trial trial ordered-Costs--Claim for breach of logging contract.] On the question, whether plaintiff or defendant was responsible for termination of a logging contract between them, the trial judge, on his construction of defendant's counterheld that defendant was not entitled to rely on what took place prior to November 14, 1924, and refused to allow amendment.
The Court of Appeal, Sask. (27 Sask. L.R. 29, allowing plaintiff's appeal, and dismissing defendant's crossappeal, from the judgment at trial) took the same view on the pleadings, and also refused amendment.
On defendant's appeal to this Court, a new trial was directed, as the Court, while not holding that the construction given below to the pleading was erroneous
(though such construction seemed to this Court rather narrow), or that the trial judge had wrongly exercised his discretion as to amendment, was of opinion that, under the circumstances, the trial was unsatisfactory, and that justice could only be done by a new trial. Costs down to the asking of amendment at trial were to be borne by defendant, costs subsequent thereto to be in the discretion of the judge presiding at the new trial. v. .......... 2 - New trial-Discovery of new evidence as ground for................ 3 - Quo warranto - -Contestation - Mayor - Inability to perform duties-Joinder of claims-Propriety - Prescription-Arts. 87, 177 (6), 980, 987, 988, 1150, et sec. C.C.P.- (1909) Arts. 5936, 5937, 7532, ..........
Quo 4 - Lease - Action for rent-Counter- Misrepresentation - Several claims based upon distinct alleged causes of action-Jury-General verdict- New trial.....................
PRESCRIPTION .............
PRINCIPAL AND AGENT
PRINCIPAL AND SURETY
PRIVILEGE - Lien - Claim-Supplier of materials-When constituted-Registration-Arts. 2013e,
2103 C.C.] privilege of the supplier of materials is effectively constituted without registration at the date when the obligation of the owner or the contractor arises; but it PRIVILEGE-Concluded can only be preserved by registration of the statutory memorial within the statutory period, i.e., by registration of it before the expiration of thirty days after the completion of the work.-Judgment of the Court of King's Bench (Q.R. 44
K.B. 198) aff. MUN
&
LTAE.....................
QUO WARRANTO - - Contestation - Mayor - Inability to perform duties - Joinder of claims - Propriety - Prescription - Arts. 87,
177 (6), 980, 987, 988, 1150, et seq.
C.C.P.-R.S.Q. (1909) Arts. 5936, 5937,
7532, 7533.1
The respondents brought a petition (quo warranto) to have the appellant's election as mayor of Quebec declared null, to remove him from that office, to disqualify him for municipal office for five years, to have him condemned to pay a fine of $400 to the
Crown and to obtain an order for a new election.
The joinder of these several claims was objected to by the appellant by way of a dilatory exception.- Held that, while the competence of an appeal from the disposition made of such an exception is doubtful, this court would in any event be loath to interfere with the judgment appealed from, as the propriety of the joinder is largely a question of practice and procedure; but, on the merits, this court is of opinion that there is nothing incompatible or contradictory in the several "causes of action" preferred by the respondents.-Held, also, that the fact that the requirements of art. 980
C.C.P. (which were imposed by art. 988
C.C.P.) do not apply to a proceeding for a declaration of disqualification imposed by art. 5936 R.S.Q. (1909) does not preclude the joinder of the "cause of action" given by the latter article with a proceeding properly instituted under art.
987 C.C.P.-Held, further, that the prescription under arts.
7532,
R.S.Q. (1909), invoked by the appellant has no application to a demand for disqualification based on arts. 5936, 5937
R.S.Q. (1909).-Held, further, that it is within the power of a provincial legislature to impose disqualification from municipal office as a consequence of the contravention of statutory prohibitions enacted by it to ensure the proper conduct of municipal affairs.
(B.N.A. Act, s.
92).-Judgment of the Court of King's
Bench (Q.R. 43 K.B. 160) aff.
SAusoN v.
DROLET..........................
Freight rates- Board of
Railway Commissioners - Validity of orders-Maritime Freight Rates
Act-St. John and Ste. Rosalie "gateways"
-"Eastern lines" - "Select territory" - "Preferred movements" - Leave to appeal granted by Board-Question of jurisdiction within the Railway Act.]
The lines of the Canadian National Railways run from Sydney, Halifax and other places in Nova Scotia through Nova Scotia, New Brunswick and eastern Quebec by way of Moncton, Levis, Diamond Junction and Ste. Rosalie to stations in central and western Canada; the Canadian National Railway Co. also owns and operates a line of railway between Moncton and Saint John.
The Canadian Pacific Railway Co. owns and operates a railway line which extends from Saint John to Montreal, with a branch running to Ste. Rosalie. Both of these railway systems directly or indirectly connect the Maritime Provinces with all the commercially important sections of Canada west of these provinces.
For some years prior to 1925, shipments originating on the lines of the Canadian National Railways, in the Maritime provinces, could be routed, first, over the Canadian National Railways as far as Saint John or Ste. Rosalie, and thence over the Canadian Pacific Railway to their destination; and, as regards goods shipped to destinations reached by both railways, there existed parity of rates for three classes of routes; first, over the Canadian National Railways direct; second, over the Canadian National Railways to Saint John and thence by the Canadian Pacific Railway; and third over the Canadian National Railways to Ste. Rosalie and thence over the Canadian Pacific Railway. In 1925, the Canadian
National Railway Co. published supplementary tariffs which purported, as to classes of traffic affected by them, "to eliminate the alternative routings by way of Saint John and Ste. Rosalie," and the Board of Railwa Commissioners, October 19, 1926, disallowed the "provisions" of these supplements "in so far as they proposed to eliminate routings via Saint John and Ste. Rosalie," thus restoring "the parity of rates" mentioned above.
Such was the situation when the Maritime Freight Rates Act of 1927 was passed.
Section 2 of the Act gives the meaning of the phrase "eastern lines," as "the lines of railway now operated as a part of the Canadian National Railways and situated within the provinces of New Brunswick, Nova Scotia and Prince Edward Island, and the lines of railway, similarly operated, in the provinces of Quebec extending from the southern provincial boundary near Matapedia and near
Courchesne Diamond Junction and Levis." Section 8 defines the phrase "select territory," as including Nova Scotia, New Brunswick and Prince Edward Island in addition to the localities on "the lines in the province of Quebec mentioned in section 2." Section 3, requires the cancellation of tolls in force at its date (normal tolls), in respect of the "movements of freight traffic" described as "preferred movements," and the substitution therefor of tariffs of reduced tolls (statutory rolls).
The "preferred movements"
comprise three classes, first, of local traffic between points on the "Eastern lines," second, of export traffic destined overseas between points on the "Eastern lines" and ocean ports on the "Eastern lines," and third, of westbound traffic originating on the
"Eastern lines," and extending westward beyond those lines.
As respects the first and second of these classes of "preferred movements,"
the statutory tolls are ascertained by making a deduction from normal toolls of approximately twenty per cent.
As respects the third class of such movements, the statutory rate is ascertained by making a deduction, also of twenty per cent, but, in this case, the deduction takes effect only upon that part of the "through rate," which the statute in section 4 describes as the
"Eastern lines proportion of" that rate.
Section 9 provides for the non-compulsory reduction of rates by companies other than those concerned with the "Eastern lines," which own or operate railways
"in or extending into the select territory."
Such companies are permitted, in order to "meet' compulsory statutory rates, to file tariffs of reduced rates
"respecting freight movements similar to the preferred movements."
Those noncompulsory reductions, sanctioned by section 9, are not ultimately borne by the companies whose tolls are affected by them, as by that section provision is made for the transfer of that burden to the
Dominion Government, the Minister of
Railways and Canals- being required, at the end of each year, to pay to the companies availing themselves of the privileges of the section the difference, as certified by the Board of Railway Commissioners, between the amount which would have been payable in normal tolls but for the tariffs filed under it, and the sums actually
"received under those tariffs."
The question, whether the compulsory reductions under sections 3 and 4 applied (as shippers in the "select territory" contended) to joint tolls in respect of "movements" over joint routes through
Saint John or Ste. Rosalie or whether
(as contended by the Canadian National
Railway) they affected only "movements"
of traffic routed over the Canadian National Railways from point of origin to point of destination, was submitted to the Board of Railway Commissioners for determination, and the adjudication by the Board in the sense adverse to the contention of the railway company is formally embodied in the two orders now under appeal. The appeal raises the question whether the orders are within the jurisdiction of the Board.- Held that, when the question at issue is examined by the light of the preamble, of the declarations m the body of the statute and of the railway situation of the Maritime provinces, "movements of freight traffic" originating on the "Eastern ines" and passing over joint routes by way of Ste. Rosalie, established at the date of the passing of the Act, are "preferred movements" within the meaning of sections 3 and 4; if such movements fall within the definition of "preferred movements," then the-tariffs of tolls in force respecting them became subject to cancellation and reduction on the passing of the Act, and all persons and companies concerned in the preparation and publication of such tariffs were obliged by section 3 to concur in such cancellation, and in the substitution therefor of tariffs of statutory tolls; and the Board was acting within the limits of its jurisdiction in pronouncing the orders under consideration; but as regards the joint routes by way of Saint John, the orders of the Board are not within the ambit of its powers.-Held, also, that the question stated in the order giving leave to appeal is one of jurisdiction within the meaning of the Railway Act. The first of the above mentioned orders of the Board, in explicit terms, applies the compulsory reduction provided for by as. 3 and 4 tariffs for the through routes in question and the second does the same thing in effect.
Therefore, if such tariffs do not fall within ss. 3 and 4 then by force of s. 7, the Board of RailVay Commissioners is debarred from applying to them the principles of those sections. Where by statute the Board is given authority to make orders of a certain class in a defined type of case, and is disabled from making such orders in other cases, the question whether, in given circumstances a case has arisen in which an order of that class can lawfully be made by the Board under the statute, is a question of competence-that is to say, a question of jurisdiction within the meaning the Railway Act. v. THE ......... 2 - Bill of lading - Shipments of bulk grain consigned to order- Delivery of grain by carrier without surrender of bills of lading-Transfer of bills as security for advances-Liability of carrier to transferee-Estoppel.] Eight cars of bulk grain, shipped, consigned to order, on defendant's were purchased by M Co., which acquired the bills of lading and endorsed them to plaintiff as security for advances. As to seven of the cars, defendant delivered the grain to M. Co. while M. Co. held the bills of lading and before its endorsement of them to plaintiff.
As to one car, defendant delivered the grain to M. Co.
after its endorsement of the bill of lading to plaintiff.
Each of the bills was in the standard form approved by the Board of
Railway Commissioners for Canada, and provided that it was "not negotiable unless property is consigned 'to order that "it is mutually agreed, as to each
* * * and as to each party at any time interested in all or any of said bulk grain, that every service to be performed hereunder shall be subject to all the conditions
*
*
*herein contained
*
*
* and which are agreed to by the shipper, and accepted for himself and his assigns;" and that "the surrender of this original bill of lading, roperly endorsed, shall be required before delivery of the bulk grain when consigned 'to order'
*
*
*."
Plaintiff, who had taken the bills without knowing of any defect in M. Co.'s title, sued defendant for the value of the grain, claiming that defendant should not havd delivered the grain to M. Co.
without requiring surrender of the bills.
From the evidence it appeared that frequently a consignee is not able, on delivery of the grain, to deliver the bill of lading, and the practice is for the carrier to deliver the goods upon receiving from the consignee a bond of indemnity; of which practice plaintiff was aware.- Held; As to the seven cars, defendant was not liable. Estoppel was not established.
The bills were not negotiable except in the limited sense that they could be transferred by endorsement, and that when the effect of the transfer was to pass the property in the goods the benefit of the contract passed also; in that view the transfer of the bills to plaintiff as pledgee did not in itself constitute it the assignee of contractual rights under the bill (Brandt v. Liverpool, etc., Nay. Co. Ltd., [1924] 1 K.B. 575, at pp. 594 et seq.); and delivery of the goods to the person entitled, under the bill, to the possession of them at the time of delivery, was a complete answer to any claim based upon an allegation of wrongful dehvery (London Joint Stock Bank v.
British Amsterdam Maritime Agency, 16
Com. Cas. 102, at p. 107).
The phrase in the bill, "each party at any time interested in all or any of said bulk grain"
could not be reasonably extended to apply to persons acquiring an interest in the grain after delivery of it pursuant to the terms of the bill. It could not be said that the form and terms of the bill, or its approval in such form and terms by the Board of Railway Commissioners, manifested an intention to place upon the carrier the burden of protecting transferees by insisting in all cases upon observance of the condition requiring its
RAILWAY-Concluded surrender tn delivery of the goods.- Held, further: As to the bill endorsed to plaintiff before delivery of the grain, the defendant was liable. Plaintiff, as pledge of the bill, acquired, while the goods were still in transit, a special property in the grain.
The fact that the car, originally consigned to Fort William, had been diverted to Winnipeg c/o M. Co. before transfer of the bill to plaintiff, did not amount to constructive delivery for any relevant purpose.-Judgment of the Court of Appeal for Manitoba (36 Man. R. 322) affirming, on equal division of the court, judgment of Macdonald J. (ibid), reversed m part.
Co. HicKMAN 170 3 - Street railway-Door of moving tramcar, wrongfully opened by passenger, striking and injuring person on station platform-Liability of railway company-Granting of "special leave" appeal-Supreme Court Act, 8. 41.... 192 RES JUDICATA
who was a dealer in electrical and radio supplies, contracted with defendant to install in its school
(then under construction) an electric signalling system, including a master clock and secondary clocks. G. had never carried such clocks on his premises as part of his stock in trade, and there was evidence that it was not usual for a dealer in electrical supplies to do so. For the purpose of installing them under his contract with defendant, he bought them from plaintiff under a conditional sale agreement, and they were shipped direct to the school premises. The conditional sale agreement was not filed pursuant to the Conditional Sales Act (R.S.O., 1914, c. 136), but the seller's name and address were plainly set out on the clocks.
G. failed to pay for them, and plaintiff sued defendant for return of the clocks or for their value.- Held, that the delivery to G. was a delivery to "a trader or other person for the purpose of resale by him in the course of business" within s. 3 (3) and that there was a resale by G. "in the ordinary course of his business" within s. 3 (4), of the Conditional Sales Act; that, therefore, under the Act, the property in the goods vested in defendant, and plaintiff could not recover. -Judgment of the Appellate Division of SALE--Continued the Supreme Court of Ontario (61 Ont.
L.R. 85, reversing judgment of Riddell
J.A., ibid) affirmed.
BusINEss v. THE
Payment - Right to inspection - Condition-The Sale of Goods Act, R.S. N.
S.c. 206, s. 35, subs. 2.]
The plaintiffs were grain merchants at Calgary, Alberta, and the defendant company was doing business at Truro, Nova Scotia.
action is brought to recover $4,400
The plaintiffs alleged that the defendant company by telegrams and letters agreed to buy, and plaintiffs agreed to sell, a quantity of oats, approximately 10,000 bushels, at $1.15 per bushel; that defendant company wrongfully repudiated the contract and refused to accept the oats; and that the plaintiffs were obliged to sell and did sell them at
47 cents per bushel. The defendant company alleged that if there was a contract it was terminated by the wrongful refusal of the plaintiffs to ship the oats and to deliver them at Truro as required by the contract, except upon condition that payment was guaranteed by the bank of the defendant company. On the trial a further ground was raised and discussed as to the plaintiff's refusal to ship the goods with permission to defendant company to inspect them before payment.-Held, reversing the judgment of the Supreme Court of Nova Scotia en banc (59 N.S.R. 339), that the right of the purchaser to inspection, in the absence of a term in the contract inconsistent therewith, is determined section 35 (2) of The Sale of Goods Act and that nothing in the terms of the contract in this case was so inconsistent as to preclude the appellant company from inspecting the oats before payment.- Held, also, that the provision for payment to the Bank of Nova Scotia at
Truro by the appellant company on arrival of the car at Truro does not preclude the right of inspection by the purchaser before such payment is made.- Held, further, that, in view of the insistence by the respondents in their letter of the 26th of February, 1925, upon the appellants' obtaining a bank guarantee of the payments of their drafts, not withdrawn so far as the correspondence shews, it cannot be said that they were always ready and willing to make delivery according to the terms of their contract, which is essential to their right to recover upon an anticipatory breach by the appellant company.
CO. STRONG...............
Sale of land--Oldections to title- Claude in agreement providing for rescission in case of ofjections to title which
SALE-Continued vendor is unable or unwilling to remove- Operation of clause-Purchaser claiming right to specific performance with compensation-Contention that vendor by conduct elected. to abandon rights under clause.] An agreement for sale of land provided that "the purchaser is to be allowed 40 days
*
* to investigate the title *
*
If within said 40 days the purchaser shall make any valid objection to title in writing, which the vendor is unable or unwilling to remove and which the purchaser will not waive, this agreement shall be null and void."
The purchaser made requisitions on title, as to some of which the vendor notified him that it was unable to comply.
Some negotiations took place touching an offer by the vendor to substitute other lands for those affected, but without result; and on October 18 the vendor's solicitors wrote the purchaser's solicitors that the vendor was ready to close and unless the transaction was closed by October 25 it would cancel the agreement; and on October 26 orally informed them that the agreement was no longer in force. The purchaser contended (1) that the vendor by its conduct in answering the purchaser's requisitions and in endeavouring remove his objections elected to abandon its rights under the above quoted clause; and (2) that, as the objections in question affected only an insignificant part of the lands he was entitled to insist upon speciAc performance with compensation, and that he should be given adequate time to consider whether or not he should take that course, before the clause was put into operation.- Held, The vendor was within the protection of said clause, and the agreement had been rescinded. The purchaser's first contention failed in point of fact, as he was never misled into a belief that the vendor had assumed the obligation of meeting the demands in the requisitions question.
to the purchaser's second contention, the right to rescind given by said clause was not subject to an over-riding right in the purchaser to insist upon specific performance with compensation, even though, but for that clause, he might, on the facts, have been entitled to such relief; the right given by the clause was for the vendor's protection in just such situations, and to enable him in such circumstances to insist upon receiving the contract price without abatement or to withdraw from the contract
(Ashburner v. Sewell, 3 Ch. 405, at p. 410, cited).-Judgment of the Appellate Division, Ont., affirmed. PAPE Co. LTD. ......... 4 -First class automobile - Nullity- Error as to the substance or essential qualities of the thing sold-Arts. 992, 993 SALE-Concluded
C.C.
BERNIER...........................
5 - Quantity 'not determined-Indication of the place where it is situated-Deficit- Obligation of seller-Breach of contract- Damages-Arts. 1065, 1073, 1074, 1544
C.C.
v. Roy..............
SALES TAX-S. 19 BBB of Special War
Revenue Act, 1915 (c. 8), as amended
(Dom.)-Exemption of "nursery stock" in subs. 4 of s. 19BBB-Cut flowers-Potted plants.] Sales by florists of cut flowers and potted plants are not exempt from the sales tax imposed by s. 19BBB of the
Spectal War Revenue Act, 1915 (c. 8)
(Dom.) as amended, such articles not being covered by the phrase "nursery stock" in subs. 4 of s. 19BBB.
ExcIsE........................
SENATE-Eligibility of women ..... 276
Crown - Collision - Canal - Probable cause accident-Exchequer Court Act a. 20.]
The J.B.K. was proceeding down the
Lachine Canal to Montreal and she had passed through basin no. 1 into lock no. 1 where she was duly moored to the side.
While the water in the lock was being lowered to enable her to pass out, the gates between the basin and the lock, being closed, were subjected to increasing pressure as the water below receded and they gave way releasing the water in the basin and causing the steamer to part her moorings and to break through the lower gates. While the J.B.K. was thus out of control she came into contact with the respondent's tug V., causing damages for the recovery of which action was taken against the Crown.
The trial judge held that, as it appeared upon the evidence that the breaking of the gates could only have occurred if they were not properly mitred by the servants of the Crown in charge thereof, the court should draw that inference of fact and find liability of the Crown for negligence under s. 20 subs. c of the Exchequer Court Act.-HeA that, upon the evidence, there was a preponderance of probability which constituted sufficient ground for the finding of the trial judge; there was ample evidence that a faulty bevel- or mitrejoint would be a not improbable cause of the accident and there was no proof of any competing cause.-Judgment of the
Exchequer Court ([1926] Ex. C.R. 150)
aff. THE KING
V. SINCENNES-MC- LINE LTD ..............
2 - "Space" charter-party-Stevedore- Engagement by charterer-Liability of owners of vessels-Principal and agent- SHIPPING-Concluded
Actual agency-Ostensible agency.] The appellants entered into a "space" charterparty with the Southern Alberta Lumber Company under which the latter agreed to load lumber on appellants' ships. Afterwards the Southern Alberta Lumber Company, as charterer, engaged the respondent to do the stevedoring work. Owing to the bankruptcy of the charterer before the respondent was paid, the latter sued, not the charterer who engaged it but the appellants who owned the ships, alleging agency.
Clause 15 and addendum C of the charter-party read as follows:
"15. (Printed) Cargo to be stowed under the master's supervision and direction, and the stevedore to be employed by the steamer for loading and discharging, to be nominated by the charterers or their agents, at current rates.
"C"
(typewritten)
In connection with clause 15, charterers agree to load and stow cargo for one dollar seventy cents ($1.70) per thousand board feet or its equivalent
* * court of appeal construed the charterparty as constituting agency in fact.- Held, reversing the judgment of the Court of Appeal ([1928] 1 W.W.R. 308), that, although clause 15 without the addendum may support actual agency, the stipulation in the addendum "charterers to load and stow the cargo, etc.," excludes any actual agency of the charterer to engage a stevedore on behalf of the owners of the vessels and thus to render them liable to such stevedore for the cost of the loading and stowing of cargo.- Held, also, that, upon the evidence, there was no ostensible agency of the charterer entailing the same result. When actual authority of an alleged agent has been negatived, a plaintiff seeking to hold the alleged principal liable on the basis of ostensible authority either must shew a holding out by the principal of the alleged agent as .such or must give proof of some custom on which ostensible agency can be predicated.
RODIN LINE S.S. Co. v. Co.. 423 SOLICITOR AND CLIENT
Eligibility of women - Senate............................ See CoNSrrrToNA
LAw 1. STATUTES
(Imp.) B. N.A. Act, 1867, as. 23, 24.. 276 CoNsTIrurIon 2-R.S.C. [1906] c. 139, s. 2 (Supreme Court Act)........................ 3-R.S.C. [1906] c. 139, e. 39 (Supreme Court Act).............154, 396, 432 See 4, 8,
STATUTES-Continued
4-R.S.C. [1906] c. 139, s. 40 (Supreme
Court Act) ............
154, 396
See 4, 8.
5- R.S.C. [1906] 139, s. 41 (Supreme
Court Act)....................192,
See 12.
6- R.S.C. [1906] c. 139, s. 54 (Supreme
Court Act).....................
7-R.S.C. [1906] c. 140, a. 20 (Exchequer
Court Act)......................
See CRowN 2.
8- R.S.C.
[1906] c. 140, s.
38, 82
(Exchequer Court Act) ..............
See CRoww 1.
9- R.S.C. [1927] c. 11, s. 2, subs. 1;
(Bankruptcy Act)...................
10-R.S.C. [1927] c. 11, 64 (Bankruptcy Act).......................
11-(D.) 4-5 Geo. V., c. 8, s.
7a, 18
(Fisheries Act).....................
12-(D.) 5 Geo. V., c. 8, a. 19BBB
(Special War Revenue Act) .........
See TAx.
13-(D.) 9-10 Geo. V., c. 36, s.
60,
74 (3) (Bankruptcy Act) ............
R.S.O. [1914] c. 71, s. 8 (Libel and
Slander Act)...................
15-R.S.O. [1914] c. 75, s. 5, 24 (Limitations Act).......................
16- R.S.O. [1914] c. 136, s. 3 (Conditional Sales Act).................
17-R.S.O. [1914]
c. 141,
6 (2)
(Woodman's Lien for Wages Act) ....
(Mortgagers and Purchasers Relief Acts)
.
.
..................
(Ont.) 10-11 Geo. V., c. 38, 2
(Mortgagors and Purchasers Relief Act)
.................................
20- (Ont.) 12-13 Geo. V., c. 72, s. 460
(Municipal Act)...................
STATUTES-Continued
21-R.S.Q. [1909] s. 5775 (Cities and Towns Act)....................... 22-R.S.Q. [1909] s8. 5936, 5937, 7532, 23- R.S.Q. [1909] s. 7321........ 24-R.S.Q. [1925]
c. 35, s. 53 (2) (Motor Vehicles Act) ............... 25- R.S.Q. [1925] c. 274, s. 2 ...... 26- (Que.) 3 Geo. V., c. 54, s. 43... 384 27-(Alta.) 2-3 Geo. V., s. 290 (Rural Municipality Act) ................. 28-(B.C.) 16 Geo. V., c. 32 (Male Minimum Wage Act) ............... 29- R.S.M. [1913] c. 66, s. 29, 34 (Executors Act).................... See WIFE. 30 - R.S.M. [1913] c. 116, s. 24 (1) (Real Property Limitation Act) ...... 31-R.S.M. [1913] c. 123, ss. 2 5, 14 (Married Women's Property Act).. 32- R.S.M. [1913] c. 133, as. 634, 684 (Municipal Act).................. 33-R.S.M. [1913] c. 171, s. 79 (Real Property Act)..................... See HUSBAND 34- (Man.) 4-5 Geo. V., c. 42 (Good Roads Act)....................... 35-R.S.S. [1920] c. 89 (Rural Municipality Act)...................... R.S.S. [1920] c. 128, ss. 19, 31 (Farm Implement Act).............. 37- R.S.S. [1920] c. 169 (Open Wells See Aumuss.
38-(Sask.) 15 Geo. V., c. 43 (Open Wells Act)......................
39-R.S. N.S.
c. 130 (Power Commission Act)................ STATUTES-Concluded
40-R.S. N.S. [1923] c. 202 (Bulk Sales
41-R.S. N.S. c. 206, s. 35, sub. 2
(Sale of Goods Act).................
42- (N.S.) 9 Geo. V., c. 5 (Water Act)
STREET
SURETY
TAXATION
TIMBER - Crown lands - Timber limits - License - Expiration-Duration
-Fire - Damages-Rights of holders.]
On the 12th of September, 1918, M. & 0.
acquired from the province of Quebec a license to cut timber on the line of the
Transcontinental which license expired on the 30th of
April, 1919.
The license, transferred in
December, 1918, to 0. & D., the appellants, was not renewed until the 11th of
December, 1919.
Such a license could only be granted under s. 3598, R.S.Q.
(1909), for a period of 12 months. The appellants claim damages for destruction of timber on the limit covered by the license, arising from a fire, in June, 1919, alleged to have incurred owing to the negligence of the servants of the railway company.- Held the appellants cannot recover from the Crown the damages claimed. They had no title to the timber at the time it was destroyed by fire and there is no evidence that they were then in possession of the limit nor is such possession alleged. Therefore no retroactive effect can be given to the license subsequently issued in December in such a way as to confer upon the appellants rights as against the railway company.-Judgment of the Exchequer
Court of Canada ([1927] Ex. C.R. 154)
2-Lien-Woodman's Lien for Wages
Act, R.S.O. 1914, c. 141, s. 6 (2)-Claim of lien by sub-contractor.j Subs. 2 of 2. 6 of The Woodman's Lien for Wages Act,
R.S.O. 1914, c. 141, which, in effect, gives a lien to a "contractor," applies only in favour of a person who has made a contract directly with the owner of the timber, and does not give a lien to a sub-contractor for moneys owing to him under a contract made by him with the person who contracted with the owner.- Judgment of the Appellate Division of the Supreme Court of Ontario (32 0 W.N.
407) reversed.
LANGDON.........................
TRADE-MARK - Prior user-Expunging from register. MFG. FunITrruRE MFG. Co............... 2 - Grant of exclusive licensefor Canada as to inventions and trade-mark-Alleged breach of license agreement-Construction of agreement-Licensor's covenant as to proceedings to prevent infringement-Licensee's agreement to operate under the letters patent -Liability for royalties.] TRANSFER OF SHARES
TREATY OF PEACE OF VERSAILLES ..... TRESPASS - Real property - Action for trespass by cutting timber-Plaintiff's title to the land-Construction of deed-Plaintiff' possession as ground of action. TE & Co. v. TRUSTS AND TRUSTEES-Order to trustee-Trustee directed to give notice of assignment of moneys - Discretionary nature of the order-Appeal-Jurisdiction -Pecuniary value attached to the order- Supreme Court Act, 39.
WOLDSON......................... WATERCOURSES - Drainage- Upper and lower riparian owners-Rights of drainage by upper owner-Pollution of water-Drainage of streets by municipality through sewer into watercourse.] Plaintiffs an injunction against defendant city for polluting the waters flowing through a ravine which traversed or bounded their land. They recovered judgment at trial in respect of various acts complained of, but this judgment was modified by the Appellate Division, Alta. (22 Alta. L.R. 457), which held that the city was not liable for alleged pollution caused by certain storm sewers. Against this holding the plaintiffs appealed.
The city had constructed a large storm sewer having its outlet in an arm of the ravine above plaintiffs' land. Its purpose was primarily to carry off the surplus water from streets in the vicinity, but (as found on the evidence) through it discharged into the stream in the ravine, not only surface water, but all filth from the streets; also a mass of dirt was allowed to form and accumulate during the winter in the sewer, and in the spring the rush of water washed this into the stream.-Held (reversing the judgment of the Appellate Division, Smith J. dissenting), that the operation of the sewer as aforesaid violated plaintiffs' riparian rights; and they were entitled to WATERCOURSES-Continued an injunction (failing abatement of the nuisance within the delay allowed) and to damages.-Per Anglin C.J.C. and Rinfret
J.: The common law right of a riparian owner to drain his land into a natural stream affords no defence to an action for polluting the water in the stream; pollution is always unlawful and, in itself, constitutes a nuisance. Broughton v.
Township of Grey (27 Can. S.C.R. 495)
and In re Townships of Oxford and Howard
(18 Ont. A.R. 496) distinguished.-Hl hatever the consequences, and much as the result may cause inconvenience, principle must be upheld that, unless
Parliament otherwise decrees,
"public works must be so executed as not to interfere with private rights of individuals" (Atty. Gen. v. Birmingham, 4
K. & J. 528, cited).-The Edmonton charter, which conferred the relevant powers on the city, did not authorize interference with the inherent right of a riparian owner to have a stream of water "come to him in its natural state, in flow, quantity and quality" (Chasenore v. Richards, 7 H.L.C. 349, at p. 382), except when necessary, and then upon payment of adequate compensation.- Statutory powers should not be understood as authorizing the creation of a private nuisance, unless the statute expressly so states.-Per Duff J.: The existence of a nuisance in fact was established; and the city failed to justify its acts as acts done under its charter powers;
nor could they be justified as an exercise of the common law rights of a riparian owner.-While the making of streets by macadamizing or paving, etc., is a natural use of the land owned by the city, and it is under no duty to intercept rain water which, having fallen from the clouds, is pursuing its way under the impulsion of gravity or other natural forces towards a watercourse, it is not at common law entitled, in its quality of riparian owner, to collect and discharge the filth of the streets through an artificial channel into a watercourse, where it is to settle and remain until the currents generated by the spring thaws carry the mass of it to the lands of lower riparian owners.-Per
Lamont J.: The city had the right to develop its lands in the way cities ordinarily do by constructing and paving streets and lanes, and if, as a result of such user, an increased quantity of street sweepings, horse droppings and other impurities accumulated on its land, and these were washed down by the rain through a natural watercourse to the stream, the plaintiffs, as lower riparian owners had no ground of complaint; but, apart from statutory authority so to do, the city could not by flushing its streets collect these impurities and by means of a storm sewer pour them into a stream the
WATERCOURSES--Continued waters of which the plaintiffs had a right to take for domestic or other purposes; under English law an upper riparian owner "must not discharge his filth on his neighbour's land" (principles laid down in Stollmeyer v. Trinidad Lake Petroleum Co. Ltd., [1918] A.C. 485; Ballard v. Tomlinson, 29 Ch. D. 115; John Young & Co. v. Bankier Distillery Co.,
11893] A.C. 691, applied; In re Townships of Oxford and Howard, 18 Ont. A.R. 496, at p. 505; Gibbonts v. Lenfestey, 84 L.J.P.C. 158 at p. 160, distinguished).
The city's charter did not limit plaintiff's right of action, as the city had taken no statutory proceedings to acquire a right to pour the polluted output of its sewer into the stream.-Smith
J. dissented, holding that the city had a right to drain the surface water from its streets into the storm sewer and through it to the natural watercourse; that there was no evidence of any pollution from this surface drainage other than what would occur in a state of nature; the only kind of pollution shown was such as would naturally be found in any similar stream draining an area where animals were kept.-The sewer, as originally constructed had been cut to provide drainage facilities for a certain district, thus creating a diversion drainage, causing, as plaintiffs complained, a substantial decrease in the quantity of water that would otherwise have gone into the ravine, and thus, by reason of less dilution of the dirt and filth, increasing the dangers of pollution. Dealing with this point, Anglin C.J.C. and Rinfret J. held that the diversion gave plaintiffs no right of action; they had no right to the drainage water collected by the sewer; in complaining against the diversion they were really claiming a right to compel the city to drain into the ravine; diversion of drainage is quite a different thing from diversion of a stream; and, while riparian owners have rights on and to the water flowing in a natural stream, they can claim no right to water in undefined channels or percolating through the earth; and though riparian owners above them may be entitled to drain their lands into the stream, they are not obliged to do so.-As to certain smaller storm sewers discharging into the stream, it was held (sustaining, in this respect, the judgment of the Appellate Division) that, on the evidence as to their operation and the waters discharged thereby, the plaintiffs had no right of action.-Duff and Lamont JJ. pointed out that they had not dealt with the provisions of the Irrigation Act (R.S.C., 1900, c. 61), no question thereon having been raised in the argument.
CrrY WATERCOURSES-Continued
2 - Power development - Nova Scotia
Water Act-Nova Scotia Power Commission Act-expropriation of land by Power
Commission for water power development purposes-Amount of compensation-Finding of jury-Insufficient direction to jury- Factors to be taken into account-New trial.]
Plaintiff was incorporated by c.
181 of 1914, N.S., with comprehensive powers for its purposes of developing water power and producing and selling electric power. It acquired, for $500, about 31J acres of land at Marshall Falls, on East River, Sheet Harbour, Nova
Scotia. In 1919 (c. 5) the Nova Scotia legislature passed the Nova Scotia Water
Act which, among other things, declared that every watercourse and the sole and exclusive right to use, divert and appropriate any and all water in any watercourse was vested forever in the Crown in the right of the Province. There was provision for the Governor in Council authorizing persons to use any watercourse and any water therein on such terms and conditions as the Governor in
Council might deem proper.
The legislature also passed the Power Commission
(1919, c. 6; subsequently, with amendments, consolidated as
130,
R.S.N.S., 1923) by which defendant was incorporated.
Under its powers given by that Act, the defendant proceeded to develop East River, Sheet Harbour, for power purposes; it contracted to supply electrical power to the Pictou County
Power Board (incorporated by c. 165 of
1920); constructed storage dams above
Marshall Falls; and expropriated land, including plaintiff's said land. Plaintiff filed its claim for compensation, and (as authorized under the Power Commission
Act, defendant not having instituted action within the time prescribed) sued in the Supreme Court of Nova Scotia for a declaration that it was entitled to $80,000 as compensation.
At the trial a special jury found the compensation to be
$32,000.
On appeal by defendant, the
Supreme Court of Nova Scotia en banc
(59 N.S. Rep. 524) set aside the finding directed a trial. Plaintiff appealed.-Held, that the direction for a new trial should be affirmed; there was no evidence that the land's agricultural value had increased, or that it had any special suitability except in relation to the development of power at Marshall
Falls; and the jury had not been sufficiently directed so as clearly to apprehend the effect of the Nova Scotia Water Act and the Power Commission Act, and of what had been done pursuant thereto, and of the resultant situation which prevailed, as affecting the plaintiff's rights and prospects, at the time its land was expropriated.-It was pointed out that unless the owner of the land con- WATERCOURSES-Concludedj stituting the dam-site had a right or privilege to use or divert the watercourse or the water, the dam-site was of no utility or value for the manufacture of power, and that subs. 2 of s. 4 of the Nova Scotia Water Act as enacted by c. 75 of 1920, whereby the Governor in Council is empowered to authorize any person to use any watercourse or any water therein for such purposes and on such terms and conditions as are deemed proper or advisable, is not expressed in a manner which points to the grant of a heritable or assignable right; that the use which may be authorized is not a use which goes with the land, and that it was upon the exercise of this power by the Governor in Council that the plaintiff's claim to a value for special adaptability must depend.-The Nova Scotia Water Act discussed and construed, in its bearing on the matters in question.
Co. v. THE ScoTIA POWER MIssioN...................... WILL - Construction of bequest-Ascertainment of class ' benefited-Time as at which class to be ascertained.] J. W. Forbes by his will left property upon trust, after the death of a brother, "to pay the one-half of the interest arising from said investments yearly to my brothers and sisters then living * * * and to the survivors or survivor of them so long as any one of my said brothers and sisters shall live and upon the death of the surviiror of my said brothers and sisters to pay the whole of the principal *
*
* and the interest remaining to my next of kin, of the name 'Forbes' then living."
The testator died a bachelor leaving as next of kin brothers and sisters, who all died leaving no descendants except one brother who left two daughters who survived the last surviving brother or sister of the testator. These daughters were living at the testator's death, but subsequently, and before the death of the testator's last surviving brother or sister, had married and become Mrs. P. and Mrs. R. respectively.- Held, (reversing judgment of the Supreme Court of Nova Scotia en banc, [1927] 3 D.L.R. 70, and restoring judgment of Mellish J.) that the persons who took the principal and remaining interest under said bequest were the testator's nearest of kin in equal degree who bore the name "Forbes" at the time of the death of the testator's last surviving brother or sister; the class was to be ascertained as at the period of distribution, and not as at the time of the testator's death; Mrs. P. and Mrs. R., not bearing the name "Forbes" at the period of distribution, could not take. The principles of construction approved in Hutchinson v. National Refuges for Homeless and Destitute Children, [1920] A.C. WILL-Continued
794, and Lucas-Tooth, [1921]
1 A.C.
594, applied.
Pyot v. Pyot, 1 Ves. Sr.
335, and Carpenter v. Bott, 15 Sim. 606, discussed and distinguished.
MAcQUAnv. ..........
2 - Devise - Contruction-"Children"
-"Sons and daughters *
*
* per stirpes"-Rule in Shelley's case (1 Rep.
93b).]
A testator devised his estate to trustees and made, amongst others, the following dispositions: "To my niece
*
*
*
I give and devise a life estate in
* and after her death to her children in equal shares per stirpes"; and direct that the proceeds derived from such sale be divided among the sons and daughters of my brother
*
*
* in equal shares per stirpes."-Held, that the words "to her children in equal shares per stirpes" are words of designation and denote persons of the first degree of descent only; and that the presence, of the words "per stirpes" does not impart to the phrase
"sons and daughters' a meaning embracing the whole line of descendants capable of inheriting.-No opinion is expressed as to whether or not the rule in Shelley's case
((1581)
1 Rep. 93b) is in force in the province of Alberta, as, assuming it to be in force, it does not apply to the above provisions.-Judgment of the Appellate
Division ([1927]
3 W.W.R.
534) aff.
ESTATE.............
3- Vesting - Direction t.odivide at future time.]
A testator's will, after providing for collection and payment of debts and for certain specific legacies, provided for sale of certain property, comprising the residue of his estate, and investment of the proceeds and payment of the interest for the maintenance of his wife and daughter A until
A (who, however, predeceased the testator) attained 21 years of age, and, on A attaining 21 years of age or dying, for payment of $400 of interest to his wife annually during her life, and then provided that "any money remaining after the payment of said $400 shall be equally divided among my children
*
*
* the issue of any deceased child to take parent's share.
On the death of my wife the whole of my property shall be divided between my children (the issue of any deceased child shall be entitled to parent's share) said division to be in equal shares."- Held, that the estate of any deceased child of the testator who died in the lifetime of the testator's
WILL-Concluded widow and left no issue him surviving was not entitled to share in the income from the said residue or in the corpus when divided on the widow's death.- The following passage from Williams on Executors, 11th ed. p 981, quoted with approval: "Where thiere is no gift but by a direction to pay, or divide and pay, at a future time, or on a given event, or to transfer "from and after" a given event, the vesting will be postponed till after that time has arrived, or that event has happened, unless, from particular cicrumstances, a contrary intention is to be collected."-Judgment of the Supreme Court of Nova Scotia en banc (59 N.S. Rep. 486) reversed.
WOMEN-Eligibility of-Senate.... 276 WORDS AND PHRASES
"Accessible to stock"................ "Gateways".................... 106 "Nursery stock"................ "Qualified persons" ................
"Select territory".................. "Settlements" (in s. 60 of the Bankruptcy Act)...................
WORKMEN'S COMPENSATION Municipal employee-Cleaning streets and occasionally working in "dangerous" premises-Injury-Compensation (1909) s. 7321-R.S.Q. (1925), c. 274, s. 2.] An employee of a municipal corporation, whose main duties are those of cleaning streets and repairing sidewalks, but who occasionally does some work on municipal premises "in which machinery is used, moved by power other than that of men or of animals," is not entitled to claim under the Workmen's Compensation Act, if he be injured while performing his usual work upon the streets of the municipality.-Judgment of the Court of King's Bench (Q.R. 43 K.B. BRASSARD........................
Cases cited
- Brooks v. The King scr-1927-633
- Boivin v. Larue, Trudel & Piché / In re N.H. Gilbert scr-1925-275
- In re Hudson Fashion Shoppe, Ltd. scr-1926-26
- Hamilton v. G. H. Evans scr-1923-1
- Bridge v. Eggett scr-1928-154
- Compagnie de Jésus v. Cité de Montréal scr-1925-120
- 1 A.C. 191 1 A.C. 191
- 2 A.C. 125 2 A.C. 125
- Dominion of Canada Guarantee & Accident Co. v. Housing Commission of the City of Halifax scr-1927-492
- 1 A.C. 631 1 A.C. 631
- A.C. 695 A.C. 695
- Gouin v. The King scr-1926-539
- A.C. 599 A.C. 599 p 616
- A.C. 691 A.C. 691
- A.C. 15 A.C. 15
- 1 A.C. 594 1 A.C. 594
- A.C. 480 A.C. 480 pp 390
- A.C. 57 A.C. 57 p 70
- Ontario Metal Products Co. v. Mutual Life Ins. Co. scr-1924-35 p 41
- A.C. 545 A.C. 545
- In Re J.H. Roberts scr-1923-152
- Rural Municipality of Victory v. Saskatchewan Guarantee & Fidelity Co., Ltd. scr-1928-264
- 2 W.W.R. 1 2 W.W.R. 1
- 2 W.W.R. 692 2 W.W.R. 692
- 1 W.W.R. 308 1 W.W.R. 308
- Stollmeyer v. Trinidad Lake Petroleum Co. Ltd. A.C. 485
- 3 D.L.R. 70 3 D.L.R. 70
Statutes and regulations cited
-
- s. 38
- s. 38 of the Exchequer Court Act
- s. 82 of the Exchequer Court Act
- s. 39
- s. 1025
- section 1025
- ss. 39
- 1025
- s. 82
- s. 20.1
- s. 20
- s. 3598
- ss. 5
- s. 79
- ss. 29
- 34
- s. 5
- s. 29
-
- s. 36 of the Supreme Court Act
- s. 36
- s. 5775
- s. 64
- s. 63
- s. 42
- ss. 23
- 24
- section 24
- s. 23
- sections 23
- section 18
- s. 14
- s. 15
- s. 24
- s. 57
- s. 57 of the Supreme Court Act
- s. 8
- s. 55
- s. 4
- 3
- s. 53
- s. 7321
- s. 41 of the Supreme Court Act
- s. 51
- section 53
- s. 35
- Section 8
- Section 3
- section 4
- sections 3
- 4
- section 3
- ss. 3
- s. 3
- section 35
- s. 41
- s. 54
-
- s. 43
- Section 43
- s. 9
-
Unresolved citations
- s. 1
- ss. 26
- 28
- s. 4
- s. 4 of The Open Wells Act
- s. 60 of the Bankruptcy Act
- section 60 of the Bankruptcy Act
- s. 45 of the Fisheries Act, 1914
- (a)
- (b)
- s. 123 of the Winding-up Act
- ss. 5
- 24 of The Limitations Act
- s. 2 of The Mortgagors' and Purchasers' Relief Act, 1920
- ss. 2
- 3 of The Mortgagors' and Purchasers' Relief Act
- ss. 634
- 684 of the Municipal Act
- s. 634 of the Municipal Act
- s. 4 of the Nova Scotia Water Act